Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 333, Marzo 2004

Caso núm. 2251 (Federación de Rusia) - Fecha de presentación de la queja:: 03-FEB-03 - Cerrado

Allegations: The complainant alleges that the newly adopted Labour Code contains provisions violating the rights of workers to freely establish and join organizations of their own choosing and to determine their structures and membership, the right to bargain collectively and the right to strike

1. 940. The complaint is contained in a communication dated 3 February 2003 from the Russian Labour Confederation (KTR).
2. 941. The Government forwarded its observations in a communication dated 5 September 2003.
3. 942. The Russian Federation has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 943. In its communication dated 3 February 2003, the Russian Labour Confederation (KTR) alleges that the newly adopted Labour Code contains provisions violating the rights of workers to freely establish and join organizations of their own choosing and to determine their structures and membership, the right to strike and the right to bargain collectively. In support of its contention, the KTR forwards complaints made by the Trade Union of Aviation Specialists (PrAS), the Tyumen Regional Trade Union Centre (TRTUC) and the Ural Trade Union Centre (URALPROFCENTRE). The KTR also alleges that it was prevented from participating in the drafting and discussion of the Code.
2. 944. As concerns the first set of allegations, concerning the violation of the right of workers to freely establish and join organizations of their own choosing and to determine their structures and membership, the complainant refers to sections 29, 30, 31, 37, 399 and 410 of the Labour Code. Firstly, as regards section 29(1), the complainant states that the wording of this section provides grounds for ambiguous interpretation. More specifically, the KTR claims that some employers and officials consider that if a trade union is independent and is not affiliated to an all-Russia trade union, it may not represent workers’ interests.
3. 945. The complainant further states that according to sections 29(2), 30, 31, 37, 399, 410, etc., the right to participate in social and labour relations, including the participation in collective bargaining and in collective labour disputes, is granted only to primary trade unions. According to the KTR, the independently registered trade unions operating at an enterprise do not have this right. The complainant explains that the core of the issue is the history of primary trade unions, their role and place in the Russian trade union structure. A primary trade union depends upon a higher union body for its legitimacy. The higher union body can disband the primary trade union, prevent the access to its bank accounts, members’ dues, etc. This kind of structure is common to the trade unions formed during the times of the single-trade-union system of the USSR. Today, however, many trade unions have been founded at the enterprise level with structures, which significantly differ from the traditional one. For instance, some unions at the enterprise level are “stand-alone” units. According to the complainant, since the new Labour Code came into effect, many unions have been excluded from negotiations of collective agreements solely due to the fact that their structure is not that of a primary trade union. Primary trade unions representing the majority of the employees use this structural requirement to exclude non-primary trade unions from participation in a unified representative body formed for collective bargaining and, in some cases, where there is no primary trade union at the enterprise, employers refuse to negotiate with the “stand-alone” unions.
4. 946. More specifically, the complainant mentions section 31(1) of the Code, which it considers could be interpreted in the following manner: if there is no primary trade union at an enterprise or if there is one that represents less than 50 per cent of the employees, the employees may authorize the “minority” primary trade union to represent their interests or alternatively may authorize a non-union representative, even if there is a union at the enterprise with a structure that does not correspond to that of a primary trade union. According to the complainant, this interpretation is supported by section 37 of the Code, which mentions only primary trade unions as authorized negotiating partners.
5. 947. Finally, the KTR refers to section 31(2), which stipulates that other workers’ representatives may not be an obstacle to the trade union to exercise its powers, and points out that this provision does not explicitly stipulate that a non-union representative has the right to represent workers only when there are no trade unions at the enterprise. The practical implication of this provision has led to some problems as many employers have initiated collective bargaining with other workers’ representatives, ignoring the existing trade unions.
6. 948. In the light of the abovementioned provisions, trade unions, which are not primary trade unions, must forgo collective bargaining or must change their legal status and their constitutions, which would make them dependent on a higher trade union structure. To support its allegation, the KTR forwards a complaint made by the TRTUC. According to the latter organization, following the adoption of the Labour Code, it had to affiliate to one of the all-Russia trade unions in order to be able to conduct collective bargaining at the enterprise level and to reorganize the structure at the enterprise level of the Tyumen Trade Union of Lifting Equipment Employees (TULEE), member of the TRTUC, from the workshop unions to primary trade unions of the all-Russia trade union. The TRTUC considers that such a reorganization is not convenient for the trade union, as it now has to coordinate its activities with other trade unions, which do not necessarily express and stand for the same interests as the lifting equipment employees.
7. 949. With regard to the allegations concerning more specifically the right to collective bargaining, the KTR states that section 45 of the Labour Code provides for general, regional, industry (inter-industry), territorial and other agreements. Section 26 lists the following levels of social partnership: federal, regional, industrial, territorial and enterprise. According to the complainant, this rather narrow list violates the right of the parties to determine independently the level of collective bargaining. For instance, in these circumstances, it seems impossible to conclude agreements applying to specific professions, therefore, many categories of employees, who are members of trade union representing particular professions, are deprived of the possibility of having an agreement that protects their specific interests and regulates the peculiarities of their professions (such is the case of members of the air crews, river and sea vessel teams, dockers, air traffic controllers, journalists, etc.). According to the complainant, the new Labour Code complicates the regulation of labour relations in a particular industry as an agreement signed at the enterprise level covers all its employees and there is no provision in the Code providing for a possibility to conclude appendices that would regulate peculiarities of particular professions.
8. 950. Furthermore, the KTR alleges that as concerns collective bargaining, the Labour Code gives preference to unions with a larger membership. To support its allegation, the KTR forwards a communication from the URALPROFCENTRE, which alleges that its primary trade union of Uralsk Electro-Chemical Enterprises (UECE) is discriminated against and is excluded from the control over the employer’s observance of the labour legislation on workers’ rights and, more particularly, from negotiation of a collective agreement. According to the URALPROFCENTRE, the Russian Trade Union Employees of Nuclear Energy Enterprises (RTUENEE), the majority union at the UECE, as well as the management of the enterprise, refuse the participation of the free trade union of UECE in collective bargaining. In a communication from the TRTUC, the complainant indicates that the primary trade union of TULEE at the “Managing Company for Housing Maintenance” found it very difficult to persuade the large primary trade union to form a unified representative body. There was only one representative of TULEE during collective bargaining. As a result, the adopted collective bargaining agreement neglected the interests of TULEE members. At the municipal enterprise “Managing Company for Housing Communal Services UG”, a unified representative body was not formed at all. The majority trade union, having representatives of the employer among its members, ignored the request of TULEE to participate in the collective bargaining and signed a collective agreement on behalf of all of the employees. The existing situation regarding the rights of smaller unions has restricted the freedom of association of workers, and some members of TULEE had to leave the union and join that of the employer’s.
9. 951. As concerns the collective agreements at the national, industrial and territorial level, the Labour Code also gives preference to unions with larger membership. More specifically, the KTR states that section 37(6) is frequently used to exclude minority unions from participation in collective bargaining. The majority trade unions refuse to agree upon the composition of a unified representative body. Hence, although the Code grants the right to participate in collective bargaining to minority unions, this right is not realizable due to the absence of necessary mechanisms ensuring its implementation (the complainant points out that at the enterprise level, the necessary protection is afforded by keeping a chair for other primary trade unions for their participation, at any further time, in the collective bargaining process, as provided by section 37(5)). The KTR provides an example of negotiations of the National Maritime Tariff Agreement for 2002, where the Federation of Maritime, River and Fishery Workers’ Unions, having declared its prevailing membership, ignored a number of proposals made by the Federation of Maritime Transport Workers’ Unions and concluded on its own the abovementioned agreement.
