Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Georgia (Ratification: 1993)

Individual Case (CAS) - Discussion: 2010, Publication: 99th ILC session (2010)

The Government provided the following written information.

Since the signing in December 2008 of the Memorandum of Understanding between the Ministry of Health, Labour and Social Affairs (MoHLSA), the Georgian Trade Union Confederation (GTUC) and the Georgian Employers Association (GEA) institutionalizing social dialogue in Georgia, the social partners have been holding sessions regularly, at least once a month (in some cases several times a month) to discuss issues concerning the labour administration, labour legislation and other issues of labour relations. The group has started discussing the issues of the compliance of Georgian labour legislation with the ILO Conventions and designed a framework for future cooperation.

In October 2009 a tripartite round table was held in Tbilisi between the ILO delegation, representatives of the Government, the GTUC and the GEA where, inter alia, the following issues were discussed:

the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98);

the current status of labour legislation;

how to promote tripartism and building consensus in a tripartite context.

In this context the MoHLSA stated that the Government took a keen interest in the process of strengthening different forms of social dialogue; that it would like further to develop and institutionalize tripartite cooperation; and that it had resolved to engage more actively in social dialogue with all the interested parties and cooperate with them on relevant issues. The MoHLSA underlined the need to develop a conciliation and mediation mechanism that would help to reduce the incidence of disputes and also noted that, during this social dialogue process, the social partners should analyse labour legislation as a whole (including Georgian Law on Trade Unions) and not only the Labour Code.

The parties of the round table agreed on the following issues:

to continue to enhance the cooperation between the ILO and the Government;

to strengthen social dialogue in Georgia by continuing social dialogue on labour legislation issues to exchange viewpoints between the Government, employers and employees;

to establish a secretariat for the support of effective and productive cooperation between the social partners. This issue was also addressed during a meeting held between the Prime Minister of Georgia and the Executive Director of the ILO where the Prime Minister underlined commitment of the Government to social dialogue, and the further development and institutionalization of tripartite cooperation.

At the end of the round table, the constituents agreed to continue social dialogue on the labour legislation taking into account the issues raised at the round table. The following practical follow-up measures have been taken by the Government:

the Prime Minister of Georgia issued a decree that formalized the establishment of the Tripartite Social Partnership Commission by Decree No. 335, 12 November 2009 (the Commission);

a working group consisting of two representatives from each social partner was created to work on the statute of the Commission and review and analyse the Georgian labour legislation;

the ILO provided technical and advisory services in relation to the implementation of the Commission including in the development of the statute of the Commission;

during the period 8 16 December 2009, five working group meetings were held for drafting the statutes of the Commission and its mandate, relationship to media, working priorities and areas. The statutes were adopted in March 2010. In May 2010, a secretariat of the Commission was established. This structure for social dialogue is now prepared to address all the concerns raised by the social partners in order to find commonly acceptable solutions.

With reference to the GTUC claims submitted in 2008 regarding anti-union dismissals, the Ministry of Economic Development of Georgia in 2009 requested and examined various documents related thereto which formed the basis of the Government s response to the ILO. From 29 April to 7 May 2010, the working group, together with ILO consultants held meetings to study cases related to the abovementioned dismissals and reported thereon to the Commission. Investigations and discussions on labour disputes related to anti-union dismissals will be pursued.

In order to ensure a rapid response to possible labour disputes and for their prevention, the parties agreed to create a mediator service. The ILO has expressed an interest in providing the necessary funding for this mediator service, but until this institution has been established the mediation functions will be carried out by the Commission.

It should be noted that most of the Georgian state organizations have collective agreements with trade unions, paid by a 1 per cent membership fee from employees salaries.

Body / Number of trade union members in organization / Total number of employees in organization

Ministry of Labour, Health and Social Security / 402 / 4 492

Ministry of Culture, Monument Protection and Sport / 80 / 137

Ministry of Justice / 40 / 325

It should also be noted that the biggest companies have collective agreements with trade unions including the following: LTD Tbilisi Metro (1,975 out of 2,705 employees unionized); JSC Bank of Georgia (all 80 employees unionized); LTD Georgian Railway (all 15,000 employees unionized); JSC Madneuli (1,375 out of 1,429 employees unionized); LTD Georgian State Electrosystem (898 employees or 85.5 per cent of the employees unionized). It should be added that LTD Tbilisi Metro; LTD Georgian Railway and the LTD Georgian State Electrosystem are state owned. This evidences that the Government of Georgia promotes collective agreements in practice.

In addition, it should be mentioned, that a collective agreement was signed between the LTD Silknet (Silknet) and the Communication Workers Trade Union of Georgia. Silknet is a newly established organization, where 1,000 employees are unionized based on an agreement resulting from a fruitful collective bargaining process where Silknet, assumed social responsibility, fully sharing the principles of solidarity and social partnership. Silknet has undertaken to maintain labour legislation and ILO Conventions in relation to the following important issues:

ensuring timely remuneration and establishing a flexible system of bonuses;

implementing a practice of annual paid leave and additional paid leave for employees working in hazardous conditions;

granting dismissed trade union members compensation equal to two months salary;

providing full medical insurance to the workers. The administration together with trade unions will select the terms and conditions of the insurance package, as well as insurance company in order to guarantee full consideration of workers interests;

women workers with minors, including three or more under-aged children, will enjoy special protection. Their working hours will be reduced by an hour with the full salary maintained;

social support commission will be created in the company. The commission shall be formed by the members of the trade union committee and representatives of the company.

It follows that Georgia has a collective bargaining tradition and there are cases of collective agreements concluded in practice both in public and private sectors. The Government of Georgia will actively continue the work to further promote constructive social dialogue and discuss all labour and social related issues with social partners.

In addition, before the Committee, a Government representative thanked the Committee for giving him the opportunity to discuss this case today. When the Committee had first discussed the case in 2008, there had been no understanding of the issues to report on, no social dialogue and no understanding of the basic principles enshrined in the Convention. His country had come a long way and he thanked the ILO for its support and guidance. This shift toward better understanding and tripartite discussion demonstrated the progress made. In 2008, an informal memorandum of understanding had been concluded between the three parties which had led to the organization of monthly meetings. A round-table discussion had taken place in October 2009 during which it had been agreed to review the current labour relations and have the principle of tripartism established in legislation. A tripartite committee had been established which was now fully functioning with statutes and bylaws. Its inaugural meeting took place on 14 May 2010 and was attended by ILO representatives. He believed that the country was now heading in the right direction. Legislation was being developed but due consideration should be given to his country s difficult past, which it was not easy to overcome. One of the greatest achievements today was therefore the trust that had been given by the various parties involved. The first Labour Code had only been adopted in 2006 and was not possible to judge the quality of the legislation based on a few complaints, given the presence of 36,000 businesses active in the country. It was his Government s intention to comply with all ratified Conventions and if there were misinterpretations or problems, it stood ready to clarify the issues. Trade unions, employers and the Government were undertaking reforms but some patience was required. Tripartism would help the country to move forward and it was hoped that at its forthcoming session, the Committee of Experts would not have to address the issues being raising today. In conclusion, he congratulated the Georgian unions for two major achievements in the context of collective bargaining and hoped that more successes could be reported in the future. The Committee s conclusions would help his country to move ahead and would be addressed by the tripartite committee.

The Worker members considered that it was important for the Committee to re-examine this case, which it had discussed in 2008. The difficulties indicated in 2008 had not been resolved and serious violations of Convention No. 98 persisted in Georgia. The Committee on Freedom of Association was examining the problems raised by the Georgian Trade Union Confederation (GTUC), which had denounced the adoption of the Labour Code without prior consultation, the inadequacy of protection against acts of anti-union discrimination and interference and the ineffective manner in which issues relating to collective bargaining were addressed.

Recalling the fundamental provisions of the Convention, the Worker members emphasized that the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), together formed the architecture for effective social dialogue organized with a view to social progress and going beyond a purely economic approach based on deregulation. In 2008, this Committee had concluded that a tripartite round table should examine the difficulties facing the country in relation to social dialogue and could, with ILO technical assistance, facilitate progress in the promotion of collective bargaining and the protection of the right to organize in both law and practice. The ILO had provided technical assistance to employers and workers organizations and the Government with a view to facilitating tripartite dialogue on the revision of national legislation in light of the conclusions adopted in 2008 by the Committee. A tripartite round table had also been organized on the application of Conventions Nos 87 and 98 in Georgia. However, no legislative changes had yet been adopted.

The Committee of Experts had considered that certain provisions of the Act on Trade Unions and the new Labour Code, although formally prohibiting anti-union discrimination, did not provide the necessary protection for workers during recruitment or in the event of dismissal. Employers were not required to give reasons for their decisions not to hire a jobseeker, which placed such persons in an impossible situation if they had to prove that the decision had been taken on the grounds of their trade union activities. Moreover, there was no legal provision explicitly prohibiting the dismissal of a worker for trade union activities. The protection envisaged in the Convention was not therefore afforded in practice. Furthermore, it was not clear whether there were sufficiently dissuasive penalties in cases of anti-union discrimination and whether remedies were available for workers who were victims of such acts. If such provisions existed, information was lacking on the situation in practice. Evidently, where the procedures for the implementation of sanctions were complex, they were of no value in practice and meant that the rights guaranteed were without substance, as confirmed by the events that had occurred in the port of Poti. Five trade union representatives had been dismissed there in October 2007 for having called a protest action. In accordance with the Labour Code, the employer had not given any justification for the dismissals and had not been found guilty by the courts. Nine other workers in a textile factory had also been dismissed without any justification after being elected as trade union representatives. In order to bring an end to these grave violations of Convention No. 98, the Government needed to take urgent measures to amend sections 5, 37 and 38 of the Labour Code. The Committee of Experts had also emphasized that workers who were victims of anti-union discrimination, and particularly dismissal, transfers and demotions, should be provided with compensation.

The Worker members then referred to the application of Article 4 of the Convention. The Committee of Experts had indicated that, under the terms of the legislation that was in force, employers unilaterally determined conditions of work. Moreover, several provisions of the legislation were in total contradiction with the definition provided in the Convention of the term collective agreements . The Government placed at the same level agreements concluded with trade union organizations representing a large number of workers and accords concluded between an employer and non-unionized workers, even where they were as few as two in number. The Worker members were in disagreement with this position. If employers could offer benefits to non-unionized workers while collective bargaining was going on, this would jeopardize the system of social dialogue as a whole, as well as freedom of association. The Government therefore needed to adopt effective measures to guarantee free collective bargaining with workers organizations.

The Employer members recalled that this was the second time that the Committee had examined this case. In the conclusions adopted in 2008, it had referred to a tripartite round table meeting to address the issues under discussion in a context of full social dialogue, together with ILO technical assistance, in order to facilitate progress both in law and in practice. Referring to the Committee of Experts latest observation regarding various measures taken by the Government to strengthen social dialogue, they stated that the latter s willingness was beyond question and that they did not see any indication in the case of a lack of compliance with the Convention. The observation of the Committee of Experts concerned a supposed lack of protection against acts of anti-union discrimination and interference in union affairs and the inadequate regulation of collective bargaining.

With regard to protection against discrimination, the fact that an employer was not obliged to substantiate a decision not to recruit a jobseeker was not an insurmountable obstacle. Non-discrimination in recruitment could be guaranteed in various ways. It would be excessive on the part of the legislature and too demanding for employers to expect that at every stage of the selection process they would be required to justify their decision not to recruit someone in writing. There could be multiple reasons for such a decision. This did not mean that there were sinister motives at work stemming from some unjustifiable discrimination. The requirement of a formal motivation for not recruiting a person could not guarantee that no discrimination actually existed. The important thing was that there should be no discrimination in practice, and there was no evidence that there had ever been any. The Committee of Experts had suggested that legislation could provide other ways of remedying the difficulties, for instance by stipulating that the grounds for the decision of non-recruitment should be made available upon request. That, however, would be altogether inadequate. Requiring employers to substantiate their decisions, even if only upon the request of a worker, would unduly increase the burden on employers; besides, most labour regulations contained no such requirement.

With regard to the issue of dismissal without justification but with compensation, the Committee of Experts continued to see this as a source of discrimination. The Employer members agreed that not requiring that the reasons or causes of a person s dismissal be communicated could not be used to cover up unjustifiable discrimination against a unionized worker. However, the fact that the Labour Code did not contain an explicit provision prohibiting dismissal for reasons of trade union activity did not necessarily mean that no such protection existed. It could be that some other legal provision was sufficient to guarantee the same right. In any case, the tripartite Committee was planning to review the legislation should it be necessary to remedy that particular point. The Committee of Experts already considered that the penalties imposed for supposed acts of interference were sufficient and additional information had confirmed the country s compliance with the Convention in that respect.

With regard to collective bargaining, the Committee of Experts continued to have doubts about certain articles of the Labour Code. However, the Convention did not impose any specific model of collective bargaining other than that it should be adaptable to the demands of developments in labour relations, and that it should respect the principles and requirements of the Convention. The Employer members considered that it was irrelevant whether a worker belonged to a union or not; what was relevant was that the validity of voluntary negotiations and of agreements entered into collectively should be duly recognized and protected. They disagreed with the Committee of Experts that it was difficult to reconcile the equal status given to agreements with unionized workers and agreements with non-unionized workers with the ILO principles on collective bargaining. Many collective bargaining systems distinguished between unionized and non-unionized workers in order to determine the general scope or limited effectiveness of collective agreements, without their validity having so far been called into question. The essential thing was to ensure that the will of the workers as expressed through their representatives was not distorted by any direct or indirect pressure brought to bear by the employer, that agreements were not used to exclude, or discriminate without justification against, lawful union representation and that the collective agreements in force were respected.

Finally, the Employer members stressed that, according to the Government, most enterprises and institutions had signed collective agreements with the unions, which showed that union representation continued to play an important role in collective bargaining in Georgia. There had been considerable progress, especially in the search for forms of institutionalized social dialogue that were conducive to resolving possible discrepancies between the country s legislation and its practice in terms of the Convention. They encouraged the Government to continue demonstrating its understanding and willingness and asked for additional information to enrich their own view of the case under discussion.

