2007 Annual Survey of violations of trade union rights - Belarus
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2007|
|Cite as||International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - Belarus, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca43c.html [accessed 23 December 2014]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
The Lukashenko government still has not achieved tangible progress in improving the trade union rights situation. On the contrary, a new trade union law could effectively establish the de-facto monopoly of the Federation of Trade Unions of Belarus (FPB). The number of trade union rights violations in the workplace has decreased, probably due to the imminent threat of international sanctions. Independent trade unionists were persecuted in some enterprises, however, and several trade unionists were arrested in the course of the presidential elections in March. The unacceptable trade union rights situation led to Belarus becoming the second country in the world to have their European Union trade preferences withdrawn for violating core labour standards.
Trade union rights in law
The 1996 Constitution transferred all powers to the President of Belarus, giving him the right to enact decrees that carry the weight of law. This constitution technically recognises the right of workers to form and join trade unions, but both the Trade Union Law of January 2000 and several Presidential Decrees contain serious violations of trade union rights.
Compulsory registration: Presidential Decree no. 2 of January 1999 required all previously registered trade unions at national, branch and enterprise level to reregister. If a trade union is not registered, its activities are banned and the organisation has to be dissolved. The long and complicated procedures include an obligation on the trade unions to provide the official address of their headquarters. This is often their workplace or the premises of the enterprise. A letter from the management confirming the address is usually required, making trade unions completely dependent on the good will of management. Trade unions are not allowed to register the home addresses of their leaders as the trade union's legal address.
The 2004 ILO Commission of Inquiry concluded that Decree No. 2 should be amended to eliminate the obstacles for registration and trade union organisations must be registered regardless of whether they are able to provide a legal address. The Republican Registration Commission, a mysterious state body for the approval of trade union registration that included security services representatives, was disbanded by a Presidential Decree of 9 October 2006, at the ILO's insistence.
High minimum membership requirements: The same Decree sets forth minimum membership requirements at the national, branch and enterprise levels that are so high that they make it almost impossible to create new unions, and undermine the position of existing ones. At the national level, there must be a minimum of 500 founding members representing the majority of the regions of Belarus. A list of names must be sent to the Ministry of Justice.
Compulsory dissolutions: In 2005 a number of amendments to laws and regulations were introduced to make trade unions' compulsory dissolution even easier. Trade unions' organisational structures, in other words, their primary and territorial organisations, may be deleted from the register by a decision of the registrar, without any court procedure. This can happen if the registrar issues a written warning that a trade union or its structure violated legislation or its own statutes, and the violations had not been eliminated within a month. Given that Belarusian legislation is incompatible with the ILO standards, this amendment allows for the administrative dissolution of trade unions that simply want to exercise their freedoms according to international standards. The registrar can also remove a trade union organisation from the register if their recorded data is no longer correct, for example, if they lose their legal address and cannot obtain a new one. A trade union can also be dissolved by a court decision for some violations of the law on mass activities or if it violates the provisions on receiving foreign financial aid.
Up to two years in prison for speaking out: In 2005, at President Lukashenko's initiative, a new offence was introduced to the Criminal Code. "Discrediting the Republic of Belarus" is now punishable with arrest for up to six months or imprisonment for up to two years. "Discrediting" means deliberately giving foreign States or foreign or international organisations false statements on the country's political, social or economic situation. Mr Stepan Sukhorenko, the chairman of the National Security Committee, who presented the draft to Parliament, explained that this offence was meant to deal with libellous statements, such as the information presented by some trade unionists that resulted in the "six month ultimatum" put forward by the International Labour Organisation.
Heavy limitations on the right to strike: The January 2000 Labour Code imposes severe limitations on the right to strike. It sets out very complicated conciliation procedures that would take at least two months. The strike must also be held in the three months following the failure of the conciliation procedures. The President may suspend a strike for a period of up to three months or even cancel one, in the interests of national security, public order, public health, or when the rights and freedoms of others are threatened. Moreover, the duration of the strike must be specified in advance and a minimum service must be ensured. Strike participants may not receive financial aid or subsidies from foreign organisations.
