Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

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

The Government communicated the following written information on the implementation of the recommendations of the Commission of Inquiry established to examine the complaint concerning non-observance by Belarus of the Freedom of Association and Protection of the right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Republic of Belarus has ratified all eight fundamental ILO Conventions (Nos. 29, 87, 98, 100, 105, 111, 138, 182), and affirms its adherence to the fundamental principles of the ILO Declaration of 1998. The right of association, including that of trade unions, is guaranteed by the basic law of the State - the Constitution of the Republic of Belarus (article 36). The rights of trade unions are specified in the Law on Trade Unions of the Republic of Belarus. It reflects the principles of the ILO Convention No. 87 as well as of the ILO Convention No. 98. The law guarantees the right of workers to create trade unions on a voluntary basis and join them (article 2); the right of trade unions to independently elaborate and approve their charters, to define their structure and to elect leading bodies (article 3); cease their activity (article 5). According to article 26 of the law, illegal constraint of the rights of trade unions, as well as creation of impediments for the implementation of their authority, are prohibited.

The efficiency of these legal provisions is confirmed by the fact that workers in Belarus are actively using their right for freedom of association. Over 90 per cent of employees in our country are members of trade unions. The legislation of Belarus provides trade unions with ample powers in advocating the rights and economic interests of workers, ensures their active participation in the life of the State and in forming the social and economic policy. The trade unions take part in the elaboration of issues which are of key interest for the workers: the state programme on employment, resolution of issues related to social insurance and labour protection also exercise public control over compliance with labour legislation. The legal provisions that regulate social and labour rights of workers are drafted with obligatory participation of the trade unions. The consideration of interests of workers is an indispensable requirement of the Government in the process of progressive movement of the country towards socially oriented market economy. In the process of elaborating the ways of implementation of the chosen social and economic model, Belarus takes into account worldwide experience and recommendations of the competent international organizations.

On the basis of these principles, the Government of the Republic of Belarus has been implementing the ILO Commission of Inquiry (CoI) recommendations. Taking into consideration the complex character of the CoI recommendations, the Government of Belarus has adopted a special action plan aimed at their implementation. The ILO is regularly provided with the information on its approval and fulfilment. The recommendations have been disseminated within the country, inter alia, by publishing of their text in the magazine "Labour and Social Protection" of the Ministry of Labour and Social Protection of the Republic of Belarus.

A number of specific steps aimed at their implementation have been made. The Ministry of Labour and Social Protection has addressed a letter on development of social partnership and adherence to its principles which provides a detailed explanation of norms of national legislation as well as of international norms that define the principles of cooperation between the social partners and exclude interference of both the employers and trade unions into the internal affairs of each other. The letter was directed to all state administrative bodies and other organizations subordinate to the Government (47 addresses in total). The state bodies have taken the necessary steps in order to convey the letter of the Ministry to specific enterprises within their system. For example, the Ministry of Industry of the Republic of Belarus has directed this letter to all industrial plants subordinate to this Ministry (over 230 enterprises), as well as held a panel meeting in this regard with representatives of administrations of the main industrial entities. The letter of the Ministry of Labour and Social Protection was also reviewed at the joint panel meetings, held with participation of representatives of both the enterprise administrations and the trade unions. The issue of promoting this letter at enterprises was also discussed by the experts of the International Labour Office during their mission to Minsk, which took place in the period 16-19 January 2006. The Belarusian side rendered to the ILO the copies of letters and minutes of panel meetings dedicated to reviewing the letter of the Ministry at the concrete enterprises of Belarus.

There is constant control over the use of the contract system of employment in the country, and measures are taken in order to prevent any discrimination of employees as well as to compensate any wrong-doing in case of violations. Throughout 2005, the courts of Belarus have held hearings on 3,485 cases of cancellation of employee dismissal and wage disputes, of which 1,302 were related to restitution of employee status, and 2,183 were related to wage repayment. Some 408 lawsuits on restitution of employee status were satisfied, making up 31.3 per cent of the total. Court decisions have led to restitution of employee status for 359 people with compensation for the induced leave. Out of 2,183 lawsuits on wage repayment, 1,679 (76.9 per cent) were satisfied. During the abovementioned period, 24 cases on restitution of status, wage payout and cancellation of disciplinary penalty filed by trade unions or by employees supported by trade union representatives were heard in courts, of which seven were satisfied, four ended in compromise and 13 were dismissed. The interests of workers were defended in court also by representatives of the Free Belarusian Trade Union, the Belarusian Trade Union of Electronic Industry Workers, the Free Trade Union of Metal Industry Workers, the Mogilev Regional Organization of the Belarusian Trade Union of Workers of various forms of entrepreneurship "Sadrujnasc". The discrimination in the sphere of labour relations (including conclusion of contracts) based on the participation of a worker in trade unions is prohibited by article 14 of the Labour Code of the Republic of Belarus and by article 4 of the Law on Trade Unions of the Republic of Belarus. The employer's decision to conclude a contract with an employee, based on the fact that the latter belongs to a trade union, is illegal.

