Individual Case (CAS) - Discussion: 1997, Publication: 85th ILC session (1997)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Belarus (Ratification: 1956)

A Government representative, the Minister of Labour, stressed that his country was resolutely pursuing the course of democratic reform. During recent years practical efforts had been made at all levels - national, local and industry level - to improve interaction between state bodies, trade unions and employers' associations, to strengthen their role in the reform process and to guarantee constitutional rights. It was only through collective efforts based on the relationship of true social partnership that the country could solve its problems of the transitional period. However, the solutions to these acute problems were not always achieved in the manner corresponding to the letter and the spirit of international law, as the present case showed. He considered his task not to defend the necessity of the action which had taken place nearly two years ago, but to show that the ILO's comments on the matter had given rise to appropriate action being taken by those directly responsible for the application of international law. The best proof of this was that no such incidents had occurred subsequently. At present, there were 38 trade unions registered and exercising activities at the central level as well as many other trade unions which were registered and acted at the level of enterprises, all of which considered themselves free, independent and democratic. This proved that freedom of association and trade union rights, as specified by the Convention, were applied fully in legislation and in practice. With respect to the problems raised, all of them were already settled. It only remained to amend the decision of the Council of Ministers No. 158 of 28 March 1995 so as to exclude the transport sector from the list of essential services where strikes were forbidden. The draft of these amendments was currently being considered by the Government and was expected to be adopted during 1997. He stressed that tripartism in Belarus was still very young and prone to conflicts. However, the importance of the social partnership was fully recognized by the Government as demonstrated by its adoption, in consultation with the central level trade unions and employers' associations, of the concept of the system of social partnership, which had been given the status of a constitutional principle by being recognized in article 14 of the national Constitution. He asked the ILO to consider the possibility of providing consultative and technical assistance on a number of questions including the improvement of the social partnership system and on the final draft of the Labour Code which had already been elaborated initially with the assistance of the Office. Expressing his gratitude for this assistance, and for the two technical projects under way, he pointed out that the present case was the first one ever considered by the Committee with respect to Belarus. This procedure would be a good lesson to his Government to ensure that no such situation arose in the future. In conclusion, he promised that the Office would be informed in writing of progress achieved.

The Workers' members thanked the Government representative for his explanations and noted that this was indeed the first time that the Committee had addressed the application of the Convention by Belarus. This might have encouraged understanding toward the Government, but such an approach was not appropriate in this case given the nature of the Committee of Experts' observation and the numerous complaints presented to the Committee on Freedom of Association in 1995 by the World Confederation of Labour (WCL) and the International Confederation of Free Trade Unions (ICFTU), which could give the impression of a return to the worst totalitarian years. This case demonstrated an intention to prevent the existence of an independent and democratic trade union movement, and deliberate violation of Conventions, constitutional provisions and national laws, with anti-union aims in mind. It therefore called for a firm approach and great scrutiny. Such severity, which might appear excessive, was in fact fully justified by a reading of Case No. 1849, examined by the Committee on Freedom of Association in March 1996. The facts were: suspension by Decree No. 336 of 21 August 1995 of the activities of the Free Trade Union of Belarus (SFB) and its local affiliate; the arrest and detention of union leaders and members; imprisonment of union leaders in violation of the regular judicial procedures; raids on union offices and property; strike-breaking action; dismissal of unionists for participating in strikes; threats to open new court investigations with the imposition of heavy fines or imprisonment; limitations on the participation in union activities abroad. These were the serious violations of Article 4 of the Convention addressed in the Committee of Experts' observation, which highlighted the cynicism with which the Government got around even the spirit of the Convention by turning it into an anti-union weapon and prohibiting the right to strike in the transport sector. None the less, as the Committee of Experts had stated, the transport sector as a whole could not be considered an essential service which would justify banning the right to strike. The Workers' members could only stress the need to modify Decree No. 158 of 28 March 1995 so as to remove the transport sector from the list of essential services. The Minister of Labour had stated that this change to the law was under way: it was necessary for the Government to send a report so that the Committee of Experts could assess the situation. The situation was even more worrying because the Government had limited itself to evasive replies to the concrete violations identified by the Committee on Freedom of Association and the Committee of Experts. A dangerous, anti-democratic logic was at work when the laws were adapted to violations and, through this, power was derived to manipulate institutions so as to obtain desired decisions, as was still the case for the Constitutional Court. It was clear that none of the judicial, institutional or political bodies would be able to provide minimum guarantees for the respect of Conventions. Therefore, it was indispensable that the Government furnish the detailed report requested by the Committee of Experts and that it prove that it was able to guarantee all trade union rights and freedoms in an appropriate political and institutional atmosphere, notably so as to ensure an end to the administrative dissolution of unions, and to remove obstacles to the right of unions freely to formulate their programmes of action without interference from the public authorities.

