Informe provisional - Informe núm. 318, Noviembre 1999

Caso núm. 2012 (Federación de Rusia) - Fecha de presentación de la queja:: 11-MAR-99 - Cerrado

Allegations: Violations of the right to bargain collectively, refusal to deduct union dues, withdrawal of facilities for workers' representatives, denial of access to premises

1. 405. The Trade Union of Workers of the All Russian State Television and Radio Company presented a complaint of violations of freedom of association against the Government of the Russian Federation in a communication dated 11 March 1999. A number of documents were annexed to the complaint. The Government forwarded its response to the allegations in a communication dated 26 April 1999.
2. 406. The Russian Federation has ratified 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); it has not ratified the Workers' Representatives Convention, 1971 (No. 135).

A. The complainant's allegations

1. 407. In its communication of 11 March 1999, the Trade Union of Workers of the All Russian State Television and Radio Company alleges that its collective bargaining rights have been violated since the All Russian State Television and Radio Company (VGTRK) has refused to bargain collectively with it and has failed to provide information relevant to collective bargaining. It is further alleged that the activities of the complainant have been interfered with by VGTRK withdrawing check-off facilities, withdrawing the use of premises, disconnecting telephone lines and denying workers' representatives access to the premises.
2. 408. As background, the complainant states that it is the principal trade union representing workers of the All Russian State Television and Radio Company, which has 4,100 to 4,600 employees. The trade union was established in 1991 and its membership among VGTRK employees has varied since then from 2,200 to 2,600. The complainant was registered with the Department of Justice in Moscow on 17 February 1998.
3. 409. The complainant states that, since 1993, it has on several occasions attempted to initiate collective bargaining with the management of VGTRK. The management representatives did not initially refuse outright to engage in collective bargaining; however, they evaded negotiations on the basis of various specious excuses. The complainant states that the attitude demonstrated by the management had been one of reasonable tolerance until September 1997. In September 1997, the management removed the question of collective bargaining from its agenda; however, the complainant continued to approach the management on this subject repeatedly from the end of 1997 throughout 1998. The complainant protested to the Public Prosecutor concerning the refusal to bargain. In a letter dated 17 April 1998, annexed to the complaint, the Public Prosecutor stated that he had examined the representation of the complainant concerning infringements of the legislation on collective agreements and found that infringements had taken place. He stated that:
   • between 17 September 1997 and 10 March 1998, the Chairperson of the trade union committee sent six written notifications to the VGTRK management concerning the commencement of collective bargaining with a view to concluding a collective agreement. However through the management's fault, negotiations still have not begun ... Such behaviour on the part of the management of VGTRK is nothing other than a refusal to engage in collective bargaining with a view to concluding a collective agreement.
   • In a letter of 5 June 1998, the Federal Labour Inspectorate also stated that VGTRK had infringed the law by refusing to take part in collective bargaining.
4. 410. In a subsequent letter, dated 24 April 1998, the Public Prosecutor stated that there had been violations of the Law on Trade Unions, their Rights and Safeguards for their Activities. According to the Public Prosecutor:
   • the management ... regularly interferes in the activities of the trade union, for example by its repeated demands that the trade union committee produce various documents, including its constituent documents, in order to check up on the legality of the trade union's activities. However, under the laws on trade unions and other legislation, the management of the enterprise, institution or organizations, including VGTRK, is not entitled to carry out such checks on the legality of the activities of the trade union or its committee.
   • The Public Prosecutor went on to find that, among other violations, VGTRK had not forwarded information on social and employment matters that had legitimately been requested by the trade union. However, VGTRK informed the complainant by letter dated 15 June 1998 that the enterprise would be undergoing restructuring, and that the question of the conclusion of a collective agreement could be resolved "only once the restructuring of VGTRK has been concluded and the new constituent documents approved". The complainant again appealed to VGTRK to negotiate (letter dated 23 July 1998). In response, the President of the company referred to an action filed by the trade union before the Moscow Court of Arbitration stating that it was "illegal" and that for this reason he considered negotiations with the union "inexpedient" (letter dated 9 December 1998).
