Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Tajikistan (Ratification: 1993)

Article 3 of the Convention. Right of organizations to organize their administration and activities and to formulate their programmes. In its previous comments, the Committee had noted that, according to the Government, the Law on Public Associations of 2007 is applicable to trade unions, whereas section 2 of that legislation states that this Law is not applicable to trade unions, the establishment and activities of which are regulated by a separate legislation. The Committee requests the Government to provide clarifications regarding the application of the Law on Public Associations to trade unions.

Furthermore, in its previous comments, the Committee has noted that sections 25 and 34 of the Law on Public Associations provide that the registering authorities have a right to send its representatives to participate in activities (events) organized by public associations. The Committee recalled that freedom of association implies that workers’ and employers’ organizations should have the right to organize their activities in full freedom without interference from the authorities. The Committee considers that problems of compatibility with the Convention arise when the legislation authorizes public authorities to be present at events organized by trade unions. The Committee therefore requests the Government to repeal the corresponding provisions of sections 25 and 34 of the Law on Public Associations and to indicate the measures taken or contemplated in this respect.

Right to strike. In its previous comments, the Committee had noted that, according to section 211(2) of the Labour Code of 1997, a decision to declare a strike should be taken by a meeting of workers or of an appropriate workers’ representative body. Such a decision should be adopted by not less than two-thirds of those present at the meeting (representative body) or two-thirds of the delegates to the conference of workers’ representatives, subject to a quorum of more than half of all members of the workforce (representative body) being present at the meeting (or two-thirds of delegates present at the conference). The Committee had recalled that, while a requirement of a strike ballot does not, in principle, raise problems of compatibility with the Convention, the ballot method, 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; if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account be taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). In these circumstances, the Committee had indicated that, while the quorum provided for by section 211(2) seems to be compatible with the freedom of association principles, the requirement that a decision to strike should be taken by two-thirds of those present at the meeting is excessive and limits the right to strike. The Committee notes that the Government does not provide information in respect to its previous request. The Committee therefore once again requests the Government to amend section 211(2) of the Labour Code so as to lower this requirement and so as to ensure that account is taken only of the votes cast in determining the outcome of a strike ballot. The Committee requests the Government to indicate the measures taken or contemplated in this respect in its next report.

Furthermore, the Committee had noted that section 211(3) of the Labour Code imposes the obligation to indicate, in the strike notice, its possible duration and had requested the Government to indicate whether workers or their organizations can declare a strike for an indefinite period of time. The Committee notes that, in its report, the Government indicates that the strike notice must be given to the employer not less than two weeks before the strike but makes no reference to the duration of the strike. Consequently, the Committee once again requests the Government to indicate whether workers or their organizations can declare a strike for an indefinite period of time.

Finally, the Committee had further noted that according to section 211(4) of the Labour Code, right to strike can be restricted in cases where it might endanger the life and health of individuals or the security and defence capacity of the State and that such restrictions are subject to the provisions of the legislation in force. The Committee notes that the Government does not refer to this issue in its report. While noting that restrictions of the right to strike seem to be limited to the essential services in the strict sense of the term, the Committee requests the Government to provide a list of services where the right to strike is restricted or prohibited and to indicate the relevant legislative provisions. Recalling that if the right to strike is subject to restrictions or a prohibition, workers who are thus deprived of an essential means of defending their socio-economic and occupational interests should be afforded compensatory guarantees, the Committee requests the Government to indicate, in its next report, whether any such protection is given to workers deprived of their right to strike and to indicate the applicable legislative provisions.

Criminal Code. In its previous comments, the Committee had noted that, under section 160 of the Criminal Code, a violation of procedure for organizing and carrying out meetings, demonstrations and pickets is sanctioned by a fine of up to 2,000 minimum salaries or of up to two years’ imprisonment. The Committee notes that the Government indicates that the Criminal Code is based on principle of legality, equality before the law, personal responsibility, guilt, impartiality, humanity, democracy, and so on, and that section 160 of the Criminal Code applies to all persons, irrespective of their position and status. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account. Such sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. Nevertheless, even in the absence of violence, if the strike modalities had the effect of making the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. In these circumstances, the Committee requests the Government to indicate whether trade unionists have been sanctioned under section 160 of the Criminal Code for exercising legitimate trade union activities, such as strikes and meetings and to take the necessary measures in order to amend its legislation so as to bring it into conformity with the abovementioned principle.