The Employers' members considered that the case raised a series of problems, in law and in practice. The dissolution of unions by administrative decree clearly violated the Convention. It was essential that the Committee of Experts had information at its disposal on judicial decisions in this regard. The complaint examined by the Committee on Freedom of Association also concerned a serious violation of the Convention. The present case raised the question as to whether the situation could be considered a strike when wages were not payed or were delayed: under civil law it would not be considered a strike to cease work when the other party had not fulfilled the terms of the labour contract because it had stopped paying wages. Concerning the question of the right to strike, the Employers' members' position differed from that of the Committee of Experts. It was excessive to consider that the entire transport sector constituted an essential service, the interruption of which would endanger the life, personal safety or health of the population. The definition of essential services should not be subject to negotiations between the social partners; in a democratic State, it was up to the legislature to define the general interest. Finally, the Employers' members shared the impression of the Committee of Experts and the Workers' members that freedom of association was still poorly protected. Improvements in the law and practice were required and the Government should supply a detailed report so as to permit the Committee to re-examine the situation.

The Workers' member of Belarus stated that his organization, the Federation of Trade Unions of Belarus (FPB), had an affiliate directly involved in Case No. 1849 before the Committee on Freedom of Association concerning the strike in the Minsk metro system. The dispute had been caused, as in many other similar conflicts, by the massive violation of the labour legislation and the non-payment of wages. This particular strike had been prohibited and declared illegal by Presidential Decree No. 336 on the grounds that transport was listed as an essential service, where the right to strike was prohibited. The trade union premises were closed, its property seized and leaders detained, and all the workers participating in the strike were fired without the right to reinstatement. The judicial procedure concerning the legality of the right to strike had never been initiated. The Federation of Trade Unions of Belarus (FPB) had recently adopted a declaration concerning the respect of labour and socio-economic rights and had called upon the President, the Government and the Parliament to remove all limitations on the free exercise of trade union activities, and to repeal Decree No. 336 because it was still being used to justify interference in internal trade union affairs. He proposed that the Committee ask the Government to provide a prompt reply concerning its international obligations to respect human and trade union rights.

The Workers' member of Denmark, speaking on behalf of the Nordic Workers' members, deeply regretted that the Government had neglected appeals from the international community to bring its legislation into conformity with the obligations arising from ILO membership. He stressed the importance of fulfilling the principles of freedom of association, and noted the Government's statement that changes may occur. He recalled that the Committee on Freedom of Association had determined that a trade union could not be dissolved or suspended by administrative decision, as had happened after the Minsk metro strike, and that the transport sector should be removed from the list of essential services. He called on the Government to grant workers in the transport sector the rights to strike and to join trade unions without Government interference. A great number of the workers who had been dismissed during the 1995 Minsk strike had still not been reinstated due to the long delay in court procedures. He expressed his deepest sympathy with those fighting for fundamental rights in Belarus and urged the Government to accept the technical assistance of the Office so as to bring the legislation into conformity with its requirements of the Convention.

