Report in which the committee requests to be kept informed of development - Report No 365, November 2012

Case No 2758 (Russian Federation) - Complaint date: 20-JAN-10 - Follow-up

Allegations: The complainant organizations allege numerous violations of trade union rights, including physical attacks on trade union leaders, violations of freedom of opinion and expression, Government’s interference in trade union matters, refusal by the State authorities to register trade unions, acts of anti-union discrimination and absence of effective mechanisms to ensure protection against such acts, denial of facilities for workers’ representatives, violation of the right to bargain collectively and the failure of the State to investigate those violations

1. 1301. The complaint is contained in a communication from the All-Russia Confederation of Labour (VKT) and the Confederation Labour of Russia (KTR) dated 20 January 2010. Since the lodging of the complaint, the complainants merged into the KTR. The KTR submitted new allegations and additional information in communications dated 18 October 2010 and 9 December 2011.
2. 1302. In communications dated respectively 2, 4, 10, 15 and 22 February 2010, the International Trade Union Confederation (ITUC), the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), the International Metalworkers’ Federation (IMF), the Federation of Independent Trade Unions of Russia (FNPR) and the International Transport Workers’ Federation (ITF) associated themselves with the complaint.
3. 1303. The Government sent its observations in communications dated 24 September 2010, 1 March, 12 and 23 May, and 1 August 2011, and 3 February 2012.
4. 1304. The Russian Federation has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 1305. By its communications dated 20 January and 18 October 2010, the KTR submitted a complaint against the Government of the Russian Federation detailing numerous allegations of violations of freedom of association in the country. (Note 1)

Physical attacks, harassment and intimidation against trade union leaders

1. 1306. The complainant describes in detail physical attacks suffered by trade union leaders and alleges, in this respect, the failure of the authorities to duly investigate their cases. Firstly, the KTR alleges that, in November 2008, Mr Alexey Etmanov, Chairperson of the primary trade union organization at the Ford Motor Company, had been attacked and beaten on two occasions. With regard to the first incident, which occurred on 7 November, Mr Etmanov filed an official complaint to the local Prosecutor’s Office. At first, the Prosecutor’s Office refused to open a criminal case. About a month later, this decision was overturned by the Deputy Prosecutor of the Leningrad region who requested further investigation. The complainant further alleges that on 21 November 2008, as he entered his apartment building, Mr Etmanov was attacked by a man who threw an iron bar at him. Mr Etmanov called a local police inspector who arrested the attacker and escorted the latter to the police station. However, the attacker was released, appeared at one interrogation session with a lawyer, and then disappeared. Mr Etmanov was later informed that the police could not find the suspect. While Mr Etmanov filed a complaint with the authorities, as in the first case, the outcome of the investigation is still not known.
2. 1307. Secondly, the complainant alleges that in December 2008, Mr Evgeniy Ivanov, Chairperson of the primary trade union of the Interregional Union of Automotive Industry Workers (MPRA) received several calls from a man who claimed knowing which kindergarten Mr Ivanov’s sons were enrolled in and recommended to Mr Ivanov to stop his trade union activities. Mr Ivanov recorded the phone calls and filed complaints with the police station, requesting that a criminal case be opened. However, the police did not find anything criminal in the recordings and refused to open a criminal case. On 8 February 2009, two unidentified persons attacked Mr Ivanov in front of his house and hit him several times in the face. Mr Ivanov was treated for a contusion and a broken nose. He filed a complaint with the police department and, on 10 February 2009, a criminal case was opened. Soon after the assault, Mr Ivanov was summoned to a meeting with officers of the Saint Petersburg Office for Combating Extremism (“E” Centre) of the Ministry for Internal Affairs. The officers tried to get Mr Ivanov to cooperate with them, i.e. asked him to be their informant on the activities of the enterprise and Saint Petersburg trade unions. Believing that the officers were involved in carrying out the attack, Mr Ivanov addressed the Kolpino district police department requesting that the criminal investigation be transferred to the Prosecutor’s Office. This motion was dismissed. The Kolpino District Court also refused to examine this case considering that that all disputes regarding investigative jurisdiction fall under the jurisdiction of the Prosecutor’s Office and not the court. Furthermore, request for the investigation regarding possible involvement of the “E” Centre officers in the 8 February attack was denied. The criminal case was later suspended due to the inability to identify those responsible.
3. 1308. The third case relates to the assaults on Mr Sergey Bryzgalov and Mr Alexey Gramm, trade union activists of the primary trade union at TagAZ company in Taganrog. Both trade unionists were beaten by unknown persons on 24 June 2008. The day prior to the attack, Mr Gramm participated in a picket line staged by the union at the entrance of the company to demand the management to comply with the labour legislation, to provide payslips, and recognize the trade union. Following these attacks, Mr Bryzgalov and Mr Gramm filed complaints with the police, pointing out the connections between the attacks and trade union activities. However, according to Mr Bryzgalov, the police did not react to the complaints and closed the case on 26 July 2008. On 24 July 2008, on his way home from work, Mr Bryzgalov was once again attacked and beaten up by an unidentified person.

Violation of freedom of opinion and expression

1. 1309. The complainant alleges that, by its decision of 28 August 2009, the Zavoljsky District Court of Tver declared that trade union leaflets, newspapers and materials prepared and circulated by trade activists of the MPRA at the “Tsentrosvarmash” company in Tver were extremist material. The complainant indicates that following this decision, in autumn 2009, the Federal List of Extremist Literature, routinely compiled by the Ministry of Justice, was updated as to include the following:
   • – Leaflets with the header that includes a caricature showing a declining economic indicator and the slogan “Let those who caused the crisis pay for it!”;
   • – Leaflet with the header that includes the MPRA logo and the slogan “Fight substandard employment”;
   • – Leaflet with the header saying “Let those who caused the crisis pay for it!” and the footer including a “SotsSopr” logo and the full name of the organization, “Socialist Resistance (Section of the Committee for Workers International in the CIS)” along with the website, email address and mobile phone number in Tver;
   • – Leaflet with the header including the “MPRA Trade Union Tsentrosvarmash” logo, the address “Comrades Workers!”, and a report entitled “A new trade union has been formed”;
   • – Leaflet with the MPRA logo and the slogan “We Demand Our Night Shift Pay!”;
   • – Leaflet with the header including a caricature showing the “Culprit in the Crisis” on top of the page, wearing a top hat with the dollar sign over whose head a recession curve of some indicator is drawn, and the slogan “We Must Not Pay for Their Crisis”.
2. The complainant points out that under section 13 of the Law on Prevention of Extremist Activities of 27 June 2002, as amended on 29 April 2008, it is forbidden to disseminate, produce and possess extremist materials.
3. 1310. The KTR explains that the court decision was based on the following reasoning: “On the basis of a linguistic analysis of the printed material carried out on 12 March 2009 by a specialist of the philological faculty of the Tver State University, this leaflet has been found to contain indications of extremist activity, to excite social dissension and hostility, and to preach exclusiveness and the superiority or inferiority of individuals based on the social group to which they belong”. The decision does not, however, refer to any specific wording to indicate in what way the materials are supposed to be extremist.
4. 1311. According to the KTR, the case was heard on the submission by the Deputy Prosecutor for the Zavoljsky district of Tver. The management of the “Tsentrosvarmash” company and officers of the Ministry of Justice of Tver region were called to appear as third parties to the proceedings. Neither the MPRA nor its “Tsentrosvarmash” primary trade union were invited to attend, nor were they given notice of the hearing of this case or of the decision taken by the court.
5. 1312. On 4 February 2010, the MPRA lodged, with the Tver Provincial Court, a supervisory appeal against the decision of the Zavoljsky District Court. However, on 8 February 2010, the President of the Provincial Court decided to refer back, without a hearing on the merits, the MPRA appeal on the following grounds: “According to section 376.2 of the Code of Civil Procedure, judicial decisions may be appealed to a court of supervisory jurisdiction within six months, provided the appellants have exhausted other methods of appealing the judicial decision. The decision of the District Court, dated 28 August 2009, has not been appealed in cassation proceedings. ” The judge further considered that a supervisory appeal must be referred back without consideration of the merits if the appeal documents do not contain copies of the judicial decision against which the appeal is lodged duly certified by the court. The supervisory appeal by the MPRA did not meet this requirement. In this respect, the KTR explains that the MPRA and its “Tsentrosvarmash” primary trade union were unable to obtain certified copies of the decision of the Zavoljsky District Court because the court categorically refused to issue copies thereof to any person not a party to the case. It was only possible to obtain the text of the decision through an intervention by a member of Parliament, after several months had elapsed.
6. 1313. On 18 March 2010, the MPRA lodged an appeal with the Tver District Court in Moscow against the judicial action taken by the Ministry of Justice to place the “Tsentrosvarmash” primary trade union information materials on the Federal Register of Extremist Literature. On 10 June 2010, the court dismissed the MPRA’s claim. In its decision, the court stated that pursuant to the Law on Prevention of Extremism, the presence of signs of extremism in any material is established by the court on the basis of a submission by the Public Prosecutor, or through the related court proceedings in an administrative, civil or criminal case. A copy of the decision, once it has taken effect, is sent to the Ministry of Justice. Non-compliance with a judicial decision is an offence, and therefore officers of the Ministry must execute even those which are known to be unlawful. The MPRA filed a cassation appeal with the Moscow Municipal Court, but the appeal has not yet been heard.
7. 1314. The KTR informs that, on 26 February 2010, the MPRA sent an application to the European Court of Human Rights, complaining of the violation of freedom of expression (Article 10 of the European Convention on Human Rights) and the right to a fair hearing (Article 6.1 of the Convention).

Refusals to register trade unions and amendments to trade union by-laws

1. 1315. By way of background, the KTR explains that under section 8(1) of the Law on Trade Unions, unions, their associations and primary trade union organizations are registered as legal entities upon notification. According to section 8(3) of the same Law, the registering authorities have no right to exercise control over trade unions’ activities or to deny official registration. The registering bodies may, however, deny registration on the basis of section 23(1)(2) of the Law on Public Associations, according to which, state registration may be denied in cases where the required documents are not submitted or not properly prepared. Pursuant to section 8(2) of the Law on Trade Unions, trade unions can appeal in court the denial of state registration or avoidance thereof.
2. 1316. The complainant alleges that, in practice, however, the law enforcement bodies exercise broad control over trade union registration and the content of trade union by-laws. According to the KTR, there are numerous cases where the registration was denied or documents have been returned to trade unions with comments regarding the contents of their by-laws. Rigid control is exercised over the accuracy of trade union names when they refer to geographic areas covered by the unions. According to the complainant, section 3 of the Law on Trade Unions (entitled “Basic terms”), contains only definitions of terms used in that law, but is often interpreted as a complete list of legitimate types of trade unions. For instance, registering bodies interpret the legal requirement to provide a reference to the geographic area where a trade union operates as a requirement for interregional trade unions and trade union associations to provide a complete list of specific regions where their affiliates are active at the time they submit their documents for registration. Under these conditions, in order to accept affiliates from other regions, trade unions have to amend their by-laws and register the amendments through a procedure which the law enforcement bodies make as complicated as possible.
3. 1317. By way of example, the KTR indicates that, in August 2006, the MPRA applied for the state registration in Saint Petersburg. In November 2006, the authorities refused to register the MPRA on the following grounds: (i) it was not clear from the documents submitted whether the organization was a public association or a trade union; (ii) the trade union was not listed in the Unified State Registry of Real Estate Rights at the address indicated as its location; (iii) the geographic area where the trade union operated was not specified and the by-laws contained an open list of regions where the trade union could operate to enable it to expand to other areas; and (iv) the trade union by-laws provided that the trade union has the right to carry out other types of activities not forbidden by law. The by-laws also provided that any new primary trade union organization founded would notify the MPRA of its establishment, while according to the authorities, a primary trade union organization was a structural unit of an umbrella union and could not be established without the prior knowledge of the registering authorities. Interested in obtaining legal entity rights as soon as possible, the MPRA modified its by-laws. One year later, the amendments began to interfere with the union development and it become necessary to amend and reregister the amendments to the by-laws, as the original by-laws restricted the area where the trade union could operate by referring to specific regions where the trade union could carry out its activities. On 28 July 2008, the MPRA applied for the registration of amendments to its founding documents so as to expand the list of regions where it could operate. On 28 August 2008, the Ministry of Justice denied the registration on the following grounds: (i) instead of three copies of the revised by-laws, the union submitted only the amendments, without providing the original by-laws; and (ii) instead of original documents, only copies of the minutes and payment order were submitted. The MPRA followed the Ministry’s instructions, made all the necessary corrections to the documents and sent them to the Ministry of Justice on 14 November 2008. On 1 February 2009, seven months later, the MPRA was registered.
4. 1318. The complainant also indicates that the Russian Trade Union of Locomotive Brigades (RPLBJ) was established on 27 January 1992 to operate at the Russian Railroads and its branches. On 31 December 1999, the Ministry of Justice registered amendments to the RPLBJ’s by-laws changing its status to all-Russia. In 2003, the RPLBJ went through a re registration process, during which documents were submitted to the Ministry of Justice confirming its all-Russia status. On 14 June 2005, a certificate confirming its all-Russia status was issued. In 2007, the President of the company requested the Prosecutor-General to audit RPLBJ’s activities. The Moscow interregional Transport Prosecutor’s Office was assigned to conduct such audit. On 1 February 2008, it filed a complaint with the Lyublino District Court of Moscow asking the RPLBJ to amend its founding document so as to remove all reference to its all-Russia status. On 26 November 2008, the Lyublino District Court partially satisfied the request of the Transport Prosecutor’s Office by ruling that the RPLBJ must amend and reregister its by-laws. On 30 April 2009, the bailiff service began the enforcement procedure despite the fact that the RPLBJ had on multiple occasions pointed out that in order to amend its by-laws it needed to convene an extraordinary congress, which could make an appropriate resolution. This required additional time. Nevertheless, the following orders were issued against the RPLBJ and Mr Evgeny Kulikov, its Chairperson, for failure to comply with the court order: (i) on 26 May 2009, the bailiff issued an order for the recovery of an enforcement fee of 5,000 rubles (RUB); (ii) on 27 May 2009, Mr Kulikov was warned about potential criminal liability for a failure to execute the court order; (iii) on 15 June 2009, the bailiff issued a demand to comply with the court ruling; (iv) on 30 June 2009, the bailiff issued a resolution imposing on the RPLBJ a penalty of RUB30,000; (v) on 13 July 2009, the bailiff issued a warning of potential criminal liability for failure to comply with the court ruling; (vi) on 20 July 2009, the bailiff issued and forwarded to the bank an order to charge the enforcement fee of RUB30,000 to the RPLBJ bank account; and (vii) on 11 September 2009, the bailiff issued another warning on potential criminal liability for failure to comply with the court ruling. On 9 and 10 September 2009, an extraordinary assembly of the RPLBJ was held and a decision was made to amend the by-laws by changing the name of the union to the Federal Trade Union of Railroad Workers (FPJ), thereby removing the reference to its status of an all Russia trade union. On 29 September 2009, all required documents were submitted to the Ministry of Justice for registration. However, on 22 October 2009, the Ministry of Justice refused to register the amendments. Moreover, on 19 November 2009, a criminal case was brought against Mr Kulikov for failure to act in accordance with the court’s verdict. After an interrogation on 11 December 2009, it was decided to extend the investigation for another month. The KTR indicates that following a number of appeals, by a decision of the Head of the Lyblinsky Bailiffs’ Department of the Federal Court Bailiffs’ Service in Moscow, dated 11 June 2010, the criminal case against Mr Kulikov was dropped for lack of evidence.
5. 1319. With regards to the fine imposed against the funds of the RPLBJ for non-compliance with the court order to amend the union by-laws (RUB30,000 and RUB5,000 levied for costs), the KTR indicates that following an appeal, on 16 October 2009, the Deputy Head of the Moscow Court Bailiffs’ Service Department found that the actions of the enforcement officer in fining the union RUB35,000 had been unlawful. The union applied to the court for the return of the funds which had been unlawfully levied. However, the claim was dismissed on 26 August 2010 by a decision of the arbitration judge. The court stated that the decisions taken by the enforcement officer to levy costs and impose a fine, and the actions taken to implement those decisions, had not been appealed in the manner prescribed by law.
6. 1320. On 27 January 2010, the union held a second extraordinary general assembly to adopt further amendments to its by-laws, and, on 9 February, pursuant to the decision of the court, the relevant documents were sent to the head office of the Ministry of Justice in Moscow. On 16 March 2010, in accordance with the adopted amendments, the RPLBJ was renamed to become the Interregional Union of Railway Workers (MPJ). Nevertheless, on 27 February 2010, RUB50,000 were taken from the bank account of the union. On 12 April 2010, the RPLBJ applied to the Lyublinsky District Court in Moscow requesting the court to declare that the decision by the enforcement officer to impose a fine and the action taken to withdraw RUB50,000 from the union’s bank account were unlawful. On 5 August 2010, the court considered that replacing the word “Russian” by “Federal” did not constitute an adequate compliance with the court decision of 26 November 2008. According to the KTR, the court ignored the fact that the trade union had held a second extraordinary general meeting on 27 January 2010. To date, the rights of the RPLBJ (now MPJ) have not been restored: it has not yet succeeded in obtaining recovery of the fine levied on its account.
7. 1321. The complainant further refers to the case of the Federal Union of Air Traffic Controllers (FPAD), in operation since 1991 and affiliating air traffic controllers and other workers. It alleges, in particular, that in 2010 a number of the FPAD primary trade unions were notified by the relevant prosecutors’ offices that the following provision contained in their by-laws, as in the FPAD’s by-laws, was unlawful: “The trade union committee, acting in the manner prescribed by law, organizes and conducts collective actions in support of demands which have been put forward, acting in conformity with the law in force, takes decisions on whether to call a strike, decides which body should lead the strike and who should represent workers in conciliation procedures relating to the staff of civil aviation airlines”. As the relevant provisions contained a reference to these actions being carried out “in accordance with the law”, the FPAD and its primary organizations did not consider it necessary to amend the by-laws and rules concerning primary trade unions. In the trade union’s view, these matters were governed by legislation, which may impose different forms of regulation at different times. Nevertheless, the courts endorsed the position taken by the prosecutors’ offices, and decided that this provision was unlawful. Thus, on 11 May 2010 the Savelovsky District Court in Moscow, acting on an application of the Moscow Air and Water Transport Prosecutor, ruled that paragraph 7.5, subparagraph 8 of the Rules of the primary trade union of workers at the State enterprise “Russian Air” was unlawful. On 3 August 2010, the Moscow Municipal Court upheld this decision. Similar provisions contained in the by-laws of the primary trade union of air traffic controllers of Kolpashevo, Tomsk Union of Air Traffic Controllers and Mirninsky Union of Air Traffic Controllers have also been declared unlawful by the courts upon the application by the transport prosecutors’ offices. In all cases, the unions were ordered to amend their by laws. Finally, the KTR indicates that the Savelovsky District Court in Moscow, upon an application filed by the Moscow Prosecutor’s Office monitoring compliance with the laws in air and water transport, declared similar provision contained in the FPAD by-laws unlawful.