10. 952. The complainant also refers to some problems posed by interpretation of section 37(2) of the Labour Code. The KTR submits the complaint made by PrAS of the joint stock company (OAO) “Aeroflot” where the following four trade unions represent workers’ interests: the Trade Union of Aviation Specialists, which has 15 primary trade unions representing 1,800 workers; the Sheremityevo Trade Union of Aircrew, with nine primary trade unions representing 2,500 workers; the Sheremityevo Trade Union of Flight Attendants, with three primary trade unions representing 1,200 workers; and the Trade Union of Aviation Employees of the OAO “Aeroflot-RA”, representing 8,000 employees. In this particular case, the complainant considers that in order to meet the requirement of section 37 on the proportional representation, the number of representatives of the unions for the collective bargaining should be equal to 110 persons (ten from the Trade Union of Aviation Specialists, 15 from the Sheremityevo Trade Union of Flight Personnel, 20 from the Sheremityevo Trade Union of Flight Attendants and 65 from the Trade Union of Aviation Employees of the OAO “Aeroflot-RA”), to which the management of the OAO “Aeroflot” has strongly objected. Nevertheless, the trade union managed to find a solution by forming a joint representative body of 13 persons, which comprised seven representatives from the majority union and two representatives from each of the other trade unions. However, the PrAS also states that the interpretation of section 37(2) could also mean that 14 (or even 28) workers’ representatives could have been chosen.
11. 953. With regard to the right to strike, the KTR is concerned about the following sections of the Code: 398, 399, 409, 410, 412, 413 and 417. As concerns section 398, the complainant states that the definition of a “collective labour dispute” contained in this section is limited to a narrow set of issues and, as a result, the right to strike provided for in section 409 is also restricted. In this respect, the complainant states that the Labour Code does not provide for a possibility to resort to strike in order to resolve individual labour disputes, for instance, over the non-payment of wages. Such a situation has resulted in court decisions declaring such strikes illegal, consequently, the guarantees afforded to participants in strikes following a collective labour disputes – e.g. reinstatement in their job – do not apply. The complainant provides an example where 19 trade union members of the Free Trade Union “Metallurg” were fired for participating in a strike over non-payment of wages. The strike took place from 24 to 28 December 1997. Only one participant was reinstated by the court, due to the fact that he was an elected trade union official. The remaining strikers were not reinstated; the court’s decision specifically states that the dispute was not collective. Moreover, the KTR points out that the Russian legislation does not expressly provide for sympathy strikes, strikes aimed at recognizing a trade union and strikes over major social or economic issues.
12. 954. Furthermore, the KTR claims that the existing procedures make the initiation of a collective labour dispute problematic and therefore deprive unions of the right to organize strikes independently. The complainant indicates in this respect that according to section 399(2), demands or claims made by workers’ representatives to the employer must be confirmed at a general meeting (conference) of employees.
13. 955. The complainant also points out that section 410 stipulates that a decision to strike must be taken at a meeting (conference) of all employees at the proposal of a representative body previously appointed by the employees. Hence, in order to call a strike at the enterprise level, even if the trade union federation (confederation) has decided to strike, this decision should be approved at the meeting of all employees of the organization (enterprise). That makes the trade union’s decision to strike dependent on the opinion of all employees rather than that of its members. The KTR forwards a copy of the decision of the Moscow Municipal Court of 22 March 2002 on the illegality of a strike organized by the employees of the joint stock company “Aeroflot-RA”. According to the court’s ruling, “the current labour legislation [section 410 of the Labour Code] determines that a decision to declare a strike may be made by a meeting (conference) of employees of an organization [undertaking]; trade unions do not have the power to do that”. The Supreme Court confirmed this decision. Moreover, according to section 410, a minimum of two-thirds of the total number of workers should be present at the meeting and the decision to take a strike should be taken by at least half of the number of delegates present. At the same time, the new Code contains no provision which would allow a strike action by a single professional union at an enterprise where many professional unions represent workers with different interests and problems. Furthermore, section 410 of the Code maintains the obligation to declare a “possible” duration of the strike. The failure to comply with this requirement may serve as grounds for declaring the strike illegal (section 413(3)).
14. 956. In accordance with section 412 of the Labour Code, the relevant federal executive bodies, in agreement with the relevant all-Russia trade unions, determine the minimal necessary services for each branch (sub-branch) of the economy. The procedure for the approval of the lists of the minimal services is subject to a separate directive of the Government. On the basis of these lists, the regional executive bodies approve, upon agreement with relevant trade unions, territorial lists of minimal services. However, according to the complainant, such lists providing for the minimum necessary services do not exist at the moment at the federal level and it is difficult to predict when they may be compiled and whether they will cover all branches of the economy. Moreover, the KTR points out that the list of the minimum services should be determined, upon agreement between the parties and the local government, within five days from the declaration of a strike. In case of a failure to reach a consensus on this issue, the list of minimum services is drafted by the executive body of the subject of the Russian Federation. The complainant considers that the right to make the final decision regarding the list of minimum services should not belong to the body of executive power.
15. 957. The KTR further states that the Code lists a large number of professions for which the right to strike is restricted. The KTR refers to section 413(1) which, according to the complainant, due to the absence of criteria that would definitely determine the enterprises and services qualified as “directly servicing highly hazardous kinds of production or equipment”, and the absence of the criteria which would allow to make a decision if there is a threat to the country’s defence and security, lives and health of people, could be subject to very broad interpretation.
16. 958. In addition, the KTR points out that according to section 413(2), the right to strike may be restricted by the federal law. The complainant refers to a number of normative acts imposing prohibitions or restrictions on the right to strike of the following category of workers: police; military forces; employees of the federal institutions of governmental communication infrastructure and information; employees of internal affairs institutions; employees of the Federal State Communication Services; state employees; employees of professional emergency and rescue services; railroad employees; civil municipal servants; air traffic controllers; and employees of tax police. Strikes outside nuclear facilities and storage areas are also restricted if such strikes infringe the working conditions of nuclear facilities and storage area personnel, or in case of any other danger to the safety of the people, environment, health, rights and lawful interests of other people. The complainant considers that the abovementioned bans on the right to strike limit the right of a larger number of workers than required to avoid endangering peoples’ lives, their personal security or the health of the nation or its part. For instance, section 11 of the law on fundamentals of state employment prohibits strike in the public service not only for those who are engaged in the administration of the state, but for many other employees.
17. 959. The complainant is further concerned over section 413(3) of the Code, according to which, a strike shall be illegal if it is not organized within the time frames, procedures and requirements specified in the Code. However, according to the complainant, this section does not provide for a list of these time frames, procedures and requirements. As a result, the court may rule a strike illegal due to a formal non-compliance with insignificant provisions of the law. For instance, the Code envisages that a strike may be ruled illegal if the list of a minimum of necessary services has not been agreed upon within five days from the time of calling for the strike (requirement provided for in section 412(5)), even though there could be considerable time left before the actual beginning of the strike, i.e. sufficient time to agree upon the minimum services. A strike may also be declared illegal if during the strike, the parties do not continue trying to resolve the dispute through reconciliation procedures (section 412(1)).
