Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Bélarus (Ratification: 1956)

The Committee notes the observations of the Belarusian Congress of Democratic Trade Unions (BKDP) received on 30 September 2021, and of the International Trade Union Confederation (ITUC), received on 1 and 29 September 2021, and examined by the Committee below.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

Follow-up to the recommendations of the Commission of Inquiry appointed under article 26 of the Constitution of the ILO

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards (the Conference Committee) in June 2021 concerning the application of the Convention. The Conference Committee expressed its deep concern that, 17 years after the Commission of Inquiry’s report, the Government of Belarus had failed to take measures to address most of the Commission’s recommendations and recalled the outstanding recommendations of the 2004 Commission of Inquiry and the need for their rapid, full and effective implementation. The Conference Committee urged the Government to: restore without delay full respect for workers’ rights and freedom; implement Recommendation 8 of the Commission of Inquiry on guaranteeing adequate protection or even immunity against administrative detention for trade union officials in the performance of their duties or when exercising their civil liberties (freedom of speech, freedom of assembly, etc); take measures for the release of all trade unionists who remain in detention and for the dropping of all charges related to participation in peaceful protest action; refrain from the arrest, detention or engagement in violence, intimidation or harassment, including judicial harassment, of trade union leaders and members conducting lawful trade union activities; and investigate without delay alleged instances of intimidation or physical violence through an independent judicial inquiry. As regards the issue of legal address as an obstacle to trade union registration, the Conference Committee called on the Government to ensure that there were no obstacles to the registration of trade unions, in law and in practice, and requested the Government to keep it informed of further developments on this matter, in particular any discussions held and outcomes of these discussions in the tripartite Council for the Improvement of Legislation in the Social and Labour Sphere (hereinafter, tripartite Council). As regards the demand by the President of Belarus for the setting up of trade unions in all private companies by 2020 on the request of the Federation of Trade Unions of Belarus (FPB), the Conference Committee urged in the strongest terms the Government: to refrain from any interference with the establishment of trade unions in private companies, in particular from demanding the setting up of trade unions under the threat of liquidation of private companies otherwise; to clarify publicly that the decision whether or not to set up a trade union in private companies is solely at the discretion of the workers in these companies; and to put an immediate stop to the interference with the establishment of trade unions and refrain from showing favouritism towards any particular trade union in private companies. As regards the restrictions of the organization of mass events by trade unions, the Conference Committee urged the Government, in consultation with the social partners, including in the framework of the tripartite Council: to amend the Law on Mass Activities and the accompanying Regulation, in particular with a view to: set out clear grounds for the denial of requests to hold trade union mass events, ensuring compliance with freedom of association principles; widen the scope of activities for which foreign financial assistance can be used; lift all obstacles, in law and practice, which prevent workers’ and employers’ organizations to benefit from assistance from international organizations of workers and employers in line with the Convention; abolish the sanctions imposed on trade unions or trade unionists participating in peaceful protests; repeal Ordinance No. 49 of the Council of Ministers to enable workers’ and employers’ organizations to exercise their right to organize mass events in practice; and to address and find practical solutions to the concerns raised by the trade unions in respect of organizing and holding mass events in practice. As regards consultations in respect of the adoption of new pieces of legislation affecting the rights and interests of workers, the Conference Committee requested the Government to amend the Regulation of the Council of Ministers No. 193 to ensure that social partners enjoy equal rights in consultations during the preparation of legislation. As regards the functioning of the tripartite Council, the Conference Committee urged the Government to take the necessary measures to strengthen the tripartite Council so that it could play an effective role in the implementation of the recommendations of the Commission of Inquiry and other ILO supervisory bodies towards full compliance with the Convention in law and practice. The Conference Committee expressed its disappointment at the slow process in the implementation of the recommendations of the Commission of Inquiry. Recent developments indicated a step backward and further retreat on the part of the Government from its obligations under the Convention. The Conference Committee therefore urged the Government to take before the next Conference, in close consultation with the social partners, all necessary steps to fully implement all outstanding recommendations of the Commission of Inquiry. The Conference Committee invited the Government to avail itself of ILO technical assistance and decided to include its conclusions in a special paragraph of the report.

The Committee notes the 394th (March 2021) report of the Committee on Freedom of Association on the measures taken by the Government of the Republic of Belarus to implement the recommendations of the Commission of Inquiry.

Civil liberties and trade union rights. The Committee recalls that in its previous comments it expressed its deep concern over the serious allegations of extreme violence to repress peaceful protests and strikes, detention, imprisonment and torture of workers while in custody, submitted by the ITUC and BKDP, and the continued deterioration of the situation of human rights in the country following the presidential election in August 2020. The Committee urged the Government to take all necessary measures to implement the above-mentioned Recommendation 8 of the Commission of Inquiry; to take measures for the release of all trade unionists who remain in detention and the dropping of all charges related to participation in peaceful protests and industrial actions; to supply copies of the relevant court decisions upholding detention and imprisonment of workers and trade unionists and to provide a list of the affected persons; and to investigate without delay any alleged instances of intimidation or physical violence through an independent judicial inquiry.