Interference by the authorities in trade union activities

1. 1322. The complainant alleges that trade unions encounter several types of interference by the authorities. In some cases, trade union leaders are summoned for interrogations by various law enforcement bodies to give explanations. In other cases, criminal lawsuits are open against trade union leaders. Some of these have no further consequences and, in the opinion of the complainant, are used to exert pressure and harass trade union representatives.
2. 1323. In particular, the KTR refers to the case of Mr Valentin Urusov who is currently serving a six-year prison sentence. By way of background, the KTR explains that the primary trade union organization “PROFSVOBODA” of the Russian Metalworkers Trade Union SOTSPROF, representing employees of the “ALROSA” company, was formed on 16 June 2008. Mr Urusov was the person responsible for setting up and leading the organization. Workers of vehicle depot No. 2 of the Udachny ore-processing plant, which is a subsidiary of the “ALROSA” company, had repeatedly made claims to the employer requesting to increase wages, which were unjustifiably low for territories in the far north, improve working conditions and to bargain collectively, which the employer had ignored. In mid August drivers of vehicle depot No. 2 sent the employer a letter declaring a hunger strike, and on 25 August 2008 they went on strike. On 28 August 2008 a trade union meeting was held in the town square and attended by over 200 workers. At the initiative of the trade union committee headed by Mr Urusov, claims were laid with the employer in a collective dispute. However, representatives of the management of the “ALROSA” company refused to meet with workers, and began to resort to violence against members of the trade union. In the morning of 3 September 2008, Mr Urusov was attacked by persons dressed in civilian clothes. They beat him, dragged him in handcuffs into a car and tossed a package containing narcotic substance in his pocket. It subsequently became clear that they were officers from the Mirny Drug Control Department. Mr Urusov was forced to write a statement saying that the package containing drugs had been in his pocket before he was arrested. From 3 to 9 September 2008 Mr Urusov was held at the duty office of the Drug Control Department in Mirny. Only on 4 September, over 24 hours after his arrest, was he given a meal. Afterwards, he was sent to be tested for drugs. The test showed that he had ingested morphine. No test had been carried out upon his placement in the duty office cell, and in court the doctor who had performed the test stated that the ingestion of the morphine could have occurred up to two hours beforehand. On 5 September 2008, the justice of the peace for Mirny division No. 18 made two decisions concerning Mr Urusov – to fine him RUB500 for resisting arrest, and to detain him for ten days under section 6.9 of the Code of Administrative Offences for using narcotic substances without medical prescription.
3. 1324. At the same time, a criminal case was opened and, on 13 September 2008, Mr Urusov was arrested on suspicion of possessing narcotic substances. On 26 December 2008, the Mirny District Court in the Republic of Sakha (Yakutia) sentenced Mr Urusov to six years of imprisonment for possessing narcotic substances. In the opinion of Mr Urusov’s lawyer, the court had failed to examine the evidence which would have cleared the accused. The court had not attached any weight to Mr Urusov’s statement that he had been subjected to physical force and threats during his arrest and that the only witnesses present at the search were members of the security staff of the “ALROSA” company. According to the KTR, Mr Urusov’s arrest is a clear case of persecution for trade union activities. Following his conviction, on 26 December 2008, Mr Urusov lodged an appeal with the Supreme Court of the Republic of Sakha against the decision of the Mirny District Court. On 12 May 2009, the criminal division of the Supreme Court set aside the verdict of the Mirny District Court, finding that there were serious procedural errors in the handling of the case by the first instance court, and referred the case back for retrial. The restraint measure against Mr Urusov was altered to a written undertaking not to leave his place of residence, and he was released from custody. However, following the retrial, the Mirny District Court did not change its previous findings and, on 26 June 2009, handed down a decision similar to the previous one: Mr Urusov was sentenced to six years of imprisonment in an ordinary regime corrective colony.
4. 1325. Furthermore, the KTR alleges that an attempt was made to bring a criminal case against Mr Dmitry Kojnev, Chairperson of the MPRA trade union at the “Tsentrosvarmash” company. In April 2009, an officer of the Federal Security Service called him to say that he wanted to talk about Mr Kojnev’s extremist activities. The Federal Security Service considered opening a criminal case under section 280(1) of the Criminal Code on public encouragement of extremist activities. The investigation concerned the Tsentrosvar Worker newspaper, certain leaflets and several issues of the Socialist and Leviy Avangard newspaper. Mr Kojnev explained that fewer than 1,000 copies of the Tsentrosvar Worker newspaper were printed and paid for by trade union dues, and that it contained materials on the day-to-day news of the trade union and that he had nothing to do with other newspapers. Furthermore, on 30 June 2009, Mr Vasili Molchanov, Deputy Chairperson of the primary trade union organization “Nashe Delo”, affiliated with the Independent Miners’ Union of Russia, was interrogated by the officers of the Department for Combating Organized Crime without producing any document authorizing his summons. A lawyer was not allowed during questioning, which related to his trade union activities.
5. 1326. The complainant also alleges that in the context of tax inspections and audits into the sources of funding of trade union organizations, trade unions are required to provide lists of their members, which has very serious consequences. It refers, in particular, to an audit of the primary trade union organization of the Russian Dock Workers Union (RPD), an affiliate of the KTR at the Novorossiysk Maritime Commercial Port (NMTP). The complainant explains that following a collective labour dispute, which was followed by a work-to-rule action, conciliation and ultimately an agreement between the union and the management, the state authorities began putting pressure on the primary trade union organization and interfering with its work. On 23 January 2007, Mr Pereboev, the union Chairperson, was invited to the office of the transportation police of Novorossiysk to give explanations with regard to the financial damage caused to the company, following a complaint by the First Deputy General Director of the NMPT, who is also a deputy of the legislative assembly of the Krasnodar Region. On 7 February 2007, three police officers came to the trade union office and, referring to the deputy’s inquiry, demanded Mr Pereboev to provide trade union documents, including lists of its members. On 5 March 2007, the police department of Novorossiysk also asked for a list of trade union members and the documents based on which trade union dues were checked off. The documents, including individual application forms authorizing deduction and transfer of trade union dues, were provided to the police on the same day. Nevertheless, on 27 April 2007, the Acting Head of the criminal police of Novorossiysk ordered an investigation of financial, business and commercial operations of the RPD, search of trade union offices and an audit of documents reflecting trade union financial and business activities. The work of the trade union was practically put to a standstill for three months because the police confiscated all trade union documents and sealed the accounting office of the trade union. According to the complainant, the findings of the audit were not documented and its results were not formulated and made known to the union. Based on those facts, the KTR submitted a complaint to the General-Prosecutor’s Office. From there, the complaint was forwarded to the Prosecutor’s Office of the Krasnodar region for consideration, and, from there, to the Prosecutor of Novorossiysk; however, no reply has been received. Complaints were also lodged with the Minister of Internal Affairs. The reply of the authorities merely stated that the audit was carried out at the request of a deputy and no reference to an evaluation of the lawfulness and necessity of the audit was made. On 20 July 2007, criminal proceedings on accusations of misappropriation of funds entrusted to him were opened against the union’s Chairperson. On 23 July 2007, Mr Pereboev was summoned for an interrogation to the investigation department of the Novorossiysk police. Later, the case was dismissed. The complainant states that, because of the actions of the employer and the state authorities, normal operations of the trade union were blocked. The audits and criminal proceedings against the union’s Chairperson undermined the morale of the union and showed that it was dangerous to be a member of the trade union. As a result, the membership of the union has significantly decreased.
6. 1327. The complainant also alleges that following a strike, in November 2007, at the Ford Motor Company, the MPRA-affiliated primary trade union organization received, on 28 April 2008, a notification of an upcoming tax audit and a demand to provide financial documents and a list of all trade union members to the tax inspectorate of the Petrogradsky district of Saint Petersburg. The requested financial documents pertained to the funds that were transferred to the account of the trade union during the strike. The trade union refused to provide the documents and appealed the tax inspector’s demand in court. The court ruled that the demand to submit the lists of trade union members was illegal.
7. 1328. Between September and June 2009, a police officer from the Investigation and Search Department of the Samara criminal police made three founders of the primary trade union organization “Nashe Delo” at the “Togliattikauchuk” sign statements saying that they had not been present at the founding meeting of the union. Those statements were used as a basis for claiming to the State Tax Inspector that the information submitted for the registration of the union was false. On this basis, the State Tax Inspector filed an administrative liability case, alleging the submission of false information.
8. 1329. Furthermore, on 20 November 2009, members of the MPRA, established on 16 October 2009 at the Tver Rail Car Building Plant, were summoned to the Prosecutor’s Office to provide explanations concerning the establishment of their trade union. A few days later, on 23 November 2009, a senior assistant to the Zavoljsky District Prosecutor of Tver visited the company to question the Chairperson of the union about the establishment of the union at the enterprise.
9. 1330. The complaint further alleges that following the declaration of a strike in November 2007, subsequently declared illegal by the court, police officers searched the office of the RPLBJ, allegedly on a basis of an anonymous complaint which claimed that the RPLBJ kept agitation leaflets, money and explosives to be used in mass riots on railroads during the elections. The trade union’s premises were searched in the absence of trade union representatives. The next morning, an officer of the Economic Security Department demanded from the union a list of staff members, accounting documents, documents confirming the source and amount of income, as well as payroll documents. The same police officer threatened to find grounds for bringing criminal charges against the union. Following these events, by 20 March 2008, the territorial and primary organizations of the RPLBJ were evicted from their respective offices. Since then, some trade union organizations are still without an office space.
10. 1331. The KTR also alleges violation of the rights of the RPD the primary trade union organization of dockers, of the Tuapse Seaport (MPT). In this respect, it indicates that, in early February 2008, the building on the company’s site where the primary union had its office was demolished. Prior to this, the trade union office had been broken into and documents, together with some of the equipment and supplies belonging to the trade union, had disappeared. The primary trade union wrote to the Prosecutor’s Office and the internal affairs authorities asking for a criminal investigation to be open to find and punish those responsible for the theft of the property. While, on 28 March 2008, the legal proceedings were opened, the matter was not investigated. Thus, to date, the union’s property has not been found and the guilty parties have not been identified. As the employer refused to provide the RPD primary trade union of dockers of the MPT with an office space, the union now shares the office with another primary trade union operating at the port (affiliated to the Union of Water Transport Workers of the Russian Federation).
11. 1332. The KTR further alleges that, on 29 January 2008, the managing director of the Tuapse Maritime Commercial Port complained to the Tuapse Department of Transport Internal Affairs that the leadership of the RPD primary trade union of dockers was stealing its funds. On 8 February 2008, officers of the Department for Combating Economic Crime entered the premises shared by both primary trade unions and demanded that unions handed over their financial documents. Due to the events described above, the RPD primary trade union was unable to provide its documents. On 3 March 2008, a criminal investigation was opened in the course of which over 150 members of the RPD primary trade union were questioned and searched. Both primary trade unions appealed these actions in administrative proceedings, in which they complained about the unlawful actions of the employer in making a false statement. They also complained to the office of the Prosecutor-General against the unlawful actions of the internal affairs authorities. These complaints were forwarded to the Tuapse Transport Prosecutor’s Office, which did not find any violations. The investigation into the criminal case is continuing at present, and is a serious hindrance to trade union activity.

Refusal by employers to recognize newly formed trade unions

1. 1333. The complainant indicates that according to the national legislation a trade union is considered established from the moment the decision to create a union is made, its constitution is adopted and its governing and auditing bodies are elected. State registration of a legal entity is not mandatory. However, primary trade union organizations often face situations of refusal by an employer to recognize a union established at the enterprise, which entails refusal to accept and to respond to any correspondence from that union, or cooperate and negotiate with it. The complainant provides several examples where trade union leaders sent notifications of establishment of a union to the enterprise management with a request to provide the union with an office space, pursuant to the provisions of the Labour Code, as well as access to the workplace and a space to post trade union information. According to the complainant, the management often refuses to accept documents and trade union communications delivered either by hand or registered mail. Subsequently, the management simply denies that it is aware of the union’s existence. Employers also use this argument in court when cases of alleged violations of labour and/or trade union rights are examined.
2. 1334. According to the complainant, such was the case when the court examined the case of 25 laid-off employees, members of the trade union at the GM-AVTOVAZ enterprise. The court, by its decision of 14 September 2009, refused to order the reinstatement of all workers except one. The company claimed not to have been aware of the existence of the union. After the union proved that since its establishment, on 28 July 2006, it had, on many occasions, notified the company of its establishment, the company acknowledged it, but denied the fact that the union had sent information on the recently elected trade union activists whose layoffs had to be agreed upon with the union. The court refused to order the reinstatement of the laid-off employees, accepting the company’s arguments that it had not received notifications concerning their election to the union leadership.
3. 1335. Furthermore, the complainant alleges that the management of the TagAZ company did not recognize the MPRA primary trade union organization, established on 31 August 2007, did not respond to its letters proposing to start collective bargaining, did not provide check-off facilities and claimed to the state auditing agencies that there was no trade union at the company. Similarly, the administration of the State School of Higher Education, Saint Petersburg University of the Ministry of Internal Affairs refused to recognize the primary trade union of the All Russian Union of Trade and Service Workers (OPRTU) established in February 2008 and encouraged the leaders of the union to resign from the university. After all attempts by the trade union to establish a constructive dialogue with the administration have failed, the union ceased to exist.

