Effect given to the recommendations of the committee and the Governing Body - Report No 362, November 2011

Case No 2678 (Georgia) - Complaint date: 14-NOV-08 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 65. The Committee examined this case, which concerns interference in trade union activities of the Educators and Scientists Free Trade Union of Georgia (ESFTUG) and dismissals of trade unionists, at its June 2010 session [see 357th Report, paras 629–660]. On that occasion, the Committee made the following recommendations:
   • (a) The Committee requests the Government to ensure that the check-off facilities at the Senaki nursery, Nakolakevi public school and Tbilisi Public Schools Nos 115, 127 and 160 are re-established, without delay, if they have not yet been, and to ensure that any remaining arrears are paid to the ESFTUG. The Committee requests the Government to keep it informed in this respect.
   • (b) The Committee requests the Government to conduct an independent inquiry into the allegation of dismissal of 11 workers from Public School No. 1 of Dedoflisckaro district and, if it is found that these teachers were dismissed on account of their ESFTUG affiliation, to take the necessary measures to reinstate them without loss of pay. If reinstatement is not possible, for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the trade union leader and members concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissal. It requests the Government to keep it informed in this respect.
   • (c) The Committee requests the Government to take the necessary measures, without delay, in full consultation with the social partners concerned, to amend the Labour Code so as to ensure specific protection against anti-union discrimination, including anti-union dismissals, and to provide for sufficiently dissuasive sanctions against such acts. It requests the Government to keep it informed of the measures taken in this respect, as well as in relation to any progress made in the discussions to be placed on the agenda in the National Social Dialogue Commission.
   • (d) The Committee requests the Government to indicate the measures taken or envisaged to promote collective bargaining in the education sector and to inform it as to whether any collective agreement has since been signed in the education sector and whether the ESFTUG was a party to such an agreement or participated in the negotiation.
   • (e) The Committee requests the Government to provide further information on the status of the PES so as to allow it to make an assessment of its situation.
2. 66. In a communication dated 16 June 2010, Education International (EI) indicates that the Ministry of Education, through its regional offices and education resource centres ordered the interruption of the check-off system for the ESFTUG despite the agreement signed with the Ministry of Education in 1998. This order had been already implemented in a number of regions and cities. The complainant organization states that the interruption of the check-off system will lead to serious financial difficulties and will impede the functioning of the union. The complainant organization also indicates that the Government has failed to initiate any dialogue with the ESFTUG.
3. 67. By a communication dated 26 April 2011, the Government of Georgia submits information concerning this case, as provided by the Ministry of Education and Science of Georgia (MES). The MES indicates that it is currently implementing successive and effective reforms in the education system of Georgia, with a clear vision to ensure protection of the legal rights and interests of teachers as well as other stakeholders involved in the education process. Transparency and social dialogue are essential parts of this process as they contribute to the effectiveness of the reforms. To this effect, the MES has developed several initiatives in order to establish relevant coordination mechanisms between the representatives of the civil society and the MES. In particular, following intensive consultations and meetings with the representatives of parliamentary and nonparliamentary opposition, the ESFTUG, the Union of Professional Education and Training Qualified Workforce, the Independent Professional Union of Students, the Education Employers’ Union, the Education Professional Syndicate and the League of Education Leaders, on 19 February 2010, a public board was established within the MES. The board meets on a monthly basis to discuss any urgent issues and the ways of dealing with them. At the same time, an advisory board of the MES was established in March 2010. It consists of experts in different fields, representatives of NGOs and famous personalities. These board members meet monthly to discuss all ongoing issues in the education system. In the framework of social dialogue, the MES has conducted a number of meetings with the participation of the representatives of parliamentary and non-parliamentary opposition, as well as the ESFTUG, the Education Employers’ Union and the Education Professional Syndicate. All innovations, implemented by the MES in
4. 2010–11 (such as amendments to be made at schools, teachers’ certification for professional-level advancement, improvement of the national curriculum and school textbooks, creating safe school environments, relations between educational institutions and trade unions) have been discussed at these meetings.
5. 68. Furthermore, in order to execute the decision of the Panel of Civil Cases of Tbilisi City Court (decision of 20 February 2007) that obliged the MES to conduct collective negotiations with the ESFTUG in order to sign a sectoral agreement, as well as to involve trade unions in the education reform, a working group in consultation with the ESFTUG was set up by Minister’s Decree No. 125 dated 18 February 2010. In August 2010, the Ministry held a working meeting with Mr Irakli Petriashvili, Head of the Georgian Trade Union Confederation (GTUC); it was decided that a special committee composed of the MES and the GTUC’s representatives will be set up to regulate the legal relations between the educational institutions under the MES and trade unions. Currently, consultations are ongoing on setting up a working group in order to put relations with trade unions in compliance with the legislative requirements.
