Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Mongolie (Ratification: 1969)

The Committee takes note of the observations of Education International alleging the lack of independence of teachers’ organizations from their employers in private institutions, as well as the marginalization of the Federation of Mongolian and Science Unions (FMESU) in collective bargaining activities. The Committee requests the Government to provide its comments in this respect.

The Committee takes note of the adoption of the Labour Law of Mongolia dated 2 July 2021. It welcomes the inclusive scope of the new legislation covering all workers as defined in its section 3.6.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee notes the prohibited unfair labour practices listed under section 11.1 of the Labour Law, which can give rise to sanctions under the Law on Violations (section 11.3 of the Labour Law). The Committee notes in particular that “employers and their representatives shall be prohibited from engaging in unfair labour actions or inactions in occupation and labour relations as follows: … worsen employees’ employment conditions because of their forming or joining a trade union or participating in its activities (section11.1.3). The Committee also notes that according to section 24.2 of the Labour Law, “it is prohibited to impose disciplinary sanctions to a trade union worker or elected representative participating in collective bargaining in relation to these negotiations, transfer them to another position, reduce remuneration or terminate employment at the employer’s initiative for participation in collective bargaining during the negotiations or within one year after, for any reason except for dissolution of the business entity organization and for reasons stipulated in sections 80.1.4-80.1.6 of this law.” While taking due note of these provisions, the Committee wishes to recall that the protection under Article 1 of the Convention is wide-ranging in scope: States are under the obligation to take specific measures to ensure the adequate protection of workers against any acts of anti-union discrimination both at the time of taking up employment and in the course of employment, including at the time of the termination of the employment relationship, and covering “acts of anti-union discrimination in respect of their employment” (dismissal, transfer, demotion and other prejudicial acts) (see 2012 General Survey on the fundamental Conventions, paragraph 173). The Committee therefore requests the Government to provide clarification as to the provisions covering anti-union discrimination at the time of taking up employment and in case of anti-union dismissal outside of cases specifically linked to the exercise of collective bargaining.

The Committee also recalls that, in order to ensure an adequate protection against anti-union discrimination within the meaning of Article 1 of the Convention, the legislative provisions prohibiting acts of anti-union discrimination must provide for the application of sufficiently dissuasive penalties in case of their violation. With respect to anti-union dismissals in particular, the Committee recalls that the reinstatement with retroactive compensation constitutes, in the absence of preventive measures, the most effective remedy. It further recalls that the compensation envisaged for anti-union dismissal should be higher than that prescribed for other kinds of dismissal, with a view to the effective dissuasion of this type of dismissal, and that it should be adapted in accordance with the size of the enterprises concerned (see 2012 General Survey, paragraphs 182 and 185). With a view to assessing the effectiveness of the legislation concerning anti-union discrimination, the Committee therefore requests the Government to: (i) provide information on the sanctions applicable to the acts of anti-union discrimination in general, in particular in light of the Law of Violations referred in section 11.3 of the Labour Law; (ii) provide information on the complaints filed with the competent authorities in this field and on their outcome; and (iii) indicate if the reinstatement of a worker dismissed because of trade union membership or legitimate trade union activities is part of the remedies applicable by the competent authorities.

Article 2. Adequate protection against acts of interference. The Committee takes note of the protection against acts of interference provided under section 11.1 of the Labour Law. The Committee notes in particular that “employers and their representatives shall be prohibited from engaging in unfair labour actions or inactions in occupation and labour relations, including the following : “ … interfering in the work of organizations representing employees or providing or promising to provide financial and other support … (section 11.1.1); establish trade unions under employers’ control, pressure employees to associate (section 11.1.2); interfere with, restrict or put pressure on employees’ representatives during their participation in collective negotiations (section 11.1.4); and attempt to keep the employees’ representatives under the employer’s control by promising or providing them with financial and other support (section 11.1.6)”. Noting that such “unfair labour practices” can give rise to sanctions under the Law on Violations (section 11.3), as in the case of acts of anti-union discrimination, the Committee wishes to recall that “adequate protection” against acts of interference within the meaning of the Convention requires the establishment of rapid appeal procedures and sufficiently dissuasive sanctions against such acts (see 2012 General Survey, paragraph 197). The Committee therefore requests the Government to provide information on the sanctions applicable in this regard, in particular in light of the Law on Violations referred to in section 11.3 of the Labour Law.

Article 4. Free and voluntary nature of collective bargaining. The Committee welcomes the fact that, as a result of the joint reading of sections 3.6 and 5 of the Labour Law, the right to bargain collectively is recognized to all workers. The Committee also notes with interest the basic principles of collective negotiations set by section 19 of the Labour Law.

The Committee further notes that, according to section 38 of the Labour Law, a “collective contract shall be concluded by the representatives of an employer and a trade union, and in the absence of a trade union, by the representatives of employees elected at the meeting of all employees”, whereas the conclusion of “collective agreements” referred to in section 36 is governed by different rules. The Committee observes the distinction between “collective contracts” (section 4.1.7) that are negotiated at the enterprise level and “collective agreements” (section 4.1.8) that are concluded either at the national, sectoral or territorial level. Whereas the definition of a collective contract in section 4.1.7 of the Labour Law specifically points out the bipartite nature of collective bargaining, the definition of a “collective agreement” in section 4.1.8 does not provide clarification on who are the parties that can negotiate such agreements. The Committee additionally notes that according to section 36 (Parties to collective agreements), collective agreements shall be concluded by and between: (i) National collective agreement by the Government and the national organizations which represent and protect the rights and legitimate interests of employers and employees (section 36.1.1); (ii) industry and inter-industry collective agreements by industry organizations representing and protecting the rights, and legitimate interests of employers and employees (section 36.1.2); and (iii) aimag, capital city, soum and duureg (district) collective agreements by respective governors and local organizations which represent and protect the rights, and legitimate interests of employers and employees (section 36.1.3). The Committee further notes that: (i) if the State is an employer in the industry, then the state central administrative body in charge of the industry shall participate alone or jointly with the representatives of other employers in collective negotiations (section 36.2); and (ii) if the State is not an employer in the industry, then the state central administrative body in charge of the industry shall participate in collective negotiations at the request of either party to a collective agreement (section 36.3). While emphasizing the importance and the relevance of concertation between the Government and the social partners on matters of common interest, the Committee recalls that the Convention tends essentially to promote bipartite negotiation and to limit the participation of public authorities to issues which are broad in scope, such as the formulation of legislation and economic or social policy or the fixing of the minimum wage rate. The Committee therefore requests the Government to: (i) specify the role that, under section 36.3 of the Labour Law, public authorities may play in the negotiations of industry level collective agreements and provide information on the application of this provision in practice; and (ii) provide information on the subjects covered by collective agreements concluded at the national and local levels.

Articles 4 and 6. Right to collective bargaining of civil servants not engaged in the administration of the State. In its previous comments, the Committee had recalled that the right to collective bargaining also covered the civil servants who are not engaged in the administration of the State. Noting that according to section 3.4 of the Labour Law, labour relations of civil servants not specifically regulated by the 2018 Law on the Civil Service and other related laws shall be regulated by this Law, the Committee requests the Government to indicate how the legislation recognizes the right to collective bargaining to civil servants not employed in the administration of the State who are not covered by the labour legislation and specify the relevant legislative provisions.

Promotion of collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements and collective contracts concluded and in force in the country, as well as the sectors concerned and the number of workers covered.