In 2005, the Department of State Labour Inspection Service of the Ministry of Labour and Social Protection conducted verification of legal compliance in the process of conclusion (prolongation, termination) of contracts with 2,099,148 employees in 1,589 state organizations and with 76,839 employees in 862 private enterprises. According to the verifications, employers were given instructions to correct the fixed violations; sanctions in the form of a fine were applied to 356 employers, 153 employers were warned about the inadmissibility of labour legislature violations, 302 officials were brought to administrative liability, and some other 15 - to disciplinary punishment. The verification process demonstrated that the main causes of the violations committed in the process of transition to the contract system of employment are either the ignorance of the legal norms in force or the failure to provide adequate application of legislation, as well as the lack of necessary funding. The analysis of the situation showed that the abovementioned legal violations are not of mass character; the conclusion of contracts, as well as the transfer to the contract system of employment of workers that are employed on the basis of contracts without predefined duration, is mainly conducted in compliance with the legislative norms. No facts of discrimination of employees on the basis of their membership in trade unions in scope of contract conclusion were found during the verification process.

It is necessary to note that the development of an efficient judicial and law enforcement system is among the key priorities of the Republic of Belarus. The difficulties related to the implementation of this task are common for every young state which is struggling through the transitional period. The Belarusian side will further monitor the efficiency of protection against discrimination of trade unions. The Ministry of Labour and Social Protection of the Republic of Belarus has created an expert council on issues of improving the legislation in the social and labour sphere. The council includes representatives of the Belarusian Congress of Democratic Trade Unions (BCDTU), the Federation of Trade Unions of Belarus (FTUB), associations of employees, non-governmental organizations and the scientific community. There are two members representing the trade unions within the Council (from the FTUB and the BCDTU).

The work on other issues is also under way in the country. The Belarusian side will elaborate the changes within the national legislation that envisage the following: the possibility of the creation of trade unions at enterprises which shall not be subject to the requirement to include no less than 10 per cent of enterprise employees; the procedure of registering trade unions will be simplified, in particular, the requirement to submit information on the existence of a legal address will be cancelled; and any influence on the procedure of trade union registration on behalf of the State Commission on Registration will be excluded. The registration of specific trade unions will depend on their readiness to go through the registration procedure in compliance with all the requirements set by the legislature.

The procedures of work of the National Council on Labour and Social Issues was improved in November 2005. Its new regulations were adopted, thus providing the possibility for participation in the work of the Council for all associations of employees and trade unions concerned (including those that could not acquire a seat within the Council due to insufficient level of representation). The new regulations commit the associations that take part in the Council to respect the rights of other associations which are not represented within the body. Moreover, the new regulations do not set any limitations on the inclusion of new representatives of trade unions who are not members of the Federation of Trade Unions of Belarus into the Council of Trade Unions. According to the regulations, the FTUB, in the spirit of goodwill, provided one of the seats which is at its disposal in the Council to a representative of the BCDTU. The FTUB informed about this decision the BCDTU and the International Labour Office in February 2006. However, the BCDTU has ignored this move.

It is necessary to draw attention to the indistinctness of the wording of some ILO Recommendations. In particular, the creation of "an independent body, which will be trusted by all sides", which is stated in Recommendation 5, is objectively impossible due to the existing contradictions between the parties of the conflict. Providing "trade union personnel with administrative arrest immunity", as stated in Recommendation 8, would mean violating the rules of procedure of the national legal system, which is based on equality of all citizens in the face of the law. In Belarus, just as in other countries of the world, the immunity from a number of procedural actions is provided only in exceptional cases - such as the occupation of important elective governmental posts (for example, to the members of the National Assembly). The authorization of immunity to trade union activists will lead to the creation of a privileged class of citizens, which contradicts the basics of governmental structure of any democratic state.

At the same time, the Belarusian side does not refuse to follow these recommendations and is ready to use the consultative assistance of the International Labour Office in their interpretation and implementation. Belarus expresses its hope that the information provided herewith, as well as the readiness of the Government of the Republic of Belarus for constructive cooperation with the ILO to improve the situation with "the rights of trade unions" in the country, will be well taken into consideration in making the decisions and further recommendations by the ILO Members.

In addition, before the Committee, a Government representative (Deputy Minister of Labour) stated that the recommendations of the Commission of Inquiry were of a general and declaratory nature. She disagreed with the Office's assertion that the recommendations of the Commission of Inquiry were clear and could easily be implemented. Referring to recommendation No. 4, which urged the Presidential Administration to instruct the General Prosecutor's Office, the Ministry of Justice, and the courts to investigate all allegations of interference in trade union affairs, she observed that this approach ignored the basic principle of separation of powers. As for recommendation No. 5, which called upon the Government to ensure that all subsequent complaints of interference were examined by an independent body having the confidence of all parties concerned, it was unclear as to which bodies, exactly, were to carry out these functions. Furthermore, the fact that all trade unions, whether affiliated with the Federation of Trade Unions of Belarus (FPB) or not, freely brought cases before the courts was clear proof of their confidence in the legal system. In 2005, non-FPB-affiliated unions brought 17 cases before the courts; of these cases, the unions won 11. Unions also successfully petitioned the Prosecutor's Office in order to secure their rights under the law.

