Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Lithuania (Ratification: 1994)

Lithuania (ratification: 1994)

The Committee notes the information contained in the Government’s report. The Committee also notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2078 (see 324th Report, paragraphs 592-622; 325th Report, paragraphs 44-46; 326th Report, paragraphs 99-101; and 327th Report, paragraphs 74-76).

Articles 3 and 10 of the Convention. Right of workers’ organizations to organize their activities without interference from the public authorities. The Committee recalls that in its previous comments it had noted that the Act of 1992 on the Settlement of Collective Disputes created serious obstacles to the right to legal strike and in particular:

(a)  section 10 which prohibits the right to strike by, among others, workers in heating and gas supply companies and public servants not considered to be those exercising authority in the name of the State;

(b)  section 12 which enables the Government in practice to determine unilaterally the minimum service in case of a strike in certain services;

(c)  section 10 which provides that strikes might be prohibited in regions where a state of emergency had been declared; the Committee had also requested the text of the new Act No. I-551 of 2000 amending the Penal Code and the amendments that it has introduced to the Criminal Code in order to ensure that they do not unduly restrict industrial action;

(d)  the need to define compensatory guarantees for workers employed in essential services in the strict sense of the term who may be prohibited from taking industrial action;

(e)  section 13 which enables the courts to delay for 30 days a strike that has not yet begun and for another 30 days a strike that has already begun in case of "especially important reasons".

The Committee notes the statement in the Government’s report that the Act of 1992 on the Settlement of Collective Disputes will be replaced by a new Labour Code which was adopted on 4 June 2002 and will enter into force on 1 January 2003. The Committee will examine the text of the new Labour Code at its next session when it will be available in translation. In the meantime, and in light of the information provided by the Government in respect of the new Labour Code, the Committee wishes to raise the following points:

(a)  Prohibition of the right to strike by workers who are not employed in essential services in the strict sense of the term. The Committee notes from the Government’s report that section 78 of the new Labour Code does not amend the provisions previously laid down in section 10 of the Act of 1992 on the Settlement of Collective Disputes concerning the definition of essential services. As a result, a general prohibition of strikes is imposed on the system of internal affairs, the defence and national security sectors, the electricity generating, heating and gas supply companies and in emergency medical services. The Committee recalls that while the defence, national security, public health and electricity services might be considered as essential services in the strict sense of the term, the other services set out in the list are not necessarily so. Concerning services of public utility such as heating and gas supply, the Committee considers that a system of minimum service is more appropriate than an outright ban on strikes, which should be limited to essential services in the strict sense of the term, namely those where the life, personal safety and health of the whole or part of the population may be endangered. The Committee notes in this context that a non-essential service in the strict sense of the term may become essential if a strike exceeds a certain duration or extent so that the life, personal safety or health of the population are endangered (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 152-164). The Committee therefore requests the Government to lift the outright prohibition of the right to strike by workers in the heating and gas supply companies. As for internal services, the Committee requests the Government to indicate the personnel concerned by this restriction.

(b)  Unilateral determination of minimum service. The Committee notes from the report that according to section 80.2 of the new Labour Code, the Government has the authority to define the minimum service after having considered the conclusions of a Tripartite Board or, in the absence of a Tripartite Board, those of the municipal authorities in consultation with the parties to the dispute. The Committee wishes to emphasize the importance that it attaches to genuine participation of the parties directly concerned, that is, the organizations of employers and workers, alongside the public authorities in the definition of a minimum service. The Committee observes that, as noted by the Committee on Freedom of Association in Case No. 2078, in the event of disagreement, the parties should be able to bring the matter before an independent and impartial body with competence to make a final ruling on this matter. The Committee therefore requests the Government to amend its legislation so as to ensure that in the event of disagreement among the parties to negotiations on the minimum service, the definition of the service to be ensured may be determined by an independent and impartial body.

(c)  Prohibition of strikes during a state of emergency and penal sanctions against strike action. Concerning limitations of the right to strike during a state of emergency, the Committee notes from the Government’s report that according to the State of Emergency Act of 6 June 2000, No. IX-938, a state of emergency can be declared for successive six-month periods. The Committee recalls that restrictions on the right to strike during a state of emergency should be for limited periods and may only be justified in situations of acute national crisis. The Committee requests the Government to transmit in its next report the text of Act No. IX-938.

The Committee takes note of the text of Act No. I-551 of 2000 which has been transmitted with the Government’s report, and will examine it at its next meeting when it will be available in translation. The Committee also notes the amendments to the Criminal Code which have been transmitted by the Government. The Committee observes that article 199(3) of the amended Criminal Code imposes a penalty of imprisonment of up to three years or corrective works of up to two years, or a fine, in case of participation in collective action which causes disturbance to work in the sector of transportation or in public or social enterprises, establishments and organisations, and that article 199(4) enforces the prohibition of strikes at nuclear energy facilities with a sentence of two years of corrective works. The Committee furthermore observes that article 67 of the amended Criminal Code characterizes as an act of "sabotage" punishable by a ten-year term of imprisonment, any action aimed at obstructing the proper functioning of public or other enterprises in the sectors of industry, energy, transportation, agriculture, trade, other branches of the economy, or the public sector, with a view to weakening the State of Lithuania. The Committee observes that such provisions are highly likely to have the practical effect of restricting the right of workers to participate in industrial action by characterizing their activities as criminal acts punishable by penal sanctions. The Committee wishes to emphasize that if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey, op. cit., paragraph 177). The Committee requests the Government to amend these provisions so as to ensure that penal sanctions may not be imposed for the exercise of the right to strike and that if penalties are imposed, in exceptional circumstances, they should be justified by the seriousness of the offences committed and accompanied by all the necessary judicial safeguards.

(d)  Compensatory guarantees for workers employed in essential services in the strict sense of the term who are prohibited from striking. The Committee also notes from the Government’s report that section 78 of the new Labour Code, provides that the Government will consider the conclusions of a Tripartite Board before addressing the claims of employees in essential services in the strict sense of the term where the right to strike is prohibited. The Committee recalls that where restrictions are adopted on the right to strike of workers who are employed in essential services in the strict sense of the term, compensatory guarantees should include appropriate, rapid and impartial conciliation and mediation procedures. The Committee requests the Government to provide details in its next report concerning the composition and functioning of the Tripartite Board and the extent to which the Government is bound to follow up on its conclusions in settling the claims of workers employed in essential services in the strict sense of the term, who are prohibited from striking.

(e)  Court rulings ordering a postponement of a strike. The Committee notes that the Government has not provided any information concerning section 13 of the Act of 1992 on the Settlement of Collective Disputes and in particular, whether this provision has been amended by the new Labour Code in order to define in more precise terms the legal grounds on which the Courts may decide to postpone a strike. The Committee requests the Government to communicate information on this point in its next report.

The Committee is also addressing a request regarding certain other points directly to the Government.