The Worker member of Georgia indicated that the Government ignored the obligations stemming from ratified Conventions including Conventions Nos 87 and 98, ignored collective bargaining and freedom of association, and ignored tripartism. As a result, the trade unions witnessed many conflicts and disputes at the enterprise level as well as the destruction of social stability in the context of the liberal experimentation that the country was going through. Workers and trade union members therefore considered that they lived in an authoritarian society. While collective bargaining was going on, the Poti Sea Port management had sealed the trade union offices at the enterprise and had restricted the access of trade union officers. Moreover, the Labour Code provided the employer with the right to dismiss any worker without notice. In the BTM enterprise in the textile sector, the trade union executive committee had been dismissed the day after the company was informed of the founding of the union. Collective agreements were frequently not respected. The teachers trade union was not allowed to receive trade union dues through the previously negotiated check-off system. A number of employers had recourse to verbal contracts, which were allowed under the Labour Code. Recourse to protest action, such as strikes, was impossible in practice. Certainly the violation of trade union rights had recently been on the decline, as indicated by the Government representative, but the reason was simply that there were hardly any unions left. Particular problems existed in the education and iron and steel sectors. The only exception was the Tripartite Commission that collaborated with the ILO, the International Trade Union Confederation (ITUC), etc. The trade unions would see the Commission as a success only when it produced concrete improvements for their members. For the time being, no such results had been produced. The medieval Labour Code was still in force and only promises of amendments had been made. Trade union leaders and members were at risk of discrimination, collective agreements were not respected and the Government had no political will to amend the Labour Code.

The Worker member of France observed that the idyllic scene depicted by the Government representative differed from the reality described in the report of the Committee of Experts, on which the Conference Committee based its examination of the case and which showed that collective bargaining was not recognized de facto in Georgian legislation, which confused collective agreements with contracts signed by an unspecified number of parties, or even by two persons. Such an inherently anti-union situation did not conform to the principles and objectives set out in Convention No. 98. Furthermore, employers were able to impose terms and conditions of employment unilaterally and to dismiss workers without justification, on the sole condition that one month s salary was paid, which encouraged the dismissal of independent trade unionists at a modest cost without risk of sanction. The creation of a tripartite working group that lacked a clearly defined role and had not resulted in any legislative or practical concrete measures masked the absence of genuine collective bargaining and worker protection in the country. The Memorandum of Understanding submitted by the Government as the primary tool for social dialogue would mainly demonstrate that dialogue was not very widespread. The provisions of the Criminal Code and the Code of Administrative Offences were not being applied, and the Government should provide missing statistical information in its next report, particularly on the number of convictions under the Code of Administrative Offences for interference in trade union affairs (pressure, threats, creation of company unions, etc.). Certain figures provided on the rate of worker unionization in a State enterprise could prompt questions as to whether workers were really free to join a union, while the authoritarian collective bargaining system, in its current form, was more reminiscent of times past rather than of a genuine step towards independent trade unionism that allowed the partners to negotiate freely as equals. One might ask oneself about the reality presented by the Government, given that the Committee of Experts and independent trade unionists maintained that Convention No. 98 was respected neither in law nor in practice.

The Worker member of the United States expressed the solidarity of his organization, the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), with the Georgian labour movement and GTUC General Secretary Irakli Petriashvili in particular. He observed that democracy and the rule of law depended not only on free and fair elections but also on respect for, and compliance with, fundamental international labour standards, and the Government fell disappointingly short when it came to the implementation of Convention No. 98, ratified by Georgia in 1993. The Committee of Experts had listed in its 2010 report the indisputable de jure violations of Convention No. 98 accruing from the Labour Code. As a result of all these violations of Convention No. 98, the GTUC had estimated that, in 2009, it had lost about 20,000 members. Based on what had been presented to the Committee, the Government had done absolutely nothing to change these provisions and was simply demonstrating its participation in ILO-sponsored tripartite round tables while, during the same session of the International Labour Conference, the Ministry of Education was directing its school principals not to bargain collectively with the GTUC teachers union and to freeze the previously negotiated dues payment system. If the Government was trying to justify its delay in implementing authentic labour law reform by saying that it needed a full tripartite mandate, it should also recognize that the tripartite train had already left the station , so to speak: the Committee on Freedom of Association, an obviously tripartite body, had already concluded in Case No. 2663 that Labour Code sections 37(d) and 38(3) should be effectively overhauled. Gladstone s famous maxim that justice delayed is justice denied struck an ironic chord in relation to this particular case. At least one thing was certain justice demanded that this Committee, this Conference and the ILO supervisory system not wait any longer before demanding that the Georgian Government took its ratification of Convention No. 98 seriously.

The Worker member of Hungary emphasized that, in the light of the comments of the Committee of Experts, the Government s reliance on the Constitution of Georgia and the Act on Trade Unions, which contained general prohibitions of trade union discrimination, was not acceptable. These general rules were not sufficient to provide effective protection for trade union members and officials against anti-union discrimination in the context of recruitment and dismissal, as shown by current court cases in Georgia. The court judgements quoted in the report of the Committee on Freedom of Association on Case No. 2663, had upheld the decisions of employers to dismiss workers and had rejected the workers arguments and requests for reinstatement because the Labour Code did not require employers to substantiate their decision to terminate labour contracts. Having placed the burden of proof on dismissed workers, the courts had found that the workers had not provided any factual evidence of antiunion discrimination. The General Survey of the Committee of Experts of 1994 on freedom of association emphasized, however, that anti-union discrimination could not be treated in the same way as any other kind of discrimination because freedom of association was a fundamental right calling for specific provisions with regard to the burden of proof, sanctions and remedies. Labour legislation had therefore to provide for special protection against antiunion discrimination. The speaker urged the Government to show genuine political will and amend the Labour Code so as to bring it into full conformity with Convention No. 98 after consultation with the social partners. The lack of specific guarantees and effective enforcement in this field could be seen as a serious violation of the right to freedom of association. This situation must change without delay.

The Government representative recalled that, despite the fact that collective agreements had been concluded in his country in the banking, railroad, mining and electricity sectors, covering thousands of workers, the discussion constantly focused on two cases concerning two companies in the port and textile sectors. Of course, not everything was perfect, but success stories existed and the picture was not entirely bleak, as alleged by certain members. The Government had made every effort to implement the recommendations of the Committee on Freedom of Association in the case of the Poti Sea Port, but the trade unions had refused to participate in the tripartite commission which would discuss the matter. The Government had therefore moved on to the second part of the recommendations of the Committee on Freedom of Association, i.e. to carry out an investigation into dismissals of trade union leaders.

The speaker emphasized that the law should not be judged by the two cases repeatedly discussed by the supervisory bodies. The Labour Code was not the only piece of legislation covering labour relations. The Government was more than willing to review the Civil Code, the Act on Trade Unions, the Labour Code, etc., so as to bring its legislation closer to the Convention and avoid misrepresentations.

In conclusion, the Government representative thanked those Committee members who showed genuine concern for the situation in his country and assured the Committee that his Government would take into account the discussion and the recommendations so that, in due course, the results produced could serve the interests and future of his country.

The Employer members stated that their interpretation differed in several respects from that of the Committee of Experts. First of all, there was a difference concerning the need for an employer to justify the hiring or non-hiring of a person. Secondly, they stated that if the Labour Code did not refer to anti-union discrimination, that could be settled in other standards. Finally, they felt that a reduction in membership was not always caused by anti-union discrimination.

On the positive side, they pointed out that there was a new institutional framework and a new framework for social dialogue. They insisted that dialogue should continue with the Committee of Experts, that it might be profitable for the Government to continue to receive technical assistance from the ILO in order to harmonize its legislation, and that the Working Group on social dialogue should provide more detailed information on union organizations and collective bargaining, including statistical information. They concluded by stressing the need for all parties to maintain a constructive attitude.

The Worker members, while noting the information provided by the Government, said that it was insufficient because violations of union and labour rights were so flagrant. The conclusions of the Committee should be particularly severe so that the suffering of workers in Georgia could be brought to an end. The Government had agreed two years earlier to revise the Labour Code and to harmonize its legislation with Convention No. 98. So far, no progress had been reported. The Government must enter into true tripartite dialogue in order to amend the Labour Code in a way that would guarantee specific protection against anti-union discrimination, including anti-union dismissals, and provide for sufficiently dissuasive sanctions against such acts. Likewise, the Government must take all necessary measures to guarantee workers the possibility of requesting the reasons for any dismissal. Finally, the Government must re-read the comments made by the Committee of Experts concerning the fact that direct negotiation between an enterprise and an employee went against the principles of collective bargaining enshrined in Convention No. 98 and submit a report on measures taken in that regard.

Conclusions

The Committee noted the oral and written information provided by the Government representative and the discussion that followed.

The Committee observed that the Committee of Experts raised issues relating to an insufficiency in the legislative framework for the effective protection against antiunion discrimination and promotion of collective bargaining, which needed to be clarified in further detail in the Committee of Experts next observation.

The Committee took due note of the Government representative s statement and, in particular, the information regarding the tripartite roundtable held in October 2009 and the recently established Tripartite Social Partnership Commission set up to review the labour legislation and to examine some complaints of anti-union discrimination. The Government representative indicated that technical advisory services had been provided by the ILO with respect to this process. Finally, the Government representative made reference to companies that had concluded collective agreements with unions.

The Committee welcomed the steps taken by the Government to institutionalize social dialogue in the country and urged the Government to intensify this dialogue. It hoped that this new social partnership, accompanied by ILO technical assistance, would give rise to concrete action ensuring that the legislation was fully in conformity with the Convention. It requested the Government to intensify its dialogue with the Committee of Experts with respect to any outstanding issues in its comments and to continue to provide detailed information on the application of the Convention in practice, including statistics on the number of confirmed cases of anti-union discrimination, the remedies provided and the sanctions imposed.

Individual Case (CAS) - Discussion: 2008, Publication: 97th ILC session (2008)

The Government communicated the following written information, with specific reference to the Committee of Experts' observation.

Georgian legislation clearly prohibits any type of discrimination, including anti-union dismissals and protects against violations of these rights. Therefore, the Georgian Government does not see a need at this point to initiate amendments to the Labour Code. Georgian legislation is in compliance with the requirements of the Convention as it prohibits discrimination on the grounds of membership:

(1) Constitution of Georgia. According to article 14 of the Constitution, "Everyone is free by birth and is equal before law regardless of race, colour, language, sex, religion, political and other opinions, national, ethnic and social belonging, origin, property and ti- tle, place of residence." Article 26 of the Constitu- tion regulates that "Everyone shall have the right to form and to join public associations, including trade unions."

(2) Law of Georgia on trade unions. According to section 11, "No discrimination shall be admitted against an employee on the part of an employer by reason of membership or non-membership to a trade union."

(3) Labour Code of Georgia. According to section 2(3), "Any type of discrimination due to race, colour, ethnic and social category, nationality, origin, property and position, residence, age, gender, sexual orientation, limited capability, membership of religious or any other union, family conditions, political or other opinions are prohibited in employment relations." According to the Code "in the course of employment relations the parties should adhere to basic humans rights and freedoms as defined by Georgian legislation" (section 2(6)).

(4) Criminal Code of Georgia. According to section 142, "Violation of equality of humans based on race, colour of skin, language, sex, attitude to religion, confession, political or other view, national, ethnic, social belonging, or based on membership to any association, origin, place of residence and material condition, that violated their human rights, shall be punished by a penalty or by corrective labour for a period up to one year, or by imprisonment for up to two years." Thus, dismissal of an employee because of his/her membership in trade unions is subject to punishment by the Criminal Code of Georgia. If an employer discriminates with regard to an employee's right to join a trade union, the employer will be criminally liable.

(5) No application has been submitted to the relevant governmental agencies for the last several years regarding the restriction of the rights of trade union members. The new Labour Code prohibits anti-union discrimination.

It should be noted that the comment of the Committee of Experts regarding section 142 of the Criminal Code is based on a translation error. In fact, "public association" should be understood as any type of association including civil association. The new Labour Code streamlined requirements for establishment of associations. Existing legislation permits the establishment of any kind of organization or membership of any association, including trade unions. As under the USSR Code, a trade union had a monopolistic position, workers had no other alternative than to become a member of a trade union (article 2(3.d)). Under the Georgian legislation, procedures of establishment of an association are simple. Only, a registration fee of 26 euros is to be paid. There is no minimal requirement for the number of persons who can establish an association. Georgia is characterized with one of the highest association densities in the region. At the same time Georgian legislation does not at all restrict activities of associations.

Georgian legislation regulating collective agreements is in full conformity with the relevant Convention and it is believed that there is no need to amend the legislation.

(1) The Committee had noted that according to section 13 of the Labour Code, the employer (unilaterally) is authorized to introduce internal operation rules (internal labour charter). The Government states as follows:

- the Georgian legislation clearly stipulates minimum working conditions that are in compliance with ILO Conventions and cannot be subject to change;

- it is prohibited to worsen the minimum working conditions envisaged by the Labour Code;

- the employer shall take into account the minimum working conditions envisaged by the Labour Code in case he/she is elaborating operation rules (internal labour charter). If not, it is a violation of the Labour Code and is punishable by law;

- in cases when working conditions are regulated by labour agreement (either individual or collective) the labour agreement prevails over internal operation rules. The preference to the operation rules (internal labour charter) is given only when working conditions are not regulated by labour agreement (either individual or collective). Even in this case, working conditions defined by employers must be in full compliance with the requirements of the Labour Code.

(2) The Committee considered that sections 13 and 41-43 read together are in contradiction with the notion of collective agreements in the sense of Convention No. 98, i.e. agreements regulating terms and conditions of employment negotiated between employers or their organizations and workers' organizations. The Committee noted that the legislation seems to put in the same position collective agreements concluded with trade union organizations and agreements between an employer and non-unionized workers. The Government states as follows:

- the observation is not clearly formulated. Therefore it is difficult to understand its essence. It is not clear on what basis consideration of articles related to collective agreements are compared with section 13 (internal operation rules), since working conditions are regulated by section 13 of the Labour Code only where they are not envisaged by labour agreements (both individual and collective);

- Convention No. 98 does not stipulate that collective agreements must prevail over the individual agreement;

- according to the Committee's comment, it seems that non-unionized and unionized workers have to be put under unequal conditions. The latter, in our understanding, means discrimination of non-unionized workers. The Georgian legislation, to the contrary, prohibits any kind of discrimination and protects the rights of both non-unionized and unionized workers equally.

(3) The Committee noted that the Government recognized the need to improve the legislation, as Georgia does not have a collective agreement tradition and there are not too many collective agreements concluded in practice. The Government states that in this case it seems that the Committee of Experts' observation requests more than is envisaged by the relevant Convention. The extent to which collective agreements should be used in practice is not regulated by the Convention and therefore the reference that "there are not too many collective agreements concluded in practice" is not justified. At the same time, Convention No. 98 does not establish any superiority of collective agreements over individual ones.