The Government intended to conduct a series of seminars for the judiciary and the Prosecutor's Office on freedom of association rights, as set forth in national and international law. Other measures were also being formulated, with practically no assistance from the Office. To implement the recommendations, a plan of action was formulated and communicated to the ILO. Work was now being carried out in accordance with this plan; as a result, some of the recommendations were already implemented. The recommendations were published in the gazette of the Ministry of Labour and Social Protection, which enjoyed a wide circulation. To implement recommendation No. 6, a special letter of instruction was drafted. This letter explained the principles of social partnership and non-interference of employers' and workers' organizations in each other's affairs; it was sent to the various state bodies - 47 in all. These state bodies, in turn, distributed copies of the letter to various enterprises. Finally, meetings were held between managers and trade union bodies to discuss the instructions contained in the letter. A copy of this letter, along with other documents, was sent to the Committee on Freedom of Association. With regard to recommendation No. 7, on the discriminatory use of fixed-term contracts, the State Labour Inspectorate conducted investigations into the alleged unjust terminations. It did not find evidence of discrimination in any of the terminations; their findings were subsequently affirmed by the courts. In one case, in fact, the worker in question had voluntarily resigned after he was caught stealing from the enterprise. Exhaustive information relating to these investigations, including copies of the verdicts rendered in all cases, were submitted to the Committee on Freedom of Association.

Until recently, the National Council on Labour and Social Issues (NCLSI) had operated without clearly defined procedures. The Commission of Inquiry had recommended that the Government should take measures to ensure that trade unions not affiliated with the FPB could participate in the work of the NCLSI. This recommendation, it was understood, did not require that all non-FPB unions be granted a seat in the NCLSI, which at any rate would not be possible. The reason was that each social partner had 11 seats attributed to it. As non-FPB-affiliated trade unions represented only a very limited number of workers, the Government considered it unjust to allow them representation in the NCLSI. The Government had studied the international situation on representativity and adopted a new regulation on the NCLSI. The requirement now was for a minimum union membership of 50,000. At the same time, in order to ensure participation in the work of the NCLSI of trade unions and employers' organizations that were not members of the Council, the regulation provided that such organizations had the right to receive documentation, participate in its meetings and in the implementation of its decisions. There now existed, therefore, a clear and transparent mechanism for tripartite participation based on the universally accepted principle of representativeness; recommendation No. 11 was as such fully implemented. The Committee of Experts, in its observation on the application of Convention No. 144, alleged government interference in the appointment of the representative of the Belarusian Congress of Democratic Trade Unions (CDTU) to the group of experts on the application of international labour standards. This group was established in 2002, and comprised representatives from various ministries, academics, and the most representative of trade unions and employer organizations. The CDTU was not a member of this group, but was occasionally invited to attend its meetings. In July 2005, a lawyer from the CDTU was invited to attend a meeting of the group of experts; to the Government's surprise, this led to the accusation, by the CDTU, of interference in its affairs. In spite of this charge, the CDTU appointed a representative to participate in a May 2006 meeting of the group of experts.

In response to the Commission of Inquiry's recommendation No. 12, the Government had set up an expert council to formulate amendments to the national legislation. All relevant information relating to this council was submitted to the Committee on Freedom of Association. As for the issue of trade union registration, a trade union law was being drafted that would deal with this matter while taking into account the national interest and ensuring the application of the Convention. All trade unions participated in the drafting of the new legislation. In 2005, the Conference Committee requested the Government to accept an ILO mission, without however suggesting a specific date. The Office then proposed September 2005 as a possible date, which was countered by the Government's offer to host the said mission in December 2005. The ILO Executive Director responsible for Standards and Fundamental Principles and Rights at Work, referring to the heavy workload of the Office in December, suggested that the mission be held in January 2006, which the Government accepted. The mission was undertaken in January 2006 and various consultations and meetings were held. The Government was counting on the technical assistance of the ILO to implement the remaining recommendations. In this connection, the Government had requested ILO assistance in organizing three seminars on the following issues: trade union registration; social dialogue; and the establishment of a protective mechanism to ensure trade union rights. This proposal enjoyed the support of the social partners, including the FPB and the CDTU. During the January 2006 mission, an agreement was reached to hold the said seminars. In March 2006, at the 295th Session of the ILO Governing Body, the Government submitted a letter from the social partners on the necessity of conducting these seminars. However, in April 2006, the ILO indicated in writing that it would not be possible to conduct these seminars. The Government expressed its disappointment at this response, as it considered that each member State had the right to benefit from ILO technical assistance. The speaker concluded by stating that it would continue to look for points of convergence with respect to the resolution of these issues; at the same time it was continuing the work already commenced to implement the Commission of Inquiry's recommendations.

The Worker members thanked the Government for the written information submitted to the Conference Committee and for its statement. The Worker members would like to examine and be able to provide detailed written comments on all of the elements presented by the Government so that the Committee of Experts could examine them at its next session, and requested the Government to provide them with the full text of the intervention. The Committee of Experts played an important role in the defence of human rights in the world, though the fact that the generally technical and legalistic language used in its observations often made it difficult for interested parties outside the ILO to fully grasp this role. However, on rare occasions the Committee of Experts resorted to language that demonstrated that its members were human beings capable of reacting in a less detached way to gross injustices. The Committee of Experts acted in this manner in this case when it said that it feared that the legislative proposals currently being considered by the Government might result in the elimination of any remnants of an independent trade union movement in Belarus. This was the key element of this case. While recognizing the critical points in the Committee of Experts' legal analysis, the legislation was only one part of the problem. In fact, the Government had been very active in rendering the life of trade unions as difficult as possible. All information before the Conference Committee suggested that the situation as described in the Commission of Inquiry's report, some years ago, had not changed for the better and that the Government had not taken meaningful action to implement the Commission's recommendations, eight of which should have already been implemented more than a year ago. On the basis of a very careful analysis, the Committee of Experts had noted with regret in December, when they wrote their report, that no specific steps had been taken to implement these recommendations. Six months later, still no progress had been made. If the information provided referred to some action taken, the Government gave just indications without any documents to substantiate them. This was, for instance, the case with the letter of instruction on interference in trade union affairs. The Committee of Experts had repeatedly urged the Government to take the steps long overdue, but the Government failed to report on any concrete steps taken, both in its latest report to the Committee of Experts and in its written and oral submission to this Committee. The Worker members deeply regretted that the Government had not provided full particulars on the matters raised by the Committee of Experts, as requested. The information provided referred to measures that might possibly have been taken, without giving concrete details or specific dates. However, the Committee of Experts would have to further examine all the information provided today. The Government should commit itself to finally providing exhaustive and properly documented answers to the numerous questions raised by the Committee of Experts.