Anti-union discrimination and pressure against workers

1. 1336. The complainant indicates that while the legislation prohibits anti-union discrimination, in practice, anti-union practices by employers, involving discrimination and pressure on trade union leaders and members to leave unions or to prevent them from joining one, are common. The complaint refers to section 3(4) of the Labour Code, pursuant to which, persons who believe to have suffered discrimination at work have the right to file a lawsuit demanding restoration of their rights, compensation for material loss and redress of moral damage. The interpretation of this provision by the state bodies is to effect that only courts have the competence to examine complaints of anti-union discrimination, hence such complaints cannot be considered by the labour inspectorate bodies. Section 29 of the Law on Trade Unions also provides for the judicial protection of trade union rights. Consequently, all complaints relating to cases of anti-union discrimination must be filed in court; labour inspectors dismiss such complaints as being outside of their competence. Furthermore, national legislation does not provide for an administrative liability of persons found guilty of violation of trade union rights, including anti-union discrimination. While section 136 of the Criminal Code punishes persons responsible for acts of discrimination and creates a liability for violation of the equality rights, in practice, this legal provision is never applied and no one has ever been held criminally responsible for committing acts of discrimination. This results in the widely used practice of discrimination and pressuring workers and union leaders. The absence of protection against discrimination by state bodies enhances the feeling that such behaviour is permissible and normal. By way of illustration, the complainant alleges that even after acts of anti-union discrimination against members of the trade union of the Independent Miners Trade Union of Russia (NPGR) at the “Togliattikauchuk” were established by the court, the company’s officials, guilty of committing these acts, did not bear responsibility under section 136 of the Criminal Code because the Prosecutor’s Office consistently refused to open a criminal case on the grounds of the absence of the elements of crime. One of such decisions was motivated by the following statement: “The actions of the management of the company were not criminal, as they presented no public danger and caused no considerable damage to the rights and lawful interests of the union, as the latter had not been denied the opportunity to defend workers’ rights in court”. While the Samara District Court has subsequently cancelled this decision, no criminal case has been opened.
2. 1337. Furthermore, the complainant alleges that, on 2 August 2008, Mr Dmitry Kojnev was elected Chairperson of the trade union committee of the MPRA primary trade union at the “Tsentrosvarmash” company. Upon his election, Mr Kojnev appealed to the General Director of the company demanding safe working conditions and compliance with the occupational safety and health rules. The appeals led to numerous disciplinary measures taken against Mr Kojnev, including warnings and the dismissal on 19 January 2009 for having left the workplace, together with other eleven workers, twenty minutes before the end of the shift. The complainant explains in this respect that the temperature at the workplace was only 6°C, but that the workers in question have completed their assignments. Mr Kojnev and other eleven workers were fired pursuant to section 81(1)(5) of the Labour Code for multiple unjustified failures to perform their duties. The management did not ask for the trade union’s opinion regarding the dismissal of the trade union leader. By the verdict of the Zavoljsky District Court of Tver, on 28 May 2009, Mr Kojnev’s dismissal was declared illegal, among other reasons, for failure of the company to obtain the consent of the MPRA council for the dismissal of an elected trade unionist, pursuant to section 374 of the Labour Code. In the courtroom, the employer’s representatives pointed out that Mr Kojnev’s dismissal from work should not have been discussed with the MPRA. The management considered that the establishment of the trade union at the company was illegal because the union’s by-laws stated that the MPRA was active in Samara and Leningrad regions only, and therefore a primary trade union organization could not have been established in the Tver region. They further argued that according to its by-laws, the union is active in the automotive industry, and the company belongs to the railroad industry. The management further alleged that it did not receive properly notarized documents regarding the establishment of the union. The Prosecutor supported the defendant’s allegations and insisted that the establishment of the MPRA at the company was illegal. However, the court judged that the considerations of the legality of the union’s existence were irrelevant. Mr Kojnev was reinstated without loss of pay and awarded compensation for moral damages. Despite the court verdict pronounced on 28 May 2009, Mr Kojnev was prevented from working from 14 to 31 July 2009, and subsequently placed on downtime until February 2010 (at two-thirds the standard rate of pay), under separate monthly orders by the employer. The pay he actually received for the period on downtime was about RUB4,000 (€100). Considering that there were no objective reasons for declaring downtime at the “Tsentrosvarmash” company and that the decision was prompted solely by the desire to deprive him of his means of subsistence and was a form of anti-union discrimination, Mr Kojnev applied to the court requesting to declare the orders to place him on downtime unlawful. On 15 April 2010, the Zavoljsky District Court in Tver dismissed Mr Kojnev’s claims, giving as the reason for its decision the argument put forward by the company that “the downtime was not under the control of the defendant because the lack of work was caused by a lack of orders from contractors” and “a ban against placing on downtime a worker for whom there is no work for objective reasons, is a disproportionate restriction of the employer’s rights as a party to the employment contract and also as a participant in the economy and a proprietor”. The fact that other workers continued working was ignored by the court.
3. 1338. A cassation appeal was lodged against the decision of 15 April 2010, but was dismissed by the Tver Provincial Court on 1 June 2010. On 1 February 2010, Mr Kojnev was summoned to the personnel department and told there was an order to cease work. According to this order a number of workers, including Mr Kojnev and his deputy, Mr Adrianov, were placed on downtime from 1 to 12 February 2010. At the employer’s insistence they have signed an acknowledgement of the order, however, not on the document itself, but on a separate sheet containing only the title of the order and a list of the workers’ names. When Mr Kojnev and Mr Adrianov went back to work on 15 February 2010, they were asked to explain why they had absented themselves from work. The copy of the order to stop work shown to them by the employer referred to different dates for the stoppage: from 1 to 5 February. On 5 March 2010, Mr Kojnev and Mr Adrianov were dismissed for a “single grave breach of their employment obligations”. Considering that their dismissal was unlawful, both trade union leaders lodged an appeal with the court. On 28 April 2010, the Zavoljsky District Court dismissed the claims. According to the KTR, the court failed to consider the question of the proportionality of the punishment and the circumstances in which it had taken place. A cassation appeal was lodged with the Tver Provincial Court, but dismissed on 3 August 2010.
4. 1339. The complainant also alleges that members of the MPRA “Edinstvo” primary trade union organization at the Avtovaz company in Togliatti have been subjected to systematic and large-scale pressure and discrimination for a number of years. From the moment of the trade union’s establishment in 1991, the employer has been highly negative towards the new union and has constantly, by threats and sanctions, pressured workers who have joined it to withdraw from the union. The pressure used against workers resulted in the trade union’s membership dropping from 2,500 persons in 2000, and to 1,000 persons in 2008–09. The KTR alleges that many workers who supported the activities of the “Edinstvo” primary trade union and would have liked to join it were scared to do so for fear of sanctions. A number of workers testified that they had written notices of their disaffiliation from the union under the management’s pressure between 2005 and 2009. Other trade union members were denied the possibility of working overtime and/or certain benefits.
5. 1340. The KTR also alleges that, throughout 2009, such methods of intimidation and pressure have been used against members of the “Edinstvo” primary trade union at other enterprises. Ms Vera Gundareva employed at the Plastic Items Unit reported that from the moment she joined the union she has not been assigned any double-paid overtime shifts. Instead, she was given low-paid assignments, which resulted in her pay falling from RUB12,000–13,000 to RUB8,000–10,000. Mr Mikhail Tarasov, an equipment technician, who joined the union in 2007, reported that the manager of his workshop had on many occasions insisted that he and other trade union members must leave the union. According to the management, the union hampered its interaction with workers. In March 2009, Mr Tarasov quit the union. Ms Olga Lisova, an economist at the Catering Company (KOP), together with other employees had joined “Edinstvo” primary trade union at the end of 2008. Once the list of trade union members was given to the management, those on the list were put under pressure to leave the union. The management of the company allegedly told Ms Lisova that she had destroyed her career by joining the union and that she was not going to be hired even for temporary positions. One of Ms Lisova’s colleagues was informed that she would be hired only if she left the union. Indeed, once she withdrew from the union, she was hired.
6. 1341. According to the complainant, the Prosecutor’s Office to which the union appealed several times seeking protection from the acts of pressure and discrimination did nothing more than formal inspections. Despite the evidence collected by the union, the authorities refused to take action to protect workers. In a number of cases, as in the case of the “Edinstvo” trade union, prosecutors communicated only with the employers’ representatives and never talked to the workers who had filed complaints. In the KTR’s opinion, the prosecutorial investigation system that permits hearing only one of the parties, i.e. employers’ representatives, demonstrates a biased approach that does not allow for an understanding of the actual situation and an efficient protection of the rights of the victims.
7. 1342. The complainant further alleges that, on 7 April 2008, the RPLBJ forwarded to the employer, the Moscow Railroad, its demands, as adopted by the employees’ conference and approved by the trade union conference. The employer failed to consider the demands brought forward by the union and avoided participation in conciliation procedures. On 28 April 2008, workers went on strike. The strike involved not only RPLBJ members but also the Rosprofjel trade union members. The strike was followed by about 150 locomotive engineers and their assistants at the Moscow Railroad (Yaroslavl, Gorky and Kashira directions). To avoid the typical situation where employers being notified of a strike in advance applied to the court to declare the strike illegal, the union disobeyed the Labour Code by failing to notify the employer of the upcoming strike ten days in advance. The trade union has complied with all other requirements of the law, and made sure that the minimum services were provided. The complainant explains that, under the provisions of the Labour Code, employees may be disciplined for their participation in a strike only if they do not stop the strike after a court verdict declaring the strike illegal comes into effect. The complainant alleges that, despite the fact that the company had not challenged the legality of the strike in court, all participants were disciplined in the form of a reprimand or denial of a bonus due to them. The bonus amount ranged from RUB3,000–10,000 (about 40 per cent of workers’ salaries). Five workers were dismissed and two workers were subject to an administrative action for organizing the strike. These employees filed suits with the Meshchansky District Court of Moscow seeking reinstatement and the overturning of the disciplinary actions. The court rejected their claims on the ground that, under section 17 of the Law on Rail Road Transportation in the Russian Federation of 10 January 2003, strikes as a means of collective labour dispute settlement by employees in general use railroad transport whose work involves train traffic and manoeuvring, as well as servicing passengers, cargo senders and cargo recipients on railroad transport of general use, are illegal and shall not be permitted. The Moscow City Court and the Supreme Court confirmed this verdict.
8. 1343. The complainant indicates that following the publication by the enterprise management of an order dated 28 November 2008 on cutting back the staff and eliminating jobs, the MPRA workers at “Festalpine Arkada Profil” filed a complaint with the state labour inspectorate for the Smolensk region on 4 December 2008, in which it highlighted a number of violations and, in particular, the fact that 65 of all employees who were to be laid off were members of the trade union, including seven (out of 12) members of the trade union committee. In his reply dated 26 December 2008, the labour inspector stated that the management of the company had not committed any violations of labour laws. The arguments of the trade union related to discrimination were not examined by the inspector. Following an intervention, on 24 February 2009, by Mr Kravchenko, the then President of the VKT, the inspector discovered certain violations committed during the layoffs but failed to examine the issue of discrimination. On 16 January 2009, the trade union filed a complaint about the order with the Prosecutor’s Office for the Smolensk region, pointing once more to the anti-union discrimination of workers in the course of layoffs. In his reply dated 16 February 2009, the interregional Prosecutor of Yartsevo did not refute the incidents of discrimination nor indicated that this allegation of anti-union discrimination had been examined. Thus, no investigation has taken place to determine whether trade union members were discriminated against in the course of layoffs.
9. 1344. The KTR also alleges that, following the arrest of Mr Urusov (as detailed above), the “ALROSA” company persisted in its campaign to destroy the union. Representatives of the management threatened activists and even those who had merely applied to join the union. In January–March 2009, the last 13 of the union activists were dismissed. They appealed their dismissal in court, but did not succeed in being reinstated. Those who had been dismissed failed to find jobs because all enterprises in the city are linked to the “ALROSA” company.
10. 1345. The complainant also provides detailed information on anti-union practices (pressure to withdraw from trade unions, dismissals, suspensions, transfers, denial of bonuses, denial of access to trade union leaders) at the following enterprises: GM-AVTOVAZ in Saint Petersburg; GM–AVTOVAZ in Togliatti; TagAZ in Taganrog; Baltika Brewery–Baltika Rostov in Rostov-on-Don; State School of Higher Education, Saint Petersburg University of the Ministry of Internal Affairs; “Nevskiye Porogi”; and Saint Petersburg and Leningrad Regional Department of the Federal Post Office, “Pochta Rossii Piter”.

Denying trade unionists access to workplaces

1. 1346. The complainant alleges that trade union leaders have been denied access to the workplaces. It refers, in particular, to the situation at the GM–AVTOVAZ, where from the moment of the establishment of the “Edinstvo” primary trade union organization in 2007, the management have been denying access to the company premises to representatives of the primary trade union and leaders of its umbrella trade unions. With regard to the latter, while the reasons for refusal were not specified, a reference to section 29 of the Labour Code, according to which, the interests of workers at an enterprise may be represented only by a primary trade union organization and passes may be provided only to representatives of a primary trade union organization, was made. “Edinstvo” primary trade union has repeatedly applied to the state authorities, including the Samara region state labour inspectorate, requesting to ensure the right of access to the company premises and the right to receive a copy of the instructions on access to and internal regime of the company. The state labour inspectorate replied that the monitoring of compliance with the Law on Trade Unions was outside of its sphere of competence. The Ministry of Health and Social Development confirmed the labour inspectorate’s position and advised the union to apply to a Prosecutor’s Office and the court.
2. 1347. The Chairperson of “Edinstvo” had also submitted a complaint to the Avtozavodsky District Court of Togliatti against the company with regard to the refusal to grant access to the leaders of the MPRA and VKT. On 11 March 2009, the complaint was dismissed. The court concluded that it did not see the need to issue those individuals with permanent passes to the company’s premises, since it could be inferred from the provisions of the Labour Code that “the authorized MPRA officers can have free access to the company’s premises only in their capacities of trade union labour inspectors and exclusively for the purpose of carrying out inspections … The application by the “Edinstvo” Chairperson was aimed at making the company to issue a pass to its territory so as to enable the trade unionist to conduct visits without supervision, rather than to exercise trade union’s lawful rights”. The complainant adds that while officers of another primary trade union organization have permanent passes and can enter the company premises without being searched, “Edinstvo” leaders have to apply for a single-entry pass, which places their ability to communicate with trade union members under control of the management, and substantially limits the time they can spend with trade union members.
3. 1348. The complainants also allege that representatives of the Russian Trade Union of Seamen (RPSM), the RPD and the Russian Trade Union of Maritime Transport Workers, all affiliated to the Federation of Trade Unions of Workers of Maritime Transport, cannot fully exercise their right to unhampered access to the workplaces of their members. Numerous state and private security companies operating on the territory of commercial seaports put all kinds of obstacles, such as refusals to issue passes, procrastination in the consideration of appeals for passes, demands to provide lists of trade unions members, charging and sometimes extorting fees for passes. Repeated attempts by the Federation to solve this issue with the Ministry of Transport and the Federal Agency of Sea and River Transport have not yielded positive results. An attempt to apply for help to the office of the General Prosecutor, asking to verify compliance with the legislation concerning trade union rights in all seaports also failed since the appeal by the Federation was redirected to the Ministry of Transport, which does not have the appropriate authority.
4. 1349. Furthermore, the complainant indicates that in 2007, the RPD primary trade union of dockers of the Tuapse Seaport, in operation since 1991, requested the employer to consider a wage increase. After the employer turned down this request, the trade union undertook a number of collective actions. The management of the port reacted by taking steps intended to hinder trade union activity. One of such means was to restrict access to the workplaces to trade union leaders. In this respect, the KTR explains that while, until the end of 2007, the Chairperson of the trade union committee was able to make unhindered visits to the workplaces after the end of working hours, on 21 December 2007, the management of the port introduced a pass system, which changed the conditions for entry. However, according to the complainant, these changes were, and are still being, applied selectively – and only to members of the primary trade union and their leaders. Other workers, and even outside persons, are able to pass freely through to the port. The trade union committee wrote to the Tuapse Transport Prosecutor’s Office. In its reply, dated 11 August 2008, the Prosecutor’s Office stated that the applicant’s arguments had not been substantiated, that the procedure for issuing and using passes had been laid down for all categories of workers, was the same for all and did not allow for any exceptions. The second appeal to the Transport Prosecutor’s Office did not bear any further results.