(4) The Committee considered that the provisions of the new Labour Code do not promote collective bargaining as called for by Article 4 of the Convention. The Government states as follows:

- "promotion of collective agreement" under Article 4 of Convention No. 98 does not mean "promotion" on the legislative level through amending the legislation;

- the Labour Code does not restrict any form of promotion of collective agreements. Moreover, the entire Chapter III of the Labour Code is dedicated to collective agreements. It fully regulates the rules and conditions of conclusion of collective agreements and defines its essence (section 41). It allows having a representative while concluding, changing or terminating a collective contract, or for the purposes of protecting the employees' rights (section 42) and describes the rules of termination of labour relations and annulment of contract;

- the Law on trade unions stipulates that labour norms, labour remuneration systems, forms of benefits, tariffs and wages can be defined with the participation of employers, the employers' associations (unions, associations), and relevant trade unions. This, as a result of mutually established agreement, is reflected in the collective (tariff) contracts (agreements) (section 10(5));

- the Law on trade unions contains the rules and conditions of a collective agreement. Section 12 (2) obliges employers to conduct negotiations with trade unions, in response to the latter's initiative, about labour, social and economic conditions of employees. Trade unions have the right to participate in collective, as well as individual labour disputes;

- Law on trade unions. According to section 12 (1) "The authorized representatives of a trade union, association (federation) of trade unions, primary trade union organization, on behalf of a working collective, shall hold negotiations with the authorized representatives of an employer, association (union, federation) of employers, bodies of the executive authority and local self- governing bodies, conclude collective agree- ments and contracts and control their implemen- tation in accordance with the procedure provided for by these agreements (contracts)";

- Law on trade unions. According to section 12 (2) "The employers, associations (unions, federations) of employers, bodies of the executive authority should hold negotiations with the primary trade union organizations, trade unions, associations (federations) of the trade unions on labour and socio-economic matters, provided that the primary trade union organizations, trade unions, associations (federations) of the trade unions put forward such initiative, and in case of reaching an agreement to conclude collective agreements (contracts)".

It should be emphasized that, according to the Labour Code, the right of collective bargaining belongs not only to trade unions, which organize only 12 per cent of the labour force, but also to other unions or groups of employees. This regulation puts workers organized in various unions, including trade unions, under equal conditions, and thus excludes their discrimination based on union membership.

In the report of 2007 sent by the Government of Georgia to the ILO, it was mentioned that "within the Government of Georgia there is discussion about specifying the formulation of the eighth part of the fifth paragraph". The discussion led to the conclusion that the labour legislation of Georgia does not require any amendments as the Georgian legislation adequately regulates all the aspects of labour relations, and Georgian legislation is in full compliance with the requirements of the ratified ILO Conventions.

In addition, before the Committee, a Government representative of Georgia stated that more than two years ago, in spring 2006, the Parliament of Georgia had adopted a new Labour Code that replaced the previous one adopted in Soviet times in 1973. The reasons for the adoption of the new labour legislation were twofold: firstly, to introduce labour rules that would be in compliance with ILO Conventions ratified by Georgia, and secondly, to stimulate higher employment in the light of national conditions, reduce informal employment and thus address the most serious challenges of Georgia's economic and social development. The new Labour Code replaced relatively rigid Soviet-type labour relations by more flexible and modern regulations, gave adequate and equal protection both to employer and worker rights and better responded to the social and labour market needs of the country.

The observations made by the Committee of Experts on the compliance of Georgian labour legislation with the Convention were being carefully reviewed by the Government and discussed in a consultative process with workers' and employers' organizations. After the publication of these observations, the Government held intensive consultations with the ILO on the matter. As a result of a joint initiative of the ILO and the Georgian Government, it had been decided to undertake, for the first time, an independent and impartial assessment of the labour legislation. Tripartite consultations had been held with employers' and workers' organizations prior to presenting their views to the ILO on the objectives and deliverables of the assessment. It had been jointly decided that the assessment would concentrate on two main objectives, namely: (i) assessment of the compliance of the labour legislation with ratified ILO Conventions; and (ii) assessment of the impact of the new Labour Code on the labour market and labour relations in Georgia. The study would be financed by the United Nations Development Programme (UNDP) and undertaken by independent experts. In order to draw maximum benefit from the results of the assessment, it would be followed by an inclusive, transparent and open process of consultation with employers, workers, the ILO and all other interested parties, domestic and international. The jointly agreed objective was to complete the assessment by fall 2008.

With regard to the observations made by the Committee of Experts, the speaker presented orally the written information submitted by her Government.

The speaker concluded by stating that, as indicated by the information presented to the Committee, the Georgian labour legislation was in compliance with the Convention. Moreover, according to the preliminary assessment of the economic impact of the new Labour Code, it appeared that the new legislation encouraged employment and thus contributed to the growth of average salaries. In addition, flexible labour rules contributed to the reduction of informal employment, the increase of the tax base and consequently, increased budget revenues from income tax. Despite these preliminary findings, the Government remained committed to undertake an independent assessment of the impact of the Labour Code on the labour market and of its compliance with the relevant ILO Conventions. The Government very much looked forward to cooperating with the ILO and all interested parties in this regard, and to engaging in an open, inclusive and transparent process of discussion as soon as the study was completed.

The Employer members indicated that the observations of the Committee of Experts concerned two points: a supposedly insufficient protection against acts of anti-union discrimination and interference, and a supposedly insufficient regulation of collective bargaining.

In relation to protection against anti-union discrimination, four failures to comply with the Convention were raised. The fact that the employer was not required "to substantiate his/her decision for not recruiting the applicant" represented "an insurmountable obstacle". The absence of express provisions enumerating in an exhaustive manner all aspects covered by the principle of non- discrimination did not mean that the effective guarantee of this principle was denied. There were many ways to guarantee non-discrimination in recruitment. The selection and recruitment processes were sometimes informal and on occasions involved a large number of candidates. It would be absolutely excessive for the enterprises concerned if the regulator required that in every one of the stages of selection or pre-selection the employer justify in writing the decision not to recruit someone. The reasons for such a decision could be many and relate to the skills, abilities, experience, suitability, capacity and even psychological elements relating to whether the person had an affinity with the employer; these elements could not always be expressed. This did not mean that hidden reasons existed based on unjustified discrimination. The existence of a formal justification for not recruiting someone would not guarantee the non-existence of discrimination. What mattered was that there was no discrimination in practice, and the comments of the Committee of Experts did not contain any indication to this effect.

As for dismissal upon payment of an indemnity, but without justification, this was, for the Committee of Experts, a source of discrimination. The absence of a requirement to give reasons justifying a dismissal could not be used to cover unjustified discrimination. However, the absence of an express provision in the Labour Code prohibiting dismissals by reason of trade union activity, did not necessarily amount to lack of protection. Another legal basis could exist, like the Constitution or a general prohibition of anti-union discrimination would be a sufficient guarantee of this right. Again, what counted was that discrimination be avoided in practice, and there are no observations of the Committee of Experts in this regard.

The same could be said with regard to the lack of an express provision in the Criminal Code which prohibited discrimination on the basis of trade union membership. In Georgia, economic sanctions for violation of the legislation protecting workers could be substantial (up to 200 times the labour remuneration). For the Committee of Experts it was not sufficient that the Criminal Code categorized as unlawful conduct actions based on affiliation to a public association as it did not contain an express reference to trade union organizations. But what mattered was to know whether the concept of public association encompassed trade union organizations and whether there were clear cases of impunity due to the existence of a legal vacuum. Regulations against interference could take various forms and the appeal procedures could be the same as those provided for in case of undue interference with regard to other types of organizations and not only trade unions.

With regard to collective bargaining, the Committee of Experts had its doubts with regard to certain sections of the Labour Code: firstly, regarding the agreements with non-unionized workers being on the same level as those concluded with trade unions; secondly, concerning the scope of the Law on trade unions and the protection of collective bargaining in the light of the abolition of earlier laws which regulated collective contracts and agreements in the communist period.

The Convention did not impose any specific collective bargaining model. It could be centralized or decentralized, with a strong presence at the sector level or at the enterprise level; it could be regulated in detail or be organized in a more informal manner. What mattered was that the model be adapted to the needs flowing from developments in labour relations and abide by the principles and requirements of the Convention, that is to say, that it protect the full development and use of voluntary collective bargaining procedures and collective agreements. The Employer members considered that the trade union status of a worker, or the absence thereof, was not as important as the recognition and due protection in practice of the value of voluntary negotiations and of the agreements reached collectively.

A different question was the supposed legal gap which according to the Committee of Experts could exist in Georgia as a result of the disappearance of the Law on collective contracts and agreements despite the continuing existence of the law which regulated trade union activities. It would be appropriate that the Government provide information in this respect.

The fact that the country did not have a collective agreement tradition was not either in and of itself a violation of the Convention, given that this element should be analysed along with others in order to have a full picture. This could result from the nascent development of collective agreements and pacts between free and autonomous employers' and workers' organizations. Finally, the Convention did not impose any specific collective bargaining model and therefore the Employer members did not share the view that the new model of negotiations in Georgia was contrary to the provisions of the Convention.

The Worker members recalled that the case of Georgia had never before been subject to discussion within the Committee but that the cases presented to the Committee on Freedom of Association generally demonstrated a rarely cooperative Government. The situation denounced by the International Trade Union Confederation (ITUC) concerned the adoption of the Labour Code without prior consultation, the insufficient protection afforded against acts of anti-union discrimination and interference, as well as the inefficient management of collective bargaining- related issues.

The Convention laid down the principle of the protection of workers and trade union organizations against acts of discrimination and interference which tended to harm freedom of association. It also provided for the adoption of measures aiming to encourage and promote collective bargaining to settle conditions of work. Together with Convention No. 87, these instruments constituted the backbone of an efficient and organized social dialogue with a view to achieving social progress and reaching further than purely economic and regulating considerations.

The Committee of Experts considered that the drafting of a few provisions in the Law on Trade Unions and the new Labour Code, while formally prohibiting anti-trade union discrimination, did not ensure the protection necessary at the times of recruitment and dismissal in practice. Thus, employers were not bound to justify their decision when they did not hire a candidate, which therefore put this person in an impossible situation where he/she must take on the burden of proof to demonstrate that the decision was related to his/her trade union activities. There existed no express provision which clearly prohibited the dismissal of workers for their participation in trade union activities. The application of the protection laid down in the Convention was therefore not guaranteed.

Furthermore, sufficiently dissuasive sanctions did not clearly appear to exist in case of anti-trade union discrimination, nor did there clearly seem to be accessible legal recourses to the victims of such acts and, in the affirmative, their application was also unclear. Obviously, when sanctions were hindered by complex procedures of application, they lost their purpose and the rights they supposedly guaranteed became devoid of substance. This was confirmed by the recent events of the Port of Poti, where five trade union representatives had been fired in October 2007 due to having organized protests. In conformity with the Labour Code, the employer had provided no justification for their dismissal and had not been convicted by the tribunals. Nine other workers in the BTM textile factory practising trade union activities had also been dismissed without explanation immediately after having been elected in March 2008. More than 30 trade unionists had been dismissed during the last six months for having exercised their right to become members of a trade union organization or having participated in collective bargaining.

Moreover, concerning the interference of employers in trade union activities, the Committee of Experts once again emphasized the lack of legal measures which, if the will to respect the Convention was genuine, should rightly exist. It should also be noted with regret that, according to the current legislation in force, the determination of working conditions depended solely on the unilateral will of the employer. The law also contained a series of provisions that totally contradicted the clear definition of the collective bargaining agreement, as laid down in the Convention.

The existence in the Law on Trade Unions of the general provision on the right of trade unions to bargain collectively, the repeal of the Law on Collective Agreements, as well as the way in which collective agreements were managed by the Labour Code, clearly established that the new Labour Code was in flagrant contradiction with the Convention. While it was true that the Labour Code had been amended, the truth remained that, in practice, employers were not encouraged to apply the legal provisions that were favourable to workers, to trade union rights and to the right to collective bargaining. Due to its failures and lack of precision, it clearly appeared that the Labour Code was used to render trade union activities and, consequently, collective bargaining in enterprises, difficult, if not impossible. Put in place in 2006, this reform had, rather, deregulated the labour market. Poverty had worsened from 2005 to 2006, whereas it had started to diminish in 2004. The unemployment rate was 13.6 per cent and the level of social protection was inadequate. The economic dimension seemed to take precedence over the improvement of the situation of workers' rights, and it was high time that the Government took the necessary measures to promote collective bargaining as intended by the Convention.

The Government member of Slovenia, speaking on behalf of the Governments of Member States of the European Union, noted the comments in the report of the Committee of Experts on a number of issues related to the implementation of Articles 1, 2, 3, and 4 of the Convention in Georgia. While acknowledging that the report addressed the lack of conformity of the new Labour Code with Article 4 on the promotion of collective bargaining, he noted that the report also reflected the Government's indication that the Ministry of Health, Labour and Social Affairs had prepared draft amendments to the Labour Code to bring it into closer conformity with international labour standards. He also noted the written information provided by the Government. He concluded by inviting the Government to fully and, as a matter of urgency, cooperate with the ILO, as well as to take the necessary measures to bring its legislation and practice into conformity with the Convention.

An observer representing Education International stated that there was a general reluctance on the part of the Government to engage in collective bargaining. The Committee of Experts had underlined that the new Labour Code adopted in 2006 did not promote collective bargaining and also indicated that Georgia lacked a tradition of collective bargaining.

In 2006, the Educators and Scientists Free Trade Union of Georgia (ESFTUG) initiated a legal procedure to guarantee provisions for an institutionalized system of collective bargaining in the education sector. The union won its case in February 2008, and the Appeal Court instructed the Ministry of Education to engage in meaningful collective bargaining with the teacher unions. The Ministry of Education initially appealed the union's victory to the Supreme Court, but subsequently withdrew the appeal. No collective bargaining had yet occurred. But on 13 May 2008, the union received a letter from the Ministry of Education indicating that it was ready to discuss a memorandum of understanding; however no further concrete indications have been received, as to when, the content of the Memorandum of Understanding or with whom.