5. 411. The Moscow Municipal Court in its decision of 12 December 1998, also annexed to the complaint, dismissed the complaint of refusal to bargain since the Chairperson of the union did not have authorization from the trade union committee to sign the statement of claim (due to an absence of quorum). The trade union then made a number of other requests to VGTRK to take part in negotiations. In a letter dated 5 February 1999 addressed to the Chairperson of the complainant, the First Deputy President of VGTRK stated that:
   • the management ... has lost confidence in you completely, as a consequence of your unfounded complaints lodged with the Public Prosecutor's Office, your (court actions), cases which you deservedly lost as a result of the falsification of the minutes of the trade union committee meeting and the incorrect interpretation of the federal laws.... In view of the above, the management of VGTRK sees no reason to meet with you or to conduct negotiations of any kind, or to acquaint you with the draft document regulating the remuneration of labour of the workers of VGTRK.
6. 412. The complainant submits that the management's attitude changed dramatically on 9 January 1998 when the complainant took action to protect the workers' rights against mass lay-offs. Since the end of January 1998, the payment of union dues has been suspended, attempts have been made to discredit the trade union, members of the trade union committee have been persecuted and indirect pressure has been put on workers to withdraw from the union. According to the complainant, in March 1998, the management, in an attempt to contest the complainant's legitimacy, lodged a complaint against it with the Public Prosecutor's Office. However, the Public Prosecutor rendered a decision in which it found that the actions of the management had been unlawful, and confirmed the legitimacy of the complainant.
7. 413. With respect to the withdrawal of check-off facilities, a number of details are set out in the decision of the Public Prosecutor, dated 24 April 1998. Due to an order dated 20 January 1998 of the President of VGTRK, deductions of membership dues from the wages of the complainant's members were suspended. The complainant protested. By order of the President of VGTRK dated 15 April 1998, the deduction of dues accrued since 1 January 1998 was authorized, subject to the company receiving written authorization from the individual members. Each member was asked to confirm his or her consent to the deduction of trade union dues and also to the deduction of the arrears in dues resulting from the temporary suspension. By letter of October 1998, annexed to the complaint, the President of VGTRK informed the complainant that, due to financial difficulties, trade union membership dues were not transferred to the complainant's account for July and August of 1998, but that as soon as there was money available the dues would be transferred. By order of 9 February 1999, the President of VGTRK instructed the accounting office to stop the deduction of trade union dues and to return the dues deducted between June and December 1998 to the workers. Correspondence between a member of the complainant organization and VGTRK is also included with the complaint; the member specifically requested that the trade union dues deducted from his wages in 1998 and 1999 be transferred to the complainant's account and that the dues continue to be deducted from his wages and transferred to the complainant. In response, the head accountant stated in a communication of 4 March 1999 that the accounting office had been ordered to stop deducting dues and to return the deductions made from June 1998 to January 1999 and "for this reason it is not possible to transfer your membership dues or to deduct them in the future".
8. 414. The complainant states that the most recent act committed against it was its expulsion at the end of February 1999 from the premises which it had been allocated. The premises were sealed and the telephone lines were disconnected. The Chairperson of the trade union committee was denied access to the workplace. The activities of the complainant were, therefore, completely hindered at a time when VGTRK was undergoing restructuring and workers were facing the threat of lay-offs. The document issued by the President of VGTRK dated 9 February 1999, a copy of which is annexed to the complaint, orders the eviction of the complainant's trade union committee and the removal of all material put at its disposal, as well as cutting off the telephone and facsimile access.
9. 415. The complainant concludes by alleging violations of the following trade union rights:
   • -- refusal to engage in collective bargaining;
   • -- failure to provide information on matters having a direct bearing on collective bargaining;
   • -- interference by VGTRK in the activities of the complainant by refusing to recognize it, despite it being registered with the Department of Justice;
   • -- interference by VGTRK in the activities of the complainant by prohibiting the accounting office from deducting dues from workers' wages when requested by the workers to make such deductions;
   • -- obstructing the normal activity of the complainant by confiscating premises, disconnecting telephone lines and denying the Chairperson of the trade union committee access to the workplace of the members.

