Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Georgia (Ratification: 1999)

Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee takes note of the observations of the Georgian Trade Union Confederation (GTUC) received on 20 September 2021 referring to the certain matters addressed by the Committee below and raising other concerns examined under the observation pertaining to the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98) .

Article 2 of the Convention. Minimum membership requirement. In its previous comments, the Committee, while welcoming the amendment of section 2(9) of the Law on Trade Unions, which lowered the minimum membership requirement for establishing a trade union from 100 to 50, expressed the hope that the Government would pursue, in consultation with the social partners, efforts to assess the law’s impact and would take the necessary measures to amend the law if it was found that the new minimum number required still hindered the establishment of trade unions in small and medium-sized enterprises. The Committee notes with satisfaction the Government’s indication that section 2(9) of the Law on Trade Unions was amended on 29 September 2020 so as to further lower the minimum membership requirement for establishing a trade union to 25. The Committee notes with interest the GTUC indication that trade unions participated in the reform.

Article 3. Right of workers’ organizations to freely organize their activities and formulate their programmes. The Committee had previously requested the Government to amend section 51(2) of the Labour Code according to which, the right to strike was prohibited in services connected with the safety of human life and health or if the activity “cannot be suspended due to the type of technological process”, as well as Order No. 01-43/N of 6 December 2013, which determined the list of services connected with the life, safety and health (pursuant to section 51(2) of the Code) and included services which did not constitute essential services in the strict sense of the term (radio, television, municipal cleaning services, oil and gas extraction, production, oil refining and gas processing). The Committee notes with satisfaction that following the 2020 amendment of the Labour Code and adoption, on 7 September 2021, of the Order on Approval of the List of Essential Services, which replaced the Order of 2013, employees working for essential service providers may exercise the right to strike if they ensure that a minimum service is provided to meet the users’ basic needs and ensure that the service in question operates safely and without interruption (section 66 of the Labour Code, replacing the regulation of essential services formerly contained in section 51(2)). The Committee notes that services listed in the new Order are either essential services in the strict sense of the term or services of fundament importance in relation to which a minimum service may be established. The Committee notes that according to the new Order, the organization of the minimum service and related subjects (including the minimum number of workers providing the service) should be negotiated and agreed between the subjects of collective labour dispute and that any disagreement should be settled by the court. The Committee further notes that pursuant to section 66 of the Labour Code, the limits of a minimum service shall be determined by the Minister after consulting social partners and that in determining the limits of a minimum service, the Minister shall only take into account the work processes that are necessary for the protection of the life, personal safety, or health of society-at-large or a certain part of society.

The Committee had also previously requested the Government to review section 50(1) of the Labour Code according to which courts could postpone or suspend a strike for no more than 30 days if there existed a danger to the life or health of people, environmental safety or a third party’s property as well as to activities of vital importance, and to indicate any use of this provision as relates to the suspension of a strike due to a danger to third-party property. The Committee notes with satisfaction that as a result of the amendments introduced in 2020, the reference to a third party’s property has been deleted (section 65 of the Labour Code).

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 3 of the Convention. Right of workers’ organizations to freely organize their activities and formulate their programmes. In its previous comments, the Committee had requested the Government to indicate whether strikes can be legally carried out on grounds not explicitly listed in section 47(3) of the Labour Code, which sets the grounds that give rise to labour disputes with respect to: (i) violation of human rights and freedoms stipulated in the Georgian legislation; (ii) violation of an individual employment contract or a collective agreement; and (iii) disagreement between the employer and the employee regarding the essential terms of the individual employment contract and/or the conditions of a collective agreement. The Committee had further requested the Government to indicate whether strikes not directly resulting from a dispute between the employer and his/her employees, such as general strikes related to the country’s economic and social policy, could be legally carried out. The Committee understands from the Government’s report that organisations can carry out any action not prohibited by the law, including any action not expressly provided for by the law. It further notes the Government’s indication that it is for the courts to determine the legality of a strike action. The Government transmits a copy of a case where, according to the Government, the court has considered that the solidarity strike was legal. The Committee takes due note of this information.

The Committee had previously requested the Government to amend section 51(2) of the Labour Code according to which, the right to strike is prohibited in services connected with the safety of human life and health or if the activity “cannot be suspended due to the type of technological process”, as well as Order No. 01-43/N of 6 December 2013, which determines the list of services connected with the life, safety and health (pursuant to section 51(2) of the Code) and includes some services which do not constitute essential services in the strict sense of the term (radio and television (under point (e) of the Order), municipal cleaning services (point (i) of the Order), oil and gas extraction, production, oil refining and gas processing (point (l) of the Order)). In this respect, the Committee considered that in such services, as well as in services which cannot be interrupted due to the technological process, minimum services could be appropriate as a possible alternative to the prohibition of strike action in order to ensure that users’ basic needs are met or that facilities operate safely or without interruption. The Committee had also requested the Government to specify services that cannot be suspended due to technological processes. The Committee had further requested the Government to review section 50(1) of the Labour Code according to which courts can postpone or suspend a strike for no more than 30 days if there exists a danger to the life or health of people, environment safety or a third party’s property as well as to the activities of vital importance, and to indicate any use of this provision as relates to the suspension of a strike due to a danger to third-party property. The Committee takes note of the copy of a 2016 Tbilisi civil court ruling which, according to the Government, deals with the postponement of a strike. The Committee will examine it once the translation thereof is available. The Committee notes the Government’s indication that the feasibility of amendments to sections 50(1) and 51(2) of the Labour Code and to Order No. 01-43/N is being discussed with the relevant State institutions and social partners, and that results of the discussions will be submitted to the Tripartite Social Partnership Commission for decision. The Committee trusts that the Government will pursue its efforts in this regard, in consultation with the social partners, and hopes that the amendments to sections 50(1) and 51(2) of the Labour Code and to Order No. 01-43/N will be adopted in the near future. The Committee requests the Government to provide information on all developments in this regard.

Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee takes due note of the Government’s reply to the observations of the International Trade Union Confederation (ITUC), Education International (EI), the Educators Scientists Free Trade Union of Georgia (ESFTUG) and the Georgian Trade Union Confederation (GTUC) received respectively on 1, 17 and 29 September 2014 and referring to the issues raised by the Committee below. The Committee further takes note of the observations of the ITUC and the GTUC received on 4 September 2017 referring to the alleged use of force by the authorities during a peaceful protest and the Government’s reply thereon.

Article 2 of the Convention. Minimum membership requirement. In its previous comments, the Committee had welcomed the amendment of section 2(9) of the Law on Trade Unions so as to lower the minimum membership requirement for establishing a trade union from 100 to 50. The Committee had requested the Government to review, in consultation with the most representative workers’ and employers’ organizations, the impact of the amendment in practice and to take steps for its amendment if it is found that the new minimum number required still hinders the establishment of trade unions in small and medium-sized enterprises. The Committee notes the Government’s indication that the consultations concerning section 2(9) of the Law on Trade Unions have started and the result of it will be transmitted to the Tripartite Social Partnership Commission for decision, which will be then transmitted to the Committee. The Committee hopes that the Government will pursue, in consultation with the social partners, its efforts in assessing the impact of the amendment of section 2(9) of the Law on Trade Unions and will take the necessary measures for its amendment in the near future if it is found that the new minimum number required still hinders the establishment of trade unions in small and medium-sized enterprises. The Committee requests the Government to supply information on all progress made in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 3 of the Convention. Right of workers’ organizations to freely organize their activities and formulate their programmes. The Committee notes that section 47(3) of the Labour Code sets the grounds that give rise to labour disputes – either individual or collective with respect to: (i) violation of human rights and freedoms stipulated in the Georgian legislation; (ii) violation of an individual employment contract or a collective agreement; and (iii) disagreement between the employer and the employee regarding the essential terms of the individual employment contract and/or the conditions of a collective agreement. The Committee notes that the Georgian Trade Unions Confederation (GTUC) alleges that the (restrictive) definition of the grounds for collective labour disputes contained in section 47(3) of the Code directly restricts the right to strike since, according to the Code, strikes are a result of a collective dispute. The GTUC adds that under section 47(3), general strikes, sympathy strikes or strikes related to occupational health and safety issues would be considered illegal. The Committee requests the Government to indicate whether strikes can be legally carried out on grounds not explicitly listed in section 47(3) and whether strikes not directly resulting from a dispute between the employer and his/her employees, such as general strikes related to the country’s economic and social policy, can be legally carried out.