18. 960. The KTR further states that the Russian legislation requires the workers’ representatives to warn the employer about a strike at least ten days in advance, which gives the employer sufficient time to challenge the strike’s legal grounds. It furthermore alleges that according to the prevailing practice in the Russian Federation, employers file cases on the legality of a strike as soon as it is declared. In most cases, the courts order to postpone the strike for 30 days or declare it illegal. In these circumstances, strike becomes virtually impossible.
19. 961. Those involved in a strike can be held accountable if a strike is started or continued in violation of the court’s order declaring the illegality of the strike under section 413(6). In such cases, in accordance with section 417, workers may incur a disciplinary penalty (including dismissals) for breaching section 413(6). Moreover, section 20.26 of the Code on administrative violations provides for administrative fines ranging from ten to 15 of minimum wages imposed on individuals responsible for unauthorized stoppage of work undertaken to resolve collective labour dispute when those individuals are responsible for securing certain public services and where federal law prohibits a work stoppage. Those who organize the strike action are punishable by a fine equivalent to 15 to 25 minimal wages. Taking into account the new provisions of the Labour Code and the federal laws restricting the right to strikes of the abovementioned categories of workers, it is not clear whether the norms of the administrative responsibility for participation in the strike may be applied to striking workers.
20. 962. Finally, as concerns the right to strike, the Russian legislation contains no norms banning the employment of other workers during a lawful strike. In practice, employers repeatedly use the absence of such a ban. Therefore, strikes turn out to be ineffective and have no real impact on the employer.

B. The Government’s reply

1. 963. In its communication of 5 September 2003, the Government notes that the case material regarding the complaint filed by the KTR is composed of three complaints presented by the following three trade union organizations: the Union of Aviation Specialists (PrAS) of “Aeroflot”; the Tyumen Regional Trade Union Centre (TRTUC); and the Ural Trade Union Centre (URALPROFCENTRE).
2. 964. As concerns the complaint made by the PrAS, the Government states that, section 37 of the Labour Code, which concerns the number of workers involved in the unified representative body, applies only to unions and not to the employers. Disputes on such matter should be resolved between trade unions themselves without the involvement of employers. The Government points out that, in accordance with section 37(2), the unified representative body should be based on the principle of proportional representation and depends on the membership of each trade union. At the same time, there must be one representative from each trade union organization. There are four trade union organizations at the “Aeroflot”, which together represent the interests of 13,500 workers. In the present case, if it is determined that the representative body will be composed of 13 members, the participation of each union should be the following: one representative from each of the four unions namely: the PrAS; the Sheremetyevo Trade Union of Aircrew; the Sheremetyevo Trade Union of Flight Attendants; and the Trade Union of Aviation Employees workers. The remaining nine members of the representative body should to be elected by proportional representation based on the size of the membership of each trade union.
3. 965. As concerns the complaint made by the TRTUC, the Government points out that the legal bases for the creation of trade unions in the Russian Federation are laid down in the federal act on trade unions, their rights and guarantees of their activities. Section 3 of the law provides that union activities at the enterprise level shall be organized in the form of a primary trade union, defined as a voluntary association of trade union members operating in accordance with their regulations and by-laws, or on the basis of the general regulations on primary trade union of the relevant trade union. According to section 29(2) of the Labour Code, the interests of workers are represented by the primary trade union or other elected representatives. Section 31 of the Code stipulates that if a trade union organization represents less than half of the workers of an enterprise, the workers may elect this union or another representative to represent their interests.
4. 966. As concerns the right to join or to leave a trade union, the Government indicates that workers and employers, in accordance with Article 2 of Convention No. 87, have absolutely equal rights to form organizations of their own choosing, without any prior authorization and have the right to join such organizations, subject to acceptance of their regulations. Section 2(2) of the law on trade union gives concrete expression to this principle.
5. 967. Regarding the complaint made by the URALPROFCENTRE, the Government indicates that the chairperson of the primary trade union of the UECE had in fact proposed the creation of a unified representative body to negotiate a new collective agreement. However, this proposal was turned down because it was received after the legally established time limit (five calendar days provided for in section 37(3) of the Code) and because his candidature as representative of the union was self-appointed and not properly registered.
6. 968. As regards the other alleged violation of the rights of the URALPROFCENTRE by the administration of the UECE, the Government indicates that the union did not bring the facts contained in the complaint to the attention of the Public Prosecutor. In order to examine these allegations, the Sverdlovsk Provincial Office of Public Prosecutor was requested, on 15 August 2003, to investigate this matter. The Government states that until the investigation is completed, it would be premature to come to any conclusions regarding the lawfulness of the claims by the trade union.
7. 969. The Government further indicates that the abovementioned complaints relate to a collective labour disputes. The procedure of collective bargaining is regulated by section 37 of the Labour Code and the procedure for resolving collective labour disputes is regulated by the Code and the law on procedure for resolving collective labour disputes. The cases of violations of trade union rights shall be examined by the courts at the request of the Public Prosecutor following a complaint made by the trade union. The Government points out that the abovementioned unions did not appeal to the courts and therefore had not exhausted all available means to defend their interests.

C. The Committee’s conclusions

1. 970. The Committee notes that the complainant in this case alleges that the Labour Code violates the following rights guaranteed by Conventions Nos. 87 and 98: the rights of workers to freely establish and join organizations of their own choosing and to determine their structures and membership; the right to bargain collectively; and the right to strike. In support of its contention, the KTR forwards complaints made by the Trade Union of Aviation Specialists (PrAS), the Tyumen Regional Trade Union Centre (TRTUC) and the Ural Trade Union Centre (URALPROFCENTRE). The KTR also alleges that its was prevented from participating in the drafting and discussion of the Code.
2. 971. As concerns the allegation that the complainant organization was prevented from participating in the drafting and discussion of the Code, the Committee notes that no comment was made by the Government in this respect. The Committee notes, however, the Government’s statement in Case No. 2216, where the Committee had examined similar allegations and where the Government had indicated that all interested organizations could make their proposals and remarks and that all opinions received concerning the new Labour Code were examined [see 332nd Report, approved by the Governing Body at its 288th Session, para. 903].
3. 972. As concerns the allegation of violation of the rights of workers to freely establish and join organizations of their own choosing and to determine their structures and membership, the Committee notes that the complainant refers to sections 29, 30, 31, 37, 399 and 410 of the Labour Code. Firstly, as regards section 29(1), the complainant states that the wording of this section provides grounds for ambiguous interpretation. More specifically, the KTR claims that some employers and officials consider that if a trade union is independent and is not affiliated to an all-Russia trade union it may not represent workers’ interests. No comment was made by the Government on this allegation. The Committee notes that from the reading of this section, it seems that there is no obligation imposed on trade union to be affiliated to an all-Russia trade union. The Committee requests the Government to provide information in this respect.
4. 973. Secondly, the KTR alleges that according to the abovementioned sections, the right to participate in social and labour relations, including the participation in collective bargaining and in collective labour disputes, is granted only to primary trade unions. In practice, this means that independent or “stand-alone” trade unions have been excluded from collective bargaining. In these circumstances, those trade unions feel obliged to change their legal status and their constitutions and to affiliate to higher trade union structures. The KTR forwards a complaint made by the TRTUC, which alleges that it had to change the union’s structure at the enterprise level of one of its member organizations, TULEE, and to affiliate to an all-Russia trade union so that TULEE could participate in collective bargaining. The TULEE considers that the change from a workshop structure to the primary trade union structure of a higher trade union was not beneficial and rather inconvenient, as it now has to coordinate its activities with other trade unions, which do not necessarily share the interests of the members of TULEE.