Anti-union decrees: Several new anti-union decrees were adopted in 2001. Presidential Decree no. 8 lays down stringent conditions for the receipt of foreign assistance for activities in the country. Foreign funds must be registered with the Human Resources Department, which is directly under the responsibility of the President. The Decree prohibits the use of foreign grants in activities related to elections, referenda, meetings, rallies, demonstrations, pickets and strikes as well as for carrying out seminars or propaganda activity. Organisations violating these decrees are liable to dissolution.
In November 2003, President Lukashenko reinforced these measures with the introduction of Decree no. 24, stipulating that, without permission of the authorities, no foreign assistance may be offered to non-governmental organisations, including trade unions, to hold seminars, meetings, gatherings, strikes, pickets and so on or to carry out propaganda amongst members of organisations. The decree was seen as a further attempt to isolate independent trade unions from their partner organisations abroad, as well as limit the capacity of the unions to protest against continued violations of human and trade union rights in their country.
In August 2005, President Lukashenko issued Ordinance No. 460, amending its former Ordinance No. 460 of 2003 "On international technical assistance provided to the Republic of Belarus". This ordinance introduced more red tape to the activities of civil society, including trade unions. Gratuitous organising of seminars, conferences and other public debates is considered as international technical assistance, and the organisers have to report on the organising and running of the events to the government's Commission for International Technical Cooperation. These events also have to be registered at the Ministry of Finance, otherwise they would be considered illegal.
New draft Trade Union Law a further threat to independent trade unions: In October 2006, President Lukashenko approved a "Concept" of the Law on Trade Unions. The "Concept" was obviously prepared without any consultations with the trade unions outside the FPB structure. It is scheduled to become law in 2007.
The presidential press service stressed that this document essentially simplified the establishment and functioning of trade unions, and qualified trade unions as "one of the most powerful supports of the state". In fact, the new law would only further aggravate the danger of eliminating all remnants of an independent trade union movement in Belarus. According to the "Concept", if an existing trade union at an enterprise represents 75 per cent of employees and has already signed a collective agreement, no other unions can be registered at the level of this enterprise. The "Concept" also sets excessive thresholds for establishing higher-level trade union associations. Although the "Concept" abolishes the legal address requirement for trade unions that do not wish to have legal personality, all higher-level trade unions will still need to provide legal addresses.
The "Concept" also raises a number of other concerns, such as the wide discretionary powers vested in administrative bodies as regards trade union dissolution, and the rule that a trade union with less than 10 per cent membership in the enterprise becomes non-representative. Non-representative trade unions will have virtually no rights protect their members' interests, which would ensure a de-facto trade union monopoly in Belarus.
Trade union rights in practice
Inquiry finds Belarus guilty of serious violations: At the beginning of 2004, Belarus was the subject of an ILO Commission of Inquiry, the strongest of its enforcement mechanisms. The Commission of Inquiry was composed of three leading experts in international law. It started its work in January 2004, meeting with the authorities and the trade unionist victims of violations, and holding formal hearings of witnesses. In July 2004, the Commission adopted its Report (published in October 2004) that proved, beyond doubt, that trade union rights were blatantly violated in Belarus. The Commission adopted 11 Recommendations aimed at bringing national law and practice into line with international standards. Eight of the Recommendations were to be implemented before 1 June 2005. However, the ILO's follow-up mechanisms have found that there has so far been no tangible progress by the Belarusian government in implementing the recommendations.
EU trade preferences withdrawn: On 20 December 2006 the European Union's Council of Ministers announced its decision to withdraw Belarus's benefits under the system of generalised special preferences (GSP). It give Belarus six more months to fulfil its ILO obligations before implementing the withdrawal. This decision was the culmination of nearly three years of monitoring violations of trade union rights and the government's reluctance to follow the Commission of Inquiry recommendations. The EU has the right to impose such a sanction against States which violate core labour standards; however, it is perceived as a last resort, with Burma being the only other country to have its GSP benefits withdrawn. The decision, which was due to come into force on 21 June 2007 if no tangible progress was made, affects some 529 million US dollars worth of Belarusian exports.
Government control: The aim of President Lukashenko appears to be a return to the Soviet days when trade unions were the "social pillars" of the state, under the control of the party or rather, the so called "Presidential Administration", which now exercises the authority previously vested in the party.