She stated that Georgia was currently engaged in what was called a "school optimization process", which began in 2007 and aimed to close schools in rural areas and decentralize education. The school optimization process envisaged widespread reform, including in the areas of policy and curriculum, and was generally regarded as a cost reduction exercise. This decentralization radically affected the employment relationship of teachers, who were now employed by the school director - or headmaster - of the school in which they worked. The school directors themselves were elected by the school boards, which in turn were created by the decentralization process and comprised representatives of parents, students and teachers. The Ministry of Education approved the election of the school directors and retained the power to dismiss them. Teachers now signed individual contracts of employment with school directors, who possessed the right to hire and fire them. Additionally, the 2005 general law on education required all teachers, regardless of experience and qualifications, to pass a national exam in order to be certified to teach. She underscored that, in this context of ongoing and widespread reform, the role of social dialogue was of vital importance.

In January 2008 a new teachers' union was registered - the Professional Education Syndicate (PES). This organization's founders were school directors, trainers from the Government-controlled teacher training centres, and a high official in the Ministry of Education; it appeared, moreover, that the Government was not only promoting but indeed favouring the PES, to the disadvantage of the existing teachers unions. Two weeks after the PES was created, all school directors and chairs of the boards of the public schools of the district of Bolnisi were invited to a meeting to be introduced to the new organization. The school directors were invited to encourage their employees to quit their present union affiliations and join the PES, which offered a 50 per cent rebate on the fees for teacher certification training. Such training, while not compulsory, was strongly recommended.

On 15 February 2008, the web site of the Ministry of Education of the Autonomous Republic of Adjara announced that the PES would commence free training for its members. The Ministry web site included a downloadable PES membership application form, and the Minister, who had since been appointed as one of three Deputy Ministers of Education for Georgia, also sent a letter to all teacher resource centres requesting that they introduce the new union to all teachers. She added that Georgia's Ministry of Education had also addressed a letter to the PES in which it "welcomed the initiative of the creation of a modern teachers union" and invited the latter to "share its viewpoint on the implementation of the planned education reforms" that were already under way. She underlined that inviting a new union to share its views on teachers' working conditions while ignoring the ESFTUG - which with over 100,000 members was the most representative teachers' organization - constituted favouritism and was therefore a clear violation of the Convention. The Government's actions, furthermore, were intended to place a workers' organization under the control of employers - the school directors - and therefore constituted interference, in further violation of the Convention.

Reiterating her grave concern over the alteration of the teachers' employment relationship, the new certification requirement, the short-term contracts, the absence of collective bargaining and, not least, the creation of a new organization that was clearly favoured by the Ministry of Education, she queried whether all of these developments, viewed as a whole, did not plainly constitute antiunionism and discrimination.

The Government representative of Georgia stated that the claim that her Government had failed to address social and economic problems was unfounded. A whole set of measures to alleviate poverty had been initiated; furthermore, one-third of the previous year's total public expenditures had been allocated towards social concerns, including in the areas of social protection and health care. Such allocations clearly demonstrated the Government's commitment to social issues and poverty alleviation. She underscored that her Government would nevertheless continue in its efforts to introduce flexibility into the labour market. The Soviet-era labour market regulations and their attendant rigidities exacerbated the problem of informal employment; the modernization of these regulations would, by allowing for greater flexibility in labour relations, encourage employers to formalize relationships with their employees through contracts.

As concerned the Worker members' statements on the five union representatives dismissed in the Port of Poti, she maintained that the dismissal of the five individuals was unrelated to their trade union activities but was due, rather, to their performance. Additionally, the employer concerned had submitted a letter expressing concern over the behaviour of the individuals' trade union; it also suggested that the union forced workers at the port to become members, made it extremely difficult to renounce union membership, and collected membership dues in an illegal manner.

Addressing the intervention of the observer from Education International, she emphasized that in many countries the responsibility for the administration of schools rested with regional authorities, a fact which did not give rise to any concern. Decentralizing the school system in Georgia was therefore perfectly appropriate, and moreover posed no problem with respect to the articles of the nation's Constitution. The closer schools were to their constituencies, the better. The school optimization process entailed a comprehensive set of reforms and would include a new law on higher education. This law would comply with international labour standards and also modernize Georgia's school system through greater harmonization with EU educational curricula; this, in turn, would encourage teachers to obtain higher qualifications.

With regard to the PES, she stated that any newly established organization would, upon informing the Government of its establishment, be welcomed and granted the opportunity to engage in dialogue. She affirmed that, as had earlier been underlined, Georgia lacked a tradition of collective bargaining. This was a consequence of the previous system, which was characterized by a single trade union monopoly all workers were required to join. The reforms ushered in by the new Labour Code, however, removed bargaining restrictions so that collective agreements could be concluded between an employer and as few as two employees. Individual agreements between an employer and employee had also been accorded equal status with collective agreements. This reform was particularly important in view of the fact that only 12 per cent of the working population was unionized, and the Government did not wish to discriminate against individuals who had not chosen to join a trade union. The Government's appropriate role, as captured in the new Labour Code, was to ensure that the rights of individuals and organizations were equally respected; she emphasized in this regard that the Government would not attempt to artificially create a tradition of collective bargaining where none existed. She concluded by reiterating that neither the new Labour Code nor the law on trade unions contained any provisions restricting the right to collective bargaining.

The Employer members stated that the absence of a requirement of formal justification of a refusal to hire, as well as the setting up of a system of contract termination without providing a reason, did not constitute a violation of the Convention. In the same way, this Convention did not impose a specific model for collective bargaining and he could not agree that the new model of negotiations in Georgia contravened the provisions of the Convention.

Nonetheless, the Employers' group considered the intense dialogue with the Committee of Experts to be very positive, as were the discussions held in the Conference Committee. They might have helped to essentially clarify the degree to which Georgia was complying with the provisions of the Convention. The speaker encouraged the Government of Georgia to continue providing information in this respect to the Committee of Experts.

The Worker members took note of the information provided by the Government representative, but could not be satisfied in light of the flagrant violations to the rights of workers and trade union activities. To put an end to the suffering of the workers, referred to during the discussions, the Committee should formulate particularly strict conclusions.

While noting that the Government believed that the Labour Code did not need revision, the Worker members requested it to observe the demands and suggestions formulated by the Committee of Experts and to commit itself to revise the Labour Code so as to ensure its full conformity with the Convention in letter and spirit. Never, at any moment, had the experts overstepped their jurisdiction in the examination of the situation. Consequently, the revision would have to address the individual rights of workers and the conditions permitting the establishment of effective collective bargaining because, firstly, workers' rights should be respected; secondly, for employers, an effective social dialogue was beneficial to the performance of enterprises; and, thirdly, for the Government, a functioning social dialogue was a guarantee for social peace.

The workers' and employers' organizations must take part in the reform of the Code, while respecting the condition of tripartism underlined in the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). A tripartite round table could be organized to ensure that the counterproposals formulated by trade union organizations were heard within the common evaluation, which would take place after the consultation by experts of UNDP in Georgia had been conducted.

The Worker members recalled that technical assistance by the ILO could help a government accomplish a task that was both legal and centred on tripartism, and declared that this assistance would allow the Government of Georgia to take a step in organizing collective bargaining.

Conclusions

The Committee noted the written and oral information provided by the Government representative and the discussion that followed.

The Committee observed that the comments of the Committee of Experts referred to provisions in the recently adopted Labour Code which, according to the Committee of Experts, did not ensure the full application of the Convention, in particular as regards adequate protection against anti-union discrimination and meaningful promotion of collective bargaining.

The Committee observed the difference of opinion between the Government, the Workers and the Employers in relation to the issues raised.

The Committee took due note of the Government's statement concerning the constitutional and legislative provisions aimed at ensuring effective protection of trade union rights, including the recent adoption of the Labour Code. It further noted the information provided concerning the upcoming UNDP-financed study on the impact of the Labour Code on the labour market and labour relations in Georgia. It also noted that the Government intended to carry out full consultations with the social partners in this regard.

The Committee welcomed the Government's indication that it was cooperating with the ILO to look seriously at all these matters and noted with interest the steps taken to study the full impact of the Labour Code.

The Committee considered that a tripartite round table to address these issues in a context of full social dialogue, and the ongoing consultation process, together with ILO technical assistance, could facilitate further progress on matters relating to the promotion of collective bargaining and the protection of the right to organize, both in law and in practice.

It requested the Government to provide full particulars and any necessary clarifications in respect of all the above matters to the Committee of Experts when its next report was due.

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, which refer to the matters raised by the Committee below.

The Committee notes that the Labour Code has been revised in 2020.

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee recalls that in its previous comments it had raised questions regarding the protection against anti-union discrimination at the time of hiring, as well as in cases of non-renewal of employment contracts.

The Committee notes the Government’s indication that in 2019, changes were made to the Law on Elimination of All Forms of Discrimination. According to the Government, new provisions, pursuant to which, the principle of equal treatment, which expressly applies to members of trade unions and covers trade union activities, shall apply to labour and pre-contractual relations, were added to the Law; similar provisions were included in the Labour Code. The Government further indicates that through the amendments introduced to the Law on the Public Defender in 2020, the mandate of the Ombudsman in cases of discrimination was extended. The Committee notes the detailed information provided by the Government on the extended mandate of the Public Defender in alleged cases of discrimination, including anti-union discrimination. The Committee welcomes the new legislative amendments. In particular, it notes with satisfaction section 7 of the Labour Code as amended, according to which, where a job candidate or employee alleges facts and/or circumstances which give rise to a reasonable belief that an employer has violated the prohibition against discrimination, the burden of proof shall rest with the employer. The Committee also notes with interest sections 77 and 78 of the Labour Code, pursuant to which, any violation by an employer of the provisions prohibiting discrimination shall result in either a warning or a fine in a threefold amount provided for the violation of other provisions of the Labour Code; if the same act is committed again within one calendar year, the amount of the fine doubles. The Committee also notes with interest that by virtue of sections 5 and 47 of the Labour Code, the prohibition of anti-union discriminations also covers termination of employment due to the expiration of an employment contract. While noting with interest that section 48 of the Labour Code imposes an obligation on an employer, upon request by an employee, to substantiate in writing the grounds for terminating employment, the Committee understands that this obligation does not apply to cases of non-renewal of a contract. The Committee takes note of the information provided by the Government on the number of cases of anti-union discrimination examined. The Committee requests the Government to provide information on the application in practice of the amended legislative provisions, including on the number of complaints of anti-union discrimination at the time of hiring and non-renewal of employment contracts and the fine imposed and their amounts.

Article 2. Interference by employers in internal trade union affairs. In its previous comments, recalling the need for the legislation to make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions for acts of interference against workers’ and employers’ organizations, the Committee had requested the Government to indicate the provisions providing for the remedies and/or sanctions for violation of (previous) section 40.3 of the Labour Code and section 5 of the Law on Trade Unions, which prohibited all forms of interference and provided for independence of trade union organizations from employers and their organizations. The Committee had requested the Government to provide any administrative or judicial decision in this respect.

The Committee notes the Government’s indication that pursuant to section 26 of the Law on Trade Unions, cases of violation of trade union rights shall be considered by courts and that pursuant to section 27(2) of that Law, trade unions and their associations, as well as trade union members have the right to file claims or complaints with a court in cases of violation of the legislation, or fail to fulfil obligations set out in collective agreements. In addition, section 166 of the Criminal Code provides for liability for unlawful interference with the establishment of public associations or with their activities committed with violence, threat of violence or the use of official position, and punishes such acts by a fine or corrective labour for a term of up to one year or house arrest for a term of six months to two years, or by imprisonment for a term of up to two years. The Committee also notes the fines provided for in above-mentioned section 77 for the violation of the provisions of the Labour Code, including its new section 54, which prohibits interference in the activities of employers’ associations and employees’ associations in each other’s activities. The Committee notes the Government’s indication that during the reporting period, the courts of Georgia did not consider any cases of alleged interference. The Committee requests the Government to keep providing information in this regard.

The Committee recalls that it had previously expressed the hope that steps would be taken by the Government to ensure that compliance with the rights enshrined in the Convention was subject to monitoring by the public authorities. The Committee notes with interest sections 75 and 76 of the Labour Code as amended, which designate the Labour Inspection Service as the body responsible for State supervision over compliance with the labour legislation.

Article 4. Promotion of collective bargaining. The Committee had previously requested the Government to provide information on any progress made towards strengthening the labour administration and institutionalizing social dialogue and in particular on the adoption of the amendment of Decree N301 on Labour Dispute Settlement Procedures, in consultation with the social partners. The Committee notes the information provided by the Government on the number of conciliation procedures during the reporting period and their success rate, as well as on the training of 15 participants on collective bargaining disputes. In the absence of information regarding the adoption of the amendment of Decree N301, the Committee requests the Government to provide information on the developments in this regard.

The Committee had also requested the Government to provide information on all progress made in ensuring that the content of section 48(5) of the Labour Code, which provided that at any stage of a dispute, the Minister can terminate conciliatory procedures, promoted the negotiated resolution of collective labour disputes. The Committee notes that section 63(5) of the amended Labour Code is to the same effect. It further notes the Government’s explanation that the right of the Minister to terminate the conciliation procedures is a consequence of his or her right to appoint a dispute mediator and to commence conciliatory procedures. The Committee notes that the GTUC raises several concerns regarding the right of the Minister to terminate conciliatory procedures without regard to the opinion of the parties to the dispute. The Committee requests the Government to take the necessary steps, in consultation with the social partners, to review section 63(5) of the Labour Code so as to ensure that it promotes the negotiated resolution of collective labour disputes. It requests the Government to provide information on all developments in this regard.

The Committee notes the information provided by the Government on the number of collective agreements in force and workers covered. It requests the Government to continue providing such information in its reports. The Committee also requests the Government to provide its comments on the alleged by the GTUC violations of collective bargaining rights at a number of enterprises.

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

Article 1 of the Convention. Protection against anti-union discrimination. In its previous comments, the Committee had noted the observations of the Georgian Trade Union Confederation (GTUC) alleging that the frequent non-renewal of short-term contracts of employment for anti-union purposes is eased by the absence in the Labour Code of a provision that would oblige the employer to justify the non-renewal of short-term contracts, and had requested the Government to specify whether the Labour Code provisions prohibiting anti-union discrimination are applicable to short-term contracts. The Committee notes with interest that the Government indicates that section 2(3) of the Labour Code which prohibits discrimination equally applies to all types of contract. The Committee requests the Government to provide information on cases of non-renewal of short-term contracts for reasons of anti-union discrimination where section 2(3) of the Labour Code has been invoked.

