Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Belarus (Ratification: 1956)

The Committee notes of the observations of the International Trade Union Confederation (ITUC) and of the Belarusian Congress of Democratic Trade Unions (BKDP) received on 16 and 30 September 2020, respectively. The Committee notes that these organizations allege acts of anti-union discrimination, through non-renewal of employment contracts, and interference in trade union internal affairs, through either non-recognition of primary trade unions established at the enterprise level or pressure exercised on workers to leave the union. The Committee requests the Government to provide its comments thereon.

The Committee further notes the BKDP indication that it was not part of the working group established to prepare changes to the General Agreement in force (2019-21), in light of the amendment of the Labour Code, which entered into force in January 2020. Referring to the amendment of section 365 of the Labour Code, which now makes a distinction between clauses of a collective agreement that apply to all workers and those that could apply only to those workers who are members of a trade union, which had negotiated and signed a collective agreement, the BKDP indicates that this reform unduly favours the Federation of Trade Unions of Belarus (FPB) to the detriment of independent unions. The Committee notes that in its report on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Government indicates that the BKDP assertion that its representatives were not invited to participate in the preparation of amendments to the General Agreement are not true. The Government explains that, following the decision of the National Council on Labour and Social Issues of 5 February 2020, the Ministry of Labour and Social Protection began preparing draft amendments to the 2019–21 tripartite General Agreement. To that end, on 12 February 2020, it sent a letter to the BKDP requesting it to: (1) nominate its representative to the working group for the preparation of the draft amendments to the General Agreement; and (2) provide proposed drafts amendments, which take into account the amendment to section 365 of the Labour Code. According to the Government, while the BKDP nominated its representative, it did not submit any proposals; it was nevertheless informed of the proposals made by other members of the working group, which basically involved clarification of certain terms used in the General Agreement, taking into account the amendments made to the Labour Code.

Regarding the amendment of section 365 of the Labour Code, which deals with the scope of collective agreements, the Committee notes the Government’s explanation that the amendment aimed at eliminating legal uncertainty that arose in practice. The Government explains in this regard that under the previous section 365, provisions of a collective agreement applied to all employees, including those who are not members of the trade union party to a collective agreement. The practice has nevertheless developed when at some undertakings, the collective agreement was applied to all employees and in others – only to employees who are trade union members. The main innovation of the amended section of the Labour Code is that it now clearly defines the provisions of the collective agreement, which must be applied to all employees, regardless of whether they are members of a trade union or not. These include the most important norms that define working conditions: working and rest hours, internal labour regulations, labour standards, wages, procedure for wage indexation, labour safety, guarantees and compensations provided in accordance with the law. Provisions of a collective agreement regulating other matters will apply to employees who are not members of the trade union if they agree to this in writing. Should a collective agreement provide other procedure for the application of provisions regulating other than the most important norms, the procedure provided for in the collective agreement will apply. The Governments considers that there are no elements of discrimination in this approach. While taking note of this explanation, the Committee recalls that for a number of years, in accordance with the recommendations of the Commission of Inquiry and the Committee on Freedom of Association, it has maintained a dialogue with the Government with a view to encourage it to put an end to various measures, taken in law and in practice, to eliminate independent trade union organizations and obstruct trade union pluralism. The Committee refers to its observation on the application of Convention No. 87 where it noted that the FPB, the largest workers’ organization in the country, enjoys full support of the State. Taking into account the situation of trade union rights in Belarus and observing that the FPB is a signatory to almost all collective agreements in force, the Committee questions the impact that the amendment of section 365 of the Labour Code could have in practice on the freedom of workers to join trade unions not belonging to the FPB structures, including for the purpose of collective bargaining. The Committee requests the Government to bring the issue of application of this provision in practice to the attention of the tripartite Council and to provide information on the outcome of the discussion in its next report.

Not having received other supplementary information, the Committee, noting with concern the above allegations, which could indicate a fall back on some of the previously achieved progress, as highlighted under Article 4 of the comments below, reiterates its comments adopted in 2019 and reproduced below taking into account certain new information provided by the Government in its 2020 report on the application of Convention No. 87 (see Article 4).

The Committee notes of the observations of the BKDP received on 30 August 2019 and alleging violations of the Convention in practice. The Committee examines them below.

The Committee notes the 385th and the 390th reports of the Committee on Freedom of Association on the measures taken by the Government of the Republic of Belarus to implement the recommendations of the Commission of Inquiry.