The Committee notes section 51(2) of the Labour Code according to which, the right to strike is prohibited in services connected with the safety of human life and health or if the activity “cannot be suspended due to the type of technological process”. The Committee notes the Government’s indication that a list of services connected with the life safety and health is determined by Order No. 01-43/N of 6 December 2013. The Committee notes that the list, provided by the Government, includes some services which do not constitute essential services in the strict sense of the term (that is, those the interruption of which would endanger the life, personal safety or health of the whole or part of the population). In this respect, the Committee considers that in services which cannot be interrupted due to the technological process, as well as in services such as radio and television (under point (e) of the Order), municipal cleaning services (point (i) of the Order), oil and gas extraction, production, oil refining and gas processing (point (l) of the Order), which do not constitute essential services in the strict sense of the term, minimum services could be appropriate as a possible alternative to the prohibition of strike action in order to ensure that users’ basic needs are met or that facilities operate safely or without interruption. The Committee therefore requests the Government to amend section 51(2) of the Labour Code and the abovementioned Order accordingly and to indicate all measures taken in this respect. The Committee further requests the Government to specify what services cannot be suspended due to the technological processes under the terms of section 51(2) of the Code.

The Committee notes the GTUC’s observations regarding section 50(1) of the Labour Code according to which courts can postpone or suspend a strike for no more than 30 days if there exists a danger to a human being’s life or health, environment safety or a third party’s property as well as to the activities of vital importance. The GTUC states that this provision is potentially very restrictive as any strike may have an impact on third-party companies having business relationships with the company where the strike is taking place. Recalling that apart from the armed forces and the police, the members of which may be excluded from the scope of the Convention in general, other restrictions on the right to strike may relate to: (i) public servants exercising authority in the name of the State; (ii) essential services in the strict sense of the term; and (iii) situations of acute national or local crisis, the Committee requests the Government to review section 50(1) of the Labour Code accordingly and to indicate any use of this provision as relates to the suspension of a strike due to a danger to third-party property.

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2014. The Committee also notes the observations of the International Trade Union Confederation (ITUC), of Education International (EI) and the Educators and Scientists Free Trade Union of Georgia (ESFTUG) and of the Georgian Trade Union Confederation (GTUC) received respectively on 1, 17 and 29 September 2014. While noting the Government’s reply to the 2013 GTUC observations, the Committee requests it to provide detailed comments on the 2014 trade union observations mentioned above.

Article 2 of the Convention. Minimum number of affiliates to establish a workers’ organization. In its previous comments, the Committee had requested the Government to amend section 2(9) of the Law on Trade Unions so as to lower the minimum membership requirement for establishing a trade union set at 100. In this respect, the Committee notes the Government’s indication that the mentioned provision was amended on 22 June 2012 with the effect of lowering to 50 persons the mentioned requirement. While welcoming this positive step, the Committee recalls that although the requirement of a minimum number of affiliates is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered, especially in small and medium-sized enterprises. The Committee therefore requests the Government to review, in consultation with the most representative workers’ and employers’ organizations, the impact of this change in practice and to take steps for its amendment if it is found that the new minimum number required still hinders the establishment of trade unions in small and medium-sized enterprises.

Article 3. Right of workers’ organizations to freely organize their activities and formulate their programmes. The Committee welcomes the Government’s indication that the amendments to the Labour Code adopted on 12 June 2013 develop a new mechanism for collective labour dispute resolutions and take into consideration the Committee’s comments. As a result of the revision of the Labour Code, the Committee notes with satisfaction: (i) the abrogation of former section 48(5) that allowed any party to submit a dispute to the court or to arbitration if an agreement had not been reached within 14 days and the adoption of new section 48(8) according to which parties can jointly agree at any stage to refer the dispute to arbitration; (ii) the lifting of the limits on strike duration that were imposed by former section 49(8) of the Code; and (iii) the elimination of section 51(4) and (5) of the Code that deemed illegal the strikes carried out by employees informed about termination of their contract before the dispute had arisen as well as the strikes carried out by time-based contract workers after the expiration of the term of their contract.

The Committee is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments submitted by the Georgian Trade Union Confederation (GTUC) and the International Trade Union Confederation (ITUC) in communications dated 3 September 2010 and 4 August 2011, respectively, concerning restrictions on the right to strike and other matters examined by the Committee below. The Committee notes the Government’s reply to the comments of the ITUC.

Law on Trade Unions. The Committee had previously requested the Government to amend section 2(9) of the Law so as to lower the minimum trade union membership requirement set at 100 and to indicate the impact of this provision on the establishment of trade unions at the branch or sectoral levels, including information on the number of such trade unions and their respective membership. The Committee notes that in its report, the Government indicates that the Law on Trade Unions was adopted in 1997, prior to the ratification of the Convention; thus, by virtue of article 6 of the Constitution, according to which, ratified international conventions are part of national legislation and prevail over other legal acts, Convention No. 87 prevails over the Law on Trade Unions. The Government further indicates that according to the Civil Code, trade unions are non-commercial organizations and there are no restrictions as to the number of their members for the purpose of registration. According to the Government, in practice, there are numerous trade unions with the membership of lower than 100 persons. The Government lists in this respect the following examples: Ministry of Culture, Monument Protection and Sport – 80 trade union members, Ministry of Economic Development – 80 trade union members, and JSC Bank of Georgia – 80 trade union members. The Government further asserts that in practice, there are no cases of refusals to register a trade union by the National Registry Agency. Finally, the Government argues that it is not aware of any ILO document which sets up a minimum trade union membership requirement. The Committee recalls that a high minimum membership requirement restricts the right of workers to establish and join organizations of their own choosing without previous authorization and is incompatible with Article 2 of the Convention. It further recalls that it had always considered that the minimum requirement of 100 workers to establish unions by branch of activity, occupation or for various occupations is too high and should be reduced. While taking note of the examples provided by the Government, the Committee understands that they appear to refer not to the number of members of a particular trade union, but rather to a number of trade unions members at a particular entity (organization or undertaking). Furthermore, while taking due note of the Government’s indication that the Convention prevails over the Law on Trade Unions, the Committee stresses that it is the Government’s responsibility to ensure the application of the Convention in law and in practice. It therefore trusts that the Government’s next report will contain information on the measures taken or envisaged to amend section 2(9) of the Law on Trade Unions so as to lower the minimum trade union membership requirement.