Article 4. Promotion of collective bargaining. The Committee previously requested the Government to review section 48(5) of the Labour Code related to discussion and resolution of collective labour disputes which provides that, at any stage of a dispute, the Minister can terminate conciliatory procedures. The Committee notes the Government’s information that consultation with state institutions and social partners on the feasibility of amendments to section 48(5) of the Labour Code has started and that the result of the consultations will be submitted to the Tripartite Social Partnership Commission for decision. The Committee expects that the Government will pursue its efforts in consultation with the representatives of employers’ and workers’ organizations concerned so as to ensure that the content of section 48(5) of the Labour Code promotes the negotiated resolution of collective labour disputes, and requests the Government to supply information on all progress made thereon.

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

The Committee takes note of the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017 and the observations of the Georgian Trade Union Confederation (GTUC) received on 4 September 2017 containing allegations of acts of anti-union discrimination and violation of the right to bargain collectively, as well as the Government’s reply thereon. The Committee also takes note of the Government’s reply to the observations provided by the ITUC in 2015 and 2016 and to the observations provided by Education International (EI), the Educators Scientists Free Trade Union of Georgia (ESFTUG) and the GTUC received in 2014.

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that according to section 5(8) of the Labour Code, an employer was not required to substantiate their decision for not recruiting an applicant, even in the event of an allegation of anti-union discrimination. The Committee had requested the Government to provide information on any complaints of anti-union discrimination at the time of hiring and any relevant court judgments, as well as to indicate whether section 5(8) of the Labour Code has been invoked in such cases. The Committee notes the Government’s information that in support of section 2(3) of the Labour Code which prohibits discrimination, the Law of Georgia on the Elimination of All Forms of Discrimination was adopted in 2014 enabling the Public Defender of Georgia to monitor issues regarding elimination of discrimination, to ensure equality and to discuss the applications and complaints for discrimination. In this respect, the Committee also notes the Government’s indication that the amendments to different laws, including the Organic Law of Georgia on the Public Defender, now authorize the Public Defender to issue a fine for public institutions, organizations, private and legal entities for not fulfilling recommendations on the facts of discrimination in labour pre-contractual relations. The Committee further notes that the Government indicates that since the Law of Georgia on the Elimination of All Forms of Discrimination entered into force, nine facts of possible discrimination on the ground of membership of trade unions have been discussed by the Office of the Public Defender, including two cases where the Public Defender presented their opinion, one case where a recommendation on direct discrimination has been issued and six cases where proceedings have been terminated. None of these cases referred to discrimination in pre-contractual relations and no cases regarding discrimination have been assessed by the courts. Taking due note of the adoption of the Law of Georgia on the Elimination of All Forms of Discrimination, the Committee requests the Government to continue providing information on any complaints of anti-union discrimination at the time of hiring, as well as to indicate whether section 5(8) of the Labour Code has been invoked in such cases. The Committee further requests the Government to indicate which provisions allow the Public Defender of Georgia to issue a fine in case of discrimination in labour pre-contractual relations and to provide detailed information on the number of cases where these provisions may have been invoked.

Article 2. Interference by employers in internal trade union affairs. In its previous comments, the Committee had requested the Government to confirm that section 40.3 of the Labour Code, which provides that any form of interference by employers and employees’ associations in each other’s activities is strictly prohibited, covers not only acts of interference between organizations but also instances where individual employers may interfere in employees’ associations, and to indicate the remedies and/or sanctions provided in such cases under section 40.3 of the Labour Code. The Committee notes the Government’s information that section 5 of the Law of Georgia on Trade Unions provides that trade unions and federations of trade unions are independent from employers and employers’ confederations (unions, associations). Recalling the need for the legislation to make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions for acts of interference against workers’ and employers’ organizations, the Committee requests the Government to indicate the provisions which state the remedies and/or sanctions for violation of section 40.3 of the Labour Code and section 5 of the Law of Georgia on Trade Unions. The Committee requests the Government to continue providing any administrative or judicial decision in this respect.

Furthermore, the Committee previously requested the Government to provide information on the progress made with respect to the establishment of a State monitoring agency on labour conditions and labour rights issues in consultation with the social partners and with the support of the ILO project on improved compliance with labour laws in Georgia, and to provide detailed information on the application of the Convention in practice. The Committee notes the information provided by the Government regarding the elaboration of a legislative framework on occupational safety and health authorizing the Labour Conditions Inspection Department to conduct inspections with the aim of identifying possible cases of forced labour or labour exploitation. While taking note of this information, the Committee regrets that the legislative framework under preparation does not allow for inspections aimed at monitoring compliance with trade union rights. The Committee considers that the existence of such a monitoring would contribute to the resolution and prevention of the persistent allegations of acts of anti-union discrimination and violation of collective bargaining rights raised by several international and national trade union organizations. The Committee hopes that further steps will be taken by the Government so as to ensure that compliance with the rights enshrined in the Convention is subject to monitoring by the public authorities.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee requested the Government to continue to inform on the actions taken to promote collective bargaining both in the public and private sectors and on the number of collective agreements signed and the number of workers covered. The Committee notes that the Government indicates that the Ministry of Labour, Health and Social Affairs does not record collective agreements and, as a result, does not have the information requested. Emphasizing that the compilation of statistics on collective agreements is an important element of policies aimed at promoting collective bargaining, the Committee once again requests the Government to provide information on the number of collective agreements signed and the number of workers covered.

The Committee previously requested the Government to inform about the process of strengthening the labour administration and institutionalizing social dialogue and to inform on the results of the mediation of ongoing labour disputes. The Committee notes the Government’s information on the Tripartite Social Partnership Commission (TSPC) meeting held on 10 February 2017, where a roster of mediators consisting of 11 independent, neutral, impartial and qualified mediators was approved for a period of three years. The Committee further notes that the Ministry of Labour, Health and Social Affairs is currently working on the amendment of Decree N301 on Labour Dispute Settlement Procedures aimed at establishing a mechanism for effective resolution of collective labour disputes within short periods of time and at no expense. The Committee also takes note of the statistics provided by the Government with regard to the results of the mediation of ongoing labour disputes. The Committee welcomes the steps taken to make the mechanism more functional and effective and requests the Government to continue to provide information on any progress in this regard, and in particular on the adoption of the amendment of Decree N301 on Labour Dispute Settlement Procedures, in consultation with the social partners.

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 1 of the Convention. Protection against anti-union discrimination. The Committee notes the Georgian Trade Unions Confederation (GTUC) observations alleging the frequent non-renewal of short-term contracts of employment for anti-union purposes and mentioning that such a practice is eased by the absence in the Labour Code of a provision that would oblige the employer to justify the non-renewal of short-term contracts. Recalling that Article 1 of the Convention applies to the non-renewal of contracts for anti-union purposes, the Committee asks the Government to specify whether the Labour Code provisions prohibiting anti-union discrimination are applicable to short-term contracts.

Article 4. Promotion of collective bargaining. The Committee notes that section 48(5) of the amended Labour Code related to discussion and resolution of collective labour disputes provides that at any stage of a dispute, the Minister can terminate conciliatory procedures. Recalling that procedures for the settlement of labour disputes should be so conceived as to contribute to the promotion of collective bargaining, the Committee considers that the parties should be able to pursue conciliation if they so desire. The Committee requests the Government to review section 48(5) of the Labour Code in consultation with the representative employers’ and workers’ organizations concerned so as to ensure that its content promotes the negotiated resolution of collective labour disputes. The Committee requests the Government to keep it informed of the outcome of this review.

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

The Committee notes the observations of the International Trade Union Confederation (ITUC), 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, referring to issues raised by the Committee below and alleging serious cases of interference, including the establishment of workers’ organizations under the domination of employers in the public sector, numerous acts of anti-union discrimination both in the public and private sectors as well as obstacles to collective bargaining in the public education sector. While noting its reply to the 2013 GTUC observations, the Committee requests the Government to provide its detailed comments on the 2014 trade union observations mentioned above.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that the Labour Code did not contain explicit provisions banning dismissals by reason of union membership or participating in union activities and that, according to section 5.8 of the Code, an employer was not required to substantiate its decision for not recruiting an applicant, even in the event of an allegation of anti-union discrimination. The Committee had thus requested the Government to take the necessary measures to revise the Labour Code in consultation with the social partners, so as to ensure that the Labour Code provides for adequate protection of trade union members and trade union leaders against anti-union discrimination. The Committee notes that the Government’s information that the Labour Code was amended on 12 June 2013, with a view to fully incorporating the requirements of the Convention into domestic legislation. In this respect, the Committee notes with satisfaction that: (i) sections 2 and 40.2 of the revised Labour Code expressly prohibit anti-union discrimination both at the pre-contractual stage and through the employment relationship; (ii) sections 37 and 40.2 of the Labour Code expressly prohibit termination based on anti-union discrimination; and (iii) according to the mentioned provisions, the burden of proof shall lie with the employer if the employee refers to circumstances which establish a reasonable doubt that the employer did terminate the contract of employment on an anti-union ground. Noting the Government’s indication concerning the applicability of the new rules on burden of proof to allegations of anti-union discrimination at the recruitment stage, the Committee requests the Government to provide information on any complaints of anti-union discrimination at the time of hiring and any relevant court judgments as well as to indicate whether section 5.8 of the Labour Code has been invoked in such cases and to what extent it may have rendered it difficult to prove such discrimination.

Article 2. Interference by employers in internal trade union affairs. The Committee notes that new section 40.3 of the Labour Code stipulates that: (i) any form of interference in each other’s activities is strictly prohibited for employers and employees’ associations; and (ii) interference means any practice aimed at intervening in an association by financial or other means with the object of placing the activities of such association under the control of another organization. The Committee requests the Government to confirm that this section covers not only acts of interference between organizations but also instances where individual employers may interfere in employees’ associations and to indicate the remedies and/or sanctions provided in such cases under this new section 40.3 of the Labour Code. The Committee requests the Government to provide any administrative or judicial decision in this respect.

The Committee finally notes the GTUC observations concerning the absence of labour inspection and its strong impact on the protection against anti-union discrimination and acts of interference in practice. Welcoming the Government’s indication that the establishment of a state monitoring agency on labour conditions and labour rights issues is under way in consultation with the social partners and with the support of the ILO Project on improved compliance with labour laws in Georgia, the Committee requests the Government to provide information on the progress made in this respect and to provide detailed information on the application of the Convention in practice, including statistics on the number of confirmed cases of anti-union discrimination and acts of interference, the remedies provided and sanctions imposed.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had requested the Government to take the necessary measures in order to amend sections 41 and 43 of the Labour Code so as to ensure that the position of trade unions is not undermined by the existence of other employees’ representatives or discriminatory situations in favour of the non-unionized staff and to promote collective bargaining with trade union organizations. The Committee notes with satisfaction that as part of the 2013 amendments to the Labour Code, sections 41 and 43 were revised and that: (i) collective agreements are now concluded only with employees’ associations; and (ii) contracts of employment clauses will be declared null and void if they contradict the applicable collective agreement, except when the clause improves the workers’ conditions.

The Committee also notes the Government’s indications that according to the information provided by trade unions, 42 collective agreements, which are still valid, were concluded in 2011–13 (28 in 2011, six in 2012 and eight in 2013). The Committee requests the Government to continue to inform on the actions taken to promote collective bargaining both in the public and private sectors and on the number of collective agreements signed and the number of workers covered.

In its previous comments, the Committee had requested the Government to provide detailed information on the nature and number of cases of alleged violations of trade union rights examined by the Tripartite Social Partnership Commission (TSPC), as well as on the effect given to its decisions and recommendations. The Committee notes that the Government indicates that: (i) the functioning and the composition of the TSPC were revised by the amended Labour Code and Resolution No. 258 of 7 October 2013; (ii) the new TSPC met for the first time on 1 May 2014 and its discussions included the mediation system of collective labour disputes in general as well as the existing conflicts at the Georgian Railway Ltd, the Georgian Post Ltd and in the education and mining–metallurgical sectors; (iii) with the support of the ILO Project on improved compliance with labour laws in Georgia, a selection process and training of candidates’ mediators were carried out; and (iv) the new Labour and Employment Policy Department of the Ministry of Labour operates as a moderator along with the social partners for the regulation of collective labour disputes and is actively involved in the ongoing process of negotiations within the Georgian Railway Ltd and the Georgian Post Ltd.

The Committee welcomes the initiatives taken to strengthen the labour administration and to institutionalize social dialogue and requests the Government to continue to inform about this process. While highlighting the importance of fully involving the social partners in the settlement of collective labour disputes, the Committee requests the Government to inform on the results of the mediation of ongoing labour disputes.

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

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 31 July 2012, Education International (EI) and the Educators and Scientists Free Trade Union of Georgia (ESFTUG) in a communication dated 31 August 2012, and the Georgian Trade Unions Confederation (GTUC) in a communication dated 21 September 2012, referring to the issues raised by the Committee below. The Committee notes the Government’s reply to these communications. It observes, however, that the Government’s observations do not address in detail the issues raised.

The Committee further notes the Government’s latest communication dated 22 November 2012 in which it expresses its strong commitment to collaborate with the social partners and the ILO in order to execute respective changes, including amendments in labour legislation. The Committee welcomes this cooperative spirit and trusts that its comments below will be of assistance in this process.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee recalls that it had previously noted that pursuant to section 5(8) of the Labour Code, an employer was not required to substantiate his/her decision for not recruiting an applicant, even in the event of an allegation of anti-union discrimination, and considered that the application of this section, in practice, might result in placing on a worker an insurmountable obstacle when proving that he/she was not recruited because of his/her trade union activities. The Committee had also noted that, according to sections 37(1)(d) and 38(3) of the Code, the employer has a right to terminate a contract at his/her initiative with an employee, provided that the employee is given one month’s pay, unless otherwise envisaged by the contract. The Committee considered that, in light of the absence of explicit provisions banning dismissals by reason of union membership or participating in union activities, the Labour Code did not offer sufficient protection against anti-union dismissals. It therefore requested the Government to take the necessary measures to revise sections 5(8), 37(1)(d) and 38(3) of the Code in consultation with the social partners, so as to ensure that it provides for an adequate protection against anti-union discrimination. It further requested the Government to provide detailed information on the application of the Convention in practice, including statistics on the number of confirmed cases of anti-union discrimination, the remedies provided and sanctions imposed.