B. The Government's reply

1. 416. In its communication of 26 April 1999, the Government submits that it has not been able to confirm the facts alleged by the complainant. It states that in the course of an investigation conducted by the labour inspection division in April 1999, it was established that Ms. I.L. Zuyeva, Chairperson of the complainant's trade union committee, had on 17 September 1997 and 4 February 1998 addressed to the President of VGTRK written proposals to initiate collective bargaining with the aim of concluding a collective agreement. In response, in communications of 15 October 1997 and 10 February 1998, the President of VGTRK requested, in accordance with sections 2(3), 4 and 7(1) of the Law on Collective Agreements and Accords, that the following documents be submitted to the administration of VGTRK before collective bargaining could begin:
   • -- the complainant's by-laws;
   • -- the decision of the constituent assembly recording the establishment of the trade union;
   • -- the resolution electing the Chairperson;
   • -- the resolution empowering the representatives of the organization to conduct collective bargaining.
     • The Government states that, despite this request, the documents submitted by the trade union committee under cover of a communication dated 21 January 1998, did not provide evidence of authority being given to the representatives to conduct collective bargaining.
   • 417. Pursuant to sections 25 and 28 of the Law on Collective Agreements and Accords, liability for evading negotiations to conclude a collective agreement is to be established by the court. On 27 April 1998, Ms. Zuyeva, on the basis of these provisions, filed a statement of claim with the Savelovsky Intermunicipal People's Court of Moscow to have the Court compel VGTRK to negotiate with a view to concluding a collective agreement. Having considered the matter, the Court dismissed the case on the grounds that there had been no decision of the trade union committee authorizing its Chairperson to sign the statement of claim and submit it to the Court. Another application signed by Ms. Zuyeva, submitted to the same Court and seeking the same relief, was heard by the Court on 15 September 1998 and dismissed on the same grounds. An appeal was then lodged before the Moscow Municipal Court, which was dismissed on 12 December 1998.
2. 418. The Government denies the complainant's allegations that the management of VGTRK instructed its accounting service to stop deducting membership dues from the wages of trade union members and has impeded trade union activities by withdrawing the use of premises and disconnecting telephone lines. It states that, according to Order No. 223 of 15 April 1998, issued by the management of VGTRK, membership dues are to be deducted from the wages of trade union members provided there is a written request from the member. The Government points also to section 28(1) and (2) of the Law on Trade Unions, their Rights and Safeguards for their Activities, according to which "employers are to provide trade unions functioning in the enterprise, free of charge, with the facilities, premises, transport and means of communication needed for their activities, in accordance with the relevant collective agreement". The employer may also transfer to the trade unions, free of charge, for their use any buildings, facilities or other assets, owned or leased by the employer. Since a collective agreement had not been concluded between the complainant and VGTRK, the Government asserts that the enterprise had no obligations under these provisions of the law, and this was confirmed by the Arbitration Court of Moscow which rejected the complainant's claim.

