2008 Annual Survey of violations of trade union rights - Belarus
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Belarus, 20 November 2008, available at: http://www.refworld.org/docid/4c52caa5c.html [accessed 24 March 2017]|
|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
The unacceptable trade union rights situation caused Belarus to lose the European Union trade preferences, a dubious honour shared with only one other country in the world. While the government has taken some steps in the right direction, anti-union legislation and practice remains firmly in place. The headquarters of the Belarusian Congress of Democratic Trade Unions has been searched by police, at least one trade unionist was arrested and one fined during the year. The Ministry of Justice feels obliged to inspect trade union activities, and management in state enterprises has been forcing workers out of independent trade unions.
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 strongest of its enforcement mechanisms. The Commission's report, published in October 2004, proved, beyond doubt, 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. While the government has taken some steps to implement these recommendations, 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.
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 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 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 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.
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. 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.
International cooperation restricted: A number of decrees and ordinances, which are the legal acts promulgated by President Lukashenko, 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, have been seen as an 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 workers' rights.
According to Presidential Decrees No. 8 of 2001 and No. 24 of 2003, foreign funds must be registered with the Human Resource Department, which is directly under the responsibility of the president. No foreign assistance may be offered to nongovernmental organisations, including trade unions, to hold seminars, meetings, gatherings, strikes, pickets or so on or to carry out "propaganda" against members of organisations.
In August 2005, President Lukashenko issued Ordinance No. 460, amending the former Ordinance No. 460 of 2003 "On international technical assistance provided to the Republic of Belarus". This ordinance introduced more red tape to the international activities of civil society, including trade unions. 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.
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" 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.
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 will 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. The presidential press service then said that the new law would qualify trade unions as "one of the most powerful supports of the state". Indeed, even at its conceptual stage, the new law introduced further complications to the forming and functioning of truly independent trade unions.
When the first draft of the law saw the light of the 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.
The draft introduces a distinction between representative and other trade unions, granting extensive privileges to the former well above what would be acceptable by ILO standards. While such a distinction exists in a number of countries, trade union independence in Belarus had been seriously compromised, and legalising favouritism of existing bigger trade unions would ensure a de-facto trade union monopoly in Belarus.
The government planned that the draft would become law in 2007. Thanks to the dialogue between the government and the International Labour Office, this process was suspended, pending full consultations with all parties concerned.
The consultation on the draft law on trade unions and its subsequent withdrawal represents a success from the trade union perspective.
Trade union rights in practice and Violations in 2007
Background: Belarus' anti-union policies, combined with blatant disrespect of human rights and the rule of law, have brought both political and economic consequences (see below for the European Union decision). In May, Belarus failed to win a seat on the UN Human Rights Council due to pressure from the human rights groups, which saw Belarus' possible participation as damaging for the Council's credibility.
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 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 criminalises support at the international level. The leaders of independent unions, notably the leader of the BKDP Alexander Yaroshuk, are exposed to pressure in the media, which is largely government controlled.
Workers are actively discouraged from joining independent trade unions. 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 force workers out of independent trade unions. The government's response to criticism is that the law provides all necessary remedies and that the victims can always turn to courts. However, the ILO supervisory bodies have noted on several occasions that the Belarusian judiciary, in its present state, did not constitute an adequate recourse to redress trade union rights violations, and that complaints for violations of trade union rights were either 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. The EU has the right to impose such a sanction against states that 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. 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; this decision is estimated to have affected approximately 400 million euros worth of Belarusian exports.
Authorities react to the EU decision: trade unions forced to beg, lie and manipulate: With the date of GSP benefits withdrawal approaching, the government strengthened its lobbying strategies as a last-ditch effort to avoid consequences of its failure to address violations of trade union rights. Aside from trying to hoodwink the ILO and the EU with measures that both ITUC and BKDP saw as clearly insufficient, some awkward tactics have been employed, using trade unions both in Belarus and abroad.