The Committee notes that in its report, the Government expresses its regret at what, in its opinion, is a significant negative shift in the Committee’s assessments of the situation in Belarus in relation to the political events that took place in the country following Presidential election. The Government considers that purely political events, not related to the processes of social dialogue in the world of work, should not be the basis for assessing the situation regarding the country’s compliance with the provisions of the Convention. The Government emphasizes that external forces interested in destabilizing the country took an active organizational and financial part in the preparation and conduct of illegal street actions that took place after the election of the President, in furtherance of their own geopolitical interests. The Government points out that the main demands put forward by the protesters included the resignation of the Head of State, the holding of new elections and the exoneration of citizens who had broken the law. The Government explains that these demands have no connection to trade union or labour, social and economic rights. The Governments further points out that protests were not peaceful, but rather, were carried out in violation of the law and posed a serious threat to public order, safety, and the health and life of citizens. During the protest actions, numerous incidents of active resistance to the legal requests of law enforcement officers were recorded, involving aggression, the use of violence, damage to official vehicles, blocking the movement of vehicles, and causing damage to infrastructure facilities. The Government considers that the BKDP, the ITUC and the IndustriALL Global Union are deliberately attempting to link illegal protest actions of a political nature with an alleged strike movement in the country. The Government indicates that in practice, the discontent affected only a small segment of workers; no demands were presented to employers concerning the regulation of labour and socio-economic matters. The Government indicates that the citizens referred to in the complaints made by trade union organizations as having allegedly suffered for their participation in peaceful protests and strikes, were charged with disciplinary, administrative and, in certain cases, criminal offences for having committed specific illegal actions. In this regard, the Government indicates that it cannot provide the Committee with copies of court decisions as the national legislation does not permit copies of court decisions and other documents to be shared with persons with no connection to the proceedings. The Government emphasizes, however, that the status of a worker or a trade union leader does not confer additional privileges on the holder and does not guarantee the unconditional right to absolute freedom of actions without regard for the existing national legislation and the interests of the public and the State. The Government considers that trade union activists not only have the same rights as other citizens but also, like everyone, are answerable for violations of the law; therefore, Recommendation 8 of the Commission of Inquiry, in line with Article 8(1) of the Convention, does not require the release of trade unionists from liability for any illegal acts that they may commit. In light of the above, the Government considers that the Committee’s calls for the release of and the dropping of all charges against trade union activists who were charged with specific violations of the law to be unfounded. The Government insists that using events of a purely political nature to measure the country’s implementation of the Commission of Inquiry’s recommendations is unreasonable, counterproductive and unacceptable, and that this approach may become a serious obstacle to the continuation of the well-established constructive engagement, both within the country and with ILO experts.

As to the Committee’s and the Commission of Inquiry’s request to ensure impartial and independent judiciary and justice administration in general, the Government points out that the Republic of Belarus is a State governed by the rule of law. People, their rights and freedoms are of the highest value and concern. All are equal before the law and are entitled without discrimination to equal protection of their rights and interests. Under the provisions of article 60 of the Constitution, everyone is guaranteed protection of their rights and freedoms by a competent, independent and impartial judiciary. In dispensing justice, judges are independent and subject only to the law. Interfering with the activities of judges is prohibited.