Refusal to bargain collectively

1. 1350. The complainant explains that, pursuant to section 37 of the Labour Code, a primary trade union organization, a single employee representative body, or another representative body of employees, empowered to initiate collective bargaining, must notify of its intention to initiate collective bargaining all primary trade union organizations active at an undertaking at the same time as they approach the employer with a proposal to begin collective bargaining; within the following five working days, it must form a single representative body and to include representatives of other primary trade unions to the existing single representative body. If within this time frame the primary trade union organizations do not announce their decision or refuse to assign their representatives to a single employees’ representative body, the collective bargaining shall begin without their participation. At the same time, trade unions, which do not participate in the collective bargaining, retain the right to assign their representatives to the single representative body for one month following the beginning of the bargaining process. The KTR alleges that, despite clear legislative provisions, complainants’ primary trade union organizations are restricted in the exercise of their right to participate in the collective bargaining process due to the failure by majority trade unions to notify them of the beginning of the collective bargaining process. The complainant alleges that in 2006, the “Edinstvo” trade union committee filed a complaint with the Samara region state labour inspectorate over the failure by the “Avtoselhozmash” trade union committee to notify it of the beginning of the collective bargaining at the Avtovaz. The labour inspector did not find grounds for issuing a directive either to the union, which initiated collective bargaining, or to the employer. The inspector considered that a union, which unites more than half of the total number of workers at the enterprise, has the right to propose to the employer to begin collective bargaining on behalf of all employees without a prior creation of a single representative body of employees. It was further explained to the union that, in such cases, the state labour inspectorate is deprived of any means of legal interference, as the failure to notify other primary trade union organizations of the beginning of collective bargaining does not constitute an administrative offence in terms of the Code of Administrative Offenses. This situation repeated itself in 2008. In 2009, when the “Edinstvo” trade union committee proposed its participation in the drafting of a collective bargaining agreement for 2009, the “Avtoselhozmash” trade union committee replied that all employees could take part in the drafting of a new collective agreement by submitting their proposals. A single representative body of employees that would represent members of both unions was not formed. Years of appeals to the law enforcement bodies at all levels have not led to the enforcement of the right of minority unions to participate in collective bargaining. Thus, the norms of the Labour Code concerning the participation of trade unions uniting less than one half of employees of an undertaking in collective bargaining do not work and do not ensure an effective right to participate in negotiations.

Failure by the Government to create an efficient system to defend trade union rights

1. 1351. The complainant alleges that the majority of new trade union organizations, as well as many of those which have been active for a long time, encounter violations of their rights. It further alleges that in practice attempts to defend trade union rights are time-consuming, demand much effort, but yield no results. The KTR explains that cases relating to violations of trade union rights are tried by courts upon a prosecutor’s petition, or upon a complaint by a trade union. According to section 30(1) of the Law on Trade Unions, violations of trade union legislation by state and local officials, by employers, their representatives and associations entails disciplinary, administrative, or criminal liability in accordance with federal laws. However, neither the Criminal Code nor the Code of Administrative Offences contain any special norms on the liability for violations of trade unions rights. Repeated attempts by trade unions to draw the Government’s attention to the need to establish such a liability have not brought about the desired positive results.
2. 1352. The complainant further explains that, according to section 356 of the Labour Code, the state labour inspectorate carries out monitoring and control over employers’ compliance with the labour legislation and with other laws containing labour-related norms by performing inspections and examinations, by issuing binding directives to correct violations, drawing up reports of administrative offences within its competence, and preparing other materials for holding guilty parties accountable in accordance with federal laws and other regulations. Since some of the provisions regulate the rights of trade unions and, in particular, the rights pertaining to social partnership, collective bargaining, collective labour dispute resolution and the provision of certain conditions for trade union activities by employers are included in the Labour Code, there is a lack of clarity as to the distinction between the monitoring of compliance with the labour legislation on the one hand, and with trade union rights legislation, on the other. While in some regions, labour inspectorates consider complaints of violations of trade unions rights filed by trade unions, in many other regions, they refuse to consider such complaints. While the complainant is aware that the competencies of the federal labour inspectorate, as determined by its Statutes, do not include the oversight and control of compliance with the provisions of the Law on Trade Unions, it alleges that appeals by trade union organizations to prosecutors’ offices bear no results and that in many cases, even lead to increased pressure on trade unions. According to the complainant, the prosecutors’ offices often fail to conduct objective investigations.
3. 1353. Furthermore, according to the complainant, while it is possible to lodge a complaint with the courts in cases of specific violation of trade union rights, this is a complicated and costly procedure in terms of time and resources needed. Besides, even when courts rule in favour of trade unions, this does not help to change the situation as a whole, as there are numerous and constant systemic violations of trade union rights. Thus, the complainant concludes that there is no mechanism or body to oversee and monitor the observance of trade union rights, with a power to react to specific or systematic violations and to restore the rights.
4. 1354. In addition, according to the complainant, the system of legislative guarantees aimed at protecting trade union leaders from discrimination has been shrinking. On 3 November 2009, the Constitutional Court invalidated section 374 of the Labour Code, which prescribed that employers should consult with higher elected trade union bodies before dismissing leaders of elected trade union bodies. This provision provided for guarantees afforded to workers elected to trade union office and who continued working at their main jobs. Paragraph 1 of the section prescribed that the consent of the elected trade union body was necessary for dismissals of elected trade union leaders in the case if one of three following grounds was invoked: staff cutbacks and elimination of jobs (section 81(2) of the Labour Code); inadequacy for a position or a job due to insufficient qualification confirmed by an evaluation (section 81(3)); and multiple failures to perform work duties without sufficient justification by workers who have been disciplined earlier (section 81(5)). The Constitutional Court declared section 374(1) of the Labour Code in application to dismissals falling into the latter category unconstitutional. Referring to its previous decision, the Court considered that this provision imposed, inter alia,
   • … a disproportionate restriction on the rights of an employer as a party to an employment contract, and also as a subject of economic operations and as a proprietor. Such a restriction is not justified by the protection of rights and liberties as established in articles 30(1), 37(1), and 38(1) and (2) of the Constitution and interferes with the freedom of economic operations (entrepreneurship) and with the ownership right, and misrepresents the essence of the principle of free labour. Therefore, it contradicts the regulations contained in articles 8, 34(1), 35(2), 37(1), and 55(3) of the Constitution. The provisions in question grant workers participating in trade union bodies who also work at their main jobs unjustified advantages over other workers, and open up venues for an abuse of the right, which is also inconsistent with the provisions of article 19 of the Constitution on the equality of all before law and court, and which guarantees the equality of human and civil rights and liberties.
5. 1355. The complainant alleges that on 26 November 2008, due to numerous violations of the rights of the MPRA primary trade union organization at the “Tsentrosvarmash”, Mr Kojnev, trade union Chairperson, addressed to the Prosecutor of the Zavoljsky district of Tver a complaint concerning unlawful actions of the company, highlighting violations by employers’ representatives of the right of the union to receive information and to oversee compliance with the labour laws and describing the pressure exercised by the management on trade union activists. He asked a prosecutor to intervene. In the course the investigation, however, explanations were obtained exclusively from representatives of the employer. Then, instead of verifying the facts described by Mr Kojnev, the Prosecutor’s Office decided to verify the legality of the establishment and activities of the union. In the course of the investigation, the union was requested to provide minutes of its meetings containing, in particular, lists of workers who were present at the meetings and who joined the union. By a letter dated 11 January 2009, the first deputy of the district Prosecutor wrote to the MPRA indicating that the investigation revealed that the primary trade union organization had not been established at the company. Therefore, its affiliation with the MPRA and the adoption of its by-laws had no legal effect. Consequently, there were no grounds for intervention by the Prosecutor’s Office. On 21 January 2009, Mr Kojnev filed a complaint with the Tver region Prosecutor’s Office. The Prosecutor’s investigation consisted in interrogating members of the MPRA primary trade union whose names were mentioned in the minutes of the trade union’s committee meetings. Most of these workers were interrogated several times on the issues that had been discussed at trade union meetings, the work of the union, and its Chairperson. Trade union members were told that the union was illegal, did not exist and that the Federal Security Service would keep records on all trade union members. Several trade union members felt threatened and intimidated and left the union.
6. 1356. On 22 April 2009, Mr Kojnev filed a complaint over the actions of the Prosecutor in which he pointed out that the absence of a registration with the Ministry of Justice could not serve as proof of the trade union’s non-existence, because, in accordance with section 8 of the Law on Trade Unions, trade unions have the right to remain unregistered. The reply dated 21 May 2009 by the Head of the Department for Overseeing Compliance with Legislation of the Tver region Prosecutor’s Office put forward a new argument, namely that primary trade union organizations, branches and representative offices of the MPRA may not be established in the Tver region because according to the MPRA by-laws, the trade union operates in the Leningrad and Samara regions, and the Tver region is not on the list of the areas where the trade union can operate. On 11 June 2009, Mr Kojnev filed another complaint with the Prosecutor of the Tver region. This time, the complaint concerned the above letter dated 21 May 2009. Mr Kojnev pointed out that on 3 March 2009, a Federal Registration Service for Saint Petersburg and the Leningrad region had registered the changes and amendments to the MPRA by-laws according to which, there were no restrictions as to the territory in which the trade union could carry out its activities. In reply to his complaint, Mr Kojnev received a letter stating that his complaint had been forwarded to the Acting Prosecutor of the Zavoljsky district of Tver for investigation. On 17 July 2009, the union received a reply identical to those already received.
7. 1357. The KTR explains that in total Mr Kojnev had made at least six complaints to various prosecutors’ offices about violations of trade union and labour rights. All have failed to consider the complaints on the merits. Considering that prosecutors’ offices had negligently allowed a violation of the rights and freedoms of citizens, Mr Kojnev applied to the Zavoljsky District Court in Tver challenging the negligence of officials and seeking to declare unlawful their findings that no MPRA primary trade union has been established at the “Tsentrosvarmash”. On 3 February 2010, the District Court dismissed this claim and justified its position by stating that “... the Prosecutor’s Office has given a reply from which it is evident that an inquiry has been carried out and that there are no grounds for the Prosecutor’s Office to act ... Accordingly, the Prosecutor has not identified any breaches of law”. The court further stated that the negligence of officials of the Zavoljsky district Prosecutor’s Office had not been proved, and that “... all applications have been promptly considered and looked into through a variety of means; conclusions have been reached on the basis of the available information, and a reply has been given within the time limit prescribed by law”. As for the matter of finding unlawful the decisions of the Prosecutor’s Office, the court stated that “... no such decision was taken by the Prosecutors”, “the opinions contained in these replies have no legal consequences, cannot affect the rights of the applicant and do not indicate any unlawful action by the Prosecutor”. The KTR points out, however, that in practice the Prosecutor’s Office’s replies deprived the union and its members of the protection it should have benefited from.
8. 1358. On 3 February 2010, Mr Kojnev appealed the above decision to the Tver Regional Court, but the latter upheld the decision of the lower court. The KTR indicates that the latter decision was also upheld by the Presidium of the Tver Regional Court on 21 July 2010. The KTR points out that the fact that the actions taken by the Prosecutor’s Office were carried out in connection with matters not raised in the applications made by Mr Kojnev, and that no action was taken by the Prosecutor on the substance of those applications, was ignored by the court.
9. 1359. By its communication dated 9 December 2011, the KTR expresses its satisfaction with the work of the ILO mission which visited the country in October 2011. This allowed for the opportunity to discuss the issues raised in the complaint with the ILO officials and the Government. The KTR stresses that the allegations in this case refer to systemic issues relating to the lack of effective mechanisms for protection of freedom of association rights in the country. In the KTR’s view, all participants in the meetings held by the mission have reached this understanding. In this connection, the KTR and FNPR prepared a joint document entitled “Proposals for the Resolution of the Issues Raised in the Complaint”. The KTR points out that it is in its interest to interact with the Government with the view of attaining tangible results on the basis of the joint proposal.
10. 1360. The KTR informs that to date it had been unable to detect any reciprocal moves from the Government’s side. It stresses, in particular, that no measures have been taken with respect to the two specific cases that are of extreme importance to the union: the case of Mr Urusov and the case of trade union material declared to be extremist. With regard to Mr Urusov, the KTR indicates that, on 29 November 2011, the Supreme Court of the Republic of Yakutia dismissed Mr Urusov’s appeal of the ruling of the Khangalassky District Court of the Republic of Sakha dated 29 September 2011 denying parole to Mr Urusov. Furthermore, trade union leaflets, newspapers and materials that were declared extremist by the ruling of the Zavoljsky District Court of Tver, on 28 August 2009, are still on the federal list of extremist materials.