The Worker members had strong doubts whether the means normally recommended by the Committee of Experts could assist in realizing progress in this case. A mission had already been carried out but the Government had still not taken the required action. Technical assistance only had an impact where there was a willingness to work together to solve problems. A special paragraph had already been included in the Committee's general report and even a Commission of Inquiry had been established. Finding solutions through social dialogue at the national level would also be illusory, as social partnership in Belarus was so intensely dominated by the Government, and the independence of its major counterparts was so questionable, that such an approach would not be compatible with the ILO's conception of tripartism. As the Government was apparently not interested in meaningful dialogue with the Conference Committee, the Worker members believed that the ILO had a responsibility to look into the small range of remaining options. Anything else would be unfair to all those governments who were ready to cooperate and find, jointly, the road to progress.

The Employer members noted that the present case had a long history in the Committee, having first been discussed in 1991. In the intervening years, there had been numerous discussions on these same issues, yet no progress could be observed. Commissions of Inquiry were rarely established; the article 26 constitutional procedure establishing these commissions was resorted to only in exceptional instances. Recalling a statement made by the Government in 2005, to the effect that the Commission of Inquiry's recommendations needed to be adapted to national conditions, they regretted to note that the Government had, in essence, repeated this same assertion. The Employer members expressed astonishment at the Government's statement that they had received little assistance from the ILO, considering that the ILO had undertaken a mission to Belarus as recently as January 2006. The Government had stated that it was searching for points of convergence with the ILO on the resolution of the present case. It was difficult to believe, nevertheless, that the failure to resolve the present issues could be attributed to confusion on the Government's part. Democracy and respect for freedom of association rights were intrinsically linked; this was perhaps the true reason for the lack of progress thus far. The Employer members recalled that the Commission of Inquiry had issued 12 distinct recommendations to bring about compliance with the Convention that called, inter alia, for independent investigations into allegations of anti-union discrimination, as well as legislative amendments to facilitate trade union registration. These issues had been before the Committee for the past 15 years. The Employer members concurred with the Worker members in acknowledging the seriousness of the present case and urged the Government to implement the Commission of Inquiry's recommendations without further delay.

The Worker member of Belarus, on behalf of the Federation of Trade Unions of Belarus (FPB), felt that two sets of issues should be looked at when dealing with the application of freedom of association Conventions in Belarus: firstly, whether the Government of Belarus violated workers' rights, and secondly, whether the Government had implemented the recommendations of the Commission of Inquiry. The speaker pointed out that there were 32 trade unions in Belarus. Twenty-nine were affiliated to the FPB, representing over four million workers, while the three others represented in total about 5,000 workers. Since the complaint was submitted to the ILO in 2000 by four trade unions, the situation in Belarus had changed, including the unions themselves. Accordingly, some complainants withdrew their complaint. In his opinion, the unions enjoyed broader rights and took active part in the settlement of social and labour issues through participation in labour inspections and in the process of improvement of national legislation. Upon the initiative of the FPB, a general tariff agreement was signed, check-off facilities restored and wages increased. He considered that the Government had changed its approach and in most of the cases, agreed with the suggestions of the FPB. He stressed that all FPB achievements extended to other unions as well. He therefore concluded that the Government did not violate workers' rights. Moreover, he considered that workers and trade unions in his country enjoyed more rights than anywhere else. As for the seats on the NCLSI, he considered that it was only fair that an organization representing four million workers would have all the seats. As for the implementation of the recommendations of the Commission of Inquiry, the speaker stated that a number of issues had been settled and the new legislation, which would be shortly adopted, would settle the remaining issues. He stressed that the FPB was independent from the Government. Any sanctions, if taken, would not help Belarus but rather would harm workers and their families. He admitted that while some problems remained, to harm the interests of four million worker members of the FPB, in order to satisfy the interests of minority unions, was simply unjust.

