The draft Law on Trade Unions has no aim to implement ILO recommendations. Such is the opinion of this organization

Informal opinion on the draft Law on Trade Unions

Preliminary remarks

In October 2006, upon the request of the Government of Belarus, the Office prepared an informal opinion on the Concept Note of the Law on Trade Unions. The Committee of Experts on the Application of Conventions and Recommendations examined the Concept Note during its session of November-December 2006 and expressed serious concerns over a number of its precepts. In February 2007, a series of consultations were held in Geneva to discuss the corresponding draft legislation. The Committee on Freedom of Association also raised concerns when it examined at its March 2007 Session the measures taken by the Government of the Republic of Belarus to implement the recommendations of the Commission of Inquiry. Both the Committee of Experts and the Committee on Freedom of Association urged the Government to abandon the approach adopted in the Concept Note and the corresponding first draft legislation and to ensure that the new Law on Trade Unions would fully and truly ensure freedom of association and the rights of all workers to form and join organizations of their own choosing, including through the elimination of such obstacles as high thresholds for registration at the Republican and territorial levels, the deletion of provisions promoting a single trade union system at the enterprise level and, in general, shifting away from the focus on representativeness.

Compared with the Concept Note and the February version of the draft law, the latest (May 2007) version of the draft Law does not contain provisions on a single union system at the enterprise level. The numerical requirements for trade union registration have also been lowered. However, any analysis of the new trade union legislation should be done within the framework of implementation of the recommendations of the 2004 Commission of Inquiry, which, it should be recalled, did not find any problems with the existing trade union law. Therefore, the purpose of the following analysis is to assist the Government and the social partners in identifying the issues to which further attention should be paid during the process of preparing any new legislation and, in particular, to ensure that a possible new Law on Trade Unions would comply with Conventions Nos. 87 and 98 and freedom of association principles and could serve the purpose of implementing the recommendations of the Commission of Inquiry.

I. Status of trade unions: recorded vs. registered

The draft legislation maintains the approach of having two different kinds of trade unions at the enterprise level: those with legal personality (for which a trade union must be registered) and those without it (trade unions are simply recorded). The Government has explained to the Office that the aim of this approach is to simplify the procedure for the establishment of trade unions. However, while this approach could as such be acceptable, it does not resolve the problems raised by the Commission of Inquiry. Only enterprise level trade unions can be recorded and thus, the simplified procedure of registration is not available for either branch trade unions or those established on an occupational basis at the territorial level. Moreover, the rights of recorded trade unions, and therefore their functioning, appear to be limited. For example, as such trade unions cannot obtain legal personality, they could be impeded in their ability to use bank accounts and carry out the necessary financial operations. In addition, the option of forming a union without legal personality is used as a justification for the maintenance of the ten per cent membership requirement to be registered at the enterprise level (article 15 of the draft Law). For a number of years, the ILO supervisory bodies.have requested the Government to amend this minimum membership, which they consider excessive, particularly in large enterprises. The fact that another form of organization may exist without meeting this requirement (without legal personality and with certain restrictions as to its actions) is not certain to meet the supervisory bodies' concerns relating to the impact of the ten per cent requirement for freedom of association at enterprise level.

II.Legal address vs. contact address

Under the draft Law, the legal address requirement is removed only for those unions at the enterprise level which are not seeking legal personality. For the purposes of recording, a contact address is sufficient. A legal address is required for all wishing to register as well as for all higher-level unions (i.e. non-enterprise level unions). In addition, the distinction between legal and contact address is not clear. From the explanation provided by the Government, a contact address could be an address of a founder or of an official of an enterprise trade union. With regard to the legal address, no clear definition is provided except

for the restriction of its geographical location. The Commission of Inquiry had noted that the requirement of a legal address has created obstacles to trade union registration due, among other reasons, to the absence of clear rules on what may be an appropriate location for an organization's legal address if the premises for a legal address are not provided by the employer. In light of the frequency with which requests for registration at all levels had been denied on the basis of an unacceptable legal address, any new legislation should ensure that regardless of the level, all workers' organizations, which want to be registered, can be registered on the basis of simplified requirements concerning the provision of a valid address.