B. The Government’s reply

1. 1361. In its communication dated 24 September 2010, the Government indicates that the right of the citizens to associate in public organizations, including trade unions, and the freedom of trade union activities are guaranteed by article 30 of the national Constitution. This constitutional right is further implemented through a number of federal laws, in particular, the Law on Public Associations of 1995 and the Law of Trade Unions, their Rights and the Guarantees of the Activities of 1996. The Government further informs that the Ministry of Health and Social Development held consultations with the KTR leadership on the issues raised in the complaint.
2. 1362. With regard to the threats and attacks against trade union leaders and activists of the primary trade union organizations of the Interregional Trade Union of the Workers of the Automobile Industry at the “TagAZ” and the Ford Motors companies, the Government informs of the following. In 2009, the Ministry of Health and Social Development held a consultative meeting on the observance of the labour legislation and the protection of the labour rights with the leader of the trade union organization, Mr Etmanov. Following the meeting, upon the instructions of the Ministry of Health and Social Development, the territorial bodies of the Federal Service on Labour and Employment (Rostrud) carried out inspections at both enterprises and issued orders to eliminate the detected violations of the labour legislation. The officials concerned were brought to administrative and disciplinary responsibility. All violations of the labour legislation, listed in the order of the state labour inspectorate have been eliminated.
3. 1363. The Government further informs that the Ministry of Health and Social Development, together with the KTR, discussed the KTR’s proposals on the improvement of the legislation and practice of protection of freedom of association rights. The proposals mainly concern the improvement of the legislation with regard to the regulation of administrative responsibility for violation of trade union rights and the right to unionize; and enhancement of the prosecutorial supervision over the observance of trade union legislation. According to the Government, the proposal of institutional arrangements to address issues related to the activities of trade union organizations are noteworthy and should be considered in the framework of the Russian Tripartite Commission for the Regulation of Social and Labour Relations (RTK) so as to reach an agreement of all parties of the social partnership. The issue of collective bargaining also deserves attention. The proposals concerning settlement of collective labour disputes and conduct of strikes will be reflected in the Concept of Social Partnership Development, which is being elaborated by the Ministry of Health and Social Development.
4. 1364. The Government further informs, on 1 December 2009, the RTK established a working group on the elaboration of the proposals relating to the improvement of social partnership. This working group is composed of representatives of the relevant federal bodies of the executive authority, federations of trade unions, including the KTR, and associations of employers. The new Concept of Social Partnership Development will cover the whole range of problems related to the development of social partnership, and will focus on the improvement of the process of collective bargaining, including the issue of representation of workers’ and employers’ interests, and mechanisms for the settlement of collective labour disputes. The Government further informs that the enlarged tripartite permanent working group on the law enforcement practice and elaboration of proposals on further improvement of the labour legislation resumed its activities under the authority of the State Duma Committee on Labour and Social Policy. It is composed of the representatives of the RTK, representing the Government, All-Russia federations of trade unions and All Russia associations of employers.
5. 1365. The Ministry of Health and Social Development and Rostrud hold, on a regular basis, consultative meetings with trade union leaders on the issue of protection of labour rights and interests of workers. An open exchange of opinions helps to tackle the vital issues related to the development of the labour market, employment, wages and social protection of citizens. Furthermore, in accordance with the instructions of the Ministry of Health and Social Development, the territorial bodies of the Rostrud carry out inspections with regard to the observance of labour legislation in various undertakings with a view to eliminating violations of labour rights. The managers of the undertakings concerned are brought to disciplinary, administrative, civil and criminal responsibility. Round tables have been organized with the participation of representatives of the federal bodies of the executive authority, trade unions and employers to discuss problems arising in cases of failure to reach an agreement between employers and workers with regard to the conclusion or observance of collective agreements.
6. 1366. The Government further informs that, on 15 June 2010, the State Duma faction “Spravedlivaya Rossiya” adopted a decision to establish a commission on social and labour relations, which would include the State Duma deputies, representatives of the broad strata of the trade union movement, including the KTR and some of its affiliates. The Commission’s meeting held on 14 September 2010, discussed the improvement of the labour legislation and, in particular, the issues related to the need to amend the Labour Code so as to ensure the rights of workers to associate and unionize the right to collective bargaining and to improve the procedure for settlement of labour disputes.
7. 1367. In its communication dated 1 March 2011, the Government submits the information gathered by the Ministry of Health and Social Development, Ministry of Justice, Ministry of Internal Affairs, Attorney-General and Rostrud during inquiries carried out into the allegations raised in this case.
8. 1368. With regard to the right to establish organizations without prior authorization and the alleged refusal to register trade unions despite legislative provision prohibiting such refusals, the Government indicates that under section 8(1) of the Law on Trade Unions, the legal capacity of trade unions, federations (associations) of trade unions, primary trade unions (collectively referred to as trade unions) as legal persons arises from the moment of their state registration, in accordance with the Law of 8 August 2001 on State Registration of Legal Persons and Individual Entrepreneurs. Registration of trade unions, however, is the subject to the special (notification) procedure. Trade unions also have the right not to be registered. Pursuant to section 8(1), subparagraph 8, of the Law on Trade Unions the registering authorities do not have the right to control activities of trade unions or to refuse to register them.
9. 1369. By virtue of section 10(3) of the Law on Trade Unions, trade union activities may be suspended or prohibited in the following cases:
   • – if the trade union activity is in violation of the Constitution and legislation in force – by a decision of the Supreme Court or decisions of the relevant court of administrative divisions of the Russian Federation, on the application of the Attorney-General or the Public Prosecutor of the relevant administrative division; and
   • – on the grounds set out in the Law of 25 July 2002 on Prevention of Extremist Activities – by decision of the court on the application of the Attorney-General, or local Public Prosecutors, or the Ministry of Justice, or its local offices.
10. 1370. Section 8(2) of the Law on Trade Unions and section 23 of the Law on Public Associations provide that the refusal or avoidance of state registration may be appealed in court. Registration of a trade union may be denied on the grounds set out in section 23 of the Law on State Registration of Legal Persons and Individual Entrepreneurs in the following cases: the failure to provide the required documents; and the submission of the documents to the wrong authority. The decision on the state registration is preceded by an examination of its documents in respect of their conformity with the legislation in force.
11. 1371. With regard to the allegations of anti-union discrimination against workers based on their trade union membership or activities, and pressure exercised on workers with the view to compel them to resign from their union and absence of protection by the authorities, the Government indicates that section 2 of the Labour Code prohibits discrimination in the labour sphere. Section 3 of the Code prohibits discrimination at work on the basis of membership in voluntary organizations. Persons who consider to have suffered discrimination at work have the right to complain to the courts. According to section 136 of the Criminal Code, persons guilty of discrimination are criminally liable. Section 29 of the Law on Trade Unions provides for judicial protection of trade union rights; under this provision, acts in violation of trade union rights are examined by the courts on the application by the Public Prosecutor, or at the request of a trade union concerned. In addition, article 356 of the Labour Code provides for the right to request the labour inspectorate to carry out an investigation of compliance with the labour laws and other related legislation. In this regard, in order to eliminate infringements of labour rights, local offices of the federal labour and employment service carry out monitoring of compliance with the labour legislation in undertakings and organizations; if violation is revealed, heads of enterprises are subject to disciplinary, administrative, civil and criminal liability. Thus, mechanisms for protection against discrimination on grounds of trade union membership and activities exist and are effective.
12. 1372. With regard to the inclusion of trade union leaflets on the list of banned extremist literature, the Government explains that in February 2009 the management of the company requested the Prosecutor’s Office of the Zavoljsky district of Tver Province to verify the legality of the activities of the Chairperson of the primary trade union, Mr Kojnev, in relation to the distribution by him of documents and materials of an extremist character. An expert from the philology faculty of the Tver State University carried out a linguistic analysis of the printed material and found it to be of extremist nature as it intended to incite social divisions and hostility, to preach exclusiveness, and the superiority or inferiority of individuals based on their social background. By the decision of 28 August 2009, the Zavoljsky District Court granted the application of the Prosecutor’s Office to declare the information materials extremist. The Government explains that, pursuant to section 13 of the Law on Prevention of Extremist Activities, a decision of the court declaring literature extremist may be appealed in accordance with the established legal procedure. In this case, however, the court’s decision was not appealed and therefore became final on 8 September 2009. Thus, in application of section 13 of the Law on Prevention of Extremist Activities, and on the basis of the above court decision, the Ministry of Justice placed the items referred to in the complaint on the list of banned extremist literature. The Government also indicates that, while pursuant to section 15 of that Law, an author of printed and other literature (publications), intended for public use, which contains any one of the indications referred to by the said Law, is deemed to be a person engaging in extremist activity and is liable in accordance with the legislation in force, no criminal case has been opened against Mr Kojnev as his actions did not constitute a criminal offence.
13. 1373. With regard to the allegation of violation of the right to life, security, physical and moral integrity, attacks on trade union leaders and the failure to carry out an effective investigation, the Government provides the following information. With regard to the physical injury caused to Mr Etmanov, the Government indicates that, while a criminal case was opened on 18 November 2008, the investigation failed to identify the persons responsible for the attack and assault on Mr Etmanov and, on 30 November 2010, the case was closed as time-barred. On 8 February 2011, the case was reopened. Yet again, the investigation failed to identify those responsible for attacking Mr Etmanov; the criminal investigation was therefore suspended. However, later on, pursuant to the decision of the Saint Petersburg Prosecutor’s Office, the case was returned for reinvestigation.
14. 1374. With regard to the physical injury caused to Mr Ivanov, the Government indicates that a criminal case was opened on 10 February 2009. In the course of investigations, it was established that, contrary to Mr Ivanov’s allegations, the police were not involved in the attack. However, the investigation failed to identify the person responsible for the crime and was therefore suspended. The Government further indicates that Mr Ivanov was dismissed from the GM-AVTOVAZ on 20 November 2009 on the grounds of unauthorized absence. On 15 March 2010, the Pushkin District Court in Saint Petersburg declared the dismissal unlawful. On 16 March 2010, Mr Ivanov was reinstated, but resigned on the same day.
15. 1375. With regards to the alleged refusal by the state authorities to register the amendments to the MPRA by-laws, the Government indicates that an application for registration was submitted on 5 October 2006. Upon examination of the documents provided, the registering authorities considered that they did not comply with the legislative requirements as they did not contain information on the address of the union’s governing body and that the union by-laws were in violation of the Law on Trade Unions. Accordingly, on 3 November 2006, the registration service answered to the union by referring to the reasons justifying the refusal to register the organization. On 28 July 2008, the MPRA notified the registering authorities of the amendments to its by-laws by submitting a copy of the minutes of the union conference which took place on 16 July 2008 and other required formalities. The Government points out that the trade union submitted only the amendments to the by-laws, whereas the law requires the complete text of the by-laws to be submitted in three copies. Therefore, on 28 August 2008, the registering authorities refused to register the amendments. Having rectified the errors, the trade union resubmitted the documents, which were registered on 26 February 2009. Thus, the allegation that the registration of the amendments took eight months cannot be objectively justified.
16. 1376. With regard to the refusal to register the RPLBJ, the Government indicates that following the amendments of its by-laws, the union submitted the relevant documents to the registering authority, which confirmed that the trade union was active in the territory of 54 administrative divisions of the Russian Federation. On this basis, on 14 June 2005, the union’s status of all-Russia union was reconfirmed. In 2006, in connection with the application of the Vice-President of the Russian Railways company (RGD), an investigation was carried out to confirm the existence of the RPLBJ structural subdivisions in all of the administrative divisions of the Russian Federation which were listed in the trade union’s by-laws. As a result of the investigation, it was established that the trade union was not active in 19 administrative divisions of the Russian Federation. On 1 February 2008, the Moscow interregional Transport Prosecutor filed an application to the Lublinsky District Court in Moscow for an order that the union by-laws be amended and brought in conformity with the legislation. By its decision of 26 November 2008, the court ordered the RPLBJ to amend its by-laws so as to exclude the word “Russian” from its name and to register the amendments. This decision was upheld by the Moscow Civil Court on 2 April 2009. On 27 January 2010, the extraordinary assembly of the union approved the amendments, which were then duly registered on 16 March 2010. On 4 March 2010, the Moscow office of the Ministry of Justice approved the registration of the amendments to the by-laws, including the new name of the union – the Interregional Union of Railway Workers’ Union.
17. 1377. With regard to the alleged examples of violations of trade union rights by the state authorities and interference in trade union internal affairs, the Government provides the following information. The Government denies that the responsible tax authorities have ever required the MPRA primary trade union at the Ford Motor Company to submit its financial documents and the list of its members; in fact, an investigation into this allegation revealed that this primary trade union is not even registered with the tax authorities.
18. 1378. As regards the allegation of interference into the activities of the primary trade union of the RPD of Novorossiysk Commercial Port by carrying out an investigation and instituting criminal proceedings against its Chairperson, Mr Pereboev, the Government indicates that the case against Mr Pereboev was dropped in August 2007 due to lack of evidence of a criminal offence. Since 2007 and up to the present, the Novorossiysk Transport Prosecutor has been engaged in investigative measures, including in relation to the examination of the allegations by the leaders of trade unions in maritime transport companies.
19. 1379. As regards the allegation of interference by the state authorities in the activities of the RPLBJ following a strike notice on 29 November 2007, the Government indicates that by a letter dated 22 June 2007 addressed to the President of the RGD, the union sent claims of a social and economic nature. Having considered these claims, the management of the company, by its letter dated 7 August 2007, refused to accept them, whereupon the trade union sent notice of a 24-hour strike to be carried out on 28 November 2007. On 19 November, the company applied to the Moscow city court for an injunction declaring the strike unlawful. This injunction was granted on 23 November 2007. On 7 April 2008, the RPLBJ Moscow primary trade union of Moscow rail workers sent a claim to the Head of the Moscow Rail Company, a subsidiary of the RGD and the President of the latter, requesting the application of Order No. 3/N which provided for the raise of wages up to the level established in that order in accordance with the qualifications of each worker, etc. As the management refused to act on this claim, in violation of section 410 of the Labour Code, members of the primary trade union carried out a strike, which involved some 150 workers, from 4 a.m. on 28 April 2008 to 12 a.m. on 29 April 2008. In connection with this action, on 28 April, the Chairperson of the RPLBJ trade union committee in the Pushkino engine depot, Mr Pavlov, and his deputy, Mr Mukhin, were charged with administrative offences under section 20.26 of the Code of Administrative Offences. The Government points out, however, that no criminal investigation had been carried out and that no RPLBJ member was charged with criminal offences or questioned. At the same time, an investigation into the complaint dated 28 May 2009 lodged by Mr Mukhin alleging physical violence committed by the police at the Pushkino station was carried out. Following an investigation, no criminal proceedings have been opened due to the lack of evidence. At that time, no criminal charges were brought against Mr Mukhin. However, on 8 February 2011, the Moscow–Yaroslavl Prosecutor’s Office reversed that decision and sent the case for further investigation. Finally, the Government indicates that the allegations that the RPLBJ office were torched have not been confirmed.
20. 1380. With regard to the allegations of anti-union discrimination at the “Tsentrosvarmash” company, the Government indicates that the labour inspectorate carried out an inspection on 21 September 2009, following which, it issued an order to the management of the company to pay Mr Kojnev two-thirds of the wage for the period of downtime, as well as wages owed and compensation for the late payment of wages. The company appealed this decision in court, which, on 10 June 2010, declared the order of the inspectorate unlawful. Furthermore, the Government indicates that the Zavoljsky District Court examined the applications by Mr Andrianov and Mr Kojnev arguing that their dismissals were unlawful, asking for reinstatement and payment of compensation for enforced absence and recognition of the fact of anti-union discrimination. On 28 April 2010, the court concluded that the applicants were absent from their workplace without justifiable cause on 8, 9, 10 and 11 February 2010 and were therefore lawfully dismissed for breach of the workplace rules pursuant to section 81(1)(6a) of the Labour Code. This decision was upheld by the provincial court on 3 August 2010.
21. 1381. With regard to the alleged discrimination of members of the “Edinstvo” primary trade union at the Avtovaz company, the Government indicates that according to the information provided by the labour inspectorate in 2010, 13 complaints by the Avtovaz workers who were members of the “Edinstvo” primary trade union were filed and heard. The complaints related to the questions of infringement of health and safety rules, wages, failure to provide workplace certificates, illegal imposition of disciplinary measures, and failure to comply with instructions. There were no complaints of anti-union discrimination. In the course of the investigation carried out on 9 February 2011, Mr Zolotarev, Deputy Chairperson of the MPRA and Chairperson of the “Edinstvo” primary trade union, explained that while there were instances of pressure on workers to leave the union, no complaints have been lodged in this regard with the courts.
22. 1382. Mr Zolotarev also explained that the primary trade union of workers of the GM–AVTOVAZ was established in August 2006. He further alleged that following the notification to the employer of the founding of the union, the elected representatives were victimized and that, by dismissing 23 elected representatives, the employer destroyed the MPRA primary trade union at the enterprise. Each of these workers complained to the court. In this respect, the Government indicates that the court decisions refusing their reinstatement are being challenged on appeal.
23. 1383. The Government further provides information on the outcome of the investigations into the allegations of discrimination of trade union members at the following enterprises:
    • – GM-AVTOVAZ in Saint Petersburg: the MPRA primary trade union was established in 2009. During the period since GM-AVTOVAZ began operating (March 2006), seven investigations into compliance with labour legislation have been carried out. The investigations did not reveal any cases of discrimination against workers who are members of the MPRA primary trade union.
    • – “Festalpine Arkada Profil”: it was established that on 22 November 2008 the management of the company proposed to reduce the company’s workforce. However, the workers concerned, including members of the trade union, were temporarily transferred to other workplaces. The Government indicates that this transfer was carried out in violation of the Labour Code, as none of the workers consented to the transfer. The dismissal of the Deputy Chairperson was also in violation of the legislation. On 16 February 2009, the Prosecutor’s Office instituted administrative proceedings in relation to the Head of the personnel. As a result of his investigation, the responsible manager was convicted of an administrative offence on 1 March 2009 and fined. In 2009–10, the labour inspectorate received ten complaints by workers of the enterprise relating to the conditions of work in winter. There were no complaints of anti-union discrimination. Currently, 39 workers are members of the MPRA primary trade union. On 20 January 2011, a meeting was held at the enterprise between representatives of the company’s management and members of the primary trade union. In the course of the meeting, it was established that workers’ complaints were examined in the established period in accordance with the legislation in force and that there were no cases of anti-union discrimination.
    • – TagAZ: according to the labour inspectorate, in 2010, there were 24 complaints filed by workers of the enterprise, including members of the MPRA primary trade union. These complaints have been examined. In the course of investigations, infringements of labour legislation were discovered and instructions issued. The enterprise management was fined for administrative offences.
    • – “Togliattikauchuk”: according to the labour inspectorate, in 2009, there were 40 complaints by representatives of the enterprise trade union “Nashe Delo”. Measures were taken by the inspectorate to respond to all of these complaints. In the course of an inspection carried out on 16 January 2009, the Managing Director of the enterprise was found guilty of an administrative offence under article 5.27(1) of the Code of Administrative Offences and fined. There were no complaints to the Ministry of Labour or its local offices by members of the NPGR primary trade union, also active at the enterprise.
    • – Baltika Brewery–Baltika Rostov: an investigation by the labour inspectorate found no evidence supporting the allegations of exertion of psychological pressure on members of the primary trade union to compel them to withdraw from the union. It was found that two trade union members were dismissed upon agreement of the parties and received a compensation equivalent of five months of average wages.
    • – Saint Petersburg University of the Ministry of Internal Affairs: the primary trade union of the Union of Workers of Trade and Services, consisting of three members, was established on 25 February 2008 but ceased to exist the same year as a result of the resignation of its Chairperson and another member.
    • – “Nevskie Porogi”: the labour inspectorate indicated that, at 28 February 2007, the OPRTU primary trade union consisted of four people and, at 29 November 2007, the trade union had no members: its Chairperson had resigned voluntarily; the Deputy Chairperson was dismissed for serious breaches of technical safety (disconnecting cut-off devices on automated production lines); another Deputy Chairperson resigned voluntarily (for family reasons); the third Deputy Chairperson was dismissed for absenteeism.
    • – “Pochta Rossii Piter”: the courts examined complaints of unfair dismissal and reduction of wages. In cases where the court found that the proper procedure for the dismissal had not been followed, it ordered the reinstatement.
24. 1384. With regard to the allegations of violation of trade union rights by employers, the Government indicates that the liability of employers for violation of trade union rights is set out in the Code of Administrative Offences. In particular, sections 5.28–5.34 of the Code establishes administrative liability for violations related to the prohibition of trade union activities with regard to the collective bargaining and the monitoring of implementation of collective agreements. In particular, avoidance by employers or their representatives to participate in collective bargaining as well as employers’ failure to provide information relevant to the collective bargaining and the monitoring of compliance with a concluded collective agreement is subject to an administrative fine ranging between RUB1,000 and 30,000; an unjustified refusal by employers or their representatives to conclude a collective agreement, as well as a failure to comply with the provisions of a collective agreement is subject to an administrative fine ranging between RUB3,000 and 5,000; avoidance by employers or their representatives of receiving claims of workers as well as failure to provide premises for holding meetings or conferences of workers to formulate such claims, or interfere with the conduct of such meetings is subject to an administrative fine of RUB1,000–3,000; dismissal of workers in connection with the organization of or participation in strikes is subject to an administrative fine ranging between RUB4,000 and 5,000. The Government further indicates that cases of administrative violations are examined by officials of the Rostrud and its state labour inspectorate. In the light of the above, and taking into account that, on 1 July 2010, the Government ratified Convention No. 135, it considers that the legislation in force adequately and sufficiently regulates questions concerning liability for offences relating to failure to comply with labour legislation. The Government also points out that the Rostrud has not received any complaint of refusal by employers to recognize or to cooperate with trade unions.
25. 1385. With regard to the allegation of interference by the state authorities with the right of the FPAD of Russia to draw up its own constitution and rules, the Government explains that, according to section 413 of the Labour Code and section 52(1) of the Air Traffic Code, to protect the rights and lawful interests of citizens, to ensure the defence of the country and security of the state, civil aviation personnel serving or controlling air traffic are not permitted to strike or stop work. Meanwhile, the resolution of the conference of the FPAD primary trade unions of 30 March 2010 called upon workers of the Air Traffic Control Corporation (FGUP) to organize a mass action leading to a restriction or stoppage of air traffic movements. Between 9 and 28 April 2010, 400 workers of the enterprise took part in a protest action, called by the participants a “hunger strike”. Furthermore, on 14 April 2010, the Chairperson of the FPAD Russia made a public statement that to resolve the dispute at the State Corporation for Air Traffic Management air traffic controllers will stop providing air traffic services. This, in the Government’s opinion would have led to the restriction of flights and endangered the defence of the country, state security, and the life and health of citizens. In this regard, on 21 April 2010, the Moscow Prosecutor’s Office responsible for compliance with air and water transport legislation issued a warning that the proposed action was illegal and submitted representation against the FPAD primary trade union seeking to declare unlawful the provisions of their respective by-laws regulating the declaration of strikes involving, in particular, aviation staff providing air traffic support and control services. These applications have been granted in full.
26. 1386. With regard to the alleged violation of the rights of the MPT primary trade union, the Government indicates that, while a new system of entry to the regulated port premises had been introduced, trade union leaders have access to the workplaces on the basis of temporary passes.
27. 1387. With regard to the allegation of theft from the premises of the MPT primary trade union of dockers, the Government informs that the preliminary investigation was suspended as no suspect had been identified. It further informs that a preliminary investigation in the criminal case concerning the alleged embezzlement by the leadership of the MPT primary trade union was also suspended on the grounds that the period for criminal prosecution was time-barred. Currently, this is being examined by the Transport Prosecutor’s Office. The Government further indicates that the Tuapse Transport Prosecutor’s Office, together with the state labour inspectorate and the primary trade union of dockers, carried out an inspection at the port to monitor the compliance with the labour legislation. Several breaches of labour legislation were revealed and in this respect, a notice requesting to redress the violations was sent on 24 November 2009 to the port’s management. With regard to the refusal of the Chairperson of the MPT primary trade union, Mr Zhuravlev, to provide documents required for an investigation, on 24 November 2009, the Tuapse Transport Prosecutor opened administrative proceedings in which, by the decision of the arbitration tribunal of 15 December 2009, he was found guilty of an administrative offence and was imposed a fine of RUB2,000. This decision was upheld in court. Moreover, in April 2010, in the course of investigations into the compliance with the labour legislation, violations were found which served as the basis for the prosecution against Mr Zhuravlev. By an order of the State Inspectorate of Labour, on 4 May 2010, Mr Zhuravlev was imposed a fine of RUB1,000. On the issue of premises, the Government indicates that in 2009–10, the port administration proposed to the primary trade union to take separate premises situated in Tuapse at 12, Gorky Street. The union accepted this offer on 19 February 2010. Finally, the Government indicates that from 2007 to the present, the Tuapse Transport Prosecutor’s Office has investigated and replied to all complaints submitted to it by trade union organizations.
28. 1388. With regard to the allegation of refusal by employers to recognize newly formed trade union organizations, the Government indicates that the complaints of the MPRA primary trade union of TagAZ workers about the management’s refusal to cooperate with the union have been examined by the labour inspectorate on several occasions. In this respect, labour inspectors have repeatedly explained that questions of compliance with the legislation must be resolved in accordance with the procedure set out in the Law on Trade Unions, i.e. such complaints must be examined by courts upon application by a prosecutor or at the request or complaint of a trade union. The Taganrog Municipal Court examined the application of the MPRA primary trade union of TagAZ requesting the court to oblige the company to provide premises for trade union activities, ensure access to the company premises to trade union leaders and allow the distribution of trade union information in a place accessible to the workers. The court denied this request.
29. 1389. In light of the above, the Government considers that it has taken all legal measures and procedures to address the matters contained in the KTR complaint. The national legislation and international agreements, including Conventions Nos 87 and 98 are implemented in full. The most important measures in the development of the social partnership at the federal level take place in the framework of the RTK. The 2011–13 General Agreement between All-Russia Federations of Trade Unions, All-Russia Federations of Employers and the Government was signed in December 2010. In the framework of the implementation of this Agreement, the Ministry of Health and Social Development regularly holds tripartite consultative meetings and seminars. Practically all amendments to the legislation in force and new legislative acts are discussed by the RTK.
30. 1390. By its communications dated 12 and 18 May as well as 13 July 2011, the Government reiterates that the Ministry of Health and Social Development, Ministry of Justice, Ministry of Interior, the Office of the Prosecutor-General and the Rostrud have investigated the complaints raised in this case and that many of the alleged facts have not been confirmed. In relation to several cases, the relevant courts and law enforcement agencies have already taken decisions. In particular, in addition to those discussed above, the Government refers to the case of Mr Urusov.
31. 1391. The Government further indicates that taking into account the problem raised with regard to the state registration of trade unions, the Ministry of Justice, in cooperation with the Ministry of Health and Social Development, envisages creating a joint working group to discuss proposals on the improvement of the legislation and development of ubiquitous registration procedures. This working group would include representatives of the Prosecutor’s Office, the Ministry of Interior, the Ministry of Transport and the KTR.
32. 1392. The Government further informs of an agreement of cooperation with regard to ensuring observance of workers’ labour rights was signed between the Rostrud and the KTR on 10 June 2011. This agreement sets out the obligations of the Rostrud and the KTR with regard to the exchange of information on violations of labour rights and on matters relating to the improvement of labour legislation, participation in the settlement of collective labour disputes, the selection of mediators and arbitrators and other matters.
33. 1393. Finally, in its communication dated 30 January 2012, the Government indicates that during an ILO technical mission, a proposal for addressing the issues raised in the complaint have been jointly prepared by the KTR and the FNPR. At the concluding tripartite meeting held on 14 October 2011, the FNPR Chairperson stated that the proposals should be discussed with the social partners within the framework of the RTK. The Government explains that, in accordance with the RTK regulations, each member of the RTK has the right to submit proposals for consideration at the RTK meetings and working groups. However, the trade union side has not yet submitted its joint proposal.
34. 1394. The Government also indicates that, since the mission’s visit, there have been some positive developments in the country. On 22 November 2011, the Federal Law on amendments to the Labour Code to improve the procedure for settlement of collective labour disputes was adopted. Furthermore, pursuant to the Presidential instruction, the Ministry of Health and Social Development, together with workers’ and employers’ organizations, had prepared another bill to amend the Labour Code. The proposed amendments are designed to improve the collective bargaining process and further develop a mechanism for settlement of collective labour dispute. This bill was considered and approved by the RTK at its meeting of 21 November 2011 and has been submitted to the Government for consideration. Moreover, a draft law on the amendments of certain laws and regulations concerning the establishment and activities of employers’ associations has been submitted to the State Duma. This draft law is designed to develop such associations and enhance their role in the social partnership.
35. 1395. The Government discussed with the ILO mission the possibility of organizing special training for employees of the court system, officials of the Prosecutor’s Office and members of the police so as to enhance their knowledge of international labour standards; the development of methodologies; and the support to tripartite programmes and initiatives aimed at ensuring respect for trade union rights. The Ministry of Health and Social Development is currently considering the possibility of organizing a seminar for Eastern Europe and Central Asian countries. The Government is committed to continuing social dialogue with the social partners in addressing social and labour issues.

