Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Azerbaijan (Ratification: 1992)

The Committee notes the information supplied by the Government in its reports of February and October 1998 in response to its previous comments.

In its previous observation, the Committee had noted that the legislation grants trade unions the right to strike in accordance with the legislation in force. However it had noted the Government's indication to the effect that the Penal Code in force, section 188-3, governs participation in collective activities creating a public disturbance. The Committee had noted that this provision contains important restrictions on the right of workers to participate in collective action aimed at disturbing transport operations, state and public institutions and undertakings, combined with severe sanctions, including sentences of imprisonment for up to three years. The Committee had recalled that the right to strike is an intrinsic corollary of the right to organize protected by the Convention. It had considered that restrictions or prohibitions on the right to strike should be limited to public servants exercising authority in the name of the State or in essential services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. It had requested the Government to amend or repeal this provision where it could apply to strikes in public transport or state or public institutions or undertakings which are not essential services within the strict meaning of the terms.

The Committee notes from the Government's report received in December 1997 that under article 36 of the Constitution of November 1995 everyone has the right to strike, and that strikes are temporarily regulated by the USSR Act concerning procedure for the settlement of collective labour disputes of May 1991 which has remained in force, while a new Act concerning collective labour disputes is currently being prepared.

The Government explains that, in accordance with section 12 of the Act in force, strikes are not permitted in cases where this creates a threat to people's lives and health, as well as in railway enterprises or municipal transport including the metro, in civil aviation, communications, power production, defence-related industries and enterprises, state bodies, organizations for the enforcement of law and order and the maintaining of national security, and enterprises engaged in continuous operations, the halting of which might entail serious and hazardous consequences. The Government adds that the participation in a legal strike, in accordance with section 13 of the Act, shall not be considered a breach of labour discipline and cannot entail the application of disciplinary or other measures provided for by law. As a result, the Government believes that the participants in strikes are sufficiently protected from the possibility of article 188-3 of the Criminal Code being applied to them.

While noting these explanations, the Committee notes that under the Act of 1991 (section 12), strikes are forbidden in a number of enterprises and organizations which are not essential services in the strict sense of the term and in particular in railway enterprises, municipal transport including the metro and civil aviation, communications and power production. The Committee observes moreover that nothing in the law prevents article 188-3 of the Criminal Code from being applied to strikes particularly in the transport sector, and in state and public institutions and undertakings.

In its latest report received by the Office on 6 October 1998, the Government explains that a new Act on the Settlement of Collective Labour Disputes was adopted on 15 May 1998. Section 22 of the Act prohibits strikes in certain services related to security, health and life support, such as hospitals, power and water supply, communication, air control services and fire services. Certain provisions of previous legislation are no longer in force.

The Committee notes this information with interest. It will examine the contents of the new law once it is translated. However, the Committee again requests the Government to amend or repeal article 188-3 of the Criminal Code so that it would not be applied to strikes in non-essential services.

In its previous comments the Committee had also noted that, pursuant to section 6(1) of the Trade Union Act No. 792 of 24 February 1994, trade unions are prohibited from engaging in political activity, associating with political parties or carrying out joint activities with them and providing assistance or donations to political parties or receiving assistance or donations from them. The Committee had indicated that while being aware of the political problems which the country had faced, it considered that the wholesale prohibition to engage in political activities imposed on trade unions was not in conformity with the right of workers' organizations to organize their activities and programmes in full freedom. It had requested the Government to take measures to lift the total ban on political activities of trade unions.

In its report of February 1998, the Government states that, in accordance with current legislation, trade union members just like other persons are entitled to join political parties and that through the membership in the appropriate parties, trade union members can take part in political activities.

While taking note of this statement, the Committee must point out that in its General Survey on freedom of association and collective bargaining in 1994 it had noted with satisfaction the abolition of the legislative provision that had established a close relationship between trade union organizations and the single political party in power and the introduction of the autonomy and independence of trade unions now enshrined in the legislation of many countries. It had regretted, however, the imposition in some countries of a total ban on any political activities by trade unions and it had recalled that during the preparatory work on Convention No. 87 it had been stated that trade union activities cannot be restricted solely to occupational matters, since a government's choice of a general policy is bound to have an impact on workers' remuneration, working conditions, functioning of enterprises and social security. The Committee considers that the development of the trade union movement and its role as a social partner means that workers' organizations must be able to voice their opinions on political issues and especially on a government's economic and social policy. But it recalls that the 1952 resolution of the International Labour Conference concerning the independence of the trade union movement remains valid and that when trade unions decide to establish relations with political parties as a means towards the advancement of their economic and social objectives, such political relations should not be of such a nature as to compromise the continuance of the trade union movement irrespective of political changes in the country (see paragraphs 130 to 133 of the General Survey). The Committee therefore once again urges the Government to amend its legislation so as to lift the ban on any political activity by trade unions and to allow a reasonable balance between the legitimate interests of organizations in expressing their point of view on matters of economic and social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities on the other hand.

The Committee hopes that the Government will make every effort to take the necessary measures to bring its legislation and its practice into full conformity with the provisions of the Convention and requests the Government to indicate the progress made on these issues.