Labour Code. The Committee had previously noted section 49(5) of the Code providing that, after the warning strike, the parties shall participate in the amicable settlement procedures pursuant to the Labour Code. The Committee had noted, however, that the Labour Code did not provide for such a procedure and requested the Government to give consideration to appropriate mechanisms of conciliation, mediation or voluntary arbitration instead. The Committee notes that the Government reiterates that amicable settlement procedures are regulated by section 48 of the Code in sufficient detail. The Committee once again notes that, under this section, such procedures involve: (1) a written notice of commencement of the amicable procedure reflecting the grounds of dispute and claims by one party; (2) a review of the notice by the other party and its reply; and (3) written decision by the representatives of the parties, which would become a part of the existing contract of employment. Furthermore, if no agreement has been reached within 14 days, the “other party is entitled to apply to court or arbitration” (section 48(5)). The Committee understands that this section, while describes the process, does not provide for a specific mechanism (procedure) to facilitate dispute settlement between the parties. The Committee recalls that dispute settlement procedure usually involves a neutral and independent third party, in whom the parties have confidence, and who could facilitate breaking a stalemate which the parties are unable to resolve themselves. The Committee notes that the Government, on the one hand, recognizes the need to develop mechanisms of conciliation and mediation to help reduce the incidence of disputes and, on the other, indicates that a special tripartite Working Group of the Tripartite Social Partnership Commission is empowered to mediate labour disputes. The Committee requests the Government to provide information on the work of the tripartite Working Group as to the dispute mediation, including on the number of labour disputes it had conciliated and/or mediated. It recalls that the Government may avail itself of the technical assistance of the Office in respect of the developing and strengthening collective labour disputes conciliation and mediation mechanisms if it so wishes.

With regard to section 48(5) of the Code, according to which, if an agreement is not reached within 14 days, one of the parties is entitled to submit the dispute to the court or arbitration, the Committee had recalled that a provision which permitted either party unilaterally to submit the dispute for compulsory arbitration effectively undermined the right of workers to call a strike. The Committee requested the Government to take the necessary measures to amend this provision so as to ensure that recourse to arbitration is limited only to situations where the right to strike can be restricted or banned, that is in: (1) essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); (2) the public services only for public servants exercising authority in the name of the State; or (3) in the event of an acute national or local emergency. The Committee notes that the Government reiterates that recourse to the arbitration is not compulsory and that a strike can be declared regardless of whether an appeal to court or arbitration had been filed. The Committee also notes the Government’s indication that parties can refer the dispute to the arbitration only upon mutual consent and that an arbitration decision is final only if there is a preliminary consent of both parties to this effect. At the same time, the Government explains that pursuant to section 48(5), if in the course of the dispute, an agreement has not been reached within 14 days or if a party has avoided to participate in the amicable settlement, the other party is entitled to apply to court or arbitration and/or continue to exercise the right to strike. The Committee notes that the latter explanation of the Government appears to confirm that one of the parties can submit the dispute to the court or arbitration if the conditions set forth by section 48(5), as mentioned above, are satisfied. The Committee therefore reiterates its previous request and asks the Government to indicate measures taken or envisaged to amend section 48(5) of the Code so as to ensure that recourse to arbitration by one party to the dispute is limited to the abovementioned cases.

The Committee had previously requested the Government to repeal section 49(8) of the Code, which provides that a strike could not continue for more than 90 calendar days. The Committee notes that in the Government’s opinion, this provision is in conformity with the Convention, as the latter does not prohibit limitations on the duration of the strike. While noting the Government’s indication that after the expiration of 90 days, another strike can be declared by the union with regard to the same issue, the Committee considers that a legislation limiting duration of the strike to 90 days seriously undermines one of the essential means through which workers and their organizations may promote and defend their economic and social interests. The Committee considers that the right to strike should not be restricted through predetermined limitation on the duration imposed by the legislation and requests the Government to take the necessary measures to repeal this provision.

The Committee had further requested the Government to amend section 51(2) of the Code, which prohibits strikes in sectors where “work is impossible to suspend due to the technological mode of work”. Instead of prohibition of strikes in such services, the Committee suggested establishing a system of minimum services. The Committee notes that the Government reiterates that section 51(2) sets the minimum services requirement. The Committee points out, however, that this provision refers to the prohibition of strikes, without any reference to the system of minimum services and conditions thereof. The Committee notes, nevertheless, the Government’s indication that it will discuss the possibility of amending this section in the framework of the Tripartite Social Partnership Commission. The Committee trusts that the Government’s next report will contain information on the measures taken or envisaged to amend section 51(2) of the Code.

Finally, the Committee had requested the Government to amend section 51(4) and (5) of the Code providing that a strike by employees informed about termination of their contract before the dispute arises is illegal and that, if the right to strike arises before the termination of the time-based contract, the strike is considered illegal after the expiration of the term of the contract. The Committee notes that the Government while indicating that strike shall not serve as a ground for termination of labour relations (section 49(10) of the Labour Code), confirms that after the termination of the labour contract the strike is indeed considered illegal. The Committee therefore once again requests the Government to take the necessary measures in order to amend section 51(4) and (5) of the Code and to indicate measures taken or envisaged in this respect.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments made by the Georgian Trade Union Confederation (GTUC) in a communication dated 27 August 2008, the observations made thereon by the Georgian Employers’ Association (GEA), as well as the Government’s reply. The Committee also notes that the GTUC submitted allegations referring to the same matters to the Committee on Freedom of Association.

The Committee recalls that its previous comments concerned the Law on trade unions and the Labour Code of 2006. It notes that, in its report, the Government indicates that a memorandum was signed between the Ministry of Health, Labour and Social Affairs (MoHLSA), the GTUC and the GEA with a view to institutionalizing social dialogue in the country. Since then, the social partners have been regularly holding sessions to discuss issues concerning the labour legislation with an emphasis on the issues of compliance with Conventions Nos 87 and 98. The Committee further notes with interest that, in line with the conclusions of the Conference Committee on the Application of Standards, over the course of 2009, the ILO has been providing technical support to the tripartite constituents to advance the process of dialogue and the review of the labour legislation. The Committee further notes with interest the holding in October 2009 of an ILO tripartite round table in Tbilisi which discussed the current status of national labour legislation, application of Convention No. 87 and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and promotion of tripartism in Georgia. The Committee also notes with interest Decree No. 335 of 12 November 2009 issued by the Prime Minister of Georgia, which formalized and institutionalized the National Social Dialogue Commission, as well as the creation of a tripartite working group to review and analyse the conformity of the national legislation with the findings and recommendations of the Committee and to propose the necessary amendments. The Committee hopes that any proposed amendments will take into account its comments and requests the Government to provide information on the developments in this regard.

Law on trade unions. The Committee had previously requested the Government to amend section 2(9) of the Law on trade unions so as to lower the minimum trade union membership requirement set at 100. The Committee notes the Government’s indication that this requirement concerns establishment of trade union confederations and not of primary trade unions. The Government provides examples of primary trade unions with a membership below 100 persons. The Committee notes that, according to section 2(3) of the Law, trade unions can be established at any enterprise, institution, organization and other places of work, and that, according to section 2(6), “a trade union should be formed on a sectoral, territorial and other basis of the occupational nature”. According to section 2(7), “trade unions are entitled to form primary trade unions at the enterprises, institutions and other places of work”, and “nation-wide trade union organizations and associations (federations) … regional, district, town trade union organizations and associations, as well as trade union organizations and associations and the enterprises and institutions”. The Committee understands that section 2(9) refers to trade unions and not primary trade unions, which are regulated under section 3(9) and indeed require 15 members for their establishment. The Committee further notes that section 2(9) refers expressly to “trade unions”, that is trade unions established on a sectoral, industrial, occupational and other levels pursuant to section 2(6) and not to “confederations of trade unions”. The Committee considers that the minimum requirement of 100 workers to establish unions by branch of activity, occupation or for various occupations is too high and should be reduced. The Committee therefore once again requests the Government to provide information with its next report on the measures taken or envisaged to amend section 2(9) of the Law on trade unions so as to lower the minimum trade union membership requirement and, in the meantime, to indicate the impact of this provision on the establishment of trade unions at the branch or sectoral levels, including information on the number of such trade unions and their respective membership.