The Committee notes that in its report the Government, while stressing that it pays vital attention to the prohibition of anti-union discrimination and explores the possibility to better address the issue in order to ensure a clear and better articulated prohibition of anti-union discrimination, indicates that the legislation in force provides guarantees of freedom of association and prohibits any kind of discrimination based on membership in any type of association, including trade unions. In this respect, it once again refers to the general prohibition of anti-union discrimination enshrined in the national Constitution (article 26(1)), the Law on Trade Unions (sections 2(3) and 11(6)), the Labour Code (section 2(3) and (6)), and the Criminal Code (sections 142 and 146). The Government indicates that prohibition of anti-union discrimination is applicable both at the recruitment and employment termination stages and that penal sanctions may be applied in case of violation of workers’ rights. An employer’s request to disclose membership in any association, including trade unions, during recruitment, is illegal and punishable. The Government points out that there are no reported cases when a person was not recruited based on his/her trade union membership. Furthermore, the Government indicates that it was able to retrieve ten cases in which trade union members appealed to the courts and that only one involved allegations of anti-union discrimination. In this respect, the Government indicates that most of the cases in which the GTUC claims discrimination concern dismissals of trade union leaders without prior consent of the trade union and not alleged anti-union discrimination per se.

With regard to section 37 of the Labour Code, the Government reiterates that this provision does not stipulate that an employer can dismiss a worker without any reason, but rather that one of the grounds for suspending labour relations is the termination of a labour contract, which is possible upon the initiative of one of the parties or pursuant to the provisions of the contract. If a dismissed worker appeals to the court, the employer is obliged to provide arguments and reasons for the dismissal to the court. Both parties must provide facts and arguments and burden of proof lies with both of them (section 102 of the Code of Civil Procedure). Accordingly, an employer is obliged to provide facts to justify that the dismissal of a worker was not based on an illegitimate reason. The Government refers to the ruling of the Supreme Court (Case No. 343-327-2011, 1 December 2011), according to which, in the course of the termination of a labour contract, the fundamental human rights, including protection against discrimination envisaged by the Labour Code, should be ensured. Thus, in case of a dismissal of a worker, it should be meaningfully investigated whether the dismissal was based on discriminatory grounds; in this case, the burden of proof lies with the employer.

The Committee notes that the Supreme Court case referred to by the Government concerns a dismissal of a trade union leader and that according to the court’s reasoning, the Labour Code allows termination of employment of any employee, including an elected trade union officer. According to the court, election to a trade union office does not provide any additional privileges. In this respect, the Committee considers that, while the Convention requires protection against acts of anti-union discrimination in relation to all workers, the protection provided for in the Convention is particularly important in the case of trade union representatives and officers. One of the ways of ensuring this protection is to provide that trade union representatives may not be dismissed or otherwise prejudiced either during their term of office, or for a specified period following its expiry. With regard to the protection at the time of recruitment, the Committee once again recalls that workers may face many practical difficulties in proving the real nature of denial of employment, especially when seen in the context of blacklisting of trade union members, which is a practice whose very strength lies in its secrecy. Since it may often be difficult, if not impossible, for a worker to prove that he/she has been the victim of an act of anti-union discrimination, legislation could provide ways to remedy these difficulties, for instance by stipulating that grounds for the decision of non-recruitment should be made available upon request.

The Committee notes with concern numerous allegations of anti-union dismissals submitted by the GTUC, the ITUC, the ESFTUG and the EI in their respective communications. Thus, while noting the information provided by the Government and observing that general provisions prohibiting discrimination exist in the legislation, the Committee underlines that it is essential that the system in place is an effective one. The Committee considers, for example, that options compatible with the Convention would include: a system establishing preventive machinery by requiring that a dismissal is authorized by an independent body or public authority (labour inspectorate or courts); a system which provides for the reinstatement of an unfairly dismissed worker; or a system providing for compensation for the prejudice suffered as a result of an act of anti-union discrimination and sufficiently dissuasive sanctions imposed on employers found guilty of anti-union discrimination, which also act as an effective deterrent to prevent in practice anti-union dismissals.

In the light of the above, the Committee considers that the system currently in place in Georgia does not afford adequate protection. The Committee therefore once again requests the Government to take the necessary measures to revise sections 5(8), 37(1)(d) and 38(3) of the Labour Code in consultation with the social partners, so as to ensure that the Labour Code provides for adequate protection of trade union members and trade union leaders against anti-union discrimination taking into account the principles above. It requests the Government to provide information on the measures taken or envisaged in this respect. The Committee further requests the Government to provide its detailed observations on the comments submitted by workers’ organizations.

Article 2. Interference by employers in internal trade union affairs. The Committee recalls that it had previously noted various legislative provisions which provide for the protection against interference by employers in trade union affairs. The Committee notes with concern numerous allegations of employers’ interference in trade union internal affairs, in the private and public sectors, which include prohibition of collection of trade union dues, harassment and pressure exercised on trade union members to leave their respective unions. The Committee requests the Government to provide its detailed observations thereon.

Article 4. Collective bargaining. The Committee had previously noted that sections 41–43 of the Labour Code appeared to put in the same position collective agreements concluded with trade union organizations and agreements between an employer and non-unionized workers, including as few as two workers. Considering that direct negotiations between an undertaking and its employees, bypassing representative organizations where these exist, run counter to the principle that negotiations between employers and organizations of workers should be encouraged and promoted, the Committee requested the Government to take the necessary measures in order to amend its legislation so as to ensure that the position of trade unions is not undermined by the existence of other employees’ representatives or discriminatory situations in favour of the non-unionized staff.

The Committee regrets that the Government merely reiterates that unionized workers have several privileges over non-unionized workers: for example, an employer is obliged to bargain collectively with a trade union upon the initiative of the latter, but is not obliged to do so with non-unionized workers; trade unions enjoy certain facilities (premises, check-off facilities, etc.), which non-unionized workers do not have; and trade unions are protected in law against acts of interference. The Committee must therefore once again stress that the equal status given in law to collective labour agreements concluded with trade union organizations and agreements concluded with a group of non-unionized workers is difficult to reconcile with the ILO principles on collective bargaining, according to which the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations should be encouraged and promoted with a view to the regulation of terms and conditions of employment by means of collective agreements. If, in the course of collective bargaining with the trade union, the enterprise offers better working conditions to non-unionized workers under individual agreements, there is a serious risk that this might undermine the negotiating capacity of the trade union and give rise to discriminatory situations in favour of the non-unionized staff; furthermore, it might encourage unionized workers to withdraw from the union. The Committee therefore once again requests the Government to take the necessary measures in order to amend the legislation so as to ensure that the position of trade unions is not undermined by the existence of other employees’ representatives or discriminatory situations in favour of the non-unionized staff and to promote collective bargaining with trade union organizations. It requests the Government to provide information on all measures taken or envisaged in this regard.

The Committee recalls that it had also requested the Government to indicate the number of collective agreements concluded in the country and to provide relevant statistics in relation to the private sector. In this respect, it notes the Government’s indication that it does not have official statistics regarding the number of collective agreements. The Government points out, however, that according to the 2010 ILO/DIALOGUE study, the collective bargaining coverage rate in the country is 25.9 per cent. It also refers to a collective agreement concluded in 2010 at a mine factory following a strike.

The Committee notes with concern numerous allegations of violations of collective bargaining rights in the country submitted by the abovementioned international and national trade union organizations. It notes, in particular that, according to the information provided by these organizations, employers in the public and private sectors refuse to bargain collectively or to respect those agreements that have been concluded. It further notes the following statistics provided by the GTUC: during 2011, 41 collective agreements were terminated and 32 agreements expired and were not renewed; not a single agreement was signed in the second half of 2011; and between June 2011 and June 2012, only five new collective agreements have been concluded. The Committee requests the Government to provide its detailed observations on the comments submitted by workers’ organizations.

The Committee recalls that in its previous comments it had noted the steps taken by the Government to institutionalize social dialogue in the country through the establishment of the Tripartite Social Partnership Commission (TSPC), which, among other matters, dealt with the allegations of violations of trade union rights submitted by trade unions. The Committee notes with concern the GTUC’s allegation that the TSPC remains to be very ineffective and that over two-and-a-half years of its existence, this body has not solved one single issue and not one of its decisions and recommendations has been acted upon. The Committee requests the Government to provide detailed information on the nature and number of cases examined by the TSPC, as well as on the effect given to its decisions and recommendations.

The Committee recalls that it had previously noted that a tripartite working group of the TSPC had been established and charged with reviewing and analysing the conformity of the national legislation with the findings and recommendations of the Committee of Experts and to propose the necessary amendments. The Committee expresses the hope that any proposed amendments will take into account its comments above. It requests the Government to provide information on all progress achieved in this respect.

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

The Committee notes the comments submitted by Education International (EI) in communications dated 30 August 2010 and 31 August 2011, which concern issues pending before the Committee on Freedom of Association (CFA) in Case No. 2678, concerning interference in activities of the Educators & Scientists Free Trade Union of Georgia (ESFTUG) and dismissals of trade unionists and the Government’s reply thereon. In this respect, the Committee also notes the November 2011 conclusions and recommendations of the CFA (see 361st Report). The Committee also notes the comments made by the Georgian Trade Union Confederation (GTUC) and the International Trade Union Confederation (ITUC) in communications dated 3 September 2010, and 4 August and 10 October 2011, respectively, alleging numerous cases of anti-union discrimination, employers’ interference in trade union affairs and violation of collective bargaining rights. The Committee notes that some of their allegations refer to the issues pending before the CFA in Case No. 2663. In this respect, the Committee notes the March 2010 CFA conclusions and recommendations (see 356th Report). The Committee notes the Government’s reply to the comments of the ITUC.

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2010. It further notes that, on that occasion, the Conference Committee welcomed the steps taken by the Government to institutionalize social dialogue in the country through the establishment of the Tripartite Social Partnership Commission (TSPC), whose statutes were adopted and secretariat established in March and May 2010, respectively.

The Committee notes that in its report, the Government indicates that in the period from January 2010 to July 2011, the TSPC has met approximately ten times and its tripartite Working Group has held 24 meetings. The Government explains that before each meeting the secretariat of the TSPC elaborates the agenda and transmits it to the social partners for comments. It points out that the main issues discussed by the TSPC are related to the allegations provided by the GTUC regarding cases of violation of trade union rights. The Government further indicates that, in line with the ILO supervisory bodies’ recommendations that violations of trade union rights should be investigated by the Government, it had made a decision that such cases should be reviewed in the framework of the TSPC to ensure involvement of all interested parties. For this purpose, the TSPC was empowered to conciliate and mediate labour disputes. The Government informs that the following allegations by the GTUC, ITUC and EI on cases of anti-union discrimination have been discussed by the TSPC: LTD Poti Sea Port case; LTD BTM Textile case; LTD Georgian Railway case; and the ESFTUG case. The Committee welcomes this information. It recalls, however, that in addition to noting the alleged cases of violation of the Convention in practice, it had also raised issues relating to an insufficiency in the legislative framework of an effective and adequate protection against anti-union discrimination and meaningful promotion of collective bargaining. In this respect, it had noted that the abovementioned TSPC tripartite Working Group had been charged with reviewing and analysing the conformity of the national legislation with the findings and recommendations of the Committee of Experts and to propose the necessary amendments. The Committee expressed the hope that any proposed amendments would take into account its comments, which concerned the following issues.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee had previously noted that section 11(6) of the Law on Trade Unions and section 2(3) of the Labour Code which prohibited, in very general terms, anti-union discrimination, did not appear to constitute sufficient protection against anti-union discrimination at the time of recruitment of workers and at the time of termination of their employment. In particular, the Committee had noted that, pursuant to section 5(8) of the Labour Code, an employer was not required to substantiate his/her decision for not recruiting an applicant and considered that the application of this section in practice might result in placing on a worker an insurmountable obstacle when proving that he/she was not recruited because of his/her trade union activities. The Committee had also noted that, according to sections 37(d) and 38(3) of the Labour Code, the employer has a right to terminate a contract at his/her initiative with an employee, provided that the employee is given one month’s pay, unless otherwise is envisaged by the contract. The Committee considered that, in light of the absence of explicit provisions banning dismissals by reason of union membership or participating in union activities, the Labour Code did not offer sufficient protection against anti-union dismissals. The Committee therefore trusted that the necessary measures would be taken to amend the abovementioned provisions of the Labour Code so as to ensure an adequate protection against anti-union discrimination. It further requested the Government to indicate the form of compensation available to workers, victims of acts of anti-union discrimination, including dismissals, transfers, downgrading, etc.

The Committee notes that the Government reiterates the information it had previously provided by referring to the general prohibition of anti-union discrimination enshrined in the Constitution (articles 14 and 26), the Law on Trade Unions (section 11(6)), the Labour Code (section 2(3)) and the Criminal Code (section 142). The Government considers that the legislation clearly prohibits any type of discrimination, including anti-union dismissals, and sufficiently protects against violations of these rights and is therefore in compliance with the Convention. The Government adds that no application has been submitted to the relevant governmental agencies for the past several years regarding restrictions of trade union rights. With regard to section 5(8) of the Labour Code, the Government indicates that, in practice, an employee becomes a trade union member after recruitment and that there have been no cases of a person not being recruited because of his/her trade union membership; it therefore considers that this provision is in conformity with the Convention. With regard to section 37(9) of the Labour Code, the Government indicates that this provision does not stipulate that an employer can dismiss a worker without any reason; but rather that one of the grounds for suspending labour relations is the termination of a labour contract, which is possible upon the initiative of one of the parties or on the grounds stipulated by the contract. If a dismissed worker appeals to the court, the employer is obliged to provide arguments and reasons for the dismissal to the court. Furthermore, the Government points out that, according to the Code, in case of termination of employment, an employer is obliged to give at least one-month’s pay if higher payment is not envisaged by the agreement between the parties. As to the compensation available to workers, victims of acts of anti-union discrimination, including dismissals, transfers and downgrading, the Government indicates that such workers have the right to request compensation by appealing to the court and indicating the amount of compensation desired; the court makes a final decision regarding compensation and its amount. The Government concludes by indicating that it does not see the need for initiating amendments to the Labour Code.

