Report in which the committee requests to be kept informed of development - Report No 332, November 2003

Case No 2216 (Russian Federation) - Complaint date: 12-AUG-02 - Closed

Allegations: The complainant alleges the adoption of legislation contrary to freedom of association and in particular, no recognition by the Labour Code of occupational unions and promotion of a single trade union system, discrimination against minority trade unions, denial of the right to bargain collectively at the enterprise level to higher level trade unions, to federations and confederations, and violation of the right to strike

1. 891. The complaint is contained in a communication dated 12 August 2002 from the Seafarers’ Union of Russia (RPSM). The RPSM sent additional information in communications dated 27 September 2002 and 24 July 2003.
2. 892. The Government forwarded its observations in a communication dated 5 September 2003.
3. 893. The Russian Federation has ratified 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).

A. The complainant’s allegations

1. 894. In its communications dated 12 August and 27 September 2002 and 24 July 2003, the RPSM alleges that the newly adopted Labour Code violates the principles of freedom of association. In particular, the complainant refers to the following discrepancies between the Labour Code and the Conventions: no recognition of occupational unions and promotion of a single trade union system; discrimination against minority trade unions; denial of the right to bargain collectively at the enterprise level to higher level trade unions, to federations and confederations; and violation of the right to strike.
2. 895. As concerns the first allegation, the complainant states that the overall concept of social partnership in the Russian Federation embodied in the Labour Code reflects the particular situation and interests only of trade unions organized by geographical territory and industrial sector, the principles on which the structure of the Federation of Independent Trade Unions of Russia (FNPR) is based. The rights of trade unions based on occupational criteria are not mentioned in the Code. Such unions are the Russian Confederation of Labour, to which the complainant organization is affiliated, and the All-Russia Confederation of Labour. Furthermore, section 45 of the Labour Code does not permit concluding collective agreements based on professional or occupational criteria and therefore rules out a form of a social partnership where the membership in a trade union is based on this criterion. On the practical level, this translated into a situation where only representatives of the FNPR were involved in discussions on the new Labour Code; representatives of the two other Russian trade union associations were not allowed to participate, despite the fact that they represent workers employed mostly in the private sector and thus have a practical experience under the new market conditions. The complainant concludes, therefore, that the Labour Code foists on workers a single system of trade unions affiliated to the FNPR. The complainant provides an example where the Ministry of Labour and Social Development asked the FNPR to give clarification on the application of section 37 of the Code concerning the determination of the trade union to conduct collective bargaining. Such a request was made by the Ministry following a request by the Ministry of Transport to resolve a dispute between trade unions (affiliated and non-affiliated to the FNPR) regarding the establishment of a joint representative body for the purpose of concluding a branch wage agreement for the maritime transport sector for 2002-03.
3. 896. Secondly, the complainant alleges that the Labour Code gives preference to unions with larger membership. More specifically, and as concerns collective bargaining, the complainant mentions section 37(3) of the Code, according to which, if no agreement is reached between different primary trade union organizations operating at a given enterprise regarding the creation of a single representative body for the purpose of collective bargaining, workers are to be represented by the primary trade union organization that represents more than half of the total workforce. Similarly, according to paragraph (6) of this section, Russian national trade unions or associations of trade unions with the greatest membership enjoy privileged rights to conduct collective bargaining and to conclude collective agreements (e.g. general or industry agreements) at the federation level. Moreover, according to the complainant, these provisions, giving preference to the largest trade unions, apply irrespective of whether or not they have an appropriate authorization from workers, which contradicts the fundamental principle of social partnership set out in section 24 of the Code, according to which, workers’ representatives should be duly authorized by workers. These provisions, according to the complainant, deprive workers in smaller trade unions of the right to competent and effective protection of their labour rights. On a practical level, a suggestion made by the Federation of Maritime Transport Trade Unions (FPRMT), to which the complainant organization is affiliated, that a joint representative body be established for the purpose of collective bargaining with a view to concluding a general agreement for the water transport sector for 2002 was rejected by the Water Transport Workers’ Trade Union, a member of the FNPR. The latter, in explaining its position, cited section 37(6) of the Labour Code, which in its opinion did not grant such negotiating rights to “representatives of a trade union minority”. The agreement for 2002?05 was concluded without the participation of the FPRMT.
4. 897. Furthermore, on the same issue, the RPSM mentions section 372 of the Code, which, according to the complainant, allows an employer to disregard the views of a minority trade union. According to this provision, an employer is required to communicate any proposed local regulation on labour matters to the elected body of a trade union representing all or at least the majority of workers at a given undertaking. The absence of any such requirement for the employer to do the same for minority unions negates, in the view of the complainant, the right of workers to form a trade union of their own choosing.
5. 898. The complainant further states that section 31 of the Labour Code, which provides that “in the absence of a primary trade union at the given undertaking or when the primary trade union has a membership of less than half of the employees, the general meeting of employees can entrust the said primary trade union or any another representative with the representation of their interests”, leaves a decision regarding which union a worker should join to the discretion of a general meeting; in other words, it makes the right of workers to join their chosen union contingent on a decision by other workers who are not members of that union.
6. 899. Thirdly, the complainant states that sections 29(2), 30, 37 and 372 of the Labour Code violate the right of higher level trade unions, federations and confederations to conclude collective agreements, as those provisions give primary trade unions the sole right to represent workers at enterprise level, including the right to engage in collective bargaining, denying such right to trade unions or trade union associations.
7. 900. Finally, regarding the allegation of violation of the right to strike, the complainant mentions two sections of the Code. According to section 399(2), demands or claims made by workers’ representatives to the employer must be confirmed at a general meeting (conference) of employees. According to the complainant, this section deprives unions of the right to organize strikes independently. Similarly, section 410 obliges a trade union to ensure that any decision to declare a strike is confirmed by a general meeting of workers of the undertaking. Moreover, by stipulating that not less than two-thirds of the workforce must attend such a meeting the legislator has made any legal strike action impossible.