Labour Code. The Committee had previously noted section 49(5) of the Code providing that, after the warning strike, the parties shall participate in the amicable settlement procedures pursuant to the Labour Code. The Committee had noted, however, that the Labour Code did not provide for such a procedure and requested the Government to give consideration to appropriate mechanisms of conciliation, mediation or voluntary arbitration instead. The Committee notes that, according to the Government, amicable settlement procedures are provided for in section 48 of the Code. The Committee notes that, under this section, such procedures involve: (1) a written notice of commencement of the amicable procedure reflecting the grounds of dispute and claims by one party; (2) a review of the notice by the other party and its reply; and (3) written decision by the representatives of the parties, which would become a part of the existing contract of employment. If no agreement has been reached within 14 days, the “other party is entitled to apply to court or arbitration” (section 48(5)). The Committee considers that the legislation could establish specific mechanisms to facilitate dispute settlement between the parties. Such procedures could involve a neutral and independent third party, in whom the parties have confidence, and who could facilitate breaking a stalemate which the parties are unable to resolve themselves. Noting that in its report the Government recognizes the need to develop mechanisms of conciliation and mediation to help reduce the incidence of disputes, the Committee requests the Government to indicate the concrete measures taken to that end.

With regard to section 48(5) of the Code, according to which, if an agreement is not reached within 14 days, one of the parties is entitled to submit the dispute to the court or arbitration, the Committee had recalled that a provision which permitted either party unilaterally to submit the dispute for compulsory arbitration effectively undermined the right of workers to call a strike. The Committee requested the Government to take the necessary measures to amend this provision so as to ensure that recourse to arbitration is limited only to situations where the right to strike can be restricted or banned, that is in: (1) essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); (2) the public services only for public servants exercising authority in the name of the State; or (3) in the event of an acute national emergency. The Committee notes the Government’s indication that recourse to the court of arbitration is not compulsory and an employee can declare a strike regardless of whether an appeal was filed or not. The Committee understands that, under section 48(5), the results of the arbitration (or court) procedure are compulsory and would therefore render meaningless the right to strike. The Committee therefore reiterates its previous request and asks the Government to indicate measures taken or envisaged to amend section 48(5) of the Code.

The Committee had also noted section 49(8) of the Code, which provided that a strike could not continue for more than 90 calendar days. The Committee notes that, in the Government’s opinion, this provision is in conformity with the Convention, as the latter does not provide for the right to hold strikes of unlimited duration. With regard to the duration of the strike, the Committee considers that a legislation limiting duration of the strike to 90 days seriously undermines one of the essential means through which workers and their organizations may promote and defend their economic and social interests. The Committee considers that the right to strike should not be restricted though predetermined limitation on the duration imposed by the legislation and requests the Government to take the necessary measures to repeal this provision. The Government may wish to consider, however, establishing a system of negotiated minimum services when dealing with a strike in non-essential services, which due to its extent and duration endangers the normal living conditions of the population.

The Committee had further requested the Government to amend section 51(2) of the Code, which prohibited strikes in sectors where “work is impossible to suspend due to the technological mode of work”. Instead of prohibition of strikes in such services, the Committee suggested establishing a system of minimum services. The Committee notes the Government’s indication that section 51(2) sets the minimum services requirement. The Committee points out, however, that this provision refers to the prohibition of strikes, without any reference to the system of minimum services and conditions thereof. With regard to the minimum service, the Committee recalls that such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 161). The Committee therefore once again requests the Government to amend section 51(2) of the Code taking into account the above principle and to indicate measures taken or envisaged in this respect.

Finally, the Committee had requested the Government to amend section 51(4) and (5) of the Code providing that a strike by employees informed about termination of their contract before the dispute arises is illegal and that, if the right to strike arises before the termination of the time-based contract, the strike is considered illegal after the expiration of the term of the contract. The Committee notes that the Government confirms that after the termination of the labour contract the strike is considered illegal and indicates that there is no need for an amendment of the Code in this regard. The Committee draws the Government’s attention to the situations (mentioned above) when the right to strike can be restricted or prohibited. It notes furthermore that the prohibition imposed on workers in section 51(4) and (5) would run counter to the workers’ right to go on sympathy and protest strikes, which, according to the Government’s indication, are legal under the national legislation. The Committee therefore requests the Government to take the necessary measures in order to amend section 51(4) and (5) so as to bring it in line with the above principle and to indicate measures taken or envisaged n this respect.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report.

Labour Code (2006). The Committee recalls that it had previously noted the new Labour Code and raised in its respect the following points.

The Committee had noted section 46(1) of the Code, which provides that an employee’s rights may be limited by the labour contract and requested the Government to indicate how this section is used in practice. The Committee notes the Government’s indication that there is no information on the use of this provision in practice. The Committee once again expresses its concern over the impact this section might have on the exercise of the legitimate trade union rights. It requests the Government to consider amending this section so as to explicitly state that fundamental rights and freedoms at work could not be limited by a labour contract and to keep it informed of the measures taken or envisaged in this respect.

The Committee had requested the Government to clarify the scope of sections 49(1) of the Code, as to indicate whether workers could go on strike regarding interests, disputes or in respect of a violation of conditions of work contained in an existing collective agreement. It further requested the Government to indicate whether recourse to sympathy strikes and to protest strikes was permitted under the new legislation. Finally, in respect of the same section, it requested the Government to specify categories of workers not authorized to participate in the strike. The Committee notes the Government’s indication that workers may go on strike in respect of a violation of conditions of work contained in an existing collective agreement. The Committee recalls that organizations responsible for defending workers’ socio-economic and occupational interests should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and the standard of living. Moreover, workers should be able to take a sympathy strike action (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 165 and 168). The Committee therefore requests the Government to take the necessary measures to review section 49(1) of the Code in light of the above and the basic notion that the right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their socio-economic interests. The Committee requests the Government to keep it informed of the measures taken in this respect. The Committee notes the Government’s indication that strike action is prohibited in Georgian intelligence services, public security services, Office of the Public Prosecutor, special service of the state security and police.

The Committee had noted section 49(8) of the Code, which provided that a strike could not continue for more than 90 calendar days, and requested the Government to give consideration to appropriate mechanisms of conciliation, mediation or voluntary arbitration instead. The Committee notes the Government’s indication that the tradition of using such methods of dispute resolution is not developed in the country, therefore, providing for such mechanisms in detail in the legislation would be ineffective at the present stage. The Committee notes in this respect that section 49(5) provides that, after the warning strike, the parties shall participate in the amicable settlement procedures pursuant to the Labour Code. The Committee notes, however, that the Code does not provide for such procedure. The Committee considers that no arbitrary periods of limitations should be placed on the right to strike and requests the Government to take the necessary measures to repeal this provision. It further once again suggests to the Government to give consideration to mechanisms of conciliation, mediation or voluntary arbitration instead.

