BKDP URGES TO SIMPLIFY ESSENTIALLY PROCEDURE OF REGESTERING TRADE UNIONS

We would like to recall that on 15 October the first Working Group meeting within the Council on improvement of legislation in labor and social sphere was held. It was attended by Nikolai Kanakh - member of the Working Group, deputy chairman of BKDP. The Working Group consists of representatives of all parties of the Council: two members each from the Government, unions and employers. The Working Group is entitled to carry out preliminary study of issues that need to be discussed first at the expertise level. It is assumed that the Working group will promote the work of the Council on developing proposals aimed at improving legislation. At its meeting held October 15 it was decided that the Working group members would provide by November 11 concrete proposals of their organizations concerning simplifying procedures for registration of trade unions and their organizational structures. Lately this issue will be discussed at the next meeting of the Council.

PROPOSALS
of Trade Union Association “Belarusian Congress of Democratic Trade Unions (TUA BKDP) for the purpose of improving procedures for registration of trade unions and their organizational structures in line with the recommendations of the ILO Commission of Inquiry

The ILO Convention 87 ratified by the Republic of Belarus particularly emphasizes the following requirements necessary to ensure basic principles of freedom of association:

• enshrine legally the right of workers and employers to establish and join organizations of their own choosing without prior authorization;

• take necessary and appropriate steps to help ensure that workers and employers could freely exercise the right to form their own organizations;

In its recommendation # 2 the ILO Commission of Inquiry recommends the Government to amend relevant provisions of the Decree № 2 in order to eliminate any additional obstacles that may appear either due to legal address requirement or due to 10 per cent minimum membership requirement and to ensure clarity of these provisions.

We state that the requirement to provide a legal address needed for registering trade union organizational structures (primary-level organizations) still is often an insurmountable obstacle for the trade unions of Belarus to exercise their activities.

We note that the Belarusian legislation requires legal address even for those union structures which do not have legal entity status although, in accordance with the Civil Code (CC) a legal address is a necessary attribute of any legal entity.
Belarusian legislation contains no provisions on the obligation of an employer to grant a union or its structure legal address in the companies (organizations) where their members work. The search for a legal address for the organizational structures of independent unions in other places very often is impeded by various obstacles. The renters are often afraid to let their office rooms to the independent unions. In addition, most of the unions are not able to pay rent at commercial rates. There are cases when a union has been registered and even has obtained a guarantee letter from the renter on his readiness to sign rent agreement the local registration bodies start putting pressure on owners of premises, and compel them to withdraw the letters of guarantee or terminate agreements.

The proposals have been made in order to improve procedure of registering trade unions and their organizational structures and bring it into conformity with the requirements of ILO Conventions and Recommendations of the Commission of Inquiry.

The following legal provisions are to be introduced into legislation on trade unions.

1. The legal capacity of a union, union association and its organizational structure - the primary-level trade union organization as a legal person - arises from the moment of their state (notifying) registration in the Ministry of Justice of the Republic of Belarus, in the relevant departments of Justice in the regions and in Minsk city executive committee, as well as in district (municipal) executive and administrative bodies upon the location of executive bodies of trade union and its organizational structures.

The above mentioned way of registration serves as a basis for the inclusion of trade unions, their associations, primary-level union organizations in the Register of Public Associations.

Ministry of Justice of the Republic of Belarus and its territorial authorities can not exercise control over the activities of trade unions, their associations, primary-level union organizations, as well as deny their registration.

2. Trade unions, their associations, their organizational structures (primary-level trade union organizations) have the right not to register in the Ministry of Justice and its territorial bodies. In this case they do not acquire legal personality.

Trade unions, their associations, organizational structures (primary-level trade union organizations) within one month from the date of their establishment shall forward to the Ministry of Justice of the Republic of Belarus or its territorial agencies certified copies of their statutes, decisions of their congresses (conferences, meetings) concerning the establishment of trade unions, their associations, tprimary trade union organizations, the approval of their statutes, as well as symbols, lists of affiliates.

3. Trade unions, their associations and their organizational structures indicate their legal address as one coinciding with the actual postal address of the location of its union executive and governing bodies.

4. Organizational structures belonging to trade unions and their associations not authorized by the decision of the union governing bodies to have legal entity are not liable either to be registered or to be recorded in the state registering bodies.

5. Registration of union organizational structures having no legal entity status in state registering bodies contradicts international norms and national Labor Code and is to be abolished. Legal address, which in accordance with Civil Code, is an attribute of a legal person, is not required for organizational structures of the unions which have no legal entity status. These organizational structures are to be kept on file or recorded in the executive bodies of trade unions and their associations.

6. Trade unions and their associations as well as primary - level trade union organizations are exempt from registration fee.

7. Termination of activity of a union and its organizational structures is decided upon by its members in the manner determined by the charter of that union, but the dissolution of a trade union or a primary trade union organization having legal entity takes place in accordance with the Civil Code of the Republic of Belarus.

Realizing that the introduction of proposed changes into legislation regulating registration of trade unions and their organizational structures is a long time-consuming process, we suggest, as concrete measures for implementing recommendations of the ILO Commission of Inquiry, to undertake the following:

1. Guided by Part 2 of Article 50 of the Civil Code, under which the location of the legal entity is determined by the location of its permanent executive body (administrative –and- territorial unit, settlements and a house, an apartment or other premises, if they are available), and in case of lack of a permanent executive body, the other body or person authorized to act on behalf of the entity without the power of attorney may prepare and forward to the registration authorities of the country the methodical letter of the Ministry of Justice instructing that in the process of registration a written document specifying the location of permanent union governing or executive body serves as a confirmation of the legal address of trade unions and their organizational structures and the refusal to register trade unions and their organizational structures though it is contrary to ILO Convention 87 may occur in exceptional cases for good reasons.

2. Repeal paragraph 4, point 24 of the "Instruction on registration procedure and considering documents related to the state registration of trade unions, as well as state registration and deregistration, registering and removing from the record of union organizational structures” approved by Decree of the Ministry of Justice № 48 dated 30.08.2005.The repealed paragraph allowed the registering bodies to deprive union organizational structures of their state registration and remove them from the record register when the union executive bodies once were pointed out to violations committed by their organizational structures of the Laws of Belarus or constitution of unions and those violations were not eliminated within one month period by the unions.

This item is contrary to Article 57 of the Civil Code of the Republic of Belarus, as it allows the registering authorities to deprive trade union structures of their legal status without liquidation and court proceedings. We would like to emphasize that this position is found only in the Instruction # 48, but not in the provisions of the Decree № 2.

16.11.2010

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