The Committee notes the information provided by the Government. It notes, in particular, that on the one hand, the Government indicates that there have been no complaints of restrictions of trade union rights, and on the other, that the allegations of violations of trade union rights pending before the ILO supervisory bodies are being examined by the TSPC. It further notes new allegations of dismissals of trade union officers and founding members submitted by the ITUC in its communication dated 10 October 2011. The Committee recalls that, in terms of Article 1 of the Convention, workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. The Committee recalls that such protection should cover hiring, dismissals and discriminatory measures during employment. With regard to the protection at the time of recruitment, the Committee recalls that workers may face many practical difficulties in proving the real nature of denial of employment, especially when seen in the context of blacklisting of trade union members, which is a practice whose very strength lies in its secrecy. Since it may often be difficult, if not impossible, for a worker to prove that he/she has been the victim of an act of anti union discrimination, legislation could provide ways to remedy these difficulties, for instance by stipulating that grounds for the decision of non-recruitment should be made available upon request. With regard to the termination of employment, the Committee considers that legislation which allows the employer in practice to terminate the employment of a worker on condition that he/she pays the compensation provided for by law in all cases of unjustified dismissal, without any specific protection aimed at preventing anti-union discrimination, is insufficient under the terms of Articles 1 and 3 of the Convention. The Committee underlines that while there exists a variety of systems affording an “adequate” protection against acts of anti-union discrimination, it is essential that the system in place is an efficient one. Thus, would be compatible with the Convention a system establishing preventive machinery by requiring that a dismissal is authorized by an independent body or public authority (labour inspectorate or courts); a system which provides for the reinstatement of an unfairly dismissed worker; or a system providing for compensation for the prejudice suffered as a result of an act of anti-union discrimination and sufficiently dissuasive sanctions imposed on employers found guilty of anti-union discrimination, which also act as an effective deterrent to prevent in practice anti-union dismissals. While noting that general provisions prohibiting discrimination exist in the legislation, in the light of the numerous alleged cases of anti-union discrimination, the Committee considers that the system currently in place in Georgia does not afford an adequate protection. The Committee therefore once again requests the Government to take the necessary measures to revise sections 5(8), 37(d) and 38(3) of the Labour Code in consultation with the social partners, so as to ensure that the Labour Code provides for an adequate protection against anti-union discrimination taking into account the principles above. It requests the Government to provide information on the measures taken or envisaged in this respect. The Committee further asks the Government to provide detailed information on the application of the Convention in practice, including statistics on the number of confirmed cases of anti-union discrimination, the remedies provided and sanctions imposed, as requested by the June 2010 Conference Committee.

Article 4. Collective bargaining. The Committee had previously noted that sections 41–43 of the Labour Code seem to put in the same position collective agreements concluded with trade union organizations and agreements between an employer and non-unionized workers, including as few as two workers. Considering that direct negotiations between an undertaking and its employees, bypassing representative organizations where these exist, run counter to the principle that negotiations between employers and organizations of workers should be encouraged and promoted, the Committee requested the Government to take the necessary measures in order to amend its legislation so as to ensure that the position of trade unions is not undermined by the existence of other employees’ representatives or discriminatory situations in favour of the non-unionized staff.

The Committee notes the Government’s indication that labour legislation aims at empowering workers to conclude labour agreements to provide for better working conditions and that this Convention has the same objective; accordingly, legislation is in compliance with the Convention. The Government considers that, while the Convention provides for the possibility to carry out collective bargaining between an employer and a trade union, it does not prohibit collective bargaining between an employer and non-unionized workers, even when a trade union exists at the particular undertaking. Consequently, adds the Government, collective agreements concluded with trade unions and agreements between an employer and non-unionized workers enjoy, under the national legislation in force, an equal standing. The Government points out, however, that unionized workers have several privileges over non-unionized workers. For example, an employer is obliged to bargain collectively with a trade union upon the initiative of the latter, but is not obliged to do so with non-unionized workers; trade unions enjoy certain facilities (premises, check-off facilities, etc), which non-unionized workers do not have. The Government further indicates that it promotes collective bargaining in practice and that the biggest companies in Georgia have collective agreements with the respective trade unions. As for the promotion of collective bargaining under Article 4 of the Convention, the Government considers that such “promotion” does not necessarily imply legislative measures. The Government further indicates that the Labour Code and the Law on Trade Unions in no way restrict promotion of collective bargaining, but to the contrary, contain the relevant rules, conditions and procedures. The Government concludes by emphasizing that, according to the Labour Code, the right to collectively bargain belongs not only to trade unions, which organize only about 12 per cent of the labour force (2008), but also to other unions or groups of employees. This regulation puts non-unionized workers and those organized in trade unions under equal conditions and thus excludes the discrimination based on trade union membership.

The Committee notes the arguments put forward by the Government, but finds it difficult to reconcile the equal status given in law to collective labour agreements concluded with trade union organizations and agreements concluded with a group of non-unionized workers with the ILO principles on collective bargaining, according to which the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations should be encouraged and promoted with a view to the regulation of terms and conditions of employment by means of collective agreements. If, in the course of collective bargaining with the trade union, the enterprise offers better working conditions to non-unionized workers under individual agreements, there is a serious risk that this might undermine the negotiating capacity of the trade union and give rise to discriminatory situations in favour of the non-unionized staff; furthermore, it might encourage unionized workers to withdraw from the union. The Committee therefore once again requests the Government to take the necessary measures in order to amend its legislation so as to ensure that the position of trade unions is not undermined by the existence of other employees’ representatives or discriminatory situations in favour of the non-unionized staff and to promote collective bargaining with trade union organizations. It requests the Government to provide information on all measures taken or envisaged in this regard.

The Committee had previously requested the Government to indicate the number of collective agreements concluded in the country and to provide relevant statistics in relation to the private sector. The Committee notes the Government’s indication that, while it does not have official statistics regarding collective agreements, the top 20 companies in the country have collective agreements with trade unions and provides, in this respect, examples of five companies. The Committee requests the Government to continue to provide all relevant information 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. It further notes the comments of the International Trade Union Confederation (ITUC) submitted in a communication dated 26 August 2009 referring to the same issues as well as to the matters previously raised by the Committee.

The Committee recalls that it had previously expressed its concern at the several provisions of the Labour Code adopted in 2006. In particular, the Committee considered that the Labour Code did not provide for an adequate protection against anti-union discrimination and meaningful promotion of collective bargaining. It notes in this respect, the discussion that took place in the Conference Committee on the Application of Standards in June 2008, which considered that a tripartite round table to address these issues in a context of full dialogue together with ILO technical assistance, could facilitate further progress on matters relating to the promotion of collective bargaining and the protection of the right to organize, both in law and in practice.

The Committee notes from the Government’s report 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 the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and Convention No. 98. The Committee further notes with interest that, in line with the conclusions of the Conference Committee, 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 the national labour legislation, application of Conventions Nos 87 and 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 following comments and requests the Government to provide information on the developments in this regard.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. The Committee had previously noted that section 11(6) of the Law on trade unions and section 2(3) of the Labour Code prohibited, in very general terms, anti-union discrimination, and did not appear to constitute sufficient protection against anti-union discrimination at the time of recruitment of workers and at the time of termination of their employment. In particular, the Committee had noted that, pursuant to section 5(8) of the Labour Code, an employer was not required to substantiate his/her decision for not recruiting an applicant and considered that the application of this section in practice might result in placing on a worker an insurmountable obstacle when proving that he/she was not recruited because of his/her trade union activities. The Committee had also noted that, according to sections 37(d) and 38(3) of the Code, the employer had a right to terminate a contract at his/her initiative with an employee, provided that the employee was given one month’s pay, unless otherwise envisaged by the contract. The Committee considered that, in light of the absence of explicit provisions banning dismissals by reason of union membership or participating in union activities, as well as the absence of provisions regulating cases of anti-union dismissals, the Labour Code did not offer sufficient protection against anti-union dismissals. The Committee notes that the Government refers to the general prohibition of anti-union discrimination provided for in article 26 of the Constitution, section 11(6) of the Law on trade unions and section 2(3) of the Labour Code and considers that the legislation is in compliance with the Convention. The Government indicates nevertheless that the tripartite working group will review the legislation as necessary. With regard to the protection at the time of recruitment, the Committee is of the opinion that, since it may often be difficult, if not impossible, for a worker to prove that he/she has been the victim of an act of anti-union discrimination, legislation could provide ways to remedy these difficulties, for instance by stipulating that grounds for the decision of non-recruitment should be made available upon request. With regard to the termination of employment, the Committee considers that legislation which allows the employer in practice to terminate the employment of a worker on condition that he/she pay the compensation provided for by law in all cases of unjustified dismissal, without any specific protection aimed at preventing anti-union discrimination, is insufficient under the terms of Articles 1 and 3 of the Convention. The Committee therefore trusts that the necessary measures to revise sections 5(8), 37(d) and 38(3) of the Labour Code will soon be taken so as to ensure that the Labour Code provides for an adequate protection against anti-union discrimination taking into account the principles above. It requests the Government to provide information on the measures taken or envisaged in this respect.

The Committee notes article 42 of the Code of Administrative Breaches and section 142 of the Criminal Code imposing penalties for violation of the labour legislation. The Committee requests the Government to indicate the form of compensation available to workers, victims of acts of anti-union discrimination, including dismissals, transfers, downgrading, etc.

Article 2. Protection of workers’ organizations against acts of interference by employers. With regard to the Committee’s previous request to provide for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference, the Committee notes the Government’s statement that section 42 of the Code of Administrative Violations punishes violations of labour legislation and labour protection rules by a penalty equivalent to a minimum of 100 times the labour remuneration and that the same violation committed within one year following the imposition of an administrative penalty is punishable by a penalty equivalent to 200 times the labour remuneration.

Article 4. Collective bargaining. The Committee had previously noted that, according to section 13 of the Labour Code, the employer (unilaterally) is authorized to specify the duration of a business week, the daily schedule, shifts, the duration of breaks, the time and place of remuneration payment, the duration of and the procedure for granting a leave and unpaid leave, the rules for complying with labour conditions, the type and the procedure for work-related incentives and responsibilities, the procedures for consideration of complaints/applications and other special rules subject to the specifics of the business of the organization. The Committee notes the Government’s indication that an employer is authorized to introduce internal operation rules only if working conditions are not regulated by a labour agreement (either individual or collective) and that if working conditions are regulated by a labour agreement, such an agreement prevails over any other internal rules.

The Committee had previously noted that sections 41– 43 of the Labour Code seemed to put in the same position collective agreements concluded with trade union organizations and agreements between an employer and non-unionized workers, including as few as two workers. The Committee notes that the Government points out that Convention No. 98 does not stipulate that collective agreements must prevail over individual agreements and confirms that, under the national legislation, agreements concluded with trade unions and agreements with non-unionized workers are treated equally. The Government emphasizes that, under the national legislation, the right to bargain collectively is not solely a trade union prerogative; other groupings of employees can also engage in negotiations with an employer. The Committee finds it difficult to reconcile the equal status given in the law to these two types of agreement with the ILO principles on collective bargaining, according to which the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations should be encouraged and promoted, with a view to the regulation of terms and conditions of employment by means of collective agreements. If, in the course of collective bargaining with the trade union, the enterprise offers better working conditions to non-unionized workers under individual agreements, there is a serious risk that this might undermine the negotiating capacity of the trade union and give rise to discriminatory situations in favour of the non-unionized staff; furthermore, it might encourage unionized workers to withdraw from the union. The Committee draws the Government’s attention to the Collective Agreements Recommendation, 1951 (No. 91), which emphasizes the role of workers’ organizations as one of the parties in collective bargaining. Considering that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, runs counter to the principle that negotiation between employers and organizations of workers should be encouraged and promoted, the Committee requests the Government to take the necessary measures in order to amend its legislation so as to ensure that the position of trade unions is not undermined by the existence of other employees’ representatives or discriminatory situations in favour of the non-unionized staff. The Committee requests the Government to indicate any developments in this regard.

The Committee notes the information provided by the Government according to which most of the Georgian state institutions and companies have collective agreements with trade unions. The Committee requests the Government to indicate the number of collective agreements concluded in the country within the next reporting period and to provide statistics in this regard in relation to the private sector.

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

The Committee notes the Government’s report. It further notes the comments of the International Trade Union Confederation (ITUC) and of the Georgian Trade Union Confederation (GTUC) which refer to the adoption of the Labour Code without prior consultation with trade unions and insufficient protection against acts of anti-union discrimination and interference, and insufficient regulation of collective bargaining matters.

The Committee notes the Government’s statement that representatives of trade unions and employers’ organizations were involved in the discussion of the Labour Code.

Articles 1 and 3 of the Convention. Protection against acts of anti-union discrimination. Acts covered. The Committee had noted that section 11(6) of the Law on trade unions and section 2(3) of the new Labour Code prohibited, in very general terms, anti-union discrimination, and did not appear to constitute sufficient protection against anti-union discrimination: (i) at the time of recruitment of workers; and (ii) at the time of termination of their employment.

(i)    Recruitment. The Committee had noted that, pursuant to section 5(8) of the Labour Code, the employer was not required to substantiate his/her decision for not recruiting the applicant. Considering that the application of this section in practice might result in placing on a worker an insurmountable obstacle when proving that he/she was not recruited because of his/her trade union activities, the Committee requested the Government to amend section 5(8) of the Code. The Committee welcomes the Government’s indication that discussions are taking place on reformulating this provision. The Committee expects that this provision will be soon amended so as to provide adequate protection against anti-union discrimination at the time of hiring.

(ii)    Termination of employment. The Committee had noted that, according to sections 37(d) and 38(3) of the Code, the employer had a right to terminate a contract at his/her initiative with his/her employee provided that the employee was given one month’s pay, unless otherwise envisaged by the contract. While the Government refers to the general prohibition of anti-union discrimination provided for in section 11(6) of the Law on trade unions, in light of the absence of explicit provisions banning dismissals by reason of union membership or participating in union activities, as noted above, the Committee considers that the legislation is unclear as to the regulation of cases of anti-union dismissals and does not offer sufficient protection against anti-union dismissals as called for by Articles 1 and 3 of the Convention. The Committee requests the Government to amend its legislation so as to ensure that there is a specific prohibition of anti-union dismissals. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

Means of redress and sanctions. With regard to the Committee’s previous request to provide for sufficiently dissuasive sanctions in cases of anti-union discrimination, the Committee notes the Government’s statement that section 42 of the Code of Administrative Violations, punishes violations of labour legislation and labour protection rules by a penalty equivalent to a minimum of 100 times the labour remuneration and that the same violation committed within one year following the imposition of an administrative penalty is punishable by a penalty equivalent to 200 times the labour remuneration. The Committee requests the Government to indicate the relevant provisions regulating the procedure under the Code of Administrative Violations, its duration and the possibilities of means of redress available to workers, victims of acts of anti-union discrimination, including dismissals, transfers, downgrading, etc. (particularly, considering the GCTU’s allegation of absence of procedures of redress in the national legislation). The Committee further notes that the Government indicates that, according to section 142 of the Criminal Code, “violations of the equality based on membership of any public association” is punishable by imprisonment for a period of up to two years. The Committee observes, however, that the Criminal Code (1999) at its disposal does not refer to discrimination based on membership of an association. It requests the Government to provide clarifications in this respect.