III. Minimum membership requirement at the republican level trade unions and
federations

According to article 7 of the draft Law, at least 7 000 members or at least one-third of the total number of persons employed in one branch or in several related branches or belonging to one or several related occupations are needed to obtain the status of a republican trade union. For the establishment of a Republican federation of trade unions, the following conditions must be met: the organization must comprise at least two Republican trade unions; or one Republican trade union and other trade unions which together, affiliate members from at least four regions of the Republic and the city of Minsk. Article 8 of the draft Law further links these numerical requirements with the representativeness of trade unions and consequently, their ability to bargain at the national level. Under the existing legislation, 500 members are required to establish a republican trade union. According to the Government, today, among the four trade unions comprising the CDTU, only the Belarusian Independent Trade Union (BITU) counts about 7,500 members and would thus be able to confirm its Republican status. Considering that independent trade unions have already suffered an accelerated decline of their membership, as noted by the Commission of Inquiry, the introduction of a significantly higher membership requirement would not seem to help in satisfying the recommendations of the Commission of Inquiry; more probably, they would be understood as being contrary to them at the present time.

IV. Representativeness

The Committee of Experts and the Committee on Freedom of Association had examined the issue of representativeness as adopted by the Concept Note and the February version of the draft Law. Both supervisory bodies expressed their concerns over the focus on the question of representativeness at various levels. On several occasions, the Committee on Freedom of Association had advised the Government against this approach. More specifically, it considered that "before establishing the notion of representativeness in the trade union legislation, the Government should ensure an atmosphere in which trade union organizations, whether within or outside, the traditional structure, are able to flourish in the country" (see 345th Report of the Committee on Freedom of Association, para. 93).

The new version of the draft Law maintains a strong link between representativeness and the rights of trade unions, including the right to collective bargaining. According to article 8, representative unions are those with the membership of at least ten per cent of the enterprise/organization workforce or one-third of workers employed in the branch/occupation in question. Therefore, those enterprise trade unions which represent less than 10 per cent of workers (which in large enterprises can represent hundreds or up to more that a thousand workers) or branch/occupational unions with less than one-third of workers employed in the branch/occupation would not appear to enjoy rights to collective bargaining, rights in the sphere of employment promotion, monitoring of compliance with labour legislation, social protection, housing, environmental protection and health. In the present national context, the traditional (and larger) trade union could avoid having to work with minority unions on the above issues. Even if the minority unions do obtain a representative status, the manner in which collective bargaining is carried out in the presence of several representative trade unions is not specified. Moreover, according to article 29, when one enterprise trade union represents more than half of the workers, this organization would apparently have a virtually exclusive right to conclude a collective agreement on behalf of all workers of the enterprise, as smaller representative trade unions could only take part in collective bargaining on a consultative basis. Once again, in a context where trade union pluralism is relatively young and membership in traditional trade unions is still almost a given fact, alongside with the harassment and intimidation which the Commission of Inquiry had noted had been endured by the non-traditional unions, it is difficult to see how these latter unions could successfully make their alternative voices heard or obtain facilities (including premises, and by extension, a legal address), which can be granted to trade unions by the employer only if a provision to this effect is contained in a collective agreement.

There are various systems around the world aimed at facilitating collective bargaining within the context of multiple trade union representation. The aim of the legislator should be to

establish a system, which would be appropriate to national conditions so that industrial
harmony is ensured. In this respect, the most relevant examples come from other ex-USSR
countries and, in particular, the Russian Federation, to which the Government is encouraged
to refer. . ..

V.Detailed regulation of the registration process

The registration (or recording) procedure provided for: in Chapter 3 of the draft Law appears to.be excessively detailed. While member States remain free to provide such formalities on their legislation as appears appropriate to ensure the normal functioning of occupational organizations, the registration formalities should not impair the guarantees laid down by the Convention in practice. As mentioned above, the Commission of Inquiry considered that the main problem encountered by trade unions during the registration process was the application of the legislation by the registering authorities in practice. In the current context, extensively regulated registration procedures carry the risk that the registration authorities could easily find a pretext for not registering a union. In particular, pursuant to article 21 of the draft Law, the state registration may be postponed in the case of "shortcomings in the preparation of documents". This may be broadly interpreted by the registration authorities. The Government has explained to the Office that the reason for the detailed requirements is that the Law would set out the maximum of what could be required. However, while such an approach may otherwise have its merits, the wide latitude for interpretation provided for the authorities in practice leads to a situation where registration can be denied on many pretexts if the authorities do not wish to register a particular union.