Articles 1–3 of the Convention. Adequate protection against acts of anti-union discrimination and interference. The Committee recalls that it had previously requested the Government to reply to the BKDP observations containing allegations of dismissals of trade unionists Ms Oksana Kernozhitskaya and Mr Mikhail Soshko. The Committee notes the Government’s indication that these workers were not dismissed, rather, their contract of employment has expired. The Government explains that the termination of employment upon the expiry of a fixed-term employment contract cannot be considered dismissal by the employer. The Government further explains that under the law, the employer is not obliged to justify his or her unwillingness to extend an employment relationship upon the expiry of a contract. Thus, according to the Government, the expiry of a contract is already in itself sufficient grounds for its termination; there are no legal means of compelling an employer to conclude a new contract with a worker. The Committee considers that the legal framework as described by the Government does not currently provide for an adequate protection against non-renewal of a contract for anti-union reasons. It recalls in this respect that the non-renewal of a contract for anti-union reasons constitutes a prejudicial act within the meaning of Article 1 of the Convention. It also recalls that since inadequate safeguards against acts of anti-union discrimination, including against non-renewal of contracts for anti-union reasons, may lead to the actual disappearance of primary level trade unions, composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders and members of trade unions, against any such acts. As one of the additional measures to ensure the effective protection against anti-union discrimination, the adoption of provision for laying upon the employer, in the case of any alleged discriminatory dismissal or non-renewal of contract, the burden of proving that such action was in fact justified.  The Committee requests the Government to take, in consultation with the social partners, the necessary measures in order to adopt specific legislative provisions affording an adequate protection against cases of non-renewal of contracts for anti-union reasons. It requests the Government to provide information on all steps taken to that end.

The Committee recalls that it had also noted the BKDP allegation that the management of the Belaruskali promoted the primary trade union affiliated to the FPB at the expense of the BKDP-affiliated union and pressured the members of the latter to leave the union. The Committee notes the Government’s explanation that primary organizations of trade unions in Belarus are affiliated to either the FPB or the BKDP. A number of enterprises have several primary trade union organizations. At Belaruskali, there are two primary trade union organizations: the primary organization of the Belarusian Union of Chemical, Mining and Oil Industries Workers (Belkhimprofsoyuz), affiliated to the FPB, and the Independent Trade Union of Miners (NPG) of Belaruskali, which is a primary organization of the Belarusian Independent Trade Union (BNP), affiliated to the BKDP. The presence in one enterprise of the organizational structures of two different trade unions naturally gives rise to competition for members. The trade unions use various methods and means to strengthen their own position, retain existing members and attract new ones. As provisions of Belkhimprofsoyuz’ by-laws do not permit simultaneous membership in two trade unions, the trade union committee of the Belkhimprofsoyuz primary trade union organization at the undertaking decided to bring its structure into line with the existing rules and to take steps to eliminate dual trade union membership. To that end, it proposed to workers with dual membership (690 workers) to choose between the two unions. According to the Government, an overwhelming majority of workers decided in favour of Belkhimprofsoyuz primary trade union organization; as a result, the BNP-affiliated union membership fell down. Thus, the Government concludes that the sharp fall in membership of the primary trade union was mainly a consequence of the choice made by workers. The Government also indicates that retirement of workers as well as the termination of employment was also a factor in the decline of the union membership. The Government points out that the tripartite Council for the Improvement of Legislation in the Social and Labour Sphere (hereinafter, tripartite Council) received no information about specific instances of members of the BNP primary trade union organization being pressured by the enterprise management to leave the BKDP-affiliated trade union. Workers who believe that they have been subject to anti-union discrimination or pressure by may apply to a court for measures to end the discrimination.

The Committee notes the new allegations submitted by the BKDP regarding interference by enterprise managers in trade union affairs. According to the BKDP, enterprise managers, for the most part, are still members of the FPB. It alleges, in addition, that at most enterprises, employees, when hired, are first sent to the trade union committee, where they are urged to write an application for affiliation to the official trade union to get a job. A citizen is thus deprived of the right to freely choose a union and members of independent trade unions are forced to quit their union organizations. The BKDP refers, in particular, to the situation at the above-mentioned Belaruskali where the director general has joined the Belkhimprofsoyuz to become its official and head the anti-union campaign against the independent union. The BKDP alleges that as a result, between 1 January and 1 April 2019, 596 workers were forced to renounce their NPG membership. The BKDP further refers to a similar situation at the Remmontazhstroy company where the independent union lost 180 members within the same period. The BKDP further alleges threats of termination of contract suffered by Mr Drazhenko, the head of primary trade union at the Borisov “Autohydraulic booster” plant for his active trade union position.  The Committee requests the Government to provide its detailed comments on the above.

The Committee had previously welcomed the Government’s indication that a training course on international labour standards for judges, lawyers and legal educators was to take place with ILO support in 2017 and requested the Government to provide information on the outcome of this activity. The Committee notes the Government’s indication that this course allowed judges, lawyers and legal educators to increase their knowledge of the practical application of international labour standards, which they are now applying in their professional work.