6. 69. With respect to the ESFTUG’s allegations that the MES interferes in its activities, the MES considers that this claim is ill founded and indicates that it has never intervened in the ESFTUG’s activities. With regard to the payment of trade union dues at the general educational institutions, the MES refers to section 25(3) of the Law on Trade Unions, according to which “employer, administration of enterprise, company, organization, shall transfer membership fees from the employee’s monthly salary to the account of trade unions on the basis of personal written application of a member of a trade union, in accordance with the terms and conditions defined in the collective agreement”. Paragraph 4.13 of the sectoral agreement dated 22 April 1998 obliges administrations of educational institutions (and not the MES) to transfer trade union dues deducted from salaries of trade union members to the respective bank account. In this regard, the MES emphasizes that in 1998, when the then Ministry of Education and the Republic Council of Georgian Trade Unions (legal successor of which is now the ESFTUG) signed the sectoral agreement, the general educational institutions were functioning under the Ministry of Education. In accordance with Decree No. 448 dated 15 September 2005, educational institutions changed legal status and are now formed as legal entities of public law, i.e. autonomous and independent legal entities. In accordance with the Law on General Education, school principals, elected by school boards, independently regulate labour relations with teachers. The MES has no authority to interfere in school affairs.
7. 70. The MES further indicates that according to the Law on Trade Unions, a collective agreement is an agreement between an employer, enterprise, company, establishment, organization and trade unions regulating labour, social and professional relations between the parties. Furthermore, according to subparagraph (f) of section 43(1) of the Law of Georgia on General Education, a public school principal is responsible to sign and execute the labour agreement with teachers and all other school personnel. Thus, school principals and not the MES, are the employers of public schoo1 teachers. According to section 12(3) of the same law, in case of any disagreements between the principal of a public school and teachers, any interested party has the right to appeal to the court to regulate the labour relations. The MES indicates that the teachers who are members of the ESFTUG have not appealed to the national court and thus, did not use the legal remedies the national legal system provides. The MES also indicates that public schools cannot transfer trade union dues without the written consent of teachers who are trade union members, and in the absence of a collective agreement.
8. 71. The MES concludes by stating that it makes all efforts to protect the legal rights and interests of teachers, that it respects and acknowledges the right of expressing teachers’ free will. Moreover, the MES regularly holds meetings with teachers and school principals in order to understand and consider their opinions and approaches.
9. 72. The Committee notes the information submitted by the Government and its stated commitment to social dialogue.
10. 73. The Committee notes that EI submits new allegations of withdrawal of check-off facilities previously enjoyed by the ESFTUG. The Committee recalls that it had previously examined similar allegations and, on that occasion, it emphasized that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 475]. The Committee notes the Government’s explanation, as expressed by the MES, that pursuant to the national legislation for trade union dues to be deducted and transferred, two requirements shall be met: a union member shall produce a written consent to that effect and a collective agreement shall be concluded at the school. The Committee recalls from the previous examination of this case that the complainant argued that written consents were produced by the ESFTUG members. On the issue of collective agreements, the Committee notes that the MES refers to the sectoral agreement dated 22 April 1998 obliging administrations of educational institutions to provide for check-off facilities on the one hand and, on the other, explains that schools are autonomous legal bodies which independently regulate labour relations with teachers and that the MES has no authority to interfere in their affairs. Furthermore, the MES indicates that according to the existing legislation, a public school principal is responsible for signing and executing a collective agreement; it is the public school principal and not the MES who is considered to be the employer of teachers working at a particular public school. In case of a disagreement between the principal and teachers of a public school, any party has the right to appeal to the court. The MES indicates that in this particular case, the ESFTUG did not appeal to the national court and thus did not use the legal remedies the national legal system provides. In this respect, the Committee, without prejudging the judicial system in Georgia and noting that the decision of 20 February 2007 by the Tbilisi Court Panel on Civil Cases ordering the MES to conduct collective bargaining with a view to signing a new sectoral collective agreement has still not been fully implemented, understands the union’s reluctance to address their grievances in court. Noting that the decision taken by some school principals to withdraw check-off facilities was also in violation of the 1998 agreement, the Committee wishes to recall that the ultimate responsibility for ensuring respect for the principles of freedom of association, including the principle that agreements should be binding on the parties, lies with the Government. The Committee urges the Government to take the necessary measures to ensure that the check-off facilities previously enjoyed by the ESFTUG are re-established, without delay, if they have not yet been, and to ensure that any remaining arrears are paid to the ESFTUG.
11. 74. The Committee notes the establishment of various bodies to address urgent and outstanding issues in the education sector. It requests the Government to take the necessary measures to ensure that the outstanding recommendations in this case, namely those relating to the allegations of anti-union dismissals and withdrawal of check-off facilities and promotion of collective bargaining, are brought to the attention of these bodies without delay. It requests the Government to keep it informed in this respect and expects that the Government will provide detailed information on the measures taken to implement all of the abovementioned outstanding recommendations.