The Committee had requested the Government to amend section 51(2) of the Code, which prohibits strikes in sectors where “work is impossible to suspend due to the technological mode of work”. The Committee notes the Government’s statement that this provision is of a general nature and is not used in practice. The Committee once again recalls that the only possible exceptions to the right to strike are those which may be imposed for public servants exercising authority in the name of the State, workers in essential services in the strict sense of the term, and in the event of an acute national emergency. The authorities may, however, establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. The minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, op. cit., paragraphs 160 and 162). The Committee therefore once again requests the Government to amend section 51(2) of the Code accordingly to the above principle and to keep it informed of the measures taken or envisaged in this respect.

The Committee had requested the Government to amend section 51(4) and (5) of the Code, providing that the strike of employees, informed about termination of the contract before the dispute arises, is illegal and that if the right to strike arises before the termination of the time-based contract, the strike is considered illegal after the expiration of the term of the contract. The Committee notes the Government’s indication that the issue of amending these provisions is being discussed. The Committee requests the Government to keep it informed of any developments in this respect.

The Committee notes that according to section 48(5) of the Code, if, in the course of a dispute, an agreement is not reached in 14 days, one of the parties is entitled to submit the dispute to the court of arbitration. The Committee recalls that a provision which permits either party unilaterally to submit the dispute for compulsory arbitration effectively undermines the right of workers to call a strike. The Committee recalls that recourse to arbitration should be possible only at the request of both parties involved in a dispute, or in cases where strikes may be restricted or banned, i.e. in essential services in the strict sense of the term, in the public service involving public servants exercising authority in the name of the State or in the event of an acute national emergency. The Committee therefore requests the Government to take the necessary measures to amend section 48(5) so as to ensure that recourse to arbitration is limited to the abovementioned situations and to keep it informed in this respect.

Criminal Code. The Committee also notes that according to section 358 of the Criminal Code, violation of strike procedures by an organizer of the strike is punishable by imprisonment for a period of up to two years, if the violation caused grave results by negligence. The Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, both excessive recourse to the courts in labour relations and the existence of heavy sanctions for strike action may well create more problems than they resolve. Since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey, op. cit., paragraph 177). In these circumstances, the Committee requests the Government to take the necessary measures to amend section 358 of the Criminal Code by repealing the reference to imprisonment so as to ensure that sanctions for participation or organization of an illegal strike are not disproportionate. It requests the Government to keep it informed of the measures taken or envisaged in this respect.

Law on Trade Unions. The Committee further notes the Government’s indication that while section 5(2) of the Law on Trade Unions forbids trade unions to belong to a political party, it does not prohibit them to express their opinions and criticism on economical and social policies of the Government.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the Government’s report as well as its reply to the 2005 and 2006 comments of the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation).

It further notes the comments of the ITUC and of the Georgian Trade Union Confederation (GTUC) dated 28 and 31 August 2007, respectively, referring to the issues previously raised by the ICFTU and the Committee.

Labour Code (2006). The Committee had previously noted the adoption in 2006 of the new Labour Code. In this respect, the Committee had noted that while the new Labour Code repealed the Law on collective contracts and agreements and the Law on collective labour disputes, it did not regulate all aspects of freedom of association and that it appeared that by repealing the abovementioned legislation, there were numerous aspects of freedom of association that would not be sufficiently protected in law. The Committee had asked the Government to indicate whether it intended to adopt additional legislation to this end. The Committee notes the Government’s indication that Chapter X of the Labour Code regulates the matters in connection with collective agreements and Chapter XII – labour disputes. It further notes the Government’s statement that the Constitution and the Law on trade unions provide for protection of trade union rights. The Committee also notes the Government’s indication that the Ministry of Labour, Health and Social Affairs has prepared draft amendments to the Labour Code so as to bring it into closer conformity with international labour standards. The draft amendments shall be submitted to Parliament pursuant to the procedure provided for in the national legislation. The Committee requests the Government to keep it informed of the developments in this regard.

Law on trade unions. The Committee had previously requested the Government to amend section 2(9) of the Law on trade unions so as to lower the minimum trade union membership requirement set at 100. The Committee notes the Government’s indication that this requirement concerns establishment of trade union confederations (associations) and that the legislation does not provide for a minimum membership requirement for establishing a trade union, while 15 members are required to establish a primary trade union. While noting the Government’s statement, the Committee notes that section 2(9) of the Law on trade unions refers expressly to “trade union” and not to “confederation of trade unions”, while section 3(9) refers to the “primary trade union” and to the minimum requirement of 15 members. The Committee therefore once again requests the Government to take the necessary measures to amend section 2(9) so as to lower the minimum trade union membership requirement and to ensure that the right to organize is effectively guaranteed. It requests the Government to keep it informed of the measures taken or envisaged in this respect.

Furthermore, the Committee had asked the Government to indicate whether federations of trade unions may call a strike action in defence of their members’ interests. The Committee notes the Government’s indication that the legislation does not limit the right to strike of trade union confederations (associations).

Finally, the Committee recalls that it had previously noted the ICFTU’s comments with regard to the dispute over trade union property and urged the Government to engage in consultations with trade union organizations in order to settle the question of the assignment of property. The Committee notes the Government’s statement that the property dispute, previously referred to by the ICFTU, had been resolved.

With regard to the specific provisions of the Labour Code, the Committee is addressing a request directly to the Government.

 

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the recently adopted Labour Code and wishes to raise in this respect the following points.

–         According to section 49(1), strike is a temporary and voluntary refusal by an employee to partially or fully fulfil his/her obligations under the labour contract with the purpose of regulating subsequent relations within the framework of a labour dispute (defined, under section 47(3), as a dispute connected with the violation of human rights and freedom envisaged by the Georgian legislation – dispute of rights and with a violation of the contract and/or labour conditions – contractual dispute). It is therefore not clear whether workers may go on strike regarding interests, disputes or in respect of a violation of conditions of work contained in an existing collective agreement. It is further unclear whether recourse to sympathy strikes and to protest strikes is permitted. The Committee requests the Government to provide the information clarifying these matters.

–         According to section 51(4) and (5), the strike of employees who are informed about termination of the contract before the dispute arises, shall be considered illegal and if the right to strike arises before the termination of the time-based contract, the strike shall be considered illegal after the expiration of the term of the contract. While bearing in mind the ban on dismissing workers during a strike set out in sections 36(6), 49(10) and 52(1), the Committee considers that limitations on strike action related to termination of contracts could totally restrict any protest action taken by workers relating to what they might consider to be unjustifiable terminations. The Committee requests the Government to repeal provisions contained in section 51(4) and (5) and to keep it informed of the measures taken or envisaged in this respect.

–         Section 49(1) stipulates that “persons specified in the Georgian legislation do not have the right to participate in strikes”. The Committee requests the Government to provide a list of persons who do not have a right to strike along with the relevant legislation.

–         Section 51(2) prohibits strikes in sectors where “work is impossible to suspend due to the technological mode of work”. The Committee recalls that the only possible exceptions to the right to strike are those which may be imposed for public servants exercising authority in the name of the State, workers in essential services in the strict sense of the term, and in the event of an acute national emergency. The authorities may however establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. The minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 160 and 162). The Committee requests the Government to amend section 51(2) accordingly to the above principle and to keep it informed of the measures taken or envisaged in this respect.

–         Section 49(8) provides that a strike cannot continue for more than 90 calendar days. The Committee considers that no such arbitrary periods of limitations should be placed on the right to strike and advises the Government to give consideration to appropriate mechanisms of conciliation, mediation or voluntary arbitration instead.