The Committee regrets that the Government does not address the issue of the alleged intimidation and physical violence against trade unionists. The Committee notes that in her Oral Update on the Situation of Human Rights in Belarus on 24 September 2021, the High Commissioner for Human Rights stated that the scale and pattern of behaviour by the Belarusian authorities to date strongly suggested that limitations to freedoms of expression and assembly were primarily aimed at suppressing criticism of and dissent from Governmental policies, rather than any aim regarded as legitimate under human rights law, such as the protection of public order. The High Commissioner was also alarmed by persistent allegations of widespread and systematic torture and ill-treatment in the context of arbitrary arrests and detention of protesters. The Committee notes with deep concern new detailed allegations of criminal prosecution, arrests and imprisonment of trade unionists and the sentencing of three trade unionists to three years of imprisonment. It further notes with concern the allegations of searches of trade union premises and houses of trade union leaders by the police, disruption of trade union meetings by law enforcement forces, and acts of retaliation and pressure on workers to leave trade unions submitted by the BKDP and the ITUC. The Committee recalls that the UN High Commissioner for Human Rights reported to the Human Rights Council in December 2020 that the monitoring and analysis of demonstrations since 9 August 2020 indicated that participants were overwhelmingly peaceful. The Committee once again recalls the International Labour Conference 1970 resolution concerning trade union rights and their relation to civil liberties, which emphasizes that the rights conferred upon workers’ and employers’ organizations must be based on respect for civil liberties, as their absence removes all meaning from the concept of trade union rights. Among those liberties essential for the normal exercise of trade union rights are freedom of opinion and expression, freedom of assembly, freedom from arbitrary arrest and detention and the right to a fair trial by an independent and impartial tribunal. The Committee further considers that strikes and demonstrations relating to the Government’s economic and social policies cannot be regarded as purely political strikes, which are not covered by the principles of the Convention. In its view, trade unions and employers’ organizations responsible for defending socio-economic and occupational interests should be able to use strike or protest action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members. Moreover, noting that a democratic system is fundamental for the free exercise of trade union rights, the Committee considers that, in a situation in which they deem that they do not enjoy the fundamental liberties necessary to fulfil their mission, trade unions and employers’ organizations would be justified in calling for the recognition and exercise of these liberties and that such peaceful claims should be considered as lying within the framework of legitimate trade union activities, including in cases when such organizations have recourse to strikes (see the 2012 General Survey on the fundamental Conventions, paragraph 124).

The Committee once again recalls that the Commission of Inquiry on Belarus considered that adequate protection or even immunity against administrative detention should be guaranteed to trade union officials in the performance of their duties or when exercising their civil liberties (freedom of speech, freedom of assembly, etc.). While noting the Government’s reference to paragraph 1 of Article 8 of the Convention, the Committee recalls that it should be read together with paragraph 2 of the same Article, according to which, the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention. The Committee points out that for a number of years, the ILO supervisory bodies have been expressing concerns at the numerous violations of the Convention in law and in practice in Belarus. The Committee therefore once again urges the Government in the strongest of terms to investigate without delay all alleged instances of intimidation or physical violence through an independent judicial inquiry and to provide detailed information on the outcome. The Committee further urges the Government to take measures for the release of all trade unionists who remain in detention and for dropping of all charges related to participation in peaceful protest action. The Committee expects the Government to provide detailed information on all measures taken in this regard.

The Committee notes the Government’s indication that it cannot provide court judgments as per the Committee’s request as the legislation in force does not provide for such a possibility, which implies that court decisions and judgments are not public. The Committee emphasizes that when it requests a government to furnish judgments in judicial proceedings, such a request does not reflect in any way on the integrity or independence of the judiciary. The very essence of judicial procedure is that its results are known, and confidence in its impartiality rests on their being known. In addition, the absence of court judgments prevents the Committee from examining or confirming the Government’s conclusion that the arrests in question were unrelated to the exercise of basic trade union rights. The Committee further recalls that the International Covenant on Civil and Political Rights, in Article 14, states that everyone shall be entitled to a fair and public hearing. The Committee emphasizes that the right to a fair and public hearing implies the right for the judgment or decision to be made public and that the publicizing of decisions is an important safeguard in the interest of the individual and of society at large. The Committee also recalls that the absence of guarantees of due process of law may lead to abuses and may also create a climate of insecurity and fear which may affect the exercise of trade union rights. The Committee requests the Government to take all necessary steps, including legislative, if necessary, to ensure the right to a fair trial. Further in this respect, the Committee, with reference to the recommendations of the Commission of Inquiry, stresses the need to ensure impartial and independent judiciary and justice administration in general in order to guarantee that investigations into these grave allegations are truly independent, neutral, objective and impartial. Accordingly, the Committee also renews its request that the Government take steps, including by legislation if necessary, to supply copies of the relevant court decisions upholding detention and imprisonment of workers and trade unionists.

Article 2 of the Convention. Right to establish workers’ organizations. The Committee recalls that in its previous observations, it had urged the Government to consider, within the framework of the tripartite Council, the measures necessary to ensure that the matter of legal address ceases to be an obstacle to the registration of trade unions in practice. In particular, it expected the Government, as a member of the tripartite Council, to submit the Committee’s comments on the issue of registration for the Council’s consideration at one of its meetings as soon as possible.

The Committee notes the Government’s indication that the possibility of implementing the Committee’s recommendation may be considered when the tripartite Council resumes its work once the epidemiological situation in the country has improved. To that end, a member of the tripartite Council, submitting this issue for discussion must also establish that the issue is one of concern. In the Government’s opinion, in practice, the question of legal address is not an obstacle to registration as trade unions have been offered the possibility to be assigned not only the address where the employer is located, but that of any other location. The Committee notes detailed statistical data on the number of registered trade unions and their organizational structures provided by the Government. It notes, in particular that while in the first six months of 2021, 1,278 organizational structures have been registered, there was only one refusal to register a union; in that particular case because the union’s constitution was not in conformity with the legal requirements. The Government considers that the assertions by the BKDP, that the legal requirement for trade unions and their organizational structures to submit a legal address in order to register constitutes an obstacle to trade union activities in Belarus, appear to lack any objective substance.