The President's speech addressing the FPB congress on 20 September 2005 is illustrative of the relations between the State and the largest trade union organisation. He said "I have already given my reaction to many things. And if the President says so, you must work in this direction. But please do not think that I am putting a pressure on you ... I am oversensitive to being blamed as a dictator". The congress was followed by the development of an FPB "implementation plan".
The state also takes the liberty of telling trade unions whom they should affiliate. Although the Radio and Electronics' Workers' Union (REWU) statutes allow all workers and trainees from all sectors of economy, as well as unemployed and pensioners, to become members, the Ministry of Justice stands by their official opinion that REWU can only affiliate or represent the workers in the radio-electronic industry.
Trade union rights – a foreign tradition?: On 27 November Mrs. Natalya Petkevich, the Deputy-Head of the Presidential Administration, commented on national TV that the ILO "tried to impose foreign traditions" on Belarus. She also said that, in her opinion, Belarusian workers do not need trade unions because, in case of any problems, they could write directly to the company director, to the state authorities or to the President of the Republic.
Rights suppressed: The government spares no means in suppressing protests and opposition by unions to the daily violations of trade union and human rights in Belarus. Not only does the government try to isolate these trade unions at the national level, but it also attempts to remove support mechanisms that have been put in place through years of cooperation, and criminalises support at the international level. The leaders of independent unions, notably the leader of the Belarusian Congress of Democratic Trade Unions (BKDP), Alexander Yaroshuk, are exposed to pressure in the media, which is largely government controlled.
Workers are actively discouraged from joining independent trade unions. Those who do face continual pressure at the workplace to leave the union or risk losing their jobs. An estimated 90 per cent of workers are employed on fixed-term contracts with many of the contracts being short-term. In practice, this system is used to forced workers out of independent trade unions. The BKDP reported that the fixed-term contract system caused them to lose over 500 members in the Grodno-Azot enterprise and 45 members in the Belshina enterprise during the year. Members of independent trade unions have been arrested for distributing trade union literature, have had materials confiscated and have been denied access to work sites.
Legal registration requirements used against independent trade unions: The legal requirement that management give written confirmation of a trade union's official address is used against the independent trade unions, which frequently have their application for an address turned down under ridiculous pretexts. The REWU reported that, during the last decade, there was not a single case of courts helping out their organisations that appealed against denial of registration. On 20 December the Ministry of Justice published an explanatory memorandum on registration, with reference to Convention 87. However, the wording of this memorandum was too vague to ensure that trade union registration is in fact carried out in line with ILO standards.
No adequate protection for workers: The 2004 ILO Commission of Inquiry considered it important to provide a special comment on the government's assertion that the legislation provided adequate protection from acts of interference, anti-union discrimination and other violations of trade union rights – and that any organisation could turn to the courts. The Commission did not agree: "After having seen the cases that these organisations have repeatedly brought before the courts and the apparent lack of consideration given to the substantive issues in those cases and the apparently systematic way in which these cases have been denied, the Commission is obliged to query whether access to the courts in the current circumstances is indeed an adequate recourse for redressing trade union rights violations." The Commission also concluded that the Prosecutor's office left the alleged violations "totally ignored or routinely dismissed".
Systematic interference: The ILO Commission of Inquiry also came to the "inescapable conclusion that the trade union movement has been and continues to be the subject of significant interference on the part of government authorities." It also stated that "interference has resulted in undermining one of the most essential prerequisites of freedom of association: trade union independence." The Commission urged the government to conduct independent inquiries in all cases of interference, but it has not done so. Trade unions that seek the authorities' help in these circumstances are simply given formalistic replies. Moreover, the incidents of interference increased after the European Commission had concluded that Belarus was guilty of serious violations of trade union rights.
Social dialogue: On 28 November 2005, the Rules of Procedure of the National Council were modified at the FPB's request. Now only a trade union comprising at least 50,000 members is considered to be representative for the purposes of the National Council. This means that neither BKDP nor any other union outside the FPB structure is allowed to participate in the tripartite dialogue. However, in August 2006 the BKDP was verbally informed that they had one seat in the Council and, although the BKDP did not receive an official document, their representative in fact took part in the National Council's work.