B. The Government’s reply

1. 901. In its communication of 5 September 2003, the Government states that the new Labour Code is compatible with the provisions of Conventions Nos. 87 and 98. Section 37 of the Code, concerning collective bargaining, provides for the procedure to follow when no trade union represents over half of the employees. In this case, according to subsection 4, the workers’ general meeting determines by secret vote the labour union, which would form a representative body. Subsection 5 provides for the procedure regarding the creation of a single representative body and therefore for participation of all trade unions in the collective bargaining process. According to this section, primary trade unions can delegate their representatives to the representative body at any time before the signing of the collective agreement. According to the Government, the system of proportionality provided by section 37 is fair and compatible with international standards. In case of violation of this section, the Code of Civil Procedure provides for remedies which could be used prior to the judicial procedure. Moreover, according to section 357 of the Labour Code, a trade union can submit a complaint to the Labour Inspector, who has a right to impose an administrative sanction upon persons found guilty of violation of labour law, as well as to the judicial bodies.
2. 902. The Government further comments on the letter sent by the Water Transport Workers’ Trade Union to the Federation of Maritime Transport Trade Unions (FPRMT) where the first organization rejected a suggestion made by the latter to establish a joint representative body for the purpose of collective bargaining with a view to concluding a general agreement for the water transport sector for 2002. The Government indicates that the response given by the Water Transport Workers’ Trade Union is contrary to section 37(6) of the Labour Code, which provides that the right to collective bargaining at the level of the Russian Federation, an industry or a territory is granted to the relevant trade unions or their associations. Should several trade unions exist at the relevant level, each of them is entitled to a representation within a single representative body formed on the basis of proportionality. The right to conduct collective bargaining and to conclude collective agreements could be exercised by the majority union only in the absence of an agreement to create such a body. The Government also states that the alleged violation of social partnership by the trade unions is rather singular. Moreover, the complainant organization has not appealed to national remedies available to it.
3. 903. As concerns the question of consultation with trade unions during the discussions on the adoption of the Labour Code, the Government states that the draft Code was published in the Russian Gazette so that the interested organizations could submit their remarks. All received proposals were examined in the appropriate manner. The draft Code was examined by the conciliatory commission with the participation of All-Russia trade union, All-Russia employers’ associations and other social organizations. During the debate on the amendments to the Labour Code, all opinions sent have also been examined.