The pro-government Federation of Trade Unions of Belarus (FPB) has been mobilised in an attempt to misinform the international community via administratively orchestrated public protests and appeals. Different organisations within the FPB structures were requested to send petitions to the ILO and the European Commission, in which these organisations would deny the violations of trade union rights.
For example, in May the Belarusian Independent Trade Union's (BNP) organisation at the "Polimir" company was asked to join a declaration prepared by FPB, which requested the EU to go back on its decision. After trade union leader Ivan Svyatokho refused to sign the FPB letter, the company management threatened not to re-engage employees on fixed-term contracts and also threatened other intimidating consequences. The shop supervisors pushed the BNP members to sign a letter to the ILO and EU, which said that all internationally known allegations of trade union rights violations in Belarus had been far-fetched and that no pressure on trade unions had ever been imposed.
Social dialogue: On 31 January BKDP finally re-gained its official seat in the National Council for Labour and Social Issues (NCLSI). However, according to BKDP, NCLSI is not a truly independent body, and none of the issues suggested by BKDP had been put on the agenda during the year. The government has created a parallel body, the Council for Improvement of Legislation in Labour and Social Sphere, supposedly as a mediation body for trade union rights violations, but its decisions are not binding and so far have not brought any positive outcome.
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 at each and every sitting devoted to Belarus.
On 23 June, 534 self-employed workers of Belarus came together to establish their own trade union under the name "Razam" (together). Some 100 joined "Razam" later to fight for decent working conditions in different workplaces, mostly street commerce and markets, where 70% of workers are women. "Razam" promptly applied for the registration, which was refused by the Ministry of Justice. The union appealed the Ministry's decision with relative success: in August, the Supreme Court ruled that the refusal was the result of a technical mistake and that "Razam" should just resubmit its registration papers. "Razam" tried to engage in dialogue with the Ministry to ensure that its registration documents meet the legal requirements, and finally re-applied for registration on 13 December. However, at the time of writing it was known that the Ministry had once again denied registration.
The government tried to improve its trade union rights record by reporting that four out of six organisations of the non-affiliated Radio-Electronic Workers' Union (REWU) had been registered in the first half of 2007. However, these registrations were perceived as a manoeuvre to avoid EU sanctions, without any genuine commitment to the change. Even the lucky four unions had to suffer humiliation before being registered. A REWU organisation in the city of Borisov had been registered on its sixth attempt: before that, the registrar rejected the trade union's documents since it used a font size of 14 pt. instead of 14.5 pt. In June 2007 the leader of REWU organisation in Hrodna, just registered at its fourth attempt, declared that there had been so many administrative obstacles to overcome, so much humiliation, so much pressure on the rank-and-file members, that this has very much detracted from the joy of the organisation finally being registered.
Ministry to inspect trade union activities: On 15 June, an article titled "Information on Trade Union Activities" was published on the website of the Ministry of Justice. This article targeted the BKDP-affiliated Free Metalworkers' Trade Union (SPM) and the Democratic Trade Union of Transport Workers, saying that earlier inspections of these trade unions uncovered "various violations of law", notably the trade unions' failure to confirm their "republican" (nationwide) status. The ministry suggested that these trade unions should change their status, thus effectively limiting their scope of activities.
On 19 July, the Ministry of Justice announced, through its website, that its work plan for the second semester of 2007 included inspecting the activities of four trade unions. Two of these unions were company-level organisations within the FPB structures; the other two were the Trade Union of Workers in the State Security Services and the SPM.
On 26 July the Ministry sent the SPM a letter requesting it to submit, on 14 August at the latest, its membership list (overall and in different organisational structures), registration dates and its organigram. Such a request would arguably overstep the boundaries of national legislation, since, according to the law, trade unions are only obliged to provide their membership lists when being registered or reregistered. SPM refused to provide the lists, since previous membership checks took place just a year ago and were accompanied by a parallel "verification" when trade union members were called to floor managers' offices, where an official from the local prosecutor's office would meet them and inquire whether these workers were trade union members or not.
A few months later regional governmental authorities were instructed to audit the activities of different SPM organisations at the enterprise level. The SPM primary organisation at the "Lyos" company in the town of Baran and "Zenit" company in the town of Vileyka received official letters requesting them to allow the board of justice officials to "familiarise themselves with the documentation related to trade union chartered activities" (that is, activities under trade union constitution). SPM believes that the government's objective is still to obtain the list of trade union members, which could be later used to make trade unionists feel vulnerable.
BKDP premises searched, trade unionist arrested: On 6 December, at around 8 p.m., the police paid an unexpected visit to the BKDP headquarters in Minsk. Police officers said that they needed to "inspect the [BKDP] premises", since there was "something wrong with the office equipment". No search warrant was presented; however, nobody was allowed to leave the BKDP offices, since the police gave the order to "wait for the experts". Finally, a female police officer, accompanied by two special force officers, arrived to take photographs of trade union offices and to seize the office equipment and 500 trade union leaflets. No official protocol of confiscation was issued.
Nikolai Sergeyenko, an activist of BKDP youth movement, was arrested on the spot for "using obscene language" – a charge frequently used to suppress trade unionists. The BKDP immediately wrote to the Leniski district prosecutor's office, asking why trade union offices were intruded into and searched without due warrant. No response followed until the end of the year.
Fined for distributing trade union newspaper: On 4 May in the city of Grodno the customs officials seized 281 copies of the Polish trade union newspaper "Solidarnosc Gurnica", which included an article about a meeting between Polish and Belarusian miners. According to the authorities, newspapers in such quantities should have been transported by cargo vehicles, and failure to do so was enough to justify confiscation. Aleksandr Tkachev, a trade union activist from BNP who carried the newspapers, said that they weighed less than five kilograms. Not only were the papers never returned, but also Aleksandr was fined 310 thousand Belarusian roubles (approximately 92 euros) by the decision of the Court of Oktryabrski district of the city of Grodno of 22 May.
No trade union action allowed: A number of trade union mass activities were prohibited during the year, sometimes under preposterous pretexts.
A primary organisation of BNP at the "Grodno Azot" company (a nitrogen plant in the city of Hrodna) decided to hold a protest action on 17 May to draw attention to the violations of trade union rights. City authorities did not allow this meeting to happen, since, according to the official decision, events such as the "Sovyetskaya Square could only take place if organised by municipal agencies". In September-October city authorities, in a similar fashion, effectively banned trade union protests against the reforms of subsistence benefits and occupational pension schemes. On 27 September Sergey Antusevich, the chairman of the "Grodno Azot" trade union organisation, received an official warning (signed by the city major Mr. Shapel) on "inadmissibility of disorderly behaviour, holding mass protests or picketing". He has also been threatened with administrative and criminal sanctions. A situation occurred in the city of Novopolotsk, where the BITU organisation at "Polimir" company was going to organise a protest action on 30 September, but the municipal authorities did not allow it.
The REWU planned to organise a series of pickets against the subsistence benefits reform in July. Municipal authorities of the cities of Minsk, Zhlobin, Gomel and Borisov denied the permission to picket, since the official application submitted by REWU "did not comply with the requirements of the Law on Mass Activities". What really happened was that REWU had been placed in a vicious-circle situation, where the municipal authorities would ask it to obtain prior consent from the local health authorities and the militia, while the health authorities refused to consent unless they had the prior agreement of the municipal authorities. Perhaps the most "inventive" pretext to ban a trade union picket came on 23 July from the Zhlobin city authorities, who refused to issue permission, since "the problems trade unions were protesting against could not be resolved at the municipal level".
REWU was able to obtain a permit and organise a 25-person-strong picket in the city of Brest on 6 August at the "Lokomotiv" sports ground on the outskirts of the city. However, city militia paid a visit to "Lokomotiv", headed by