In this connection, the Committee notes with concern new allegations submitted by the BKDP and the ITUC regarding several cases of refusals to register primary organizations of the BKDP affiliates. The Committee requests the Government to provide its observations thereon. The Committee further once again requests the Government to put the issue of registration of trade union organizations, including the question of legal address requirement, on the agenda of the tripartite Council, as per its previous request and most recent call by the Conference Committee, which considered this issue to be of concern. The Committee expects the Government to provide detailed information on the outcome of the discussion by the tripartite Council.

As regards the demand by the President of Belarus for the setting up of trade unions in all private companies by 2020 on the request of the FPB, which the Committee considered to be a display of favouritism towards the Federation and interference with the establishment of trade unions in private companies, the Committee notes the Government’s indication that the FPB is the country’s most representative and active among social partners when it comes to developing, improving and implementing socioeconomic policy. As part of its considerable commitment to protect the labour, social and economic rights of citizens, the FPB constantly brings to the authorities’ attention the most current, critical and problematic issues that workers face in exercising their rights. In defending the rights of citizens, the FBP trade unions regularly deal with and actively collaborate with the authorities, including at the highest levels. During a meeting between the Head of State and the chairperson of the FPB as leader of the country’s largest and most representative trade union, the President of Belarus clearly set out the State’s position that private companies must not obstruct workers’ right to join a trade union, and also expressed his appreciation of the trade unions’ work to defend the labour and socioeconomic rights of citizens.

The Committee observes with deep regret the absence of information on the measures taken by the Government to refrain from interference with the establishment of trade unions in private companies and the lack of any public clarification that the decision to set up a trade union is solely at the discretion of workers themselves. Instead, the Government provides what appears to be a justification for the favouritism of the FPB at the higher levels of the State. The Committee further notes with deep concern that on 5 August 2021, in his televised meeting with the leader of the FPB, the Head of the State reiterated his previous statement and stressed that “if certain private companies had not understood his message, the Government should immediately discuss these issues and make specific proposals, including on liquidation of private companies that refuse to have trade union organizations”. The Committee draws the Government’s attention to the fact that all three ILO bodies responsible for the supervision and follow-up of the implementation of the recommendations of the Commission of Inquiry on Belarus in relation to the non-observance of this Convention, i.e. this Committee, the Conference Committee and the Committee on Freedom of Association, concluded, that such demands by the country’s President constituted an interference with the establishment of trade union organizations and favouritism towards a particular trade union, and therefore a violation of Article 2 of the Convention. The Committee therefore once again urges the Government to refrain from any interference with the establishment of trade unions in private companies, in particular from demanding the setting up of trade unions under the threat of liquidation of private companies otherwise; to clarify publicly that the decision whether or not to set up a trade union in private companies is solely at the discretion of the workers in these companies; and to refrain from showing favouritism towards any particular trade union in private companies. The Committee expects that all steps in this regard will be taken without delay and detailed in the Government’s next report.

Articles 3, 5 and 6. Right of workers’ organizations, including federations and confederations, to organize their activities. Legislation. The Committee recalls that the Commission of Inquiry had requested the Government to amend Presidential Decree No. 24 (2003) on Receiving and Using Foreign Gratuitous Aid. The Committee recalls in this respect that it had considered that the amendments should be directed at abolishing the sanctions imposed on trade unions (liquidation of an organization) for a single violation of the Decree and at widening the scope of activities for which foreign financial assistance can be used so as to include events organized by trade unions. The Committee recalls that Decree No. 24 had been superseded by Presidential Decree No. 5 (2015) and then by Decree No. 3 of 25 May 2020, under which the foreign gratuitous aid could still not be used to organize or hold assemblies, rallies, street marches, demonstrations, pickets or strikes, or to produce or distribute campaign materials, hold seminars or carry out other forms of activities aimed at “political and mass propaganda work among the population”, and that a single violation of the Regulation still bore the sanction of possible liquidation of the organization. The Committee observed that the broad expression “political and mass propaganda work among the population” when applied to trade unions may hinder the exercise of their rights as it was inevitable and sometimes normal for trade unions to take a stand on questions having political aspects that affect their socio-economic interests, as well as on purely economic or social questions.