–         Section 49(5) provides that, after the warning strike, the parties shall participate in the work of the conciliatory commission pursuant to the Labour Code. The Committee notes, however, that the Code does not seem to provide for any rules or procedure of such a commission. The Committee requests the Government to provide information on the functioning, the mandate and the effect of this commission.

–         According to section 46(1) and (2), an employee’s rights may be limited by the labour contract due to the importance of the production process and if it may cause direct damage to the interests of the employer. The Committee expresses its concern over the impact this section might have on the exercise of the legitimate trade union rights and requests the Government to indicate how this section is used in practice.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006 referring to the issues previously raised by the Committee and alleging that the draft Labour Code was prepared without prior consultation with trade unions. The Committee requests the Government to provide its observations thereon.

The Committee notes that the draft Labour Code referred to by the ICFTU was recently adopted. It appears that, with the adoption of the Labour Code, the Law on Trade Unions will remain in force, and the Law on Collective Contracts and Agreements of 1997 and the Law on Collective Labour Disputes of 1998 will be repealed. Noting that the Labour Code contains no sections concerning the freedom of association generally and that the Law on Trade Unions does not regulate all aspects of freedom of association, it appears that by repealing the abovementioned legislation, there are numerous aspects of freedom of association that will not be sufficiently protected in law (such as the right of workers and employers to establish and join organizations, the rights of such organizations, the procedure for calling a strike and other strike-related issues). The Committee recalls that Article 1 of the Convention provides that “Each Member of the International Labour Organization for which this Convention is in force undertakes to give effect to [its] provisions”. It therefore requests the Government to indicate whether it has an intention to adopt additional legislation to this end. With regard to the specific provisions of the Labour Code, the Committee is addressing a request directly to the Government.

The Committee requests the Government to provide with its next report the information on the pending questions addressed in the Committee’s previous observation (see 2005 observation, 76th Session) and direct request (see 2005 direct request, 76th Session), which the Committee will examine under the regular reporting cycle in 2007.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report.

The Committee notes that according to section 5(2) of the Law on Trade Unions, trade unions were forbidden from association with any political party (association). The Committee believes that the development of the trade union movement and the increasing recognition of its role as a social partner in its own right mean that workers’ organizations must be able to voice their opinion on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy. The Committee is of the view that legislative provisions which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is desirable, so that a reasonable balance can be achieved between legitimate interests of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey of 1994, paragraphs 131 and 133). The Committee requests that the Government indicate the types of activities prohibited by this provision.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s report, which for the most part repeats the information previously submitted by the Government. The Committee further notes the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 31 August 2005 concerning the application of the Convention in practice and relating to the on-going disputes over trade union property. The Committee requests that the Government provide its observations thereon.

The Committee hopes that in its next report the Government will provide full information on the following matters raised in its previous direct request.

Article 2 of the Convention. Right of workers and employers to establish organizations of their own choosing. The Committee had previously noted that section 2(9) of the Law on Trade Unions provided that a trade union could be formed on the initiative of not less than 100 persons (15 members are required to establish a primary trade union). The Committee notes the Government’s statement to the effect that it is outside of the Government’s competence to make any changes in respect of this requirement. The Committee recalls that when a State ratifies a Convention, it undertakes a commitment to respect fully its provisions and principles. With regard to the minimum membership requirement, the Committee once again recalls that, while the existence of such a requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). The Committee points out that the minimum 100 members requirement is too high. The Committee asks the Government to take necessary measures to amend section 2(9) of the Law on Trade Unions so as to lower the minimum trade union membership requirement and to ensure that the right to organize is effectively guaranteed.

The Committee once again requests that the Government indicate the applicable procedure for registration of trade unions and provide the relevant legislative texts.

Article 3. The Committee notes the comments made by the ICFTU with regard to the ongoing dispute over trade union property and also concerning Case No. 2387 examined by the Committee on Freedom of Association. This case concerned the seizure of trade union assets and the use of various means of pressure: intimidating statements addressed to the Georgian Trade Union Amalgamation (GTUA); arrests of the GTUA leaders; illegal audits of the GTUA financial activities; threats and overall refusal of the Government to have a constructive dialogue with the GTUA. The Committee condemns the anti-union tactics, pressure and intimidation the Government chose to use in dealing with this issue and regrets that the Government has so far refused all dialogue with the GTUA. The Committee therefore urges the Government to engage in consultations with the trade union organizations concerned in order to settle the question of the assignment of property and to keep it informed in this respect.

The Committee notes that under section 12(2) of the Law on the Procedure for the Settlement of Collective Disputes, a strike can be called further to a vote requiring a 75 per cent quorum and a majority of those voting. Considering that the quorum set out for a strike is too high and may potentially impede recourse to strike action, particularly in large enterprises, the Committee requests the Government to amend its legislation so as to lower the quorum required for a strike ballot and to keep it informed of the measures taken or envisaged in this regard.

The Committee further notes that, according to section 12(5)(b) of the Law, the duration of the strike should be indicated in an advance notice. The Committee recalls that the supervisory bodies have already indicated that forcing workers and their organizations to specify the length of a strike would restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee therefore asks the Government to amend its legislation so as to ensure that no legal obligation to indicate the duration of a strike action is imposed on workers’ organizations and to keep it informed of measures taken or envisaged in this regard.

The Committee also notes that, according to section 12(5)(d), a proposal of minimum services should be indicated in an advance notice. Section 14(4) further provides that in the case of failure to reach an agreement, minimum services are established by the bodies of executive authority, local self-governing and administrative bodies. In the view of the Committee, the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. The minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 160 and 162). The Committee asks the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers and, if so, it requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to the abovementioned cases. As regards the provision that any disagreement concerning the establishment of minimum services should be settled by the authorities, the Committee requests that the Government amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Moreover, the Committee notes that according to section 15(2) and (9) of the Law on the Settlement of Collective Disputes, some workers appear to be excluded from exercising the right to strike and it is the President of Georgia who makes the decision on the settlement of a collective labour dispute for these workers. However, this section does not specify the category of workers excluded. The Committee recalls that the only possible exceptions to the right to strike are those which may be imposed for public servants exercising authority in the name of the State, workers in essential services in the strict sense of the term, and in the event of an acute national emergency. If the right to strike is subject to restriction or a prohibition, workers who are deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that the latter be able to participate in determining and implementing the procedures, which should furthermore provide sufficient guarantees of impartiality and rapidity (see General Survey, op. cit., 1994, paragraph 164). The Committee asks the Government to list any categories of workers which may be excluded by relevant legislation from exercising their right to strike and to provide copies of these laws. It further requests that the Government review its legislation so as to ensure that in the event of a labour dispute, workers who are deprived of the right to strike are afforded compensatory guarantees for the settlement of the dispute by an impartial and independent body and not by the President. The Committee requests that the Government keep it informed of measures taken or envisaged in this regard.

The Committee notes section 18 of the Law, which provides that persons engaging in an illegal strike bear responsibility in accordance with the legislation of Georgia. The Committee notes that, according to the information provided by the Government, participation in an illegal strike is punishable by a fine, or by corrective labour for up to one year, or by imprisonment of up to two years (section 165 of the Penal Code). Furthermore, in cases where failure to comply with the established strike procedure leads to grave consequences, the strike organizers are liable to the same sanctions (section 167 of the Penal Code). The Committee considers that sanctions for strike action should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Even in such cases, the existence of heavy sanctions for strike action may well create more problems than they resolve. Since the application of disproportionate penal sanctions does not favour the development of harmonious and stable industrial relations, the Committee emphasizes that any sanction should not be disproportionate to the seriousness of the violation (see General Survey, op. cit., paragraphs 177 and 178). The Committee therefore asks the Government to amend sections 165 and 167 of the Penal Code and, in particular, to repeal the reference to corrective labour and imprisonment so as to ensure that sanctions for participation or organization of an illegal strike are not disproportionate.