C. The Committee’s conclusions

1. 1396. The Committee notes that the complainants in this case allege numerous violations of trade union rights, including physical attacks on trade union leaders, violations of freedom of opinion and expression, Government interference in trade union matters, refusal by the state authorities to register trade unions, acts of anti-union discrimination and absence of effective mechanisms to ensure protection against such acts, denial of facilities for workers’ representatives, violation of the right to bargain collectively and the failure of the state to investigate those violations. The Committee notes the detailed information provided by the complainants to substantiate their allegations, which according to the KTR, refer to systemic issues relating to the lack of effective mechanisms for protection of freedom of association rights in the country. The Committee also notes equally detailed information provided by the Government. In this respect, it observes that the complaint had been examined by all relevant authorities and that the issues raised therein have received a considerable degree of attention.
2. 1397. The Committee further notes that upon the Government’s invitation, an ILO technical mission visited the country in October 2011 to discuss the complaint with all interested parties in view of its complexity and the large amount of information contained therein. The Committee notes the mission report (see appendix). The Committee notes with interest that both the complainant and the Government appear to be satisfied with the conduct and outcome of the mission. It further notes with interest the tripartite discussions that concluded the work of the mission and a joint KTR–FNPR proposal for addressing the issues raised in the complaint, which all parties have agreed to examine in the framework of the RTK. In this respect, the Committee notes the KTR’s interest in interacting with the Government with the view of attaining tangible results on the basis of the joint proposal. The Committee notes that, while the trade union side has not yet submitted its joint proposal to the RTK, each member of this body, including from the Government’s side, has the right to do so. The Committee expects that the proposal will be discussed by the RTK without delay with the view to resolving the issues raised in this case. It requests the Government to keep it informed in this respect.
3. 1398. The Committee notes that the joint proposal refers to legislative measures, training activities, adoption of guidelines and explanatory notes as means of addressing the issues raised in this case. With regard to the former, the Committee notes the information provided by the Government in its communications and to the ILO mission regarding legislative measures taken and envisaged to ensure that trade union rights are respected in law and in practice. The Committee recalls that it had previously examined several provisions of the Labour Code in the framework of Cases Nos 2216 and 2251. In addition to these matters, the Committee notes the complainants’ allegations of ineffective mechanisms of protection against acts of anti-union discrimination and interference by employers in trade union internal affairs, despite the existence of legislative provisions prohibiting such acts. The Committee also notes the alleged difficulty of proving anti-union discrimination in practice and rather rare application of penalties on persons found responsible for such acts and notes from the mission report that this appears to be the case in practice. The Committee recalls that basic regulations that exist in the national legislation prohibiting acts of anti union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 818]. Recognizing that the legislative matters in this case are also being addressed by other parts of the ILO supervisory mechanism, the Committee, noting its specific mandate, requests the Government to take steps to bring the legislation into conformity with the principles of freedom of association and collective bargaining and to keep it informed in this regard.
4. 1399. The Committee notes with grave concern that trade union leaflets were declared to be extremist material by a local court. The Committee notes the Government’s reply which confirms that trade union leaflets referred to in the complaint have been put on the Federal List of Extremist Literature pursuant to the court decision which considered that the trade union material in question intended to incite social divisions and hostility, to preach exclusiveness, and the superiority or inferiority of individuals based on their social background and was therefore of an extremist nature. The Committee notes that these leaflets contain such slogans as “let those who caused the crisis pay for it”, “fight substandard employment”, and “we demand our night shift pay”. The Committee considers that placing leaflets containing such or similar slogans on the list of extremist literature impedes considerably the right of trade unions to express their views and is an unacceptable restriction on trade union activities and, as such, a grave violation of freedom of association. The Committee recalls in this respect that the right to express opinions, including those criticizing the Government’s economic and social policy, is one of the essential elements of the rights of occupational organizations. The Committee therefore urges the Government to take the necessary measures without delay in order to remove the trade union leaflets in question from the list of extremist literature and to ensure that this does not happen again. It requests the Government to keep it informed in this respect.
5. 1400. The Committee also expresses its deep concern at the allegation that Mr Urusov, Chairperson of the primary trade union PROFSVOBODA, was sentenced to six years’ imprisonment for his trade union activities by a district court. The charges laid against him related to the possession of narcotic substances, which the complainant alleges were put on him at the time of his arrest during which he was beaten and forced to sign an admission of possession of drugs. The Committee notes that according to the complainant, the Supreme Court of the Republic of Sakha set aside the verdict of the district court finding that there were serious procedural errors in the handling of this case and referred the case back for retrial. The retrial, however, did not change the verdict of the court. It further notes the complainants’ allegations that the allegation of anti-union persecution was not examined or considered by the court. The Committee deeply regrets that the Government provides no other observation than the statement that the courts have ruled on this case. The Committee notes that, in November 2011, the Supreme Court of the Republic of Yakutia denied parole to Mr Urusov. The Committee recalls that in cases where the complainants alleged that trade union leaders or workers had been arrested for trade union activities, and the Government’s replies amounted to general denials of the allegation or were simply to the effect that the arrests were made for subversive activities, for reasons of internal security or for common law crimes, the Committee has always followed the rule that the governments concerned should be requested to submit further and as precise information as possible concerning the arrests, particularly in connection with the legal or judicial proceedings instituted as a result thereof and the result of such proceedings, in order to be able to make a proper examination of the allegations [see Digest, op. cit., para. 111]. The Committee therefore requests the Government to indicate whether the allegation of anti union persecution has been duly investigated by the relevant authorities and to provide details of such investigation, as well as all other relevant information, including judicial decisions in this case. If the allegation of anti-union persecution has not been examined, the Committee requests the Government to conduct an independent inquiry into this allegation without delay, and if the investigation reveals that anti-union motives were behind the arrest of Mr Urusov to take the necessary measures for his immediate release.

The Committee’s recommendations

1. 1401. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the joint KTR–FNPR proposal will be discussed by the RTK without delay with a view to resolving the issues raised in this case. It requests the Government to keep it informed in this respect.
   • (b) Recognizing that the legislative matters in this case are also being addressed by other parts of the ILO supervisory mechanism, the Committee, noting its specific mandate, requests the Government to take steps to bring the legislation into conformity with the principles of freedom of association and collective bargaining and to keep it informed in this regard.
   • (c) The Committee urges the Government to take the necessary measures without delay in order to remove the trade union leaflets from the list of extremist literature and to ensure that this does not happen again. It requests the Government to keep it informed in this respect.
   • (d) The Committee requests the Government to indicate whether the allegation of anti-union persecution has been duly investigated by the relevant authorities and to provide details of such investigation, as well as all other relevant information, including judicial decisions in this case. If the allegation of anti-union persecution has not been examined, the Committee requests the Government to conduct an independent inquiry into this allegation without delay, and if the investigation reveals that anti-union motives were behind the arrest of Mr Urusov to take the necessary measures for his immediate release.

NOTE (Para. no. 1305):

Note 1: Several specific allegations are not included in the description of allegations. These concern issues which are no longer relevant due to the time that has elapsed since the lodging of the complaint, as indicated by the complainant organization during an ILO mission to Moscow in October 2011. The report of the mission appears in the Annex to this case.

Appendix

Mission report

Moscow, Russian Federation

(10–15 October 2011)

I. Background information

1. On 20 January 2010, the All-Russia Confederation of Labour (VKT) and the Russian Labour Confederation (KTR) presented a complaint to the Committee on Freedom of Association (CFA). (Note 1) The complainants alleged numerous violations of trade union rights experienced by their affiliates, including imprisonment and physical attacks on trade union leaders, violations of freedom of opinion and expression, government interference in trade union matters, refusal by state authorities to register trade unions, acts of anti-union discrimination and absence of effective mechanism to ensure protection against such acts, denial of facilities for workers’ representatives, violation of the right to bargain collectively and failure of the State to investigate those violations. In February 2010, the International Trade Union Confederation (ITUC), the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF), the International Transport Workers Federation (ITF) and the Federation of Independent Trade Unions of Russia (FNPR) associated themselves with the complaint.

2. By a communication dated 11 August 2011, the Government of the Russian Federation invited a technical mission of the International Labour Office to visit the country in order to discuss the complaint with all interested parties in view of its complexity and the large amount of information contained therein. The mission consisted of Mr Kari Tapiola, Special Adviser to the Director-General, and Ms Oksana Wolfson, Senior Legal Officer of the International Labour Standards Department. It held a series of meetings in Moscow with public authorities and representatives of trade unions and employers from 10 to 15 October 2011.

