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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Mongolia (RATIFICATION: 1969)

Article 2 of the Convention. Right of workers and employers to form and join organizations of their own choosing. The Committee takes note of the adoption of the revised Labour Law on 2 July 2021 and welcomes the fact that the scope of the new law covers all workers according to its section 3.6.

The Committee notes that section 9.2 of the Labour Law establishes that the conditions and procedures for implementing the right to freedom of association shall be set out by law; though it also observes that neither this section nor the Government’s report indicate what the applicable law is or is envisaged to be. Recalling that the right to freedom of association applies to employers and workers irrespective of the recognition of this right in labour laws or other regulation, the Committee requests the Government to provide information as to the law or regulations that section 9.2 of the Labour Law intends to refer to, as well as a copy thereof.

The Committee recalls that in its previous comments it had noted the Government’s indication that it was discussing with the Mongolian Employers’ Federation (MONEF) a draft law on the legal status of employers, with an emphasis on the independence of employers’ organizations and their right to draw up their own by-laws and determine their structure, activities and programmes. The Committee had requested the Government to provide information on the outcome of this process, and to transmit a copy of the law on the legal status of employers as soon as it would be adopted. Noting the absence of reply from the Government in this respect, the Committee expects that the law on the legal status of employers will be adopted without further delay and once again requests the Government to provide information on any progress made, as well as to provide a copy of the law.

Article 3. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee had also requested the Government to take the necessary measures, in consultation with the social partners, in order to ensure that trade unions can use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends and have recourse to sympathy strikes by virtue of the freedoms set out in article 16 of the national Constitution. Noting that the Committee’s request has not been reflected in the final version of the Labour Law, the Committee requests the government to provide its comments in this respect and encourages it to continue discussing the matter with the social partners.

The Committee additionally notes that, according to section 26.1 of the Labour Law, “a decision to declare a strike shall be taken by the management of a trade union at the relevant level following an affirmative vote by a majority at the general meeting of employees of the particular enterprise, organization, branch or unit contemplating a strike with the overwhelming majority of employees participating in a vote on whether or not to declare a strike”. The Committee observes that this provision requires a quorum of the “overwhelming majority” of workers of the business or organization, and of those a “majority” of workers voting in favour. The Committee considers that the quorum and the majority required should not be such that the exercise of the right to strike becomes very difficult, or even impossible in practice. In the Committee’s view, if a country deems it appropriate to require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level. For example, the observance of a quorum of two thirds of those present may be difficult to reach and could restrict the right to strike in practice (see the 2012 General Survey on the fundamental Conventions, paragraph 147). In view of the above, the Committee requests the Government to provide clarification as to the meaning of the “overwhelming majority” requirement with respect to quorum and of the “majority” of votes required before a strike can be held at the enterprise level.

The Committee finally notes that according to section 28.1 “employees and members of staff of organizations that provide services essential to the public, such as national defence, national security and enforcement of public order, shall have a right to associate and initiate the conclusion of collective agreements, but shall be prohibited from initiating, organizing or participating in a strike. The Cabinet shall adopt a list of enterprises and organizations that provide such essential services based on a recommendation of the National Committee”. The Committee wishes to recall in this respect that acceptable restrictions or prohibition of the right to strike concern public servants “exercising authority in the name of the State” and essential services, which are only those “the interruption of which would endanger the life, personal safety or health of the whole or part of the population” (see the 2012 General Survey on the fundamental Conventions, paragraphs 129 and 131). In view of the above, the Committee requests the Government to provide information as to the list adopted on the basis of section 28.1 of the Labour Law.