Article 2. Protection of workers’ organizations against acts of interference by employers. The Committee had previously noted that Georgian legislation prohibited acts of interference from employers in trade union activities. However, no express provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference, existed in legislation. The Committee once again requests the Government to take the necessary measures in order to adopt specific legislative provisions in this respect.

Article 4. Collective bargaining. The Committee had previously noted that according to section 13 of the Labour Code, the employer (unilaterally) is authorized to specify the duration of a business week, the daily schedule, shifts, the duration of breaks, the time and place of remuneration payment, the duration of and the procedure for granting a leave and unpaid leave, the rules for complying with labour conditions, the type and the procedure for work-related incentives and responsibilities, the procedures for consideration of complaints/applications and other special rules subject to the specifics of the business of the organization. The Committee had further noted Chapter XII of the Code (sections 41–43), which concerns collective labour relations. Under section 41(1), “a collective contract shall be concluded between an employer and two or more employees”. According to section 42(1) and (3), for the purposes of concluding, changing or terminating a collective contract, or for the purpose of protecting the employees’ rights, the unions of employees act through their representatives, defined as any physical person. Furthermore, in accordance with section 43(2), an employee may conclude individual and/or several collective contracts with one employer. Pursuant to subsections (4) and (5) of the same section, if one of the parts of the contract is annulled on the initiative of either party, this could cause the termination of labour relations pursuant to the Labour Code; and the existence of collective contracts does not limit the right of the employee or the employer to terminate the contract. The Committee considers that sections 13 and 41–43 read together are in contradiction with the notion of collective agreements in the sense of Convention No. 98, i.e. agreements regulating terms and conditions of employment negotiated between employers or their organizations and workers’ organizations; moreover, the legislation seems to put in the same position collective agreements concluded with trade union organizations and agreements between an employer and non-unionized workers (sections 41–43). Furthermore, the Committee considers that with the Law on trade unions containing one general provision on the right of trade unions to collective bargaining, and the Law on collective contracts and agreements repealed, it is clear that collective bargaining is not sufficiently regulated (section 41 even stipulates that collective agreements follow the same principles as individual agreements). The Committee notes that the Government recognizes the need to improve the legislation, as Georgia does not have a collective agreement tradition and there are not too many collective agreements concluded in practice. Considering that the provisions of the new Labour Code do not promote collective bargaining as called for by Article 4 of the Convention, the Committee requests the Government to take the necessary measures, either by amending the Labour Code or by adopting specific legislation on collective bargaining, so as to promote collective bargaining and to ensure the regulation by legislative means of the right of employers’ and workers’ organizations to bargain collectively in full conformity with Article 4 of the Convention. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

The Committee 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 the Parliament pursuant to the procedure provided for in the national legislation. The Committee hopes that all legislative modifications requested above will be reflected in the draft amendments to the Labour Code and requests the Government to keep it informed of the developments in this regard. The Committee recalls that the technical assistance of the Office is at its disposal.

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.

The Committee notes that, while section 2(3) of the Code generally prohibits discrimination based on “membership in an association”, the Committee considers that this provision does not constitute sufficient protection against anti-union discrimination. The Committee therefore requests the Government to include in the Labour Code specific provisions prohibiting acts of anti-union discrimination and providing for specific procedures for redress to be available to workers in case of such acts, including dismissals, transfers, downgrading, etc., as well as setting out sanctions that can be applied in each of these cases. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

The Committee notes that, according to section 5(8), “the employer shall not be liable to substantiate his/her decision for not recruiting the applicant”. The Committee is of the view that the application of this section in practice might result in placing on a worker an insurmountable obstacle when proving that he/she was not recruited because of his/her trade union activities. The Committee therefore requests the Government to amend its legislation so as to provide adequate protection against anti-union discrimination at the time of hiring. It requests the Government to keep it informed of the measures taken or envisaged in this respect.

Finally, the Committee notes that, according to sections 37(d) and 38(3) of the Code, the employer has a right to terminate a contract at his/her initiative with his/her employee provided that the employee is given one month’s pay, unless otherwise envisaged by the contract. In light of the absence of provisions banning dismissals by reason of union membership or participating in union activities, the Committee considers that there is insufficient protection against anti-union dismissals as called for by Articles 1 and 3 of the Convention. The Committee requests the Government to amend its legislation so as to ensure that there are truly compensatory measures for anti-union dismissals, including reinstatement, as well as sufficiently dissuasive sanctions in the case of violations (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 219-221). The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

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

The Committee takes note of the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 10 August 2006 alleging that the draft Labour Code, which would undermine trade union rights, 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. The Committee further notes that with the adoption of the Code, while the Law on Trade Unions will remain in force, the Law on Collective Contracts and Agreements of 1997 and the Law on Collective Labour Disputes of 1998 will be repealed.

Article 4 of the Convention. The Committee notes that according to section 13 on the internal labour regulations, the employer (unilaterally) is authorized to specify the duration of a business week, the daily schedule, shifts, the duration of breaks, the time and place of remuneration payment, the duration of and the procedure for granting a leave and unpaid leave, the rules for complying with labour conditions, the type and the procedure for work-related incentives and responsibilities, the procedures for consideration of complaints/applications and other special rules subject to the specifics of the business of the organization. The Committee further notes Chapter XII of the Code (sections 41-43), which concerns collective labour relations. Under section 41(1), “a collective contract shall be concluded between an employer and two or more employees”. According to section 42(1) and (3), for the purposes of concluding, changing or terminating a collective contract, or for the purpose of protecting the employees’ rights, the unions of employees act through their representatives, defined as any physical person. Furthermore, in accordance with section 43(2), an employee may conclude individual and/or several collective contracts with one employer. Pursuant to subsections (4) and (5) of the same section, if one of the parts of the contract is annulled on the initiative of either party, this will cause the termination of labour relations pursuant to the Labour Code; and the existence of collective contracts does not limit the right of the employee or the employer to terminate the contract. The Committee considers that sections 13 and 41-43 read together do not refer to collective agreements in the sense of Convention No. 98, i.e. agreements regulating terms and conditions of employment negotiated between employers or their organizations and workers’ organizations. Moreover, with the Law on Trade Unions containing one general provision on the right of trade unions to collective bargaining, and the Law on Collective Contracts and Agreements repealed, it is not clear how collective bargaining will be regulated. Considering that the provisions of the new Labour Code do not appear to promote collective bargaining as called for by Article 4 of the Convention, the Committee requests the Government to take the necessary measures, either by amending the Labour Code or by adopting specific legislation on collective bargaining, so as to ensure the right to bargain collectively enshrined in Article 4 of the Convention. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

With regard to certain other 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 information contained in the Government’s report, which reiterates the information provided in its previous reports. It recalls that its previous comments related to the following points.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee had previously noted that, while general legal provisions prohibiting acts of anti-union discrimination existed in Georgia, the legislation did not provide for specific sanctions and procedures to ensure their application in practice. The Committee requests the Government to adopt specific legislative provisions providing for rapid procedures available to workers in cases of acts of anti-union discrimination (dismissals, transfers, downgrading, etc.) and for sanctions which could be applied in each of these cases.

Article 2. Protection of workers’ organizations against acts of interference by employers. The Committee had previously noted that Georgian legislation prohibited acts of interference from employers in trade union activities. However, no express provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference, existed in legislation. The Committee requests the Government to take the necessary measures in order to adopt specific legislative provisions to ensure that the guarantees provided for in the Convention are respected, and to keep it informed of the measures taken or envisaged in this respect.

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 1 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that the legislation of Georgia (articles 11(6), 24(2) of the Trade Union Law, 2 April 1997; articles 9(2) and 16(2) of the Law of Georgia on the Procedure of the Settlement of Collective Labour Disputes, 30 October 1998; articles 37 and 206 of the Labour Code as amended by the Act regarding modifications and amendments to the Georgian Labour Code, 12 November 1997) prohibits acts of anti-union discrimination. However, the Committee recalls that the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. Effective and sufficiently dissuasive sanctions that guarantee the protection of workers against any acts of anti-union discrimination by employers in taking up employment and in the course of employment should be provided in the law (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 214 et seq.). The Committee requests the Government to indicate which procedures are available for workers, in the legislation, in case of acts of anti-union discrimination (dismissals, transfers, downgrading) and which sanctions can be applied in each of these cases.

Article 2. Protection of workers’ organizations against acts of interference by employers. The Committee notes that the Trade Union Law of Georgia, 2 April 1997 (articles 5, 21(4) and 22) and the Collective Contracts and Agreements Law of Georgia, 10 December 1997 (article 9) prohibit acts of interference from employers in trade union activities. However, the Committee notes that the Government states in its report that despite the protection mentioned above, many employers in the new transnational and joint enterprises, directly or indirectly prevent the founding of trade unions. The Committee points out that the legislation should make express provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application of Article 2 of the Convention. Moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should lay down these substantive provisions, as well as appeals and sanctions to guarantee their application explicitly (see General Survey, op. cit., 1994, paragraph 232). The Committee requests the Government to indicate the procedures that are available in the legislation for the benefit of workers’ organizations against acts of interference and the sanctions that can be applied in these cases.

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 1 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that the legislation of Georgia (articles 11(6), 24(2) of the Trade Union Law, 2 April 1997; articles 9(2) and 16(2) of the Law of Georgia on the Procedure of the Settlement of Collective Labour Disputes, 30 October 1998; articles 37 and 206 of the Labour Code as amended by the Act regarding modifications and amendments to the Georgian Labour Code, 12 November 1997) prohibits acts of anti-union discrimination. However, the Committee recalls that the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. Effective and sufficiently dissuasive sanctions that guarantee the protection of workers against any acts of anti-union discrimination by employers in taking up employment and in the course of employment should be provided in the law (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 214 et seq.). The Committee requests the Government to indicate which procedures are available for workers, in the legislation, in case of acts of anti-union discrimination (dismissals, transfers, downgrading) and which sanctions can be applied in each of these cases.

Article 2. Protection of workers’ organizations against acts of interference by employers. The Committee notes that the Trade Union Law of Georgia, 2 April 1997 (articles 5, 21(4) and 22) and the Collective Contracts and Agreements Law of Georgia, 10 December 1997 (article 9) prohibit acts of interference from employers in trade union activities. However, the Committee notes that the Government states in its report that despite the protection mentioned above, many employers in the new transnational and joint enterprises, directly or indirectly prevent the founding of trade unions. The Committee points out that the legislation should make express provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application of Article 2 of the Convention. Moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should lay down these substantive provisions, as well as appeals and sanctions to guarantee their application explicitly (see General Survey, op. cit., 1994, paragraph 232). The Committee requests the Government to indicate the procedures that are available in the legislation for the benefit of workers’ organizations against acts of interference and the sanctions that can be applied in these cases.

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

The Committee notes the information contained in the Government’s report, which is confined to recalling the information provided in its first report. It recalls that its previous comments related to the following points:

  Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that the legislation of Georgia (articles 11(6), 24(2) of the Trade Union Law, 2 April 1997; articles 9(2) and 16(2) of the Law of Georgia on the Procedure of the Settlement of Collective Labour Disputes, 30 October 1998; articles 37 and 206 of the Labour Code as amended by the Act regarding modifications and amendments to the Georgian Labour Code, 12 November 1997) prohibits acts of anti-union discrimination. However, the Committee recalls that the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. Effective and sufficiently dissuasive sanctions that guarantee the protection of workers against any acts of anti-union discrimination by employers in taking up employment and in the course of employment should be provided in the law (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 214 et seq.). The Committee requests the Government to indicate which procedures are available for workers, in the legislation, in case of acts of anti-union discrimination (dismissals, transfers, downgrading) and which sanctions can be applied in each of these cases.

Article 2. Protection of workers’ organizations against acts of interference by employers. The Committee notes that the Trade Union Law of Georgia, 2 April 1997 (articles 5, 21(4) and 22) and the Collective Contracts and Agreements Law of Georgia, 10 December 1997 (article 9) prohibit acts of interference from employers in trade union activities. However, the Committee notes that the Government states in its report that despite the protection mentioned above, many employers in the new transnational and joint enterprises, directly or indirectly prevent the founding of trade unions. The Committee points out that the legislation should make express provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application of Article 2 of the Convention. Moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should lay down these substantive provisions, as well as appeals and sanctions to guarantee their application explicitly (see General Survey, op. cit., 1994, paragraph 232). The Committee requests the Government to indicate the procedures that are available in the legislation for the benefit of workers’ organizations against acts of interference and the sanctions that can be applied in these cases.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the information supplied by the Government in its first report.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that the legislation of Georgia (articles 11(6), 24(2) of the Trade Union Law, 2 April 1997; articles 9(2) and 16(2) of the Law of Georgia on the Procedure of the Settlement of Collective Labour Disputes, 30 October 1998; articles 37 and 206 of the Labour Code as amended by the Act regarding modifications and amendments to the Georgian Labour Code, 12 November 1997) prohibits acts of anti-union discrimination. However, the Committee recalls that the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. Effective and sufficiently dissuasive sanctions that guarantee the protection of workers against any act of anti-union discrimination by employers in taking up employment and in the course of employment should be provided in the law (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 214 et seq.). The Committee requests the Government to indicate which procedures are available for workers, in the legislation, in case of acts of anti-union discrimination (dismissals, transfers, downgrading) and which sanctions can be applied in each of these cases.

Article 2. Protection of workers’ organizations against acts of interference by employers. The Committee notes that the Trade Union Law of Georgia, 2 April 1997 (articles 5, 21(4) and 22) and the Collective Contracts and Agreements Law of Georgia, 10 December 1997 (article 9) prohibit acts of interference from employers in trade union activities. However, the Committee notes that the Government states in its report that despite the protection mentioned above, many employers in the new transnational and joint enterprises, directly or indirectly prevent the founding of trade unions. The Committee points out that the legislation should make express provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application of Article 2 of the Convention. Moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should lay down these substantive provisions, as well as appeals and sanctions to guarantee their application explicitly (see General Survey, op. cit., 1994, paragraph 232). The Committee requests the Government to indicate the procedures that are available in the legislation for workers’ organizations against acts of interference and the sanctions that can be applied in these cases.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report. The Committee will examine it once the Trade Unions Law, the Trade Disputes Regulation Law and the Organic Law on the Suspension and Prohibition of Social Union Activities are translated into one of the working languages of the Office.