Further in this connection, the Committee recalls that the Commission of Inquiry had requested the Government to amend the Law on Mass Activities, under which, a trade union that violates the procedure for organizing and holding mass events may, in the case of serious damage or substantial harm to the rights and legal interests of other citizens and organizations, be liquidated for a single violation. The Committee further recalls that it had also noted with regret the Regulation on the procedure of payment for services provided by the internal affairs authorities in respect of protection of public order, expenses related to medical care and cleaning after holding a mass event (Ordinance of the Council of Ministers No. 49). The Regulation outlines the fees in relation to maintenance of public services and provides for the expenses of the specialized bodies (medical and cleaning services) that must be paid by the organizer of the event.

Reading these provisions alongside those forbidding the use of foreign gratuitous aid for the conduct of mass events, the Committee considered that the capacity for carrying out mass actions would appear to be extremely limited if not non-existent in practice. The Committee therefore urged the Government to amend Decree No. 3 of 25 May 2020 on the registration and use of foreign gratuitous aid, the Law on Mass Activities and the accompanying Regulation, and recalled that the amendments should be directed at abolishing the sanctions imposed on trade unions or trade unionists for a single violation of the respective legislation; at setting out clear grounds for the denial of requests to hold trade union mass events, bearing in mind that any such restriction should be in conformity with freedom of association principles; and at widening the scope of activities for which foreign financial assistance can be used.

The Committee notes that the Government once again reiterates that there is no link between the established procedure for obtaining funding from abroad (foreign gratuitous aid) and Articles 5 and 6 of the Convention. The Government once again points out that allowing external forces (in this case the trade unions of other countries and international trade union associations) to sponsor the holding of mass events in Belarus can present an opportunity to destabilize the socio-political and socio-economic situation, which in turn has an extremely negative effect on public life and citizens’ wellbeing. Thus, the existing ban on receiving and using foreign gratuitous aid for the purposes of conducting political and mass propaganda work among the population is bound up with the interests of national security, and the need to exclude any possible destructive influence and pressure from external forces. The Government further reiterates that the exercise of the right of peaceful assembly is not subject to any restrictions, except those that are imposed in conformity with the law and are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals, the protection of the rights and freedoms of others. In holding mass events, trade unions are obliged to observe public order and must not permit actions which may cause an event to lose its peaceful character and inflict serious harm on citizens, society or State. In the Government’s opinion, the legal penalty prescribed for the organizers of mass events which cause substantial damage or harm to the interests of citizens and organizations, and also to the interests of State and society, does not constitute, and should not be interpreted as, a constraining factor on the exercise of their rights to freedom of peaceful assembly by citizens and trade unions. The Government once again points out that the decision to terminate the activities of a trade union for a violation of the legislation on mass events which caused serious damage and significant harm to the rights and interests of citizens, organizations, society and the State, can only be taken in court. No decisions have been taken to disband trade unions for violating the procedure for organizing and holding mass events in Belarus. In light of the above, the Government considers that any relaxation of responsibility for violation of the procedure for holding mass events or any lifting of restrictions on the use of foreign financial aid for the holding of political and mass propaganda work could only lead to circumstances likely to strengthen the external destructive influence on the situation in the country, which does not serve the interests of the country.

The Committee notes with deep regret that the Government merely reiterates the information it had previously provided and in particular, that it has no intention of amending the legislation as requested by the Commission of Inquiry, whose recommendations the Government accepted as per article 29(2) of the ILO Constitution, with follow-up of the implementation of the recommendations entrusted by the Governing Body to the CFA, this Committee and the Conference Committee. The Committee notes that the Law on Mass Activities was amended on 24 May 2021 and observes with regret in this respect that according to the BKDP and publicly available information, the amendment aims at further tightening the requirements for holding public events as follows: the organization of mass events has to be authorized by municipal authorities; funds cannot be raised, money and other assets cannot be received and used, services cannot be rendered in order to compensate for the cost caused by prosecution for violating the established procedure of organization of mass events; public associations will be held responsible if their leaders and members of their governing bodies make public calls for organizing a mass event before the permission to organize the event is granted.