The Government member of Austria took the floor on behalf of the Governments of the Member States of the European Union; the Acceding Countries Bulgaria and Romania, the Candidate Countries Turkey, Croatia, and The former Yugoslav Republic of Macedonia, the countries of the Stabilisation and Association Process and potential candidates Albania, Bosnia and Herzegovina, Serbia and Montenegro, as well as the EFTA countries Iceland and Norway, members of the European Economic Area, and Ukraine aligned themselves with this declaration. Switzerland also aligned with the statement. The speaker stated that the European Union reiterated its deep concern addressed in 2005 at the observations of the Committee of Experts following the conclusions of the Commission of Inquiry. The report of the Committee of Experts on shortcomings in the implementation of Conventions Nos. 87 and 98 by Belarus had to be read in close conjunction with the most recent report of the Committee on Freedom of Association. During the discussion at the CFA's report in the Governing Body, the EU had delivered a statement explaining its 2005 decision to monitor and evaluate the situation in Belarus. It had been stated that if Belarus did not undertake a commitment to take the necessary measures to conform to the principles referred to in the ILO Conventions, then the temporary withdrawal of the generalized system of preferences was likely as a means of expressing their deep disappointment and disapproval of Belarus' serious and persistent non-respect for the legal obligations and standards enshrined in Conventions Nos. 87 and 98. This specific monitoring period had expired at the end of March 2006. The speaker indicated that even last minute information provided by the Government representative was not sufficient to be interpreted as the necessary commitment. In a recent letter to the European Commission, the Belarusian authorities had offered to cooperate with the Commission and the ILO on this issue. He urged the Government of Belarus to take concrete action without further delay in order to demonstrate its commitment. The European Commission had already prepared a draft regulation concerning the temporary withdrawal of access to the generalized system of preferences to be submitted for consideration and decision by the competent institutions of the EU. Meanwhile, the close monitoring of the situation in Belarus by the EU would continue. In view of the continuous and flagrant violations of ILO standards of freedom of association, the EU expected the Government of Belarus to fully implement the conclusions of the Commission of Inquiry and to give full effect in law and in practice to the points raised by the Committee of Experts. The EU expressed great concern at the suspension of trade unions by presidential ordinance, and the serious and systematic violations of the most basic principles of freedom of association which continued to be reported.

The Worker member of Brazil noted that Belarus was a country with a high level of human development. The FPB comprised more than 4 million members and had, for over a century, dedicated itself to the struggle to obtain and protect social rights. Belarus was being dictated how it should treat its proper workers, on pain of possible economic sanctions and political isolation. The ILO should instead focus its efforts to support those countries striving to eradicate social inequality.

The Government member of the Russian Federation stressed the fact that the Government of Belarus adhered to ILO principles and was committed to improving the national legislation and ensuring its application in practice. The speaker highlighted that the Government continued to express its readiness to cooperate with the ILO, as demonstrated by its acceptance of the Office mission in January 2006. As regards the implementation of the recommendations of the Commission of Inquiry, he pointed out that the Government had submitted to the Conference Committee concrete information about measures it had taken in this respect, such as the adoption of the new rules regulating the work of the NCLSI and the dialogue it had initiated with the CDTU. The amendment of trade union legislation would be a further positive step towards the implementation of the recommendations of the Commission of Inquiry. In his view, ILO technical assistance would be much more useful than criticism. He hoped that the cooperation with the ILO would result in the settlement of the outstanding issues and considered that the economic sanctions would not promote this process.

The Worker member of the Russian Federation recalled that this year marked the tenth anniversary of mass violations of trade union rights in Belarus, which started with repressive measures taken against the strikers in Minsk. Since then, the situation of trade unions in Belarus had only worsened and the ILO supervisory bodies had been examining the complaints of violation of Conventions Nos. 87 and 98 for six years already. He regretted that year after year, the conclusions and recommendations of these bodies repeated themselves, as did the replies of the Government representatives. In his view, this could only mean that no real progress had been made and that the Government of Belarus was either unable or unwilling to take measures to improve the situation. Russian trade unions followed closely the situation of application of Convention No. 87 in Belarus. During the process of establishment of a Union State between Russia and Belarus, Russian trade unions were very concerned about violation of workers' and trade union rights on the territory of the future Union. He regretted that the violations of trade union rights were now extending to other countries in the region. He therefore considered that the only way to compel the Government to fully implement the recommendations of the Commission of Inquiry and to demonstrate its respect for the ILO was to consider the most serious measures provided for in the ILO Constitution.

The Government member of Bangladesh stated that the ILO ought to apply international labour standards so as to accommodate the different needs and conditions of each country. He observed that the Government had made tremendous strides towards implementing the Commission of Inquiry's recommendations by, inter alia, amending its legislation and establishing a national tripartite council. The Government had made significant progress towards compliance with the Convention and therefore deserved adequate time to implement the remaining recommendations.

The Worker member of Germany stated that the right to freedom of association was a fundamental human right that should be guaranteed irrespective of the state of development. Rejecting the claim that the ILO had failed to provide technical assistance to the Government of Belarus, she stated that the ILO had in fact offered to dispatch a mission in September 2005. However, the Government accepted to receive a mission in January 2006. This explained why the report by the Committee of Experts made no reference to ILO technical assistance. The Government did not show any readiness to make the necessary legislative changes. When the Committee on Freedom of Association had dealt with the situation in Belarus in March 2003, it had been extremely concerned about the findings of the Commission of Inquiry. It was very clear that law and practice were more than ever in non-compliance with Conventions Nos. 87 and 98. The Government was systematically suppressing independent trade unions. The CDTU was hindered to rent offices and trade union coordinators were prohibited to meet with their members in factories. The Government continued to promise improvements, but so far the recommendations of the Commission of Inquiry had not been implemented. The situation was even worsening and trade unionists that had spoken to the Commission of Inquiry were subject to increased persecution. Independent trade unions were still prevented from participation in tripartite structures. Only the FPB was taking part in negotiations. The obstacles put in place to prevent independent trade unions from obtaining registration were very serious. As an ILO member State bound by Convention No. 87, Belarus could not do away with the right of trade unions to exist and to freely carry out their activities.