C. The Committee’s conclusions

1. 904. The Committee notes that the complainant in this case alleges that the Labour Code violates the principles of freedom of association. In particular, the complainant refers to the following discrepancies between the Labour Code and the Conventions: no recognition of occupational unions and promotion of a single trade union system, discrimination against minority trade unions, denial of the right to bargain collectively at the enterprise level to higher level trade unions, to federations and confederations, and violation of the right to strike.
2. 905. As concerns the first allegation, the Committee notes the complainant’s statement that the overall concept of social partnership, as defined by the Code, does not reflect the particular situation of workers’ organizations based on the occupational or professional criteria and that the Labour Code restricts the level of collective bargaining by not providing, in section 45, for a possibility to conclude an agreement at the occupational or professional level. No comment was made by the Government on this allegation. In this respect, the Committee considers that workers’ organizations and employers and their organizations should be free in determining the level of bargaining, including the possibility of concluding agreements at the occupational or professional level. The Committee therefore requests the Government to take all the necessary measures, including the amendment of section 45, so as to allow the possibility of collective bargaining at occupational or professional level both in law and in practice. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.
3. 906. The Committee further notes the complainant’s concern that the Labour Code foists on workers a single system of trade unions affiliated to the FNPR. The complainant mentions an example where the Ministry of Labour turned to the FNPR for interpretation and clarification of one of the sections of the Labour Code. The complainant also states that only representatives of this organization were involved in discussions on the new Labour Code. The Committee notes the Government’s statement to the effect that all the interested organizations could make their proposals and remarks and that all opinions received concerning the new Labour Code were examined. As to the request made by the Ministry of Labour to the FNPR to interpret a particular section of the Labour Code, no comment was provided by the Government. The Committee considers that consulting only the most representative workers’ organizations during the preparation and application of legislation which affects their interests does not necessarily constitute an infringement of trade union rights. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 926 and 305.]
4. 907. As regards the preference given by the Labour Code to majority unions in the collective bargaining process, the complainant describes the procedure set out in section 37 of the Code, according to which, if no agreement is reached between different primary trade union organizations operating at a given enterprise regarding the creation of a single representative body for the purpose of collective bargaining, workers are to be represented by the primary trade union organization that represents more than half of the total workforce. The Committee notes the Government’s statement and that according to section 37(5), at the enterprise level, a further protection is afforded by keeping a chair for other primary trade unions for their participation at any further time in the collective bargaining process. The Committee therefore considers that the approach in this case favouring the most representative trade union for collective bargaining purposes is not incompatible with Convention No. 98.
5. 908. The Committee further notes section 372 of the Code, which, according to the complainant, allows an employer to disregard the views of a minority trade union as it requires an employer to communicate proposed local regulations on labour matters to the elected body of a trade union representing all or at least the majority of workers at a given undertaking. The complainant states that this provision, by granting privileges to the majority trade union, jeopardizes the workers’ freedom of choice. In this respect, the Committee recalls that certain advantages might be accorded to trade unions by reasons of the extent of their representativeness, provided that certain conditions are met and that distinction is limited to the recognition of certain preferential rights and does not deprive other trade union organizations of the essential means for defending the occupational interests of their members, for organizing their administration and activities and formulating their programmes [see Digest, op. cit., para. 309].
6. 909. The Committee further notes section 31 of the Code, according to which, in a case where there is no trade union at the enterprise, or less than half of the employees are members of an existing trade union, a general meeting of employees could elect the existing trade union or other representative to represent their interests. The Committee notes that according to the complainant, this section leaves a decision on representation in such circumstances to the discretion of the general workforce and this implicitly makes the decision of workers to join any particular trade union contingent on a decision of other workers. There would indeed appear to be a contradiction between this section and section 37 which provides that there shall be a secret ballot for determining “the trade union” to conduct collective bargaining in the event that no trade union unites over half of the employees. The Committee considers that the problem at issue is not whether all employees may have a say in the choice of union representing them where no union represents the majority of employees, but rather that section 31 would appear to give workers the choice to elect non-union representatives even though there may be a union at the workplace. The Committee recalls that the Collective Agreements Recommendation, 1951 (No. 91), stresses the role of workers’ organizations as one of the parties in collective bargaining; it refers to representatives of unorganized workers only when no organization exist. In these circumstances, direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, might be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted [see Digest, op. cit., para. 785]. The Committee requests the Government to amend section 31 so as to ensure that it is only where there is no trade union at the workplace that workers can elect other representatives to represent their interests. It requests the Government to keep it informed of the measures taken or envisaged in this respect.