The Committee further notes with deep regret that on 8 June 2021, the Criminal Code was amended so as to introduce the following restrictions and associated penalties: repeated violations of the procedure for organizing and holding of mass events, including public calls therefor, are punishable by arrest, or restraint of liberty or imprisonment of up to three years (section 342-2); insult of a government official is punishable by a fine and/or restriction of liberty or imprisonment for up to three years (section 369); the penalty for “discrediting the Republic of Belarus” was increased from two to four years imprisonment with a fine (section 369-1); section 369-3 of the Criminal Code has been retitled from “violation of procedure for organizing and holding of mass events” to “public calls for the organization or conduct of an illegal meeting, rally, street procession, demonstration or picketing, or the involvement of persons in such mass events”, which became an offence punishable by up to five years of imprisonment. The BKDP points out that criminal liability can now be established simply for organizing peaceful assemblies and that any criticism and slogans are seen by the authorities as insults within the meaning of section 369 of the Criminal Code. The BKDP alleges that there are many precedents of bringing citizens, including members of independent trade unions, to criminal responsibility under section 369 of the Criminal Code. The BKDP also draws attention to the statement of the Minister of Labour and Social Protection to the Conference Committee in June 2021 when she stated that the BKDP spoke out against the Government and took steps against the interest of the State and the Government, calling for a boycott of Belarusian goods and application of sanctions. The BKDP alleges in this respect that its leaders are under the threat of being prosecuted under section 369-1 of the Criminal Code. The Committee recalls that the right to express opinions, including those criticizing the Governments economic and social policy, is one of the essential elements of the rights of occupational organizations. With reference to the considerations above and below, the Committee further once again recalls that the mere fact of participation in peaceful assemblies should not be penalized by detention or imprisonment. The Committee also recalls that simply calling for a demonstration and any other public event, even if declared illegal by the courts, should not result in arrest and that in general, sanctions should be envisaged only where, during such event, violence against persons or property, or other serious infringements of penal law have been committed.

The Committee therefore reiterates its previous request to amend without further delay and in consultation with the social partners, Decree No. 3, the Law on Mass Activities and the accompanying Regulation (Ordinance No. 49 of the Council of Ministers), as per the outstanding recommendations of the Commission of Inquiry, the Conference Committee, the Committee of Freedom of Association and this Committee. The Committee further requests the Government to repeal the above-mentioned amended provisions of the Criminal Code in order to bring them into compliance with the Government’s international obligations regarding freedom of association.

Practice. The Committee recalls that it had urged the Government to engage with the social partners, including in the framework of the tripartite Council, with a view to addressing and finding practical solutions to the concerns raised by the unions, in particular, the BKDP, in respect of organizing and holding mass events. The Committee further requested the Government to provide statistical information on the requests submitted and permissions granted and denied, segregated by the trade union centre affiliation.

The Committee notes that the Government indicates that the BKDP and its affiliated unions, like the FPB, have repeatedly exercised their right to freedom of assembly and held mass events. The Government reiterates that all decisions to deny the holding of mass events were taken by local executive and regulatory bodies in accordance with the law and with due regard to the obligation to uphold citizens’ right to freedom of association and the right of trade unions to take collective action to defend their members’ interests. The Government once again indicates that the most common reasons for refusal to grant authorization to hold a mass event were: the application did not contain the information required by the law; the event was to take place in a location not allowed for such a purpose; the documents submitted did not indicate the precise location of the event; the event was announced in the mass media prior to receiving authorization; another mass event was being held in the same place at the same time. The Government considers that the denials of permission to hold mass events relate not so much to legal requirements that are excessive or difficult to comply with, but rather to inadequate preparation by the organizers and points out that once the shortcomings have been rectified, the organizers can re-apply for authorization. The Government further indicates that the possibility of discussing the issues of the organization and holding of mass events in the framework of the tripartite Council can be reviewed once the Council resumes its work when the epidemiological situation improves. The Government points out, however, that a necessary condition for the review by the Council is that the initiator should submit information which establishes that the issue is one of concern. The Committee considers that the Government, as a member of the tripartite Council and as ultimately responsible for ensuring respect for freedom of association on its territory, should be in the position to place on the agenda of the tripartite Council the concerns expressed by the ILO supervisory bodies with regard to the issues of the exercise of the right to demonstrate and hold public meetings in practice. The Committee expects the Government to provide information on the outcome of such discussions with its next report. The Committee requests the Government to provide statistical information on the requests to demonstrate and to hold public meetings that have been submitted, and the permissions granted and denied, segregated by the trade union centre affiliation.

The Committee recalls the 2019 BKDP and ITUC allegations regarding the cases of Messrs Fedynich and Komlik, leaders of the REP union, found guilty, in 2018, of tax evasion and use of foreign funds without officially registering them with the authorities as per the legislation in force. They were sentenced to four years of suspended imprisonment, restriction of movement, a ban on holding senior positions for five years and a fine of BYN47,560 (over US$22,500 at that time). In this connection, the Committee also noted the BKDP allegation that the equipment seized during searches in the REP union and BNP premises had not been returned and requested the Government to provide information thereon.

The Committee notes the Government’s indication that in view of the application of amnesty legislation to the convicted offenders, the main punishment, in the form of restriction of freedom without being sent to an open-type institution, has been served by Mr Fedynich and Mr Komlik in full. The further fate of the information storage devices seized during the investigation of the criminal case will be decided after completion of a check to establish whether the persons concerned have committed other crimes of a similar nature. The Committee notes that the particulars of these cases are being considered by the Committee on Freedom of Association in the framework of its examination of the measures taken by the Government to implement the recommendations of the Commission of Inquiry.