The Government representative of China took note with interest of the fact that the Government of Belarus was ready to apply the recommendations of the Commission of Inquiry and to follow up on the observations of the Committee of Experts, and that it had drawn up a plan of action in this respect.

An observer representing the International Confederation of Free Trade Unions (ICFTU) and member of the Congress of Democratic Trade Unions of Belarus (CDTU) pointed out that in the ten years that the ILO had been monitoring the non-respect of trade union rights in Belarus, no progress had been made. On the contrary, the denial of workers' rights had only increased. By way of example, the Government had done nothing about the 12 recommendations of the ILO Commission of Inquiry. The CDTU, although it had the status of a national trade union central, had not had its rights restituted as a member of the NCLSI. Instead of following the ILO recommendations, the NCLSI had adopted, on 28 November 2005, a rule that required 50,000 members for any organization to sit on its board. This act flouted the national Constitution and the law on trade unions. The CDTU which, due to pressures exerted on it, only had 9,000 members was therefore excluded from this platform for dialogue by this cynical move. Subsequently, the signing of the new collective agreement for 2006-07 took place without the participation of the CDTU. This exclusion also applied to local organizations. It had already been announced that some of the unions affiliated to the CDTU (the Grodno-Azot Company Union and the Liess Company Union) would no longer be allowed to sit as partners in the signing of collective agreements. The Government was using the principle of representativity for its own ends, both regarding the CDTU and organizations which were affiliated to it in enterprises. The civil servants responsible for this action refused to accept that the principle of representativity, like any democratic principle, did not include the banning or elimination of the minority, but was an instrument for the defence of minority rights. A far-reaching process of exclusion of independent trade unions was under way at present. The authorities had recourse to transforming employment contracts for practically all workers in the country into fixed-term contracts, generally of a year's duration. This measure was very destructive for the workers and left them entirely at the mercy of employers and the Government. Trade unions affiliated to the CDTU were especially in the line of fire. For example, in January 2005 alone, the threat of loss of an employment contract was enough to lose 300 members out of the 800 in the union at the Grodno-Azot Company. In April-May 2006, the same procedure resulted in 80 people in the Bobrouisk tractor factory leaving the affiliated union. The victims of these procedures were numerous, as many colleagues were dismissed at the end of their short-term contract. And the list went on. All these facts, like others, had been attested to by documents put at the disposal of the ILO.

Nearly 30 trade unions close to the CDTU in the radio-electrical industry had been deprived of their registration, that is, outlawed. The REP trade union had attempted, without success, to register the private taxi drivers' union in Gomel. A whole range of organizations had been victims of illegal evictions from their facilities. According to Belorussian law, loss of facilities for a trade union meant loss of legal address and, consequently, loss of legal status. The CDTU and the trade union organization of metal workers of the Liess Company had been forcibly evicted from their offices. In recent years, the CDTU had lost its offices three times. Since the beginning of the year, attempts had been made to ban printing and distribution in the country of the CDTU newspaper "Solidarity". The newspaper was the only one in the country to address the issue of denial of trade union rights in Belarus and to have published the recommendations of the Commission of Inquiry. The hostility of the Government towards independent trade unions resulted in the arrest and imprisonment of numerous trade unionists. A particularly ferocious wave of repression took place in March 2005 during the presidential election campaign. Suddenly, the Government attacked dozens of activists and independent trade union members. Among those arrested were Vassily Levchenkov and Alexander Bukhvostov, leaders of the metalworkers free trade union and of the radio-electronic trade union. Valentin Lazarenko, chairperson of the CDTU Belarus at the University of Brest, had not only been placed in detention but had been dismissed in an illegal manner. In December 2005, the penal code was modified to provide for imprisonment of up to three years for "insult to the prestige of the Republic of Belarus", promising ever more arrests in the ranks of the CDTU. It was not by coincidence that the head of the Belarusian KGB, speaking on the issue in Parliament, stated that the first persons aimed at by these provisions were the independent trade union leaders who "told lies so that the ILO could decide on sanctions to be taken against Belarus". Belarusian totalitarianism, cynicism and scorn for international rules and standards which were fundamental to the ILO were a challenge to the international community. Today, there was a choice between two attitudes: resignation after so many years of arbitrary action against the free and independent trade union movement of Belarus, or forcing the dictatorship to take account of human rights and trade union freedoms.

The Government member of Egypt noted that the reports of the supervisory bodies showed that numerous ILO Members had difficulties in applying freedom of association standards and principles. The ILO should therefore redouble its efforts to assist these countries to bring their legislation in line with the Conventions Nos. 87 and 98. Noting that the Government of Belarus was making efforts to implement the recommendations of the Commission of Inquiry, the speaker called on the ILO to provide technical assistance to enable the Government to continue addressing these issues. Amending the relevant legislation was a complicated matter and would understandably take some time.

The Government member of India expressed satisfaction with the Government's demonstrated commitment to following the recommendations of the Commission of Inquiry. The Government had taken appropriate steps to make the trade union registration process more transparent. He called upon the ILO to provide the Government with the technical assistance necessary to implement all of the recommendations.