Article 6. Rights of federations and confederations. The Committee notes that section 13 of the Law on Trade Unions, which provides for the right to participate in the settling of collective labour disputes, including strike action, does not mention expressly that this right is also afforded to federations. The Committee requests that the Government indicate whether federations of trade unions may also call for a strike action in defence of their members’ interests.

The Committee asks the Government to forward a copy of the Law of Georgia on Employers of 28 October 1994 with its next report.

The Committee is also addressing a request on another point directly to the Government.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. Right of workers and employers to establish organizations of their own choosing. The Committee notes that section 2(9) of the Law on Trade Unions provides that a trade union can be formed on the initiative of not less than 100 persons. The Committee recalls that, although a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). The Committee considers that the minimum 100 members requirement is too high when the trade union in question is a trade union at the enterprise level and which is not a primary trade union. The Committee requests the Government to indicate whether independent trade unions formed at the enterprise level must indeed have 100 members and, if so, to take necessary measures to amend this requirement so as to ensure that the right to organize is effectively guaranteed at the enterprise level.

The Committee further notes that section 7(2) of the Law provides for the obligation to register the statutes of a trade union or a federation of trade unions, their amendments and supplement "in accordance with the procedure established by the legislation". However, the law does not provide for such a procedure. The Committee requests the Government to indicate any applicable procedure for registration of trade unions.

Article 3. The Committee notes that according to section 5(2) of the Law on Trade Unions, trade unions are forbidden from association with any political party (association). The Committee believes that the development of the trade union movement and the increasing recognition of its role as a social partner in its own right mean that workers’ organizations must be able to voice their opinion on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy. The Committee is of the view that legislative provisions which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is desirable, so that a reasonable balance can be achieved between legitimate interests of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, 1994, paragraphs 131 and 133). The Committee requests the Government to indicate the types of activities prohibited by this provision.

The Committee notes that under section 12(2) of the Law on the Procedure for the Settlement of Collective Disputes, a strike can be called further to a vote requiring a 75 per cent quorum and a majority of those voting. The Committee considers that this quorum set out for a strike could prevent recourse to strike action, particularly in big enterprises and that the quorum requirement should be set at a reasonable level. The Committee further notes that, according to section 12(5)(b) of the Law, the duration of the strike should be indicated in an advance notice. The Committee recalls that the supervisory bodies have already indicated that forcing workers and their organizations to specify the length of a strike would restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee therefore requests the Government to amend its legislation so as to ensure that no legal obligation to indicate duration of a strike action is imposed on workers’ organizations and to keep it informed of measures taken or envisaged in this regard.

The Committee also notes that according to section 12(5)(d) a proposal of minimum services should be indicated in an advance notice. Section 14(4) further provides that in the case of failure to reach an agreement, minimum required services are established by the bodies of executive authority, local self-governing and administrative bodies. In the view of the Committee, the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. The minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, paragraphs 160 and 162). The Committee asks the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers and, if so, it requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to abovementioned cases. As regards the provision that any disagreement concerning the establishment of minimum services should be settled by the authorities, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Moreover, the Committee notes that according to section 15(2) and (9) of the Law on the Settlement of Collective Disputes, some workers appear to be excluded from exercising the right to strike and it is the President of Georgia who makes the decision on the settlement of a collective labour dispute for these workers. However, this section does not specify the category of workers excluded. The Committee recalls that the only possible exceptions to the right to strike are those which may be imposed for public servants, workers in essential services in the strict sense of the term, and in the event of an acute national emergency. If the right to strike is subject to restriction or a prohibition, workers who are deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that the latter be able to participate in determining and implementing the procedures, which should furthermore provide sufficient guarantees of impartiality and rapidity (see General Survey, 1994, paragraph 164). The Committee requests the Government to indicate any categories of workers which might be excluded by relevant legislation from exercising their right to strike and to provide copies of these laws. It further requests the Government to review its legislation so as to ensure that in the event of a labour dispute, workers who are deprived of the right to strike are afforded with compensatory guarantees for the settlement of the dispute by an impartial and independent body and not by the President. The Committee requests the Government to keep it informed of measures taken or envisaged in this regard.

Lastly, the Committee notes section 18 of the Law, which provides that persons holding an illegal strike bear responsibility in accordance with the legislation of Georgia. In respect to the right to strike, the Committee considers that any sanction should not be disproportionate to the seriousness of the violation (see General Survey, 1994, paragraph 178). The Committee requests the Government to indicate the provisions relevant to the sanctioning of illegal strike action.

Article 6. Rights of federations and confederations. The Committee notes with interest that most of the provisions of the Law on Trade Unions concerning rights of trade unions expressly afford the same rights to federations of trade unions. However, section 13, which provides for the right to participate in settling of collective labour dispute, including strike action, does not mention expressly that this right is also afforded to federations. The Committee requests the Government to indicate whether federations of trade unions may also call for a strike action in defence of their member interests.

The Committee notes the Government’s indication that the Law of Georgia on Employers of 28 October 1994 furthermore ensures the provisions of the Convention. It requests the Government to forward a copy of this legislation with its next report.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. Right of workers and employers to establish organizations of their own choosing. The Committee notes that section 2(9) of the Law on Trade Unions provides that a trade union can be formed on the initiative of not less than 100 persons. The Committee recalls that, although a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). The Committee considers that the minimum 100 members requirement is too high when the trade union in question is a trade union at the enterprise level and which is not a primary trade union. The Committee requests the Government to indicate whether independent trade unions formed at the enterprise level must indeed have 100 members and, if so, to take necessary measures to amend this requirement so as to ensure that the right to organize is effectively guaranteed at the enterprise level.

The Committee further notes that section 7(2) of the Law provides for the obligation to register the statutes of a trade union or a federation of trade unions, their amendments and supplement "in accordance with the procedure established by the legislation". However, the law does not provide for such a procedure. The Committee requests the Government to indicate any applicable procedure for registration of trade unions.

Article 3. The Committee notes that according to section 5(2) of the Law on Trade Unions, trade unions are forbidden from association with any political party (association). The Committee believes that the development of the trade union movement and the increasing recognition of its role as a social partner in its own right mean that workers’ organizations must be able to voice their opinion on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy. The Committee is of the view that legislative provisions which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is desirable, so that a reasonable balance can be achieved between legitimate interests of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, 1994, paragraphs 131 and 133). The Committee requests the Government to indicate the types of activities prohibited by this provision.

The Committee notes that under section 12(2) of the Law on the Procedure for the Settlement of Collective Disputes, a strike can be called further to a vote requiring a 75 per cent quorum and a majority of those voting. The Committee considers that this quorum set out for a strike could prevent recourse to strike action, particularly in big enterprises and that the quorum requirement should be set at a reasonable level. The Committee further notes that, according to section 12(5)(b) of the Law, the duration of the strike should be indicated in an advance notice. The Committee recalls that the supervisory bodies have already indicated that forcing workers and their organizations to specify the length of a strike would restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee therefore requests the Government to amend its legislation so as to ensure that no legal obligation to indicate duration of a strike action is imposed on workers’ organizations and to keep it informed of measures taken or envisaged in this regard.