7. 910. As concerns the allegation that the right of higher level trade unions, trade union federations and confederations to conclude collective agreements at the enterprise level are violated, the Committee endorses the point of view expressed by the Committee of Experts that any restriction or prohibition in this respect hinders the development of industrial relations and, in particular, prevents organizations with insufficient means from receiving assistance from higher-level organizations, which are in principle better equipped in terms of staff, funds and experience to succeed in such bargaining [see 1994 General Survey on freedom of association and collective bargaining, para. 249] and considers that these organizations should indeed be able to conclude collective agreements [see Digest, op. cit., para. 783]. The Committee therefore requests the Government to amend its legislation so as to ensure that higher union structures, as well as federations and confederations, have access to the collective bargaining process and enjoy the right to conclude collective agreements at the enterprise level. It requests the Government to keep it informed of the measures taken or envisaged in this respect.
8. 911. As regards the allegations concerning restrictions on the right to strike, the Committee notes that the complainant cites two sections of the Code. According to the complainant, section 399(2) requires a trade union to obtain an approval of the claims it wishes to make to the employer by the meeting (conference) of employees. The complainant further mentions section 410, which provides that a minimum of two-thirds of the total number of workers should be present at the meeting and the decision to strike should be taken by at least half of the number of delegates present. In respect of section 399, the Committee notes from the wording of this section that “claims, raised by employees and (or) by a representative body of employees of an organization […] shall be approved by their respective meeting (conference) of employees. The meeting of employees shall be deemed authorized provided the majority of workers are present. The conference shall be deemed authorized provided that at least two-thirds of elective delegates are present”, whereas section 399(6) states, “Claims of trade unions shall be raised and serviced to the respective parties to social partnership.” On the basis of this text, the Committee does not find it clear whether only non-union representatives need to refer to a meeting or conference of employees or whether this provision also applies to trade unions. No information was provided by the Government in this respect. While considering that trade unions should be free to regulate the procedure of submitting claims to the employer and that the legislation should not impede the functioning of a trade union by obliging a trade union to call a general meeting every time there is a claim to be made to an employer, the Committee requests the Government to provide additional information as to how section 399 works in practice.
9. 912. Regarding the quorum required for a strike ballot, the Committee considers that the obligation to observe a certain quorum to take strike action may be considered acceptable; the observance of a quorum of two-thirds of workers may be difficult to reach, in particular where trade unions have large numbers of members covering a large area [see Digest, op. cit., paras. 510-511]. The Committee requests the Government to amend its legislation so as to lower the quorum required for a strike ballot and to keep it informed of the measures taken or envisaged in this regard.
10. 913. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.

The Committee's recommendations

1. 914. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As concerns the allegation of no recognition of occupational unions by the Labour Code, especially as concerns their collective bargaining rights, the Committee requests the Government to take all the necessary measures, including the amendment of section 45, so as to allow the possibility of collective bargaining at occupational or professional level both in law and in practice. It requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to amend section 31 of the Labour Code so as to ensure that it is only where there is no trade union at the workplace that workers can elect other representatives to represent their interests. It requests the Government to keep it informed in this respect.
   • (c) As concerns the allegation of violation of the right of trade unions, other than primary trade unions, trade union federations and confederations to conclude collective agreements at the enterprise level, the Committee requests the Government to amend its legislation so as to ensure that higher union structures, as well as federations and confederations have access to the collective bargaining process and enjoy the right to conclude collective agreements. It requests the Government to keep it informed in this respect.
   • (d) As concerns the alleged requirement to obtain an approval of the claims a trade union wishes to make to the employer by the meeting (conference) of employees, the Committee requests the Government to provide additional information as to how section 399 works in practice.
   • (e) As concerns the allegation concerning restriction of the right to strike, the Committee requests the Government to amend section 410 of the Labour Code so as to lower the quorum required for a strike ballot and to keep it informed in this respect.
   • (f) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.