2009 Annual Survey of violations of trade union rights - Belarus
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - Belarus, 11 June 2009, available at: http://www.refworld.org/docid/4c52cb01c.html [accessed 20 April 2015]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Anti-union legislation and practice remained firmly in place, despite some steps by the government to consider the recommendations of the ILO Commission of Inquiry and involve independent unions in that process. Several arrests and assaults were reported during the year.
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.
At the beginning of 2004, Belarus was subject to the ILO Commission of Inquiry procedure. The Commission's report, published in October 2004, stated that trade union rights were blatantly violated in Belarus. The Commission adopted 12 recommendations aimed at bringing national law and practice into line with international standards. No tangible progress has been achieved so far. Some laws and by-laws adopted after the Commission of Inquiry ended its work brought up further restrictions on trade union freedoms. In 2008 the government took some steps towards implementing these recommendations, though they have not yet been transformed into legislative measures.
Trade union registration: Trade union registration is compulsory. Presidential Decree No. 2 of January 1999 required all previously registered trade unions at the national, industry and enterprise level to re-register. 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 the employer. Trade unions are not allowed to register the home addresses of their leaders as the trade union's legal address, and commercial rent is often not an option, especially for small organisations.
The 2004 ILO Commission of Inquiry concluded that Decree No. 2 should be amended to eliminate the obstacles for registration and that trade union organisations must be registered regardless of whether they are able to provide a legal address.
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 it undermines 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. In violation of the international labour standards, the law on mass activities and provisions on receiving foreign aid allow for dissolution of a union by a court decision.
International cooperation restricted: A number of Presidential decrees and ordinances lay down stringent conditions for the receipt of foreign assistance for activities in the country. These decrees, applicable to trade unions and other civil society organisations, were an attempt to isolate independent trade unions from their partner organisations abroad and to limit the capacity of the unions to protest against continued violations of workers' rights.
In accordance with these Presidential decrees and ordinances no foreign assistance may be offered to non-governmental organisations, including trade unions, for holding seminars, meetings, gatherings, strikes, pickets, and so on, or for "propaganda activities" aimed at their own members, without the authorities' permission. 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. Such events also have to be registered with the Ministry of Finance, otherwise they would be considered illegal.
Up to two years in prison for speaking out: As of 2005, the Criminal Code stipulates that "Discrediting the Republic of Belarus" is punishable with arrest for up to six months or imprisonment for up to two years. According to the Code, "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 then presented the draft amendment to the Code 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" presented 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.
Draft Trade Union Law: The 2004 ILO Commission of Inquiry ruled that anti-union legislation, including the above-mentioned decrees, should be repealed. The government's approach was not to take measures pertaining to these individual pieces of legislation, but to promise that the new trade union law would resolve all problems.
In 2006, President Lukashenko approved a "Concept" of the new Law on Trade Unions, which was prepared without consulting the trade unions outside the FPB structures.
When the draft of the law saw the light of day in May 2007, the ITUC-affiliated Belarusian Congress of Democratic Trade Unions (BKDP) dubbed it "the law on state control over trade unions", since the draft gives authorities wide-range powers to inspect trade union documentation and activities. The government planned to keep the excessive minimum membership requirements and introduce quite a rigid framework for trade union activities. The registration procedure would remain long and cumbersome, with a number of loopholes allowing authorities to grant or deny registration at their discretion. ILO intervention convinced the government to abandon the draft law.
Trade union rights in practice and violations in 2008
Background: The efforts of the ILO, supported by the ITUC and its European structure "PERC", seem to have resulted in some understanding by the government of the importance of developing industrial relations based on international labour standards and good faith communication with the social partners. Some initial steps have been taken and entry points identified for making some real changes in line with the Commission of Inquiry recommendations, but only time will tell whether the government will be able to follow through on its commitment. For the time being the situation remains controversial.
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 government spares no effort 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 criminalises support at the international level.
Workers are actively discouraged from joining independent trade unions. Fixed-term contracts (which cover 90% of the total workforce) are often used to force workers out of independent trade unions. The government's response to criticism is that the law provides all necessary remedies. However, the ILO supervisory bodies have noted on several occasions that the Belarusian judiciary, in its present state, is not an adequate recourse for redressing trade union rights violations, and that complaints concerning trade union rights violations have either been totally ignored or routinely dismissed by prosecutors' offices.
Anti-union policies bring the loss of EU trade benefits: On 20 December 2006, the European Union's Council of Ministers announced its decision to withdraw Belarus' benefits under the system of generalised special preferences (GSP). 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. While this decision gave Belarus six more months to fulfil its ILO obligations, no tangible progress could be noted, and the EU decision came into effect on 21 June 2007. The EU position regarding the implementation of international labour standards by the country was further confirmed at the International Labour Conference in June 2008.
Seeds of hope: Some improvement could be noted in social dialogue after the BKDP finally re-gained its official seat in the National Council for Labour and Social Issues (NCLSI) in 2007. The BKDP was also a signatory to the tripartite General Collective Agreement for 2009-2010. In November, the authorities issued an order returning a deduction on the rent for trade union offices and meeting rooms, which was a relief to the BKDP and its affiliates.
Arrests: Three activists from the Belarusian Free Trade Union (BFTU), Alexander Stepanenko, Roman Bogdanovich and Sergey Klyuev, were arrested and detained for 15 days in connection with their participation in a protest action of entrepreneurs on 10 January 2008. On 19 January 2008, Oleg Korban, another BFTU activist, was arrested and subsequently detained for ten days, when he brought a food parcel to his colleagues at the detention centre. Korban was charged with using obscene language in public places.
On 9 March 2008, following neighbours' complaints, the police arrested 32 young activists of the BFTU and the Free Metal Workers' Union (FMWU) at the office of the Congress of Democratic Trade Unions of Belarus (CDTU). The trade unionists were taken for identification purposes to the Minsk City Leninsky District Department of Internal Affairs and released a few hours later. The government explained to the ILO that the youngsters were taken in because they had "refused to give any reason for their presence in such large numbers".
On 26 March the Partizan district court of Minsk sentenced four members of the BFTU and the FMWU to between ten and 15 days in jail. Trade unionists, who had joined the unregistered Youth Front, were beaten up by the police the day before, during the gatherings on the occasion of Belarus People's Republic Anniversary.
Trade union registration: Despite the dissolution of the Republican Registration Commission, independent trade unions still face enormous legal and practical hurdles during the registration process. As in previous years, the ILO Committee on Freedom of Association had to deal with new cases of refusal to register independent trade unions.
For example, registration of the Rechitsa branch of the Radio-Electronic Workers' Union (REWU) has been pending since December 2007. On 11 February, the executive committee refused registration since the employer had revoked the guarantee letter containing the trade union's legal address. The REWU reported that the employer had been pressured by the local authorities into revoking the letter.
Update on BKDP office search: Following the December 2007 search of the BKDP premises (see previous edition of this Survey), a BKDP representative was asked to visit the Ministry of Information. On arrival, BKDP Deputy President Nikolai Kanakh was asked to sign a report of "administrative offence" (misdemeanour). Apparently, the BKDP had broken the law by owning printing equipment that had been given to BKDP for safekeeping by a (currently suspended) ILO project, without obtaining permission from the Ministry of Information. On 21 February the court closed the case and ordered that the risograph be returned to the BKDP.