The Government member of the Bolivarian Republic of Venezuela thanked the Government for the information supplied. The Government had demonstrated a cooperative attitude with respect to realizing the principles laid down in Conventions Nos. 87 and 98. It had taken steps to amend legislation and strengthen the mechanisms for social dialogue. In light of the above, the ILO should seriously consider honouring the Government's request for technical assistance.

The Government member of Cuba noted that account should be taken of substantive issues which reflected the current situation: Belarus had ratified the eight fundamental Conventions; the Government had received the Commission of Inquiry and facilitated its work, in all freedom and without the least interference; the Government had approved the special plan of action to apply the recommendations of the Commission of Inquiry; there was a council to improve legislation in the world of work made up of trade unions, two of which were plaintiff organizations, employers' organizations, NGOs and academia. In addition, the Government had disseminated an instruction letter in which figured the national legal provisions and international labour standards in force which prohibited interference by employers and trade unions in each other's affairs. The Government had provided statistics on the number of labour inspections carried out and on the number of violations recorded. Ninety per cent of workers were affiliated to a trade union and discrimination in labour relations was prohibited by article 14 of the Belarus Labour Code and by article 4 of the Law on Trade Unions. The Government recognized that the development of efficient legal systems and the application of the law continued to be a priority for the country. In addition, it had announced changes in the national legislation in order to eliminate requirements for the setting up of a trade union in companies and to simplify the registration procedure of trade union organizations and to forbid all State interference in the creation of new trade unions. The speaker noted that all these issues constituted concrete facts that demonstrated the proof of political will to move towards the full application of standards established in these Conventions. He concluded by stressing that ILO technical cooperation should be used to assist in reaching the objectives set by the ILO.

The Government representative of Kenya welcomed the report of the Committee of Experts and of the Commission of Inquiry as well as the reports from the various ILO missions that had taken place in the country. She expressed her satisfaction on the statement, the initiatives and the commitment of the Government of Belarus. She encouraged it to comply with Conventions Nos. 87 and 98 and welcomed the efforts of the Office. She concluded by asking for technical assistance to be provided to the Government so that next year progress could be observed.

The Government representative, in commenting upon the issue of the use of contractual forms of employment, emphasized that all alleged violations were examined either by the state labour inspectorates, in which unions played an important role, public prosecutors or courts. She could not understand what other bodies could be created in parallel to bodies that already existed, i.e. labour inspectorates, courts and offices of public prosecutors. She regretted that the information provided by the Government was not examined objectively and that in respect of some issues, the Committee on Freedom of Association and the Committee of Experts continued to repeat the same requests. For example, for a number of years, the Committee on Freedom of Association had been asking the Government to reinstate and compensate several allegedly dismissed workers. She regretted that the Committee on Freedom of Association disregarded the evidence submitted by the Government that these workers either voluntarily resigned or were dismissed for stealing. It was only following the ILO mission carried out in January 2006 that certain facts were clarified. With regard to the NCLSI, the speaker considered that in drafting the new regulations on its composition, account was taken of the previous conclusions in respect of various countries reached by the Committee on Freedom of Association. A criterion of 50,000 minimum membership for participation in a tripartite consultative body at the national level was never considered by the Committee on Freedom of Association as being too high. She further stressed that the regulations were submitted to the ILO but the Office did not provide any negative comments in this regard. Therefore, the Government concluded that these regulations were in conformity with the Conventions. She concluded by stating that she was under the impression that only the views of the opponents were heard and that the supervisory bodies failed to take into account the measures taken by the Government to implement the recommendations of the Commission of Inquiry. She hoped for a more objective analysis of the information provided by the Government in the future.

The Worker members awaited a simple response from the Government as to when did it intend to take action on the recommendations of the Commission of Inquiry and on the comments of the Committee of Experts. They noted that the Committee was unanimous on the issue that Conventions Nos. 87 and 98 allowed no flexibility as to their content, i.e. that the fundamental rights enshrined in them had to mean the same in all countries in the world. The argument that the right of workers to trade union pluralism was only to be protected in the capitalist world had been swept away by history. Trade union pluralism was not synonymous with freedom of association and representation of workers' interests could very well, as was shown in several countries, be guaranteed by a single trade union organization: The principle was absolute: a single trade union could not be imposed by the Government and workers should always have the right to set up another one if they wanted. The Worker members insisted that the complaint submitted by three trade unions in the country had not been withdrawn, as had been suggested in the debate. The Worker members were in favour of providing technical assistance to the Government on one condition: that the Government requested it with a view to realizing concrete changes in law and in practice and that this technical assistance in fact served to implement the 12 recommendations made by the Commission of Inquiry. It would be indefensible for the ILO to use its resources to other ends. In addition, the Worker members said they were willing to consider all facts presented by the Government and to address their comments to the Committee of Experts for review at a future session. The Worker members made four proposals for conclusions on this case: (1) that the conclusions should be brief and reflect the main points presented by the Government and the main points raised by the Committee of Experts; (2) that the conclusions should draw the Committee of Experts' attention to the urgency of action; (3) that the conclusions should regret the lack of real progress by the Government; (4) that the conclusions should foresee the inclusion of this case as a special paragraph in the report for continued failure to apply the Convention. The use of a special paragraph should make the Government understand that it was being offered a last chance and that if no concrete measures were taken before the next session of the Governing Body in November 2006, the Governing Body would, they hoped, take steps foreseen in the ILO Constitution. Finally, the conclusions should also express that the ILO would closely monitor the situation of independent trade unions in the country and take immediate action in the event of new abuses of their rights.