Right to strike. The Committee recalls that it had been requesting the Government for a number of years to amend sections 388(1), (3) and (4), 390, 392 and 393 of the Labour Code. The Committee regrets that the Government merely reiterates its previously expressed consideration that the national legislation is in conformity with the international labour instruments, which in any case do not expressly provide for the right to strike; that the legality of the interpretation by the ILO supervisory bodies that Convention No. 87 enshrines the right to strike has repeatedly and rightly been questioned; that only the International Court of Justice has the right to interpret ILO Conventions for subsequent mandatory application of that interpretation by the members States; that in Belarus, according to section 388 of the Labour Code, a strike constitutes a temporary and voluntary refusal by workers to perform their employment duties (fully or in part) for the purpose of settling a collective labour dispute; and that strikes of political nature are forbidden. The Government once again states that unauthorized protest actions that took place after the presidential election campaign in 2020 and the attempts to organize a strike movement in enterprises without regard for the law have nothing to do with the exercise of trade unions’ rights and the work carried by trade unions to protect workers or the social and economic rights of citizens. The Government adds that the broader issues relating to economic and social policy take place in the framework of the social partnership system through negotiations, consultations and the rejection of confrontation. The Government therefore reiterates that amending the legislation regulating strikes would not facilitate the exercise of the right of workers’ organizations to act in full freedom, but to the contrary, would create additional opportunities for abuse by every kind of destructive agent and provide an instrument for undermining the country’s economic potential.

The Committee deems it important to once again recall that its opinions and recommendations derive their persuasive value from the legitimacy and rationality of the Committee’s work based on its impartiality, experience and expertise. The Committee’s technical role and moral authority are well recognized, particularly as it has been engaged in its supervisory task for 95 years, by virtue of its composition, independence and its working methods built on continuing dialogue with governments taking into account information provided by employers’ and workers’ organizations. This has been reflected in the incorporation of the Committee’s opinions and recommendations in national legislation, international instruments and court decisions. It is within this mandate that it has been dealing with the questions pertaining to the right to strike.

The Committee notes with regret that the Labour Code was amended on 28 May 2021 to further restrict the right to strike by expressly allowing an employer to dismiss/terminate a labour contract with a worker who is absent from work in connection with serving an administrative penalty in the form of an administrative arrest; who forces other workers to participate in a strike or calls on other workers to stop performing work duties without sound reason; and who participates in an illegal strike or other forms of withholding labour without sound reasons (section 42(7)). Recalling the BKDP allegations that numerous trade unionists who participated in mass events and strikes organized following the August 2020 Presidential election were found guilty of administrative breaches and received corresponding penalty in the form of administrative arrest, the Committee notes that in its latest observations, the BKDP provides a list of workers who in such circumstances were dismissed. The Committee regrets that the amendment of the Labour Code would appear to facilitate the dismissal and penalization of workers for exercising their civil liberties and trade union rights. The Committee is therefore bound to request the Government to take measures, in consultation with the social partners, to revise the above-mentioned legislative provisions, which negatively affect the right of workers’ organizations to organize their activities in full freedom, and to provide information on all measures taken or envisaged to that end.

The Committee recalls that it had previously noted with concern detailed allegations of numerous cases of arrests, detention of and fines imposed on trade unionists for having organized and participated in strikes following the August 2020 events. The Committee notes with concern new detailed allegations of retaliation (arrests, detention, fines and dismissals) against trade unionists and workers who participated in trade union led strike actions. With reference to its considerations regarding the exercise of civil liberties and their importance for exercising trade union rights outlined above, the Committee urges the Government to conduct independent inquiries into the BKDP and the ITUC allegations bearing in mind the above considerations and to provide all relevant particulars on the outcome with its next report.

Consultations with the organizations of workers and employers. The Committee recalls that in its previous comment it had noted that the BKDP alleged lack of consultations in respect of the adoption of new pieces of legislation affecting the rights and interest of workers. The Committee had further noted Regulation of the Council of Ministers No. 193 of 14 February 2009, pursuant to which, draft legislation affecting labour and socio-economic rights and interests of citizens is submitted to the FPB as the most representative organization of workers for possible comments and/or proposals. The Committee had requested the Government to amend the Regulation so as to ensure that the BKDP and the FPB, as members of both the National Council on Labour and Social Issues (NCLSI) and the tripartite Council, enjoyed equal rights in consultations during the preparation of legislation. The Committee notes that the Government considers that the Regulation is in conformity with international labour standards and reiterates in this respect that the FPB, as an organization with a higher overall number of members, has preferential rights in the processes of consultation on legislation affecting rights and interest of workers. The Committee is bound to emphasize once again that in determining the representativeness of an organization, both the number of members and independence from the authorities and employers’ organizations are essential elements for consideration. In light of the above-noted publicly expressed support by the State authorities at the highest level for the FPB, the Committee is once again bound to reiterate its previous comments made in 2007, which recalled the importance of ensuring an atmosphere in which trade union organizations, whether within or outside the traditional structure, are able to flourish in the country before establishing the notion of representativeness.  The Committee once again requests the Government to amend Regulation No. 193 without further delay and to provide information on all measures taken in this respect.