II. Officials and other persons met by the mission

3. The mission met with Mr A. Safonov, Deputy-Minister of Health and Social Development (MHSD); Mr A. Gorban, Director of the Department of Economic Cooperation of the Foreign Ministry; Mr A. Selivanov, Deputy Head of the Federal Service on Labour and Employment (ROSTRUD) and Deputy General State Labour Inspector of the Russian Federation; Mr A. Leonov, Deputy Head of the Apparatus of the Committee on Labour and Social Policy of the State Duma; representatives of the Ministry of Interior, Ministry of Justice, General Prosecutor’s Office, Presidential Administration, Ministry of Transport, Federal Air Transport Agency (Rosaviatsia), State Corporation for Air Traffic Management; Mr M. Shmakov, Chairperson of the FNPR; Mr B. Kravchenko, Chairperson of the KTR; Mr F. Prokopov, Deputy-President of the Russian Union of Industrialists and Entrepreneurs (RSPP) and Ms M. Moskvina, Director of the RSPP’s Office of Labour Market and Social Partnership; and other officials and representatives of the abovementioned bodies. The mission had requested a meeting with judges or representatives of the court system. Such a meeting did not take place although the request had been accepted.

III. Conduct of the mission

Ministry of Health and Social Development

4. The Deputy Minister, who was also a Deputy Coordinator of the government side of the Russian Tripartite Commission for the Regulation of Social and Labour Relations, Mr A. Safonov, explained to the mission that ILO Conventions served as the basis for Russian labour legislation. The Government strongly believed in social dialogue and exercised it in practice. The agreement of social partners was sought on all labour issues, and national, sectoral and regional agreements were regularly signed in the country. In 2011, the President of the Russian Federation had twice met with trade union leaders to discuss labour protection and social partnership. Following these meetings the President had instructed the relevant bodies to strengthen social dialogue institutions in the country. The Deputy Minister further indicated that the Government considers that trade union pluralism was necessary and monopoly positions were dangerous. The Government does not intervene in trade union affairs. The Ministry itself works with all trade unions and tries to address their problems.

5. The Government considered that any enterprise on its territory should respect the law of the land and therefore should engage in dialogue with trade unions. Dealing with multinational enterprises was a particular problem for small trade unions. Another problem for small unions arose out of their relationship with larger unions on the question of collective bargaining. While the legislation provides for a joint negotiating body, in practice problems continued to exist. The Ministry had approached the KTR with the view of receiving a concrete proposal as to how to deal with this problem in practice so that procedures could not be violated. Mr Safonov also indicated that draft amendments had been prepared to the Labour Code to simplify the procedure for declaring a strike. The Government considered that trade unions should have the right to strike and should be able to exercise it in practice.

6. With regard to the complaint, the Government would have preferred that the KTR had discussed the allegations at the national level before lodging a complaint with the ILO. Small unions could use various forums at the national level. The issues raised in the complaint could have been brought to the attention of the Russian Tripartite Commission for the Regulation of Social and Labour Relations where 30 persons represent trade unions’ side (while the majority are FNPR representatives, five represent other trade unions). The Chairperson of the KTR was a member of the Commission. While the Tripartite Commission dealt with issues arising at the federal level and not with particular cases or enterprises, it could examine specific complaints and look into systemic violations at the local level. Mr Kravchenko was also a member of the Presidential Committee on Human Rights while there were no FNPR representatives on this body.

7. Other representatives of the Ministry explained to the mission that the Government was aware of the complaint even before it was submitted to the ILO. Once the Office had forwarded the complaint to the Government, the Ministry contacted the KTR and offered to establish a plan of action, which could have included meetings, dissemination of information, etc. As such consultations did not take place, the Government conducted the relevant investigations and sent a reply to the ILO. The Ministry wished that the KTR addressed it when there was a problem so that the Ministry could respond appropriately either by issuing the necessary instructions to the relevant state bodies or particular enterprises, or by bringing certain issues to the attention of the Tripartite Commission or, in case of systemic problems, by proposing legislative amendments in consultation with the social partners.

8. With regard to the issue of registration raised in the complaint, Mr Safonov explained that the Ministry of Justice had no right to deny the registration of a trade union organization. It can ask the Prosecutor’s Office to instruct the union to rectify existing problems (for example by bringing its by-laws into conformity with the requirements of the legislation). In cases of a disagreement or non-compliance, the Prosecutor’s Office could appeal to the court system. A trade union could function even without being registered, and there were no cases of dissolution of trade unions even when the legislation in force had been violated.

9. The Deputy Minister further indicated that labour arbitration was a new notion in the Russian Federation. More experience in this respect would benefit the Government and trade unions alike. He also pointed out that while large unions are more knowledgeable about labour legislation, new trade unions have less experience. Furthermore, employers had only limited experience of dealing with trade unions. While the Government was trying to educate them, the biggest challenge was reaching small entrepreneurs. Mr Safonov stressed the importance for the Government to build a stable society where the social partners can reach agreements. In this respect, the labour inspectorate played an important role and its powers had recently been expanded.

Joint meeting with FNPR and KTR

10. Mr Shmakov considered that the main problem for the FNPR was the attitude of the state bodies which represent both executive and judicial powers. He also explained that violations of trade union rights are more frequent at the regional than at the central level. Furthermore, the Prosecutor’s Office did not understand its role in protecting labour and trade union rights, which in his view was due to the sometimes poor quality of training of prosecutors. While an agreement concluded in 2010 between the FNPR and the Prosecutor’s Office was helpful, it did not directly apply to specific situations. Reference was made to the agreement when problems arose. Such agreements had also been concluded at the regional level. The FNPR considered that despite these agreements, the Prosecutor’s Offices occasionally still favoured employers. With regard to the complaint addressed to the ILO by the KTR, the FNPR Chairperson noted that his organization had supported it. The issue of the relationship between trade unions in the framework of collective bargaining (as the FNPR-affiliated unions often have the majority of workers and the KTR’s affiliates often represent a minority) is at most a very small part of it.

11. Mr Kravchenko stated that the KTR had observed the following practice in the country: employers resisted trade union establishment and activity at their enterprises, and the law enforcement agencies, especially the Prosecutor’s Office, and the labour inspection, did not take any action. Sometimes they acted against trade unions. Once a trade union was established, employers often requested the Prosecutor’s Office and/or tax inspection to inquire into the legality of the establishment of an organization. During the ensuing inspection, the relevant authority could obtain the list of trade union members and usually forwarded them to the employers. Mr Kravchenko further pointed out that anti-union actions had escalated with the economic crisis. The complaint mentioned 25 enterprises where the KTR-affiliated unions had experienced violations of their rights.

12. According to Mr Kravchenko, the current legislation did not sufficiently ensure the protection of trade union rights. He pointed out that the recommendations of the ILO supervisory bodies in respect of the Labour Code had not been implemented despite the fact that in 2007, a working group had prepared draft amendments based on the recommendations of the CFA and Committee of Experts on the Application of Conventions and Recommendations (these amendments were subsequently rejected) and despite the instructions given by the President.

13. At the national level, the KTR considered that the relationship with employers was difficult. Employers had proposed amendments to the Labour Code to make labour relations more flexible and they were not ready for a dialogue with trade unions which, in turn, had made their own proposals. Furthermore, whereas the RSPP is at least aware of the ILO and international labour Conventions, individual employers have no respect for the labour legislation, trade union rights and even the opinion of the RSPP.

14. KTR representatives further noted that while the legislation guaranteed the right to strike, in practice, trade unions could not resort to industrial actions. In the last few years there had been only two-three legal strikes, which had taken the form of protests. The procedure for registration of trade unions posed some difficulties. Trade unions had to follow the same registration procedure as other non-commercial organizations or NGOs while the KTR considered that there should be a special and simplified registration procedure for them. Trade unions could function without registration but then they cannot bargain collectively and sign collective agreements. Small organizations experienced problems in particular with the access to workplaces. For instance, in such restricted areas as ports if trade union officials do not have a permanent pass, they have to make a payment for each entry, which small trade unions cannot always afford.

15. According to the KTR, despite the fact that the law provided for the prohibition of discrimination, protection especially against anti-union discrimination was virtually non-existent. Furthermore, the bodies whose role should be to protect trade union rights were not effective. The KTR representatives explained that the system of protection of labour rights involved three bodies: the Prosecutor’s Office, courts and the labour inspectorate. The Prosecutor’s Office dealt with the supervision of the application of the legislation; it also dealt with allegations of violations of human rights. However, according to the KTR, the Prosecutor’s Office often refused to deal with alleged violations of trade union rights considering that such violations fell outside its sphere of competence and should rather be brought to the attention of labour inspectors. Yet the labour inspectorate’s position was that trade union rights were outside the scope of the labour law. Thus, it was not competent to deal with the alleged violations of trade union rights and therefore referred the trade unions to courts. In the case of anti-union discrimination, this became particularly difficult: while under the legislation, courts were competent to deal with cases of discrimination, they did not like to examine such cases as they were very difficult to prove. Even if discrimination was established by the court, the Prosecutor’s Office did not pursue the cases against employers, who, in any case, refused to reinstate or compensate a worker who had been subjected to anti-union discrimination. While the legislation provided for administrative and criminal responsibility, in practice, violations of trade union rights were not punished. The KTR representatives explained that administrative responsibility could be engaged within two months after the lodging of a complaint; in such cases, an investigation was carried out but it usually took over two months. According to the KTR there were no cases where an employer or an official had been found criminally responsible for violating trade union rights.

16. Finally, the KTR stressed that while the complaint was rather voluminous and referred to a multitude of examples of violations, the reason behind it was to demonstrate the general and systemic problems in the country with regard to the non-respect of trade union rights. While some cases referred to in the complaint were either resolved or were no longer an issue because of the time that had elapsed since their occurrence, the case of Mr Urusov, a trade unionist serving a prison sentence, and the case where a court had declared that trade union material was “extremist” were very serious and urgent.

KTR and its affiliates

17. In a separate meeting which the mission had with the complainants, Mr Kravchenko once again stressed that the main problems faced by trade unions are with regard to the establishment and registration of trade unions, the actions of law enforcement bodies, anti-union discrimination, limitations of the exercise of the right to strike and access to collective bargaining.

18. With regard to registration, members of the Executive Council of the KTR claimed that it was much easier (and less costly) to register a commercial entity than a non-commercial one; in their experience it was even more difficult to register a trade union. Because the procedure could be complicated, non-commercial entities, including trade unions, had to rely on the services of special companies which deal with registration (the average price for such services was between 50,000 and 60,000 roubles). Admittedly, due to the legislation in force, the registering authorities under the Ministry of Justice could not in the end deny registration. However, the Ministry of Justice almost systematically requested the Prosecutor’s Office to conduct an inquiry into the legality of the establishment of an organization. Should the Prosecutor’s Office conclude that a trade union organization had been established illegally, it could apply to the court seeking an order of prohibition of its activities and ultimately, its dissolution. Employers could also request the Prosecutor’s Office to investigate whether the by-laws of a newly established trade union were in conformity with the legislation. Moreover, according to the KTR, every investigation involving either a particular trade union or its member conducted by the Prosecutor’s Office began with the question of the legality of the establishment of the trade union. The KTR considered that the law enforcement bodies should not intervene in internal trade union affairs upon employers’ requests and the latter should not use the law enforcement bodies to this end.

19. Cases of anti-union discrimination were extremely difficult to prove in court and even if the court found that an employer was guilty, in practice there were no sanctions. This created a situation where workers were afraid of being dismissed on anti-union grounds and trade unions could not defend their members should this happen. The KTR stressed that there should be an independent body, whose decisions were binding and which could exercise control over the implementation of its decisions.

Federal Service on Labour and Employment (Rostrud) – State labour inspectorate

20. Mr A. Selivanov, Deputy Head of Rostrud, explained to the mission that the following matters came under the responsibility of the Service: employment, supervision of the application of the labour legislation, social partnership, alternative civil service and internal migration. The Service also deals with the mediation and conciliation of labour disputes and maintains a database of labour arbitrators. He was aware that both the FNPR and KTR considered that the power of the labour inspectorate should be broadened to include the protection of trade union rights. The mission was informed that there are 82 labour inspectorates in the country which employ nearly 3,000 inspectors. In 2013 this number will fall to 2,800 which means that there will be one inspector for every 25,000 workers. Since the beginning of the economic crisis, complaints to the labour inspection had doubled. In these circumstances, the number of labour inspectors clearly was insufficient. The majority of current complaints were filed by individual workers, and they concerned the non-payment of wages. Rostrud carries out planned inspections (at the rate of two per month) and unplanned inspections (six to eight per month). Trade unions are invited to take part in such inspections. Rostrud also conducted free preliminary consultations. Up to 80 per cent of the issues raised could be resolved at this stage. In other cases, it took approximately one month to reach a decision on the matter.

21. Mr Selivanov pointed out that the majority of complaints filed by trade unions were unfounded. For example, in the case of denial of registration, unions should file a complaint with the court and not with the labour inspection. In other cases, the competence lied with the Prosecutor’s Office. On the other hand, in a situation where a majority union proceeds with collective bargaining without informing minority unions, the labour inspectorate was competent to intervene and remind the larger union that minority unions have the right to participate in the process. According to Mr Selivanov, the major problem was that trade unions did not know their rights. In his opinion, 10 per cent of the complaints filed by the KTR concerned genuine violations, 30-40 per cent were emotional reactions (which often occurred in cases of dismissals), and the remaining 50-60 per cent were without foundation but resulted from the lack of knowledge of the workers’ and their trade unions rights. He also pointed out that there had been no recent complaints filed by minority unions against majority unions, which demonstrated that the trade unions had learned to work together.

22. Mr Selivanov summarized the applicable procedure as follows: the Prosecutor’s Office and/or the courts were competent to examine complaints of violation of trade union legislation; the Prosecutor’s Office was competent to deal with the issues of registration; and Rostrud and/or the courts were competent to examine complaints of violations of the provisions of the Labour Code, including provisions concerning collective labour agreements and discrimination. As it was extremely difficult to prove cases of discrimination in court, trade unions were most likely to file complaints with Rostrud. On the other hand, employers did not hesitate to appeal the decisions of labour inspectors in courts, as the employers had sufficient legal resources to do so. He further explained that in practice, if a complaint was lodged with the court, the labour inspection could not intervene. If a complaint was lodged with the Prosecutor’s Office, the latter could request the labour inspection to conduct an inquiry. The decision of the labour inspection could be appealed to the central Labour Inspectorate, the Prosecutor’s Office, or the court.

23. With regard to employers, Mr Selivanov explained that the major problem was with small and medium-sized enterprises, where no unplanned labour inspection can take place within the first three years of their establishment, and with multinational enterprises which often ignore the labour legislation in force.

24. With regard to the application of penalties, Mr Selivanov explained that the violation of labour legislation is punishable by a fine of up to 5,000 roubles in the case of a physical person and 50,000 roubles in the case of a legal entity. In 2010, altogether 298 persons were fined for the violation of labour legislation. In general, Mr Selivanov considered that the fines were very small, to the point that some enterprises preferred to pay fines than to comply with the labour legislation. With regard to acts of discrimination, an official found guilty might be prohibited from exercising his or her function for a period of up to three years. In the case of directors of enterprises, they could be transferred from one entity to another.

Representatives of the Ministry of Interior, Ministry of Justice, General Prosecutor’s Office, Ministry of Transport, Federal Air Transport Agency (Rosaviatsia), State Corporation for Air Traffic Management

25. The mission had a detailed discussion covering different aspects of the complaint with the representatives of the relevant state authorities. A representative of the Prosecutor’s Office indicated that all allegations raised in the KTR’s complaint had been investigated and that some of the alleged violations had been confirmed. If this was not sufficient, additional investigations could be carried out. It usually took about a month, or a maximum of two months, to investigate a case. He also explained that at all levels of the Prosecutor’s Office, there were officials specialized in dealing with trade unions. There were only a few complaints of violation of freedom of association and almost none of them were lodged by the FNPR or its affiliates.

26. A representative of the Ministry of Interior indicated that between 2008 and 2011 there had been seven complaints lodged by trade unions concerning two regions of the country. None of these complaints had been proven to be related to trade union activities.