5. 974. The Committee notes the Government’s indication to the effect that the legal bases for the creation of trade unions in the Russian Federation are laid down in the federal act on trade unions, their rights and guarantees of their activities. Section 3 of the law provides that union activities at the enterprise level shall be organized in the form of a primary trade union, defined as a voluntary association of trade union members operating in accordance with their regulations and by-laws, or on the basis of the general regulations on primary trade union of the relevant trade union. According to section 29(2) of the Labour Code, the interests of workers are represented by the primary trade union or other elected representatives.
6. 975. The Committee recalls in this respect, that workers should be free to decide whether they prefer to establish, at the enterprise level, a workers’ union or another form of basic organization, such as a workshop union, and that the distinction made between primary trade unions and other form of trade unions, by granting particular advantages to one kind of organization or withdraw that advantage from one form of organization in favour of another, should not have the indirect consequence of restricting the freedom of workers to belong to the organization of their choosing. The Committee therefore requests the Government to clarify whether independent or so-called “stand-alone” trade unions, which are not primary level organization of a higher trade union, can represent workers’ interests during collective bargaining, collective labour disputes, etc.
7. 976. Thirdly, the complainant refers to section 31 of the Code, which it considers could be interpreted in the following manner: if there is no primary trade union at an enterprise or if there is one that represents less than 50 per cent of the employees, the employees may authorize this “minority” primary trade union to represent their interests or alternatively may authorize a non-union representative, even if there is a union at the enterprise with a structure that does not correspond to that of a primary trade union. Moreover, the KTR points out that this section does not explicitly stipulate that a non-union representative has the right to represent workers only when there are no trade unions at the enterprise. The practical implication of this provision has allegedly led to some problems, as many employers have initiated collective bargaining with other workers’ representatives, ignoring the existing trade unions.
8. 977. The Committee notes that the Government does not provide any comments in this respect, except for citing section 31 of the Code. The Committee recalls its conclusion regarding a similar allegation in Case No. 2216, where it concluded that there would appear to be a contradiction between this section and section 37 which provides that there shall be a secret ballot for determining “the trade union” to conduct collective bargaining in the event that no trade union unites over half of the employees. The Committee considers that section 31 would appear to give workers the choice to elect non-union representatives even though there may be a union at the workplace. The Committee recalled on that occasion that the Collective Agreements Recommendation, 1951 (No. 91), stressed the role of workers’ organizations as one of the parties in collective bargaining, it referred to “representatives of unorganised workers” only when no organization exists. In these circumstances, direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might be detrimental to the principle that negotiation between employers and workers’ organizations should be encouraged and promoted [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 785]. The Committee requested the Government to amend section 31 so as to ensure clearly that authorization can be conferred on other representative bodies only in the event that there is no trade union at the workplace [see 332nd Report, para. 909]. The Committee therefore reiterates its request to the Government and asks to keep it informed of the measures taken or envisaged in this respect.
9. 978. As concerns the allegations on violation of the right to collective bargaining, the Committee notes that the KTR refers to sections 45 and 26 of the Labour Code, which, according to the complainant, do not reflect the particular situation of workers’ organizations based on the occupational or professional criteria and that the Labour Code restricts the level of collective bargaining by not providing for a possibility to conclude an agreement at the occupational or professional level. The Committee recalls that this allegation was examined in Case No. 2216, where the Committee considered that workers’ organizations and employers and their organizations should be free in determining the level of bargaining, including the possibility of concluding agreements at the occupational or professional level [see 332nd Report, para. 905]. No information was received from the Government in this respect. The Committee therefore requests the Government to take all the necessary measures, including the amendment of sections 26 and 45, so as to allow the possibility of collective bargaining at occupational or professional level both in law and in practice. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.
10. 979. The Committee further notes the complainant’s concerns over the preference given by the Labour Code to majority unions in the collective bargaining process at all levels (enterprise as well as territorial, industrial and national). The Committee recalls that it had to deal with the similar allegation in Case No. 2216. In that case, the Committee concluded that according to section 37 (5), at the enterprise level, a protection is afforded by keeping a chair for other primary trade unions for their participation at any further time in the collective bargaining process. The Committee considered that the approach favouring the most representative trade union for collective bargaining purposes at the enterprise or a higher level is not incompatible with Convention No. 98 [see 332nd Report, para. 907].
11. 980. The Committee notes that the KTR forwards a communication from the URALPROFCENTRE, which describes the difficulties the trade union of the UECE, a minority trade union, had encountered. The KTR submits another complaint from the TRTUC, where the complainant indicates that the primary trade union of TULEE at the “Managing Company for Housing Maintenance” found it very difficult to persuade the large primary trade union to form a unified representative body. There was only one representative of TULEE during collective bargaining. As a result, the adopted collective bargaining agreement neglected the interests of TULEE members. At the municipal enterprise “Managing Company for Housing Communal Services UG”, a unified representative body was not formed at all. The majority trade union, having representatives of the employer among its members, ignored the request of TULEE to participate in the collective bargaining and signed a collective agreement on behalf of all of the employees.
12. 981. As concerns the complainant made by the URALPROFCENTRE, the Committee notes that the Government indicates that the chairperson of the primary trade union of Uralsk Electro-Chemical Enterprises (UECE) had in fact proposed the creation of a unified representative body to negotiate a new collective agreement. However, this proposal was turned down because it was received after the legally established time limit (five calendar days provided for in section 37(3) of the Code) and because his candidature as representative of the union was self-appointed and not properly registered. The Government also indicates that as regards other alleged violation of the rights of the URALPROFCENTRE by the administration of the UECE, on 15 August 2003, the Sverdlovsk Provincial Office of the Public Prosecutor was requested to investigate this matter. The Government states that until the investigation is completed, it would be premature to come to any conclusions regarding the lawfulness of the claims by the trade union. The Committee requests the Government to keep it informed of the outcome of the investigation.
13. 982. As concerns the complaint made by the TRTUC, the Committee notes that the Government does not provide any information concerning the refusal to establish a unified representative body at the “Managing Company for Housing Communal Services UG” and only generally states that the case relate to a collective labour dispute concerning the procedure of collective bargaining regulated by section 37 of the Labour Code and other legislation. The Committee therefore requests the Government to initiate the relevant inquiries into these allegations and to keep it informed in this regard.
14. 983. Finally, the Committee notes the complaint made by the PrAS concerning the problem it had encountered with interpretation of section 37(2) of the Code. The Committee notes that the union had managed to find a solution and that a unified representative body for collective bargaining purposes could be formed. The Committee also notes the Government’s explanations concerning section 37(2). It therefore considers that this point does not call for further examination.
15. 984. As concerns the allegation concerning restrictions on the right to strike, the Committee notes that the complainant mentions the following sections of the Code: 398, 399, 409, 410, 412, 413 and 417. Firstly, the KTR states that, as concerns section 398 and section 409, the legislation does not provide for a possibility to resort to strike in order to resolve individual labour disputes, for instance, over the non-payment of wages. This situation has resulted in court decisions declaring such strikes illegal, which meant that the guarantees normally afforded to strike participants – e.g. reinstatement in their job – do not apply. The complainant provides an example where 19 trade union members of the Free Trade Union “Metallurg” were fired for participating in a strike over non-payment of wages. The reinstatement of 18 workers was denied by the court, which considered that the dispute was not collective. Moreover, the KTR points out that the Russian legislation does not expressly provide for sympathy strikes, strikes aimed at recognizing a trade union and strikes over major social or economic issues. The Committee notes that the Government does not provide any comments in this respect.