With regard to the Committee’s request to further strengthen the role of the tripartite Council, which should, as its title indicates, serve as a platform where consultations on the legislation affecting rights and interests of the social partners and workers and employers represented by them can take place, the Committee notes that the Government reiterates that the tripartite Council was set up with the advice of the ILO to consider issues related to the implementation of the recommendations of the Commission of Inquiry as well as other issues that may arise between the Government and its social partners, including the consideration of complaints received from trade unions. The Committee notes that the Government reiterates its willingness to either work to further improve the tripartite Council’s function or to create another structure. The Committee also notes that the Government once again expresses its concern over the issue of representation at the Council and the willingness of the parties to accept the decisions that will be made within this tripartite body.

The Committee notes with concern the BKDP allegation that laws and regulations affecting labour and social interests of people are adopted without due public discussion and coordination with the interested parties. The BKDP alleges that it is also being excluded from the process and that its chairperson was not invited to the meeting of the NCLSI in 2020, nor to the meeting held on 29 April 2021 by videoconference to discuss the preparation of the draft General Agreement for 2022-2024, nor to the meeting held on 28 July 2021, also by videoconference, to discuss the issue of economic sanctions imposed on the country. The BKDP indicates that on 15 July 2021 it sent a letter to the Ministry of Labour and Social Protection suggesting to convene a meeting of the tripartite Council to discuss the possibility of developing an Action Plan for the implementation of the conclusions of the Conference Committee and the recommendations of the Commission of Inquiry, but that it received no reply. The Committee requests the Government to provide its comments thereon.

The Committee notes the Government’s indication that various actions it has taken – the steps to develop the social partnership system which involves all interested trade unions and employers’ associations in the dialogue, its constructive cooperation with the ILO to implement the Commission of Inquiry’s recommendations and its openness to further cooperation – confirm the commitment of Belarus to the underlying principles and rights at work and its readiness to continue to engage on issues of concern raised by the parties. The Committee expects that the Government will fully engage with the social partners, the ILO, as well as relevant national institutions and bodies, with a view to improving the functioning, procedures and the work of the tripartite Council aimed at enhancing its impact in addressing the issues stemming from the recommendations of the Commission of Inquiry and other ILO supervisory bodies.

Labour disputes resolution system. The Committee recalls that it had previously noted the need to continue working together towards building a strong and efficient system of dispute resolution, which could handle labour disputes involving individual, collective and trade union matters. The Committee notes that the Government emphasizes its commitment to continuing its joint work with the social partners and the ILO to develop such a system. In this connection the Government expresses its appreciation of the assistance received from the ILO to further the work of the tripartite Council, which in the Government’s opinion has shown positive and concrete results. The Committee requests the Government to actively engage with the social partners with a view to developing a labour dispute resolution system that is robust, efficient and enjoys the confidence of the parties. It requests the Government to indicate all measures and steps taken to that end.

The Committee recalls that in its 2004 report, the Commission of Inquiry considered that its recommendations should be implemented without further delay and that the majority of its recommendations should be completed at the latest by 1 June 2005. The Committee deeply regrets that 17 years later, the situation in Belarus remains far from ensuring full respect for freedom of association and the application of the provisions of the Convention and that many of the recommendations of the Commission of Inquiry have not been implemented. The Committee observes that the 2021 Conference Committee urged the Government to take before the 2022 International Labour Conference, in close consultation with the social partners, all necessary steps to fully implement all outstanding recommendations of the Commission of Inquiry. The Committee regrets  to observe that the recent developments, including of legislative nature, as examined above appear to indicate continuing steps backward on some previously achieved progress.  The Committee therefore urges the Government to pursue its efforts referred to above and expects that the Government, with the assistance of the ILO and in consultation with the social partners, will take the necessary steps to fully implement all outstanding recommendations without further delay.

In light of the situation described, the Committee is obliged to note that there has been no meaningful progress towards full implementation of the 2004 Commission of Inquiry recommendations, and notes with grave concern that the recent developments referred to in detail above and the apparent lack of action on the part of the Government to follow up on the conclusions of the Conference Committee in consultation with all the social partners in the country would appear to demonstrate a lack of commitment to ensure respect for its obligations under the ILO Constitution.

[The Government is asked to reply in full to the present comments in 2022.]