27. A representative of the Ministry of Justice explained that the registration of trade unions is carried out by a special department dealing with non-commercial entities. The registration can be denied only if an organization claiming to be a trade union is not a trade union. The more frequent problem is the failure to submit all the documents required by the legislation. The Ministry of Justice has to respond to the applicant within 30 days. While the Ministry can refuse to register a non-commercial entity, it cannot deny registration to a trade union. It will register a trade union even if something is amiss and give the union additional time (sometimes up to one year) to make the necessary amendments. The Prosecutor’s Office will then verify that the union conforms to the legislation within the allocated time. While the Prosecutor’s Office could request the court to order dissolution of a union, this has never happened. With regard to sanctions in cases of violation of the labour legislation (including cases of discrimination), the mission was told that financial compensation was possible only if an administrative offence had been proven. Criminal liability could be engaged in the case of “abuse of power” if the procedures had been violated.

28. A representative of the Presidential Administration considered that the complaint lodged by the KTR was no longer topical. The KTR had in the past struggled for its recognition which it now had obtained. In fact, the President had met with both the KTR and FNPR. During the latest meeting in July 2011 both trade unions had presented their concerns and proposals, and the President had subsequently issued corresponding instructions to the Government.

RSPP (employers and industrialists)

29. Mr Prokopov explained that the RSPP was the only union of industrialists and entrepreneurs in the country. It was not possible to give an exact number for its members, but the RSPP represented over 100 sectoral associations, involving nearly 300,000 enterprises. Taken together they produce two thirds of the GDP and employ between 10 and 12 million workers. The RSPP was a signatory to the national tripartite agreement, but it was not involved in collective bargaining which was carried out by its affiliates. It provided the following services to its members: information sharing (mainly through the database of collective agreements concluded by its affiliates) and consultation (mainly on collective bargaining issues). It did not, however, get involved in the mediation and conciliation of labour disputes between its affiliates and trade unions. The RSPP participated in the legislative process by being a member of the Russian Tripartite Commission.

30. The RSPP considered that while the legislation in force was more or less balanced, the regulation of strikes and the system of collective bargaining were complicated. With regard to strikes, the RSPP explained the difficulty for employers: during the time when the courts were examining the legality of a strike, which could take up to two or three months (or a maximum of 30 days in the case of essential services), the employer had to bear the loss of revenue. With regard to the collective bargaining system, the RSPP affirmed that enterprises had the obligation to conduct collective bargaining and be parties to collective agreements at various levels (enterprise, territory and sectoral levels).

31. The RSPP was aware of the complaint pending before the CFA and the Government’s reply to it. While it had not studied the details of the complaint, as this was the task of the relevant employers’ organizations, the courts and the state authorities, the RSPP considered that the main problem was the relationship between different trade unions. The issue of access to the workplaces could be resolved between the relevant trade union, the employer and the authorities. The RSPP stated that the existence of the complaint could not lead to conclude that all employers wished to have enterprises free of trade unions.

Committee on Labour and Social Policy of the State Duma

32. Mr Leonov explained that the complaint raised numerous issues, the majority of which fell outside the sphere of competence of Rostrud, which supervised the application of labour legislation. In this respect, he considered that there was room for improvement. While the labour and trade union legislation could be linked more closely with one another, Mr Leonov was not certain about the current financial capacity of the State to do so. Regarding the allegations made in the complaint, he noted that “there is no smoke without fire”. However, the only sustainable way of addressing the issues raised in the complaint is through dialogue, communication, and improvement of the legislation and the work of the authorities.

33. With regard to the legislative issues, Mr Leonov explained that there were no explicit provisions which penalized acts of non-recognition of trade unions and interference in their activities. Furthermore, there was no legislation aimed at the elimination of anti-union discrimination. With regard to section 37 (Note 2) of the Labour Code, Mr Leonov explained that the problem raised in the complaint related to its application in practice and is closely linked to the unwillingness of employers to bargain collectively as well as to competition among trade unions. The question therefore was on how to change the practice.

34. With regard to strikes, Mr Leonov explained that a draft amendment has been prepared in order to improve the procedure for regulation of collective labour disputes, including strikes. There had been a proposal to eliminate the current mediation and conciliation procedures, but the State Duma Committee had not agreed with it. The result was that mediation and conciliation procedures remained mandatory while arbitration was voluntary. Other proposals concerned the reduction of various applicable time frames and the removal of the requirement to declare the duration of the strike. It is further proposed to create a permanent arbitration institution.

35. Finally, Mr Leonov recalled that following the decision of the Constitutional Court, which has declared unconstitutional section 374 of the Labour Code, which obliged an employer to consult with a trade union before s/he can dismiss a trade union leader, the Russian Federation had ratified the Workers’ Representatives Convention, 1971 (No. 135). Some proposals had since then been made on how to make more effective the protection against anti-union discrimination especially in the case of dismissals, but agreement of the social partners on them had not been attained.

Tripartite meeting

36. The work of the mission in Moscow concluded with a tripartite meeting involving the main representatives of the Ministry of Health and Social Development, the two trade union bodies and the employers. Prior to the meeting the FNPR and KTR had circulated a joint proposal for addressing the issues raised in the complaint. This proposal is annexed.

37. At the outset of the meeting, Mr Tapiola suggested that the participants reflect on the following questions: Were there real problems? Were the procedures for trade union registration and lodging of complaints with the relevant authorities good enough? Were they user friendly? Did they work well? Were they well explained and well understood? Did the issues raised in the complaint relate to the questions of competence, knowledge, understanding or the way in which authority was exercised? Was there an understanding that freedom of association rights had special characteristics? Would there be need for additional institutional arrangements? He observed that following the discussion with various parties, it appeared that while in Moscow, i.e. at the central level, there was an understanding of the role and rights of trade unions, officials at the local and regional levels were often unaware of the rules of the game or unwilling to observe them. Moreover, it was clear from the complaint that there was insufficient trust between the Government, employers and trade union organizations. It further appeared that all concerned agreed that the complaint pending before the CFA was a symptom which pointed to questions that needed to be addressed. While some of the concrete examples of violations raised therein have been dealt with or no longer were an issue because of the time that has elapsed since their occurrence, the Government could pay special attention to certain allegations. He referred to the imprisonment of Mr Urusov and the case of the declaration of trade union material as extremist by a local court. Mr Tapiola stressed that the International Labour Office is ready to provide assistance with regard to the training of judges and prosecutors and other officials in relevant state bodies.

38. Ms Moskvina, representing the RSPP, considered that a mission by the Office was a good means to assist in problem solving. In her view the legislation adequately protected trade union rights. She called upon the unions to work more at the national level instead of sending complaints to the ILO. The idea of possibly creating a new tripartite body was not very clear to her. There were other available options which could be used to address complaints of violations of trade union rights without establishing additional structures. In addition, the Government had already taken all measures to address the allegations appearing in the complaint.

39. Mr Safonov considered that there were two interrelated issues: the system and its functioning. Social dialogue had been institutionalized in legislation and practice. The registration procedure was simple and based on notification. The Workers’ Representatives Convention, 1971 (No. 135) had been ratified. However, the country had insufficient experience in practising social dialogue and consensus building. While at the central level, the law enforcement bodies function fairly well, the knowledge probably was insufficient at the local level. He considered that trade unions should be able to resolve all problems at the national level, through social dialogue. Due to financial restrictions, the creation of additional tripartite bodies was questionable. On the other hand, arbitration in the case of labour conflicts should be developed and more effort should be put into training. With regard to the latter, the Government is ready to initiate discussion with the Supreme Court. Mr Safonov also thought that more explanation and dissemination of information on the available national procedures was needed. The Government was convinced that trade unions were necessary for the social and economic development of the country. At the same time, there should be more dialogue between the unions. The Government was ready to engage in dialogue and examine all allegations and problems in the framework of the Russian Tripartite Commission.

40. Mr Shmakov of the FNPR considered that the main problem was the application of the legislation in practice. He referred, in particular, to cases where a court had declared trade union material to be of extremist nature as well as the declaration of the Constitutional Court that section 374 of the Labour Code was unconstitutional. Since then, the Russian Federation had ratified Convention No. 135 and there were some proposals for the amendment of the legislation, but these proposals were being blocked, which did not lead to increased trust between the social partners. He also stated that trade unions affiliated to both the FNPR and KTR had experienced problems with registration. This was due to the fact that trade unions were not recognized to be organizations in a special category. With regard to the circulated proposals, Mr Shmakov explained that they were general and systemic in nature. The aim was to develop a plan of action and not exclusively to resolve the cases raised in the complaint. In fact, the complaint was just an illustration of a systemic problem. While some of the concrete cases were no longer pressing issues, the problems and trends remained and had to be addressed.

41. Mr Kravchenko of the KTR disagreed with the RSPP and considered that trade union rights were not sufficiently protected in the country and their realization in practice had deteriorated. He noted the efforts carried out by the Ministry of Health and Social Development but considered that it was impossible to protect trade unions against acts of interference on the basis of the existing legislation. Moreover, while Rostrud, at least in some way, reacted to the trade unions’ complaints, the Prosecutor’s Office systematically refused to consider them. There also was a lack of understanding among the authorities of the special nature of trade union organizations.

42. At the end of the tripartite meeting the parties agreed that the trade unions’ joint proposal would be examined in the framework of the Russian Tripartite Commission.

Concluding remarks

43. The mission wishes to express its appreciation for the open and constructive discussions it could have with all the authorities and the social partners. The aim was not to propose any conclusions or action, as the complaint had been addressed to the CFA. Rather the question was of assisting in a process of clarifying and better understanding the issues raised in the complaint. The complaint had been examined by all the authorities concerned and thus the issues raised in it, including specific cases, had received a considerable degree of attention. In the view of the mission, this in itself was both useful and encouraging.

44. Certain issues came up in most of the discussions, and they pointed out to the desirability of further action for strengthening the application of freedom of association and the right to collective bargaining both in law and in practice. The International Labour Office remains at the disposal of the tripartite constituents and the Committee of the State Duma on Labour and Social Policy for consultations and advice and, in the case of state and judicial authorities, for relevant training. Legislative issues can, of course, be further examined, as needed, by the Committee of Experts on the Application of Conventions and Recommendations. Better knowledge of available procedures and further clarification of the practices would help both the social partners and the different state bodies to navigate in a context where responsibilities are not always clear. This applies in particular to the relationship between Rostrud, the Prosecutor’s Offices and the courts. While mechanisms to deal with labour conflicts are relatively clear, the same is not necessarily true for issues related to the fundamental questions of freedom of association. There is a strong case for further confidence building so that different groups of workers and their elected leaders do not run the risk of being lost and without support in a large country, which continues to build up its civil society and representative institutions against long-standing authoritarian traditions and practices.

45. The mission wishes to express its sincere gratitude to the confidence placed in it by the Government, the trade unions and the employers’ representatives. It appreciates the willingness of both the Government and the complainant to engage further in a process of dialogue. It notes with appreciation the cooperation between the two trade union organizations on the questions raised by the complaint.

46. Finally, the mission wishes to express its particular gratitude to Mr E. Davydov, Director of the ILO Decent Work Technical Support Team and Country Office for Eastern Europe and Central Asia in Moscow. His profound knowledge of the complex issues involved served the mission to have a clearer and more complete view of the questions at hand. The mission equally thanks Mr S. Glovackas, Workers’ Activities Senior Specialist, and Ms L. Ouskova, Programme Assistant, for their knowledge sharing, administrative and organizational support and assistance.

Kari Tapiola

Oksana Wolfson

4 April 2012

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Proposals for the resolution of the issues raised in the complaint

1. State registration of trade unions.

1.1. Exempt unions from the scope of the administrative regulations for the registration of non-commercial organizations.

1.2. Prepare a succinct and unambiguous explanatory note (the precise form of such a document to be determined), agreed with the trade unions, concerning the procedures for state registration of trade unions including a description of the specific types of state registration including in particular the concept of “notifying” registration (meaning notification which does not permit refusal to register, a request to amend by-laws, etc.).

1.3. Introduce the relevant specialization among staff in the state authorities responsible for “registration upon notification” of unions; train specialists dealing with registration, so that they are familiar with the legal position and status of unions.

2. Examination of cases relating to freedom of association in Russian courts.

2.1. With the help of ILO experts, train judges on questions pertaining to freedom of association and opportunities for applying international freedom of association standards.

2.2. With the senior members of the Russian Federation’s Supreme Court, examine the possibility of drawing up explanatory guidelines for courts on the examination of cases relating to freedom of association and protection from discrimination on grounds of union membership.

2.3. Draw up commentaries and other material on international principles applicable in the regulation of freedom of association.

3. Analogous measures for specialist training on freedom of association are needed for state labour inspectors and prosecution service officials.

4. In order to give effect to the provisions of trade union legislation prohibiting interference by state authorities in trade union activities, draw up with the relevant ministries, explanatory guidelines and instructions, agreed with the trade unions, regarding the actions that are deemed to constitute interference and therefore inadmissible. In particular, resolve the issue of the inadmissibility of tax inspections by the State Tax Inspection Service (GNI).

4.1. Establish in legislation a definitive list of cases in which trade unions may be required to provide information and documents, and establish the list of documents which may be required from unions by various state authorities responsible for monitoring trade union activities.

4.2. Prohibit the dissemination by state authorities of information revealed to them in union documents (in particular, prohibit the transmission of information containing individual union membership data), including the transmission of such information to employers or state and local authorities.

5. Steps to draw up legislation to protect the right to freedom of association.

5.1. Draw up and adopt legislation to give effect to the principle that discrimination is prohibited.

5.2. Draw up and adopt legislation to ensure effective protection of trade union rights.

5.3. Establish administrative (and criminal) liability for violations of trade union rights and of the right to form unions. Such measures must be such as to constitute a significant penalty for those responsible. Increase the period allowed for taking administrative measures.

5.4. Draw up draft legislation to give effect to the recommendations made by the ILO in Cases Nos 2251 and 2199.

Guarantees to allow trade union activities in the case of workers not released from normal work duties.

In order to give effect to the provisions of the Workers’ Representatives Convention, 1971 (No. 135), which the Russian Federation has ratified, work with trade unions on amendments to the Labour Code and to the Law on Trade Unions and submit them as quickly as possible to the State Duma; these will concern in particular the establishment of special guarantees to allow workers who are elected to trade union office but not released from their normal work duties to carry on their trade union activities and protect them from unjustified dismissals or disciplinary action.

6. Creation of a body with a specific mandate including examination of questions relating to freedom of association.

– Create a tripartite body under the auspices of the state labour authority Rostrud which will examine cases of violations of trade union rights and discrimination on grounds of trade union activity. The aim of this would be to allow high-level discussion of cases of serious and systemic violations of rights on the grounds of workers’ trade union activities, and to publicize and raise awareness of such cases.

– Empower that body to conduct its own investigations and submit representations (based on its investigations or independently thereof) to the general prosecution service; the prosecution service would be required to investigate any such complaints diligently.

Option: Set up a body or committee under the Russian Tripartite Commission for the Regulation of Social and Labour Relations to allow operational response to complaints from trade unions. This body would include representatives of the social partners and operate on a voluntary basis; it would publish its recommendations and reports on the outcomes of its examination of any complaints.

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NOTES (ANNEXE):

Note 1: Since the lodging of the complaint, these trade union Confederations have merged to constitute the KTR.

Note 2: Section 37 of the Labour Code reads as follows: Collective bargaining procedure The participants in collective bargaining shall be free in choosing the issues of regulating socio-labour relations. Should two or more primary trade unions operate within an organization, they shall form a unified representative body for engaging in collective bargaining, preparing a single draft collective agreement and concluding it. Formation of a unified representative body shall be based on proportional representation principle depending on the number of the trade union members. Each trade union shall delegate its representative(s). Should a unified representative body fail to be formed within five calendar days after the beginning of collective bargaining, interests of all the employees shall be represented by the primary trade union amalgamating over half of the employees. Should no primary trade union amalgamate over half of the employees, the employees general meeting (conference) shall determine by a secret vote the trade union entrusted with forming the representative body. In the cases stipulated by paragraphs three and four of this section, other primary trade unions shall retain the right to delegate their representatives to the representative body prior to the moment of signing the collective contract. The right to engage in collective bargaining, sign agreements on behalf of the employees at the level of the Russian Federation, a subject of the Russian Federation, and industry, a territory shall be granted to the relevant trade unions (and their associations). Should several trade unions (their associations) be in existence at the relevant level, each of them shall be entitled to representation within a unified representative body for collective bargaining formed with account for the number of labour union members they represent. In the absence of an accord on establishing a unified representative body for collective bargaining the right to engage in it shall be granted to the trade union (trade union association) amalgamating the largest number of the labour union (labour unions) members....