16. 985. The Committee considers that the question which should be examined while considering the strikes as a way of settlement of a labour dispute problem is not whether the dispute is a collective labour dispute or of a purely individual nature. What should be looked at is a degree to which it affects the interests of other workers. In the present case, the non?payment of wages is more likely to affect the economic and social interest of a large group of workers. The affected workers should be able to resort to a strike action in such circumstances. As concerns the allegation that the Russian legislation does not expressly provide for sympathy strikes, strikes aimed at recognizing a trade union and strikes over major social or economic issues, the Committee recalls that workers and their organizations should be able to call for a strike aimed at recognizing a trade union, as well as in order to criticize a government’s economic and social policies and should be able to take a sympathy strike, provided the initial strike they are supporting is itself lawful [see Digest, op. cit., paras. 482, 484, 486-488]. In the present case, the Committee notes that while those kinds of strikes are not expressly forbidden under the legislation, their legality may be ensured more generally through developed judicial precedents. The Committee requests the Government to ensure that the abovementioned principles are respected.
17. 986. As concerns section 399(2) which, according to the complainant requires a trade union to obtain an approval of the claims it wishes to make to the employer by the meeting (conference) of employees, the Committee recalls that it dealt with the same allegation in Case No. 2216 [see 322nd Report, para. 911]. On that occasion, the Committee did not find it clear whether only non-union representatives needed to refer to a meeting or conference of employees or whether this provision also applied to trade unions. While considering that trade unions should be free to regulate the procedure of submitting claims to the employer and that the legislation should not impede the functioning of a trade union by obliging a trade union to call a general meeting every time there is a claim to be made to an employer, the Committee requested the Government to provide additional information as to how section 399 works in practice [see 332nd Report, para. 911]. As no information was provided by the Government in this respect, the Committee reiterates its previous request.
18. 987. The Committee notes the allegation regarding section 410, which provides that a decision to strike must be taken at a meeting (conference) of all employees at the proposal of a representative body previously appointed by the employees and that a minimum of two-thirds of the total number of workers should be present at the meeting and the decision to take a strike should be taken by at least half of the number of delegates present. The Committee also notes the decision of the Moscow Municipal Court of 22 March 2002 supplied by the KTR, according to which, “a decision to declare a strike may be made by a meeting (conference) of employees of an undertaking and that trade unions do not have the power to call a strike”. No information was provided by the Government in this respect. The Committee recalls that it had to deal with a similar allegation in Case No. 2216 [see 332nd Report, para. 912]. While recognizing that calling a strike action is a right which trade unions are entitled to enjoy, the Committee nevertheless accepts that legislation may make the exercise of this right subject to the agreement of a certain percentage of the workers. In this respect, it considers that while the obligation to observe a certain quorum to take strike action may be considered acceptable, the observance of a quorum of two-thirds of workers may be difficult to reach [see Digest, op. cit., paras. 510 and 511]. It therefore requests the Government to amend its legislation so as to lower the quorum required for a strike ballot and to keep it informed of the measures taken or envisaged in this regard.
19. 988. As concerns the obligation to declare a “possible” duration of the strike imposed by section 410, the Committee considers that requiring workers and their organizations to specify the length of a strike would restrict the right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee requests the Government to amend its legislation so as to ensure that no legal obligation to indicate the duration of a strike is imposed on workers’ organizations and to keep it informed of measures taken or envisaged in this regard.
20. 989. The Committee further notes the complainant’s allegations concerning the required minimum necessary services. In this respect, the complainant raises two issues. Firstly, the KTR submits that it is not clear from section 412 whether minimum services are to be ensured in every sector of activity. Secondly, the KTR points out that this section provides that in the event of a disagreement between the parties on the minimum services to be provided in organizations (enterprises) the activities of which ensure safety, health and life of the people, and vital interests of society, the decision is made by an executive body. No information was received from the Government in this respect.
21. 990. As concerns the first issue, the Committee is of the view that the establishment of minimum service in the case of strike action should only be possible in: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance [see Digest op. cit., para. 556]. The Committee requests the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers and if that is the case, it requests the Government to amend its legislation so as to ensure that such a requirement is limited to the abovementioned cases.
22. 991. As regards the provision that any disagreement concerning the establishment of minimum services should be settled by the authorities, the Committee considers that if negotiations between the parties fail, such disagreements should be resolved by an independent body, so as to avoid any possible delay that would be tantamount to a restriction of strike action. The Committee therefore requests the Government to amend its legislation so as to ensure that any disagreement concerning minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive body and to keep it informed of measures taken or envisaged in this regard.
23. 992. The Committee further notes the KTR’s allegations concerning restrictions on the right to strike imposed on certain categories of workers (section 413). In this respect, the complainant raises two issues. Firstly, the KTR is concerned over the interpretation or definition of the following notions referred to in section 413(1)(a) and (b): “the enterprises and services qualified as directly servicing highly hazardous kinds of production or equipment”, and “threat to the country’s defence and security, lives and health of people”. According to the complainant, those provisions could be subject to very broad interpretation and therefore restrict the right to strike of a large number of workers. Secondly, the complainant invokes section 413(2), according to which, the right to strike may be restricted by federal law. The complainant refers to a number of normative acts imposing prohibitions or restrictions on the right to strike of the following category of workers: police; military forces; employees of the federal institutions of governmental communication infrastructure and information; employees of internal affairs institutions; employees of the Federal State Communication Services; state employees; employees of professional emergency and rescue services; railroad employees; civil municipal servants; air traffic controllers; and employees of tax police. Strikes outside nuclear facilities and storage areas are also restricted if such strikes infringe the working conditions of nuclear facilities and storage area personnel, or in case of any other danger to the safety of the people, environment, health, rights and lawful interests of other people. The complainant considers that the abovementioned bans on the right to strike limit the right of a larger number of people than required to avoid endangering peoples’ lives, their personal security or the health of the nation or its part. For instance, section 11 of the law on fundamentals of state employment prohibits strike in the public service not only for those who are engaged in the administration of the state, but for many other employees. No information was provided by the Government in this respect.
24. 993. As concerns those allegations, the Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the state; (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population); and (3) in the event of an acute national emergency [see Digest, op. cit., paras. 526 and 527]. As concerns section 413(1)(b), in the view of the complainant’s concerns, the Committee requests the Government to indicate the enterprises and services it qualifies as directly servicing highly hazardous kinds of production or equipment where the right to strike is prohibited. As concerns the abovementioned categories of workers, who, according to the relevant federal laws, cannot recourse to a strike action, the Committee notes that the list includes employees of railroad, which does not constitute essential services in the strict sense of the term. The Committee therefore requests the Government to amend its legislation so as to ensure that railroad employees, as well as those engaged in the public service but not exercising the authority in the name of the state, enjoy the right to strike.
25. 994. The Committee further notes that according to the complainant, section 413(3) also restricts the right to strike. This section provides that a strike shall be illegal if it is not organized within the time frames, procedures and requirements specified in the Code. However, according to the complainant, this section does not provide for a list of these time frames, procedures and requirements. In these circumstances, the court may rule a strike illegal in the case of formal non-compliance with any provision of the law. The KTR refers to the following examples when the strike could be declared illegal: (1) the list of a minimum of necessary services has not been agreed upon within five days from the time of calling for the strike (requirement provided for in section 412(5)), even though there could be considerable time left before the actual beginning of the strike, i.e. sufficient time to agree upon the minimum services; and (2) the parties do not continue trying to resolve the dispute through reconciliation procedures during the strike (section 412(1)). No information was provided by the Government in this respect.