VI. Liability of trade unions (Chapter 5)

Chapter 5 of the draft legislation provides • for various sanctions against trade unions for violation of national legislation and their own constituent documents. No sanctions are specified in cases of violations of the rights of trade unions. The six detailed articles of the draft Law concerning the liability of trade unions leave a distinct impression that the purpose of the law is to exercise close control over trade unions. According to article 43, the sanctions, which may be applied against trade unions range from a written warning to suspension of trade union activities and even to dissolution. The non-resolution of a minor point that may give rise to a warning can thus ultimately lead to the dissolution of a union. The spirit of the

present draft Law contains a significant degree of mistrust towards trade unions instead of the
presumption of good faith of workers' organizations, which should be expected from a Law
trade union rights.

With regard to the particular provisions of the draft Law, a number of queries remain. According to article 41, para. 3, officials of the relevant registration authorities and local executive and management are entitled to request and obtain information on questions relating to the statutory activities of trade unions and to examine their documents and decisions. It is not clear whether the control over trade union activity could be conducted at any time at the discretion of the competent authorities. In this respect, the Committee of Experts has considered that supervision should be limited to the obligation of submitting periodic financial reports or to the cases where there are serious grounds for believing that the actions of an organization are contrary to its rules or the law (which should not infringe the principles of freedom of association). Similarly, there is no violation of Convention No. 87 if such verification is limited to exceptional cases, for example in order to investigate a complaint, or if there have been allegations of corruption. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording the necessary guarantees of impartiality and objectivity. Problems of compatibility with the Convention arise when the law gives the authorities powers of control, which go beyond these principles, for example, if the administrative authority has the power to examine the books and other documents of an organization or conduct an investigation and demand information at any time (see General Survey on freedom of association and collective bargaining, 1994, paras. 125 and 126).

Article 46 of the draft Law provides for the following grounds on which trade union activities might be terminated by the decision of the court: 1) commission by the trade union of acts intended to change the constitutional order by force, or to disseminate propaganda for war, or social, national, religious or racial enmity; 2) failure within the time allowed by a court to rectify violations which have given rise to a suspension of activities; and 3) in cases expressly provided by the legislation. In respect of paragraph 3, it is not clear to which legislation the reference is made and what precisely are these other cases, which could ultimately entail the dissolution of a trade union. If reference is made to the provisions of the Law on Mass Activities in respect of the possibility of dissolution of a trade union in the event that an assembly, demonstration or picketing action resulted in the disruption of a public event, the

temporary termination of an establishment's activities or disruption of transport, it should be recalled that the ILO supervisory bodies considered that these provisions of the Law on Mass Activities were not in conformity with the right of workers to organize their activities and programmes free from interference by the public authorities. In addition, the Commission of Inquiry expressed its concern on the practical application of this Law, in particular that the authorities routinely and unilaterally changed the venue requested for a demonstration to an obscure and unfrequented location, thus rendering meaningless any right to demonstrate.

The Government has been repeatedly requested to amend the Law on mass activities, including by the deletion of any references to dissolution, so that restrictions on pickets are limited to cases where the action ceases to be peaceful or results in a serious disturbance of public order and that any sanctions imposed in such cases be proportionate to the gravity of the violation. Likewise, the Government has been requested to amend both Decree No. 24 and section 388 of the Labour Code, which provide for dissolution of a trade union in case of violation of the legislative requirements on the use of foreign gratuitous aid, so that workers' organizations are not prohibited to use such aid to support industrial action or any other legitimate activity.

VII. Possible de facto re-registration (Article 49)

Article 49 of the draft Law on Trade Unions stipulates that trade unions registered prior to the entry into force of the Law have to bring their constituent documents into conformity with the Law and to ensure that their membership meets the requirements of article 7. While noting the explanation provided by the Government representatives that this section does not presuppose the re-registration of existing trade unions, with an exception of those unions which, by reason of a change in the number of their members, would need to change their status, it would appear that this section would amount to the de-facto re-registration of many unions, in particular those outside the structure of the Federation of Belarusian Trade Unions (FPB). Their constituent documents would need to be approved by the registering bodies according to the procedure provided for in Chapter 3, and, as noted above, as presently drafted, this procedure is likely to be a subject of concern to the supervisory bodies.

The International Labour Standards Department remains at the disposal of the Government for any further assistance it may desire in this respect.

07.06.2007

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