C. The Committee's conclusions

1. 419. The Committee notes that this case concerns alleged actions of the All Russian State Television and Radio Company (VGTRK) against the Trade Union of Workers of the All Russian State Television and Radio Company. In particular, the complainant alleges that VGTRK has refused to recognize it for the purposes of collective bargaining and failed to provide information directly related to collective bargaining. The complainant further alleges that VGTRK has interfered with its activities by withdrawing check-off facilities, withdrawing the use of premises, disconnecting telephone lines and denying workers' representatives access to the premises.
   • Collective bargaining
2. 420. Regarding the allegation that the complainant's collective bargaining rights have been violated, the Committee notes that the Government does not dispute that the complainant is the most representative trade union at VGTRK and has on numerous occasions unsuccessfully attempted to initiate collective bargaining with VGTRK. The Committee also notes that, according to the Government, the refusal on the part of VGTRK to negotiate collectively with the complainant resulted from the complainant not submitting documentation to VGTRK which it had requested pursuant to the Law on Collective Agreements and Accords, confirming that its representatives were duly authorized to conduct collective bargaining.
3. 421. The Committee, however, notes the finding of the Public Prosecutor, set out in a letter dated 17 April 1998, that VGTRK had infringed the legislation on collective agreements since the complainant had attempted to initiate collective bargaining on six occasions and "through the management's fault, negotiations still have not begun". The Federal Labour Inspectorate also found that VGTRK had infringed the law by refusing to take part in collective bargaining. In addition, the Public Prosecutor stated that there had been violations of the Law on Trade Unions, their Rights and Safeguards for their Activities since the management was interfering in the activities of the trade union by repeatedly demanding that the trade union committee produce various documents, including its constituent documents, in order to check up on the legality of the trade union's activities.
4. 422. The Committee also notes that the Moscow Municipal Court in its decision of 12 December 1998, referred to by the Government, dismissed the complaint of refusal to bargain solely on procedural grounds since the Chairperson of the union did not have authorization from the trade union committee to sign the statement of claim (due to an absence of quorum). No decision on the substance of the matter has been rendered. The trade union then made a number of other requests to VGTRK to take part in negotiations, which were refused.
5. 423. The Committee considers that the right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association; it also points out the importance which it attaches to the right of representative organizations to negotiate (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 782 and 784). The Committee notes with concern that, despite requests from the complainant since 1993, collective bargaining has not taken place in VGTRK due to the absence of a positive response from the management. The company justifies its delays and refusals on the fact that a restructuring will soon be taking place and then due to the complaints filed by the complainant before various administrative and judicial bodies. In the view of the Committee, neither can be considered a legitimate reason for refusing to bargain collectively with the most representative trade union. The Committee recalls the importance which it attaches to the obligation to negotiate in good faith: it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties (see Digest, op. cit, paras. 814 and 815). In the view of the Committee, VGTRK was not acting in good faith in refusing to bargain collectively with the most representative trade union, thus violating the complainant's trade union rights.
6. 424. On the question of the denial of access to information on matters having a direct bearing on collective bargaining, the Committee notes that legislation provides that trade unions are entitled to receive information on social and employment matters (Law on Trade Unions, their Rights and Safeguards for their Activities, section 17). The Committee recalls that "certain rules and practices can facilitate negotiations and help to promote collective bargaining and various arrangements may facilitate the parties' access to certain information concerning, for example, the economic position of the bargaining unit, wages and working conditions in closely related units, or the general economic situation ..." (see Digest, op. cit, para. 859). The Committee, noting that the national legislation provides avenues for facilitating collective bargaining, including access to information, requests the Government to ensure that the legislation is applied in practice and to take measures to ensure that VGTRK negotiates in good faith with the complainant. It also requests the Government to provide information relevant to collective bargaining.
   • Interference with trade union activities