26. 995. As concerns the time frames, procedures and requirements specified mentioned in section 413(3), the Committee understands that this section refers to sections 398-413 of the Code. However, as concerns the declaration of illegality of a strike when the minimum of necessary services has not been agreed upon within five days from the time of calling a strike, as provided for in section 412(5), the Committee recalls that the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations [see Digest, op. cit., para. 498]. The Committee requests the Government to take the necessary measures, including the amendment of the legislation, in order to ensure that a strike would not be declared illegal when the minimum of necessary services has not been agreed upon within five days from the time of calling a strike, especially when there is a sufficient time to agree on this matter before the strike takes place. The Committee requests the Government to keep in informed in this respect. As concerns the requirement to continue trying to resolve the dispute through reconciliation procedures during the strike (section 412(1)), the Committee considers that such a requirement cannot be regarded as an infringement of freedom of association.
27. 996. The Committee further notes that, according to the complainant, the Russian legislation requires the workers’ representatives to warn the employer about a strike at least ten days in advance, which gives the employer sufficient time to challenge the strike’s legal grounds. The Committee notes that the KTR’s statement to the effect that according to the prevailing practice in Russia, employers file cases on the legality of a strike as soon as it is declared. In most cases, the court’s order to postpone the strike for 30 days or declare it illegal. In these circumstances, a strike becomes virtually impossible. No information has been provided by the Government in this respect. The Committee considers that the obligation to give a prior notice to the employer before calling a strike may be considered acceptable [see Digest, op. cit., para. 502]. The Committee further notes that the responsibility to declare a strike illegal lies with the judicial body, which is also in conformity with the principles of freedom of association. The Committee considers, however, that the legislative provisions should not be used so as to prevent recourse to strike action in practice. In the light of the complainant’s allegation to the effect that in practice, the strike is often postponed or declared illegal, the Committee requests the Government to provide relevant information, including statistical information, on how the right to strike is exercised in practice.
28. 997. As regards the allegation concerning sanctions against strikers provided for in section 417, including fines and, allegedly, dismissals, the Committee notes that no information was provided by the Government in this respect. The Committee considers that sanctions for strike action should be possible only where the restrictions in question are in conformity with the principles of freedom of association. The Committee further requests the Government to indicate whether section 20.26 of the Code on administrative violations is applicable to striking workers.
29. 998. The Committee notes the complainant’s concern over strike replacements, to which employers, incited by the absence of provision in the Labour Code banning such a practice, often have recourse. The Committee considers that the hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden, constitutes a serious violation of freedom of association. If a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights [see Digest, op. cit., paras. 570-571]. The Committee requests the Government to ensure that this principle is respected.
30. 999. The Committee notes the Government’s statement to the effect that the complainant trade union organizations did not appeal to the courts and therefore had not exhausted all available means to defend their interests. The Committee would like to point out that it has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures.
31. 1000. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.

The Committee's recommendations

1. 1001. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to indicate whether section 29(1) of the Labour Code imposes an obligation on trade unions to be affiliated to an all-Russia trade union.
   • (b) The Committee requests the Government to clarify whether independent or so-called “stand-alone” trade unions, which are not primary level organizations of a higher trade union, can represent workers’ interests during collective bargaining, collective labour disputes, etc.
   • (c) The Committee requests the Government to amend section 31 of the Labour Code so as to ensure clearly that authorization to represent workers can be conferred on other representative bodies only in the event that there is no trade union at the workplace.
   • (d) The Committee requests the Government to take all the necessary measures, including the amendment of sections 26 and 45 of the Labour Code, so as to allow the possibility of collective bargaining at occupational or professional level both in law and in practice.
   • (e) The Committee requests the Government to keep it informed of the outcome of the investigation on the alleged violations of trade union rights of the URALPROFCENTRE by the administration of the UECE.
   • (f) The Committee requests the Government to initiate the relevant inquiries into the allegations made by the TRTUC concerning the refusal to establish a unified representative body for collective bargaining purposes at the “Managing Company for Housing Communal Services UG”.
   • (g) The Committee recalls that workers and their organizations should be able to call for a strike aimed at recognizing a trade union, as well as in order to criticize a government’s economic and social policies and should be able to take a sympathy strike, provided the initial strike they are supporting is itself lawful.
   • (h) As concerns the alleged requirement to obtain an approval of the claims a trade union wishes to make to the employer by the meeting (conference) of employees, the Committee requests the Government to provide additional information as to how section 399 of the Labour Code works in practice.
   • (i) As concerns the allegation concerning restriction of the right to strike, the Committee requests the Government to amend section 410 of the Labour Code so as to lower the quorum required for a strike ballot.
   • (j) The Committee requests the Government to amend section 410 of the Labour Code so as to ensure that no legal obligation to indicate the duration of a strike is imposed on workers’ organizations.
   • (k) The Committee requests the Government to indicate whether the establishment of minimum services is a requirement applicable to all categories of workers and, if that is the case, it requests the Government to amend its legislation so as to ensure that such a requirement is limited to the following situations: (1) services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (2) services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population; and (3) in public services of fundamental importance.
   • (l) The Committee requests the Government to amend its legislation so as to ensure that any disagreement concerning minimum services is settled by an independent body having the confidence of all the parties to the dispute and not the executive body.
   • (m) As concerns section 413(1)(b) of the Labour Code, in the view of the complainant’s concerns, the Committee requests the Government to indicate the enterprises and services it qualifies as “directly servicing highly hazardous kinds of production or equipment” where the right to strike is prohibited.
   • (n) The Committee requests the Government to amend its legislation so as to ensure that railroad employees, as well as those engaged in the public service, but not exercising the authority in the name of the state, enjoy the right to strike.
   • (o) The Committee requests the Government to take the necessary measures, including the amendment of the legislation, in order to ensure that a strike would not be declared illegal when the list of minimum necessary services has not been agreed upon within five days from the time of calling a strike.
   • (p) In the light of the complainant’s allegation to the effect that in practice, the strike is often postponed or declared illegal, the Committee requests the Government to provide relevant information, including statistical information, on how the right to strike is exercised in practice.
   • (q) The Committee requests the Government to indicate whether section 20.26 of the Code on administrative violations is applicable to striking workers.
   • (r) The Committee recalls that when a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights.
   • (s) The Committee requests the Government to ensure respect for the principles mentioned in subparagraphs (c)-(o) and (r) above.
   • (t) The Committee requests the Government to keep it informed on all these points.
   • (u) The Committee reminds the Government that it can avail itself of the technical assistance of the Office.
   • (v) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.

Z. ANNEX

• Appendix
• Labour Code (relevant sections)
• Article 26. System of the social partnership
• The system of the social partnership shall include the following levels:
  • - the federal level setting the grounds for regulating relations in the sphere of labour in the Russian Federation;
  • - the regional level setting the grounds for regulating relations in the sphere of labour in a subject of the Russian Federation;
  • - the industry level setting the grounds for regulating relations in the sphere of labour in an industry (industries);
  • - the territorial level setting the grounds for regulating relations in the sphere of labour in a municipality;
  • - the level of an organization setting specific mutual obligations in the sphere of labour between the employees and the employer.
• Article 29. Representatives of employees
• Representatives of employees in the social partnership shall be labour unions and their associations, other labour union organizations stipulated by charters of Russian national labour unions or other representatives elected by employees in the cases stipulated by this Code.