The Employer members agreed with the summary of this case made by the Worker members. The Government made, at best, very minimal efforts. No substantially new information concerning measures to ensure compliance in law and practice had been presented. A dialogue was only meaningful if the two sides shared common objectives. In order for technical assistance to be fruitful, it was necessary that the Government accepted a common understanding with the ILO that the objective of technical assistance was to address the implementation of the recommendations of the Commission of Inquiry and the matters raised by the Committee of Experts. The Government was expected to deliver concrete and tangible results. The Employer members concluded that this was a serious case of continued failure to apply the Convention, but they considered that the ILO had to look into taking other measures available under its Constitution.

The Worker members recalled that they were interested in knowing whether the Government representative could set a time frame for implementation of all the recommendations of the Commission of Inquiry.

The Government representative, referring to her initial statement, considered that it was not reasonable to talk about concrete dates. She regretted that no attention was paid to the measures the Government had already taken and to the difficulties it was facing. She explained that the process of adoption of new legislation was necessarily long.

The Government representative expressed the view that the conclusions should take into account the measures that were being taken by the Government to implement the recommendations of the Commission of Inquiry and recommendations that had already been implemented, including: recommendation 7 on the use of fixed-term contracts; recommendation 11 on the access to membership of the National Council for Labour and Social Issues of all umbrella organizations representing trade unions; and recommendation 12 concerning the review of legislation respecting the industrial relations system. She stressed that the Government was not aware of any case of alleged arrest of trade union activists. However, the conclusion that the situation in Belarus had deteriorated was based on these allegations. Moreover, the conclusions claimed that the Government had done nothing to give effect to the recommendations of the Commission of Inquiry, but in so doing did not correspond to what had happened in practice.

The Committee took note of the statement made by the Government representative, the Deputy Minister of Labour, and the written information provided, as well as the discussion that took place thereafter.

The Committee recalled that it had examined this case last year, when it deplored the absence of any real concrete and tangible measures on the part of the Government to implement the recommendations of the Commission of Inquiry. While noting that the mission, which this Committee had urged the Government to accept when it discussed this case last year, had finally taken place at the beginning of the year, the Committee regretted that as a consequence of this delay, the mission report had not been available for the meeting of the Committee of Experts.

The Committee recalled the serious discrepancies between the law and practice and the provisions of the Conventions that had been raised by the Commission of Inquiry and the Committee of Experts.

The Committee noted the Government's reiteration that a special plan of action had been adopted aimed at implementing the recommendations of the Commission of Inquiry, taking into account the complex nature of these recommendations. The Committee also noted that the Government had referred to its publication of the recommendations of the Commission of Inquiry in the magazine of the Ministry of Labour, as well as to the letter it had addressed to the state administrative bodies on the development of social partnership. The Committee further noted the Government's stated intention to elaborate changes to the national legislation, taking into account national circumstances and interests, which would envisage some points raised by the Commission of Inquiry, including the procedure for registering trade unions.

The Committee, however, noted with deep concern the statements made concerning the further difficulties faced by trade union leaders and members affiliated to the Congress of Democratic Trade Unions (CDTU), including arrests and detentions and the changes to the procedures relating to the National Council on Labour and Social Issues, resulting in the loss of its seat on the Council.

The Committee deplored the continued failure by the Government to implement the recommendations of the Commission of Inquiry and shared the sense of urgency deriving from the comments of the Committee of Experts in relation to the survival of any form of independent trade union movement in Belarus. It deplored the fact that it had to note that nothing the Government had said demonstrated an understanding of the gravity of the situation investigated by the Commission of Inquiry, or the necessity of rapid action to redress the effects of these severe violations of the most basic elements of the right to organize. It called upon the Government to take concrete steps for the implementation of these recommendations so that real and tangible progress could be noted by the November session of the Governing Body. If no such progress could be noted, the Committee trusted that the Governing Body would begin to consider, at that time, whether further measures under the ILO Constitution should be considered. The ILO should make available any technical assistance the Government might request provided that such assistance was needed for the concrete implementation of the recommendations of the Commission of Inquiry and the Committee of Experts. The Committee further trusted that the situation of independent trade unions in Belarus would be closely monitored by the ILO and that appropriate action would be taken in the event of repressive measures by the Government.

The Committee requested the Government to provide a full report on all measures taken to implement the recommendations of the Commission of Inquiry for examination at the forthcoming session of the Committee of Experts.

The Committee decided to include its conclusions in a special paragraph of its report. It also decided to mention this case as a case of continued failure to implement the Convention.

The Government representative expressed the view that the conclusions should take into account the measures that were being taken by the Government to implement the recommendations of the Commission of Inquiry and recommendations that had already been implemented, including: recommendation 7 on the use of fixed-term contracts; recommendation 11 on the access to membership of the National Council for Labour and Social Issues of all umbrella organizations representing trade unions; and recommendation 12 concerning the review of legislation respecting the industrial relations system. She stressed that the Government was not aware of any case of alleged arrest of trade union activists. However, the conclusion that the situation in Belarus had deteriorated was based on these allegations. Moreover, the conclusions claimed that the Government had done nothing to give effect to the recommendations of the Commission of Inquiry, but in so doing did not correspond to what had happened in practice.