The Workers' member of New Zealand emphasized that this case was a very serious violation of the Convention, both as concerned the suspension of unions following a transport sector strike, and in relation to breaches of the Convention, noted in the examination of Case No. 1885 by the Committee on Freedom of Association. It also raised an issue of credibility in that, notwithstanding the serious allegations in Case No. 1885, the Government had failed to respond, and had apparently not taken any steps to implement the Committee on Freedom of Association's previous recommendations in Case No. 1849. He noted that the Minister of Labour had confirmed that Order No. 158, adopted by the Cabinet of Ministers in 1995, was still in effect. Therefore, it was up to the present Committee to pursue compliance with the Convention. He recalled the facts of the Committee on Freedom of Association case including the administrative suspension by Decree No. 336 of the Free Trade Union of Belarus (SFB) and the Minsk Branch of the Federation of Trade Unions of Belarus (FPB) following a strike of metro workers which was lawful under the existing law, as well as harassment and media campaigns directed primarily against these unions. The Committee on Freedom of Association and this Committee had repeatedly emphasized that respect for civil liberties, such as freedom of assembly and expression, were essential for the normal exercise of trade union rights. Both had clearly been severely curtailed here. Noting, as the Employers' members had, that one of the issues which had given rise to the transport strikes was late payment of wages, which was in itself a fundamental breach of employment contracts, he questioned whether forcing employees to work without wages was not a contravention of Convention No. 29. It was necessary for the Committee to support the Committee on Freedom of Association, and, noting that the Minister of Labour had asked for technical assistance from the Office, proposed that it accept monitoring of this case.

The Workers' member of Swaziland noted the contradiction between the Government's statements and actions. The suspension of the Free Trade Union of Belarus (SFB) by Decree No. 336 was contrary to Article 4 of the Convention and undermined the democratic right to bargain collectively. Furthermore, the Government flouted the rule of law when it ignored the Constitutional Court ruling that Decree No. 336 was unconstitutional. The denial of the right to strike, the interference in the right to organize and register unions, the denial of the right of assembly, the sending of members of the armed forces to trade union meetings, mass dismissals and interference in shop floor matters all constituted tyranny of the highest order. Consequently, he supported the proposal of the Workers' members regarding the conditions in this case.

The Workers' member of Kazakstan stated that trade unions in all the countries which had emerged from the territories of the ex-USSR hoped that the transition to a market economy would bring with it the establishment of new labour relations between workers and employers, guaranteed by the constitutions and labour legislation in conformity with international labour standards. However, the situation had turned out to be the opposite, with the prohibition of the rights to organize and to strike, the persecution of trade union activists, the violation of their civil liberties and the non-payment of wages. The Government, in violation of the Convention, had tried in this case to suppress the free trade union movement. He considered that the present Committee should express great concern over their situation and the fate facing their leaders, and request the Government to provide in the very near future full information on the measures taken to eliminate all violations of trade union rights.

The Workers' member of Germany noted with deep concern the developments concerning the law and practice in this case. The available information proved the serious violation of basic workers' rights, including the right to strike. It was therefore essential that the Committee of Experts pay particular attention to this case. Significantly, this case showed the importance of defining essential services as narrowly as possible so as to avoid the risk of arbitrariness, in conformity with the jurisprudence of the ILO supervisory bodies. If the Government was really committed to the principle of social partnership, it should not, in practice, threaten the existence of autonomous organizations or the right to strike. It was necessary to insist that the Government amend its law and effectively guarantee freedom of association and the right to strike, in conformity with international law.

The Minister of Labour stated that his Government would draw serious conclusions from this discussion, leading to concrete measures in legislation and practice with a view to ensuring that no such violations of trade union rights could ever be repeated. He recalled, however, that the incidents in question had occurred nearly two years ago and that, since then, there had been no recurrence of such incidents: the trade union concerned had been re-established, registered and was functioning freely. The Government would inform the Committee of Experts in writing of all progress achieved.

The Committee took note of the information supplied by the Minister of Labour, as well as the discussion which ensued. The Committee observed with concern that the Committee on Freedom of Association and the Committee of Experts had referred to serious violations of freedom of association, both in practice and in the law concerning the suspension of unions by administrative authority. The Committee urged the Government to urgently repeal the provisions which established excessive limitations on the right of workers' organizations to formulate their programmes of action without interference by the public authorities. The Committee asked the Government to send a detailed report, indicating the measures taken to bring its law and practice into full conformity with the provisions of the Convention. The Committee hoped to be able to note substantial progress when the case was next examined.