• Interests of an organization employees at collective bargaining, concluding and amending the collective contract, exercising control of its implementation as well as in exercising the right to participate in managing the organization, considering labour disputes of the employees with the employer shall be represented by the labour union local or other representatives elected by the employees.
• Interests of employees at collective bargaining on concluding and on amending agreements, settling collective labour disputes on concluding or amending agreements, exercising control of their implementation as well as at establishing commissions regulating socio-labour relations and carrying out their activities shall be represented by relevant labour unions, their territorial organizations, associations of labour unions and associations of labour unions’ territorial organizations.
• Article 30. Representatives of non-union
• employees’ interests
• The employees not belonging to a labour union shall be entitled to authorize the labour union local executive to represent their interests in relations with the employer.
• Article 31. Other representatives of employees
• In the absence of a labour union local in an organization as well as when the labour union local amalgamates less than half of the employees the employees can, at their general meeting (conference) entrust said labour union local or another representative with representation of their interests.
• Availability of another representative cannot hamper exercising its authority by the trade union local.
• Article 37. Procedures of collective bargaining
• The participants in collective bargaining shall be free in choosing the issues of regulating socio-labour relations.
• Should two or more labour union locals operate within an organization, they shall form a unified representative body for engaging in collective bargaining, preparing a single draft collective contract and concluding it. Formation of a unified representative body shall be done on the basis of proportional representation principle depending on the number of the labour union members. At this, a representative shall be delegated from each labour union local.
• Should a unified representative body fail to be formed within five calendar days after the collective bargaining start, interests of all the employees shall be represented by the labour union local amalgamating over half of the employees.
• Should no labour union local amalgamate over half of the employees, the employees’ general meeting (conference) shall determine by a secret vote the labour union local entrusted with forming the representative body.
• In the cases stipulated by paragraphs three and four of this article other labour union locals 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 relevant labour unions (labour union associations). Should several labour unions (labour union 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 labour union (labour union association) amalgamating the largest number of the labour union (labour unions) members.
• The parties shall provide each other, not later than two weeks after receiving the appropriate request, with the information at their disposal required for collective bargaining.
• Participants in collective bargaining, other persons linked to collective bargaining shall not disclose the data obtained, if such data constitute the secrets protected by law (state, official, commercial and other). The persons disclosing said data shall be brought to disciplinary, administrative, civil, criminal responsibility in the manner set by federal laws.
• Dates, venues and procedures of the collective bargaining shall be determined by representatives of the parties participating in said bargaining.
• Article 45. Agreement. Types of agreements
• The agreement shall be a legal act setting general principles of regulating socio-labour relations and the economic relations linked to them concluded between representatives of the employees and employers at the federal, regional, industry (inter-industry) and territorial levels within the limits of their competence.
• Mutual obligations of the parties can be included in the agreements on the following issues:
  • - wages and salaries;
  • - working conditions and occupational safety;
  • - work and rest and leisure routines;
  • - development of the social partnership;
  • - other matters as determined by the parties.
• Depending on the sphere of the regulated socio-labour relations the following agreements can be concluded: a general, regional, industry (inter-industry), territorial and other ones.
• The general agreement shall set general principles of regulating socio-labour relations at the federal level.
• The regional agreement shall set general principles of regulating socio-labour relations at the level of the Russian Federation subject.
• The industry (inter-industry) agreement shall set general provisions for wages and salaries, labour guarantees and benefits for the employees of an industry (industries).
• The territorial agreement shall set general provisions for wages and salaries, labour guarantees and benefits for the employees on the territory of a relevant municipality.
• The industry (inter-industry) agreement can be concluded at the federal, regional, territorial levels of the social partnership.
• Agreements, by arrangement of the parties participating in collective bargaining, can be bipartite or tripartite.
• The other agreements shall be agreements, which can be concluded by the parties at any level of the social partnership on individual directions of regulating socio-labour relations and other relations directly linked to them.
• Article 398. Main concepts
• Collective industrial dispute is unsettled controversies between employees (their representatives) and employers (their representatives), concerning establishment and change of labour conditions (including a wage), conclusion, modification and performance of contracts, agreements, as well as relating to employer’s refusal to consider the opinion of an elective representative unit of employees for adoption of acts, containing norms of the labour law, within organizations.
• Conciliatory procedures are consideration of a collective industrial dispute for the purpose of its settlement through the Commission for Conciliation, mediation and/or at the industrial arbitration.
• The beginning of a collective industrial dispute shall be the day of issue of the employer’s (his representative) decision to decline employee’s (their representatives) claims, in whole or in part, or failure by employer (his agent) to communicate a decision in accordance with the article 400 of this Code, and the date of producing a dispute report in the course of collective bargaining.
• Strike is a temporary voluntary refusal of employees to perform their industrial liabilities (wholly or in part) for the purpose of settlement of a collective industrial dispute.
• Article 399. Raise of claims by employees and their representatives
• The right to raise claims shall be vested with employees and their representatives as defined by articles 29-31 of this Code.
• Claims, raised by employees and/or representative unit of employees of organization (subsidiary, representative office or other separate structural subdivision) shall be approved at the respective meeting (conference) of employees.
• The meeting of employees shall be deemed authorized provided there being present the majority of employees. The conference shall be deemed authorized provided there being present at least two thirds of elective delegates.
• The employer shall be obliged to provide employees or their agents with required premises for the conduct of a meeting (conference) concerning raise of claims, and shall not prevent its conduct.
• Claims of employees shall be made in writing and serviced to the Employer.
• Claims of trade unions and their associations shall be raised and serviced to the respective parties to social partnership.
• A written copy of claims may be forwarded to the Service for Settlement of Collective Industrial Dispute. In such case the Service shall be liable to verify as to whether the other party to collective industrial dispute has received the claims.
• Article 409. Strike right
• Pursuant to the article 37 of the Constitution of the Russian Federation, employees have a strike right as a way of settlement of collective industrial disputes.
• If conciliatory procedures failed to settle a collective industrial dispute or the employer evades conciliatory procedures, or to perform the agreement reached in the course of the settlement of a collective industrial dispute, employees or their representatives shall be entitled to start a strike.
• Participation in a strike is voluntary. No individual can be coerced to participate or to refuse to participate in a strike.
• Individuals, coercing employees to participate or to refuse to participate in a strike, shall be subject to disciplinary, administrative, or criminal punishment, as provided herein or any other federal statutes.
• Agents of employers shall not be entitled to begin a strike or to participate in it.
• Article 410. Calling a strike
• The decision of calling a strike shall be made at the meeting (conference) of employees of organization (subsidiary, representative office, other separate structural subdivision) upon proposal submitted by duly authorized unit of employees. The decision of calling a strike, adopted by trade union (trade union association), shall be approved for each organization by the meeting (conference) of employees of such organization.
• The meeting (conference) of employees shall be deemed authorized provided there being present at least two thirds of the total number of employees (conference delegates).
• The employer shall provide for premises and set up necessary conditions for the conduct of a meeting (conference) of employees and shall not prevent its conduct.
• The decision shall be deemed adopted provided it has at least half of the votes appeared at the meeting (conference). In case of failure to conduct a meeting (to call a conference) of employees, the representative unit of employees shall have the right to approve its decision by collecting signatures with more than half of employees in support of a strike.
• After five calendar days of the work of the Commission for Conciliation, a one-hour warning strike may be announced once, and the employer shall be given a three days` written notice.
• During the warning strike the head unit shall provide for the minimum of required accomplishments (services) in accordance with this Code.