Violations in 2006
Background: President Lukashenko was re-elected in March, in a vote strongly criticised as unfair by a number of international observers. The US and the EU have imposed financial sanctions and travel restrictions on the leaders of the regime that has been dubbed "the last dictatorship in Europe".
Registration impossible: A number of independent trade unions were denied registration during the year. In May the Grodno city executive committee refused to register the REWU Grodno city organisation, without providing any justification at all.
Trade unionists arrested: Several REWU activists were detained in March. Mr. Kozlov, the REWU representative for the Gomel region, was taken to the police station on 17 March and detained for two hours. All documents seized from him related to trade union activities, including the applications to join the trade union at "Avtopark No. 1" and trade union bulletins. The documents were not returned. Another trade union member was arrested and detained for 24 hours in Borisov on 18 March before she was brought before a judge and given a fine equivalent to US$72. Mr Ivan Roman was arrested and detained twice: first from 18 to 20 March and then, on 23 March, when he was charged with an offence of minor hooliganism and sentenced to 13 days' detention. Mr. Bukhvostov was sentenced to 15 days of administrative arrest on 27 April following a statement he made during the public commemoration of the Chernobyl disaster.
Anti-union campaign in Gomel: The management of the company "Avtopark No. 1" in the town of Gomel forced workers to resign from the REWU, threatening them with dismissal and eviction from their residences. In March one of the trade union activists, Mr. Evseychuk, was fined half of his monthly wages because he was acting on behalf of the "unregistered" organisation after the employer informed the authorities that the trade unionist was gathering employees' statements on joining the union. The trade union appealed against the fine, but the decision was upheld. In April the employer dismissed Mr. Yevseychuk for alleged unauthorised absence at work. Although the union proved in court that it was, in fact, the employer who broke the terms of the employment contract, Mr. Yevseychuk had still not had his employment record returned to him by the end of the year. On 31 May, another trade union activist was dismissed for conveying passengers without valid tickets. The REWU is convinced that the management put trade union members under special scrutiny to find pretexts for dismissal. In November the REWU members were informed that their fixed-term contracts would not be renewed and that members of trade unions outside the FPB structures should not work in the company.
When the REWU turned to the District Prosecutor's office, instead of making a proper inquiry into the violations of trade union rights, the Office asked the Ministry of Justice if the car park workers were allowed to affiliate to the REWU. On 11 July the Ministry of Justice replied that REWU membership was only open to the workers in radio and electronic industry. Although REWU wrote to the Ministry, explaining their statutes allowed membership of workers in all sectors of the economy, the Ministry still insists on its own interpretation.
Pressure on independent trade unions: At the beginning of 2006, the management of the "Grodno – Azot" enterprise launched a campaign against the primary level organisation of the Belarusian Independent Trade Union (BITU). The floor managers invited the BITU members to sign statements whereby they agreed to leave their union and discontinue the payment of trade union membership fees. Those who refused were threatened with dismissal and the non-renewal of their fixed-term contracts.
The deputy director for ideology of the enterprise said that the employer "had the right to point out to the worker which trade union to join", and that the management considered the coexistence of two independent trade unions to be inappropriate. In August 2006, the director of the enterprise stressed that he had the authority not to renew the contracts with members of independent trade unions. The most active union members had even been sidelined or transferred. The trade union lost its office next to the production site and, in exchange, got a room situated far away from the workplace. The BITU also reported that the management refused to sign a collective agreement under the pretext of an order from the Deputy Prime Minister.
Members of the BITU primary organisation at the "Belshina" enterprise began suffering discrimination in spring 2006. The enterprise deputy director for ideology stated that the trade union premises would be taken away through the courts, despite the fact that the lease for the premises was not due to expire until 2008. The BITU activists at "Belshina" complained to the Office of the Public Prosecutor, but the Prosecutor found that the employer had not committed any offence. On 12 September, the union took the employer to court for trade union discrimination, but the court declared it inadmissible. On 3 October, the deputy chairperson of the union started a 43-day hunger strike in order to protest against anti-union discrimination and non-registration of their union. On 22 November, a partial compromise was reached: the BITU members received a part of their unpaid bonuses. At the time of writing, the organisation did not have a legal address and its bank accounts remained blocked.