The Committee also notes that according to section 12(5)(d) a proposal of minimum services should be indicated in an advance notice. Section 14(4) further provides that in the case of failure to reach an agreement, minimum required services are established by the bodies of executive authority, local self-governing and administrative bodies. In the view of the Committee, the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. The minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, paragraphs 160 and 162). The Committee asks the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers and, if so, it requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to abovementioned cases. As regards the provision that any disagreement concerning the establishment of minimum services should be settled by the authorities, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Moreover, the Committee notes that according to section 15(2) and (9) of the Law on the Settlement of Collective Disputes, some workers appear to be excluded from exercising the right to strike and it is the President of Georgia who makes the decision on the settlement of a collective labour dispute for these workers. However, this section does not specify the category of workers excluded. The Committee recalls that the only possible exceptions to the right to strike are those which may be imposed for public servants, workers in essential services in the strict sense of the term, and in the event of an acute national emergency. If the right to strike is subject to restriction or a prohibition, workers who are deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that the latter be able to participate in determining and implementing the procedures, which should furthermore provide sufficient guarantees of impartiality and rapidity (see General Survey, 1994, paragraph 164). The Committee requests the Government to indicate any categories of workers which might be excluded by relevant legislation from exercising their right to strike and to provide copies of these laws. It further requests the Government to review its legislation so as to ensure that in the event of a labour dispute, workers who are deprived of the right to strike are afforded with compensatory guarantees for the settlement of the dispute by an impartial and independent body and not by the President. The Committee requests the Government to keep it informed of measures taken or envisaged in this regard.

Lastly, the Committee notes section 18 of the Law, which provides that persons holding an illegal strike bear responsibility in accordance with the legislation of Georgia. In respect to the right to strike, the Committee considers that any sanction should not be disproportionate to the seriousness of the violation (see General Survey, 1994, paragraph 178). The Committee requests the Government to indicate the provisions relevant to the sanctioning of illegal strike action.

Article 6. Rights of federations and confederations. The Committee notes with interest that most of the provisions of the Law on Trade Unions concerning rights of trade unions expressly afford the same rights to federations of trade unions. However, section 13, which provides for the right to participate in settling of collective labour dispute, including strike action, does not mention expressly that this right is also afforded to federations. The Committee requests the Government to indicate whether federations of trade unions may also call for a strike action in defence of their member interests.

The Committee notes the Government’s indication that the Law of Georgia on Employers of 28 October 1994 furthermore ensures the provisions of the Convention. It requests the Government to forward a copy of this legislation with its next report.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes with interest the information contained in the Government’s first report. It wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. Right of workers and employers to establish organizations of their own choosing. The Committee notes that section 2(9) of the Law on Trade Unions provides that a trade union can be formed on the initiative of not less than 100 persons. The Committee recalls that, although a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). The Committee considers that the minimum 100 members requirement is too high when the trade union in question is a trade union at the enterprise level and which is not a primary trade union. The Committee requests the Government to indicate whether independent trade unions formed at the enterprise level must indeed have 100 members and, if so, to take necessary measures to amend this requirement so as to ensure that the right to organize is effectively guaranteed at the enterprise level.

The Committee further notes that section 7(2) of the Law provides for the obligation to register the statutes of a trade union or a federation of trade unions, their amendments and supplement "in accordance with the procedure established by the legislation". However, the law does not provide for such a procedure. The Committee requests the Government to indicate any applicable procedure for registration of trade unions.

Article 3. The Committee notes that according to section 5(2) of the Law on Trade Unions, trade unions are forbidden from association with any political party (association). The Committee believes that the development of the trade union movement and the increasing recognition of its role as a social partner in its own right mean that workers’ organizations must be able to voice their opinion on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy. The Committee is of the view that legislative provisions which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is desirable, so that a reasonable balance can be achieved between legitimate interests of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, 1994, paragraphs 131 and 133). The Committee requests the Government to indicate the types of activities prohibited by this provision.

The Committee notes that under section 12(2) of the Law on the Procedure for the Settlement of Collective Disputes, a strike can be called further to a vote requiring a 75 per cent quorum and a majority of those voting. The Committee considers that this quorum set out for a strike could prevent recourse to strike action, particularly in big enterprises and that the quorum requirement should be set at a reasonable level. The Committee further notes that, according to section 12(5)(b) of the Law, the duration of the strike should be indicated in an advance notice. The Committee recalls that the supervisory bodies have already indicated that forcing workers and their organizations to specify the length of a strike would restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee therefore requests the Government to amend its legislation so as to ensure that no legal obligation to indicate duration of a strike action is imposed on workers’ organizations and to keep it informed of measures taken or envisaged in this regard.

The Committee also notes that according to section 12(5)(d) a proposal of minimum services should be indicated in an advance notice. Section 14(4) further provides that in the case of failure to reach an agreement, minimum required services are established by the bodies of executive authority, local self-governing and administrative bodies. In the view of the Committee, the authorities may establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. The minimum services could be appropriate in situations in which a substantial restriction or a total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption (see General Survey, 1994, paragraphs 160 and 162). The Committee asks the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers and, if so, it requests the Government to amend its legislation so as to ensure that the requirement to establish minimum services is limited to abovementioned cases. As regards the provision that any disagreement concerning the establishment of minimum services should be settled by the authorities, the Committee requests the Government to amend its legislation so as to ensure that any such disagreement is settled by an independent body having the confidence of all the parties to the dispute and not the executive or administrative authority and to keep it informed of measures taken or envisaged in this regard.

Moreover, the Committee notes that according to section 15(2) and (9) of the Law on the Settlement of Collective Disputes, some workers appear to be excluded from exercising the right to strike and it is the President of Georgia who makes the decision on the settlement of a collective labour dispute for these workers. However, this section does not specify the category of workers excluded. The Committee recalls that the only possible exceptions to the right to strike are those which may be imposed for public servants, workers in essential services in the strict sense of the term, and in the event of an acute national emergency. If the right to strike is subject to restriction or a prohibition, workers who are deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, for example conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that the latter be able to participate in determining and implementing the procedures, which should furthermore provide sufficient guarantees of impartiality and rapidity (see General Survey, 1994, paragraph 164). The Committee requests the Government to indicate any categories of workers which might be excluded by relevant legislation from exercising their right to strike and to provide copies of these laws. It further requests the Government to review its legislation so as to ensure that in the event of a labour dispute, workers who are deprived of the right to strike are afforded with compensatory guarantees for the settlement of the dispute by an impartial and independent body and not by the President. The Committee requests the Government to keep it informed of measures taken or envisaged in this regard.

Lastly, the Committee notes section 18 of the Law, which provides that persons holding an illegal strike bear responsibility in accordance with the legislation of Georgia. In respect to the right to strike, the Committee considers that any sanction should not be disproportionate to the seriousness of the violation (see General Survey, 1994, paragraph 178). The Committee requests the Government to indicate the provisions relevant to the sanctioning of illegal strike action.

Article 6. Rights of federations and confederations. The Committee notes with interest that most of the provisions of the Law on Trade Unions concerning rights of trade unions expressly afford the same rights to federations of trade unions. However, section 13, which provides for the right to participate in settling of collective labour dispute, including strike action, does not mention expressly that this right is also afforded to federations. The Committee requests the Government to indicate whether federations of trade unions may also call for a strike action in defence of their member interests.

The Committee notes the Government’s indication that the Law of Georgia on Employers of 28 October 1994 furthermore ensures the provisions of the Convention. It requests the Government to forward a copy of this legislation with its next report.