7. 425. With respect to the allegation that VGTRK has interfered with the activities of the complainant, the Committee notes that a number of different types of interference are set out: withdrawing check-off facilities; withdrawing the use of premises and telephone services; and denying workers' representatives access to the premises. On the issue of the withdrawal of the use of premises and telephone services, the Committee notes the document issued by the President of VGTRK dated 9 February 1999 ordering the eviction of the complainant's trade union committee and the removal of all material put at its disposal, as well as cutting off the telephone and facsimile access. In this context, the Committee notes the statement of the Government to the effect that, in the absence of a collective agreement, the VGTRK was not obliged to provide facilities to the trade union. It indeed appears that pursuant to section 28(1) of the Law on Trade Unions, their Rights and Safeguards for their Activities, the facilities, premises and means of communication that the unions require are only provided by the enterprise "in accordance with the relevant collective agreement". It seems, therefore, that by evading collective bargaining, the employer can deny access to facilities for the proper functioning of the trade union.
8. 426. The Committee draws attention to Article 2(1) of the Workers' Representatives Convention, 1971 (No. 135), which states that "such facilities in the undertaking shall be afforded to workers' representatives as may be appropriate to enable them to carry out their functions promptly and efficiently". The Committee notes, in particular, that workers' representatives should be granted access to all workplaces in the undertaking, where such access is necessary to enable them to carry out their representation function (see Workers' Representatives Recommendation, 1971 (No. 143), paragraph 12; see also Digest, op. cit., para. 954). Noting the deficiency in the legislation concerning this point, the Committee requests the Government to make the necessary modifications to the legislation, keeping in mind the prinicples in Convention No. 135 and Recommendation No. 143, and to keep it informed of the measures taken in this respect.
9. 427. In the present case, since the absence of a collective agreement is a result of the hostile attitude of the VGTRK to the commencement of negotiations, the Committee considers that this absence of an agreement is not a sufficient justification to deny facilities to the trade union. The Committee, therefore, requests the Government to ensure that the facilities necessary for its proper functioning are granted to the complainant trade union.
10. 428. With respect to the withdrawal of check-off facilities, the Committee notes that, due to an order dated 20 January 1998 of the President of VGTRK, deductions of membership dues from the wages of the complainant's members were suspended. The complainant protested. By order of the President of VGTRK dated 15 April 1998, the deduction of dues accrued since 1 January 1998 was authorized, subject to the company receiving written authorization from the individual members. The President of VGTRK in October 1998 informed the complainant that, due to financial difficulties, trade union membership dues were not transferred to the complainant's account for July and August of 1998, but that as soon as there was money available the dues would be transferred. However, on 9 February 1999, the President of VGTRK instructed the accounting office to stop the deduction of trade union dues and to return the dues deducted between June and December 1998 to the workers (it appears that these dues had been deducted from the members' wages but not yet transferred to the complainant's account). The Committee notes that one member of the complainant organization specifically requested that the trade union dues deducted from his wages in 1998 and 1999 be transferred to the complainant's account and that the dues continue to be deducted from his wages and transferred to the complainant, but was informed that the accounting office had been ordered to stop deducting dues and to return the deductions made from June 1998 to January 1999 and, therefore, could not transfer the membership dues or deduct them in future.
11. 429. On this matter, the Committee notes that the Government's response acknowledges only the order issued by the management of VGTRK of 15 April 1998 authorizing deductions of union dues upon the written request of the members. The Committee notes with deep regret that VGTRK on various occasions deducted dues without remitting them to the complainant or suspended the deductions. The Committee recalls that the withdrawal of check-off facilities, which could lead to difficulties for trade unions, is not conducive to the development of harmonious industrial relations and therefore should be avoided (see Digest, op. cit, para. 435). The Committee requests the Government to take measures to ensure that VGTRK allows trade union dues to be deducted and transferred to the complainant when expressly requested by members. The Committee also requests the Government to provide information concerning the deductions that have been withheld or suspended.

The Committee's recommendations

1. 430. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting that the national legislation provides avenues for facilitating collective bargaining, including access to information, the Committee requests the Government to ensure that the legislation is applied in practice and to take measures to ensure that VGTRK negotiates in good faith with the complainant and to provide information relevant to collective bargaining.
   • (b) The Committee requests the Government to make the necessary modifications to the legislation, keeping in mind the principles in Convention No. 135 and Recommendation No. 143, and to keep it informed of the measures taken in this respect.
   • (c) The Committee requests the Government to ensure that the facilities necessary for its proper functioning are granted to the complainant trade union.
   • (d) The Committee requests the Government to take measures to ensure that VGTRK allows trade union dues to be deducted and transferred to the complainant when expressly requested by members, and to provide information concerning the deductions that have been withheld or suspended.