In this connection, the Committee recalls that it had also expected that the public authorities, in particular the Ministry of Justice, the Office of the Prosecutor-General and the judiciary, together with the social partners, as well as other stakeholders (for example, the Belarusian National Bar Association) would continue working together towards building a strong and efficient system of dispute resolution which could deal with labour disputes involving individual, collective and trade union matters. The Committee notes with  regret  the BKDP indication that the work on developing an effective mechanism for resolving non-judicial disputes which could deal with labour disputes, including individual, collective and trade union disputes, is neglected completely.  The Committee requests the Government to provide its comments thereon. The Committee invites the Government to continue to take advantage of ILO technical assistance in this regard.

Article 4. Right to collective bargaining. The Committee had previously noted that a collective bargaining procedure at enterprises with more than one trade union had been agreed upon and included in clause 45 of the General Agreement between the Government and the national organizations of employers and trade unions for 2016–18. Pursuant to this provision, a single body comprising representatives of all unions active at an enterprise would negotiate a collective agreement to which all trade unions could become a party. The Committee notes with  interest  that the same provision is now included in the General Agreement for 2019–2021 (clause 49).

The Committee recalls the BKDP allegation that this procedure was not respected by the management of a glass fibre company in Polotsk, an enterprise producing tractor parts in Bobruisk and a company producing tractors in Minsk. The Committee notes the Government’s indication that as regard the first enterprise, the primary trade union of the Belarusian Free Trade Union (SPB) did not name any representatives for the inclusion in the collective bargaining committee. The Government points out that the collective agreement for 2014–17 applied to all of the enterprise’s workers. On 28 January 2016, the enterprise received a written request for collective bargaining from the SPB primary organization. Pursuant to the legislation in force, it was requested to confirm that it had members at the enterprise and that it was authorized to represent their interests. As no such confirmation followed, the union could not initiate collective bargaining process. The Government indicates that the latest collective agreement was concluded for 2017–20 by representatives of the primary organization of Belkhimprofsoyuz. As regards Bobruisk plant, the Government indicates that a collective agreement was concluded on 26 March 2016 by the chairperson of the primary organization of the Belarusian Automobile and Agricultural Machinery Workers Union. Representatives of the SPB primary trade union did not participate in the work of the committee established for the purposes of collective bargaining, as the competence of this primary organization had not been confirmed in the proper manner. As regards the Minsk plant, the Government indicates that according to the enterprise management, neither the Belarusian Union of Radio and Electronics Workers (REP), nor the trade union group established by this union in February 2016, stated that they wished to join the collective agreement concluded at the enterprise for 2014–16, and no documents were provided confirming that it represented workers at the enterprise.

The Committee notes that the BKDP alleges several other instances where clause 45 of the previous General Agreement was not respected. In this connection, the Committee notes the Government’s indication that taking into account the complaints received from the BKDP, the issue of compliance with the procedure for collective bargaining where more than one trade union exist, as specified in the General Agreement for 2016–18, has been examined a number of times within the framework of the tripartite Council. The tripartite Council drew the attention of all social partners to the need to comply with clause 45 of the General Agreement. Upon the proposal by the BKDP, this issue was once again examined on 6 March 2018. On that occasion, the tripartite Council requested both the employer and the worker members to provide assistance and to carry out work among its member associations to explain and clarify the issues arising from clause 45 of the General Agreement for 2016–18. The Council concluded that clause 45 applies exclusively to representatives of trade union organizations that are actually operating at an organization (enterprise) and that have members from among the workers of that organization (enterprise).  The Committee trusts that any issues of compliance with the General Agreement will continue to be brought to the attention of the Council where they can be examined in the tripartite setting.

The Committee notes the Government’s indication that the tripartite Council operates effectively in Belarus and is the main forum for stakeholders to discuss issues relating to the implementation of the Commission of Inquiry’s recommendations. The Council also decides on proposals of areas of collaboration with the ILO. The Government informs in this respect, that on the basis of such proposals, a meeting of the tripartite Council held with the participation of the ILO representatives in February 2019, discussed the issue of collective bargaining at various levels. It was agreed that the work in this respect would continue with the ILO support with the view to improving legislation and practice in this area. The Committee notes that in its report on the application of Convention No. 87, the Government informs that a follow-up meeting of the tripartite Council was held in November 2019 to discuss proposals on the issue of collective bargaining elaborated in collaboration with the ILO. The Government believes the proposals and recommendations are a good basis for the tripartite parties to develop solutions acceptable to all. The Committee requests the Government to provide information on all developments in this regard.