• The employer shall be given a written notice of a future strike not later than ten calendar days in advance.
• The decision of calling a strike shall incorporate the following:
  • - list of differences of the parties to collective industrial dispute being a ground for calling and conduct of a strike;
  • - date and time of the beginning of a strike, its presumable length and number of participants;
  • - name of a head unit, list of employees agents, authorized to participate in conciliatory procedures;
  • - proposals on the minimum of required accomplishments (services) to be carried out within an organization, subsidiary, other separate structural subdivision during the strike period.
• The Employer shall give a strike notice to the Service for Settlement of Collective Industrial Disputes.
• Article 412. Parties liabilities in the course of a strike
• During the strike period the parties to a collective industrial dispute shall be liable to continue the settlement of such dispute through the conduct of conciliatory procedures.
• The Employer, executive bodies, local governments and the head striking unit shall be liable to take all possible measures in order to provide for public order, property safety of organization (subsidiary, representative office, other separate structural subdivision) and employees during the strike period, as well as for the work of the machinery and equipment, which being suspended threaten to people’s life and health.
• List of the minimum of required accomplishments (services) in organizations, subsidiaries, representative offices, whose activities are connected with people’s safety, health support and essential public interests, shall be produced and approved in each branch (sub-branch) of economy by federal executive body authorized for coordination and governing of activities in the respective branch (sub-branch) of economy, according to agreement with the respective Russian National Trade Union. In case there being existing several Russian National Trade Unions in any branch (sub-branch) of economy, a list of the minimum of required accomplishments (services) shall be approved upon agreement with each of the Russian National Trade Unions existing in the branch (sub-branch) of economy. Procedures of producing and approval of the minimum of required accomplishments (services) shall be determined by the Government of the Russian Federation.
• The executive body of the subject of the Russian Federation shall produce and approve, on the basis of lists of the minimum of required accomplishments (services), produced and approved by the respective federal executive bodies, upon agreement with the respective territorial associations of trade union organizations (trade unions associations), territorial lists of the minimum of required accomplishments with the specification of the content and determination of the minimum of required accomplishments (services) in the territory of the respective subject of the Russian Federation.
• The minimum of required accomplishments (services) in organization, subsidiary, representative office shall be determined upon agreement of the parties to collective industrial dispute in conjunction with a local government, on the basis of lists of the minimum of required accomplishments (services) within five days of the decision on calling a strike. The inclusion of any type of accomplishments (services) into the minimum list shall be justified by the fact of threat to civilians health or life. The minimum of required accomplishments (services) shall not include accomplishments (services), which are not provided in the respective lists of the minimum of required accomplishments (services).
• In case of failure to achieve agreement, the minimum of required accomplishments (services) in organization (subsidiary, representative office) shall be determined by the executive body of the subject of the Russian Federation.
• The decision of such body to establish the minimum of required accomplishments (services) for organization, subsidiary, representative office, can be appealed by the parties to collective industrial dispute.
• In case of failure to provide for the minimum of required accomplishments (services) the strike shall be acknowledged unlawful.
• Article 413. Unlawful strikes
• Pursuant to the article 55 of the Constitution of the Russian Federation the following strikes shall be deemed unlawful and not permissible:
  • (a) during the period of military or emergency situations or special procedures in accordance with the legislation on emergency situation; in the bodies and organizations of the Armed Forces of the Russian Federation, military, militarised or other formations and organizations providing for the country defence, State safety, repair-rescuing, search-rescuing, and anti-fire operations, prevention or elimination of the Acts of God and emergency situations; in law enforcement bodies; in organizations dealing with highly hazardous facilities or machinery, at ambulance stations of first medical aid;
  • (b) in the bodies of essential public services (energy, heating, water, gas supply, air-, railway and water transport) in case if the conduct of strike threatens to the country’s defence and safety and to life and health of its people.
• The right to strike may be limited by the federal statute.
• The strike shall be unlawful if it was announced without considering the terms, procedures, and requirements of collective industrial dispute, stipulated herein.
• The decision of acknowledgement of a strike being unlawful shall be adopted by supreme courts of republics, territorial, regional courts, municipal federal courts, courts of autonomous regions and circuits upon employer’s or prosecutor’s claim.
• Award of a court shall be communicated to employees through the head of a striking unit which shall immediately inform of it the strike participants.
• Once adopted, the award, which acknowledges the strike being unlawful, is subject to immediate enforcement. Employees shall terminate the strike and return to work not later than the day after the issue of a copy of such award to the head of a striking unit.
• In case of a direct threat to life and health of people, the court shall be entitled to adjourn the non-started strike for the period of up to 30 days, in case of a strike in progress - to suspend it for the same period.
• In cases of vital importance for the interests of the Russian Federation or parts of its territory, the Government of the Russian Federation shall be entitled to suspend a strike until the issue of award by the respective court, but not more than for ten calendar days.
• In cases where a strike cannot be conducted subject to Parts I and II of this Article, the decision on a collective industrial dispute shall be issued by the Government of the Russian Federation within a ten days period.
• Article 417. Responsibility of employees
• for unlawful strikes
• Employees who have started a strike or failed to terminate it the day after the head striking unit was notified of the enacted award acknowledging the strike being unlawful, or adjournment or suspension of the strike, may be subject to disciplinary punishment for infringement of employment discipline.
• The representative unit of employees, which called and failed to terminate the strike thereafter, shall be liable to indemnify for losses incurred by employer due to the strike at its own expense and in the amount determined by the court.
• Federal Act (No. 10-FZ) on trade unions,
• their rights and guarantees of their
• activity of 1996 (relevant sections)
• Article 2. Right to unite in trade unions
  1. 1 The trade union shall be a voluntary public entity of citizens linked by common producer and professional interests, according to the line of their activity, set up for the purposes of representation and protection of their social-and-labour rights and interests. All trade unions shall enjoy equal rights.
  2. 2 Every person attaining the age of 14 years and engaged in labour (professional) activity shall have the right to set up, at his discretion, trade unions for the protection of his interests to join these, to engage in trade union activity and to withdraw from trade unions. This right shall be exercised freely, without preliminary permission.
  3. 3 Russian Federation citizens resident outside Russian Federation territory may be members of Russian Federation trade unions.
  4. 4 Foreign citizens and stateless persons resident in Russian Federation territory may be members of Russian Federation trade unions, except in the cases established by Federal laws or international treaties of the Russian Federation.
  5. 5 Trade unions shall have the right to set up their own amalgamations (associations) according to the sectoral, territorial or other feature taking professional specifics into account, such as all-Russia amalgamations (associations) of trade unions, interregional amalgamations (associations) of trade unions, and territorial amalgamations (associations) of trade union organizations. Trade unions and their amalgamations (associations) shall have the right to cooperate with trade unions of other states, to enter into international trade union and other amalgamations and organizations, and to conclude treaties and agreements with them.
• Article 3. Basic terms
• The terms used for the purposes of the present Act shall have the following meaning:
• Primary trade union organization. A voluntary association of trade union members working, as a rule, at one and the same enterprise, in one and the same institution, in one and the same organization, irrespective of form of ownership or subordination, operating on the basis of a statute adopted by it in conformity with its rules, or on the basis of a general statute of primary trade union organization of the respective trade union;
  • All-Russia trade union. A voluntary amalgamation of trade union members working in one or more branches of activity linked by common social-and-labour and professional interests, operating throughout Russian Federation territory or in the territories of over one-half of Russian Federation subjects or uniting at least one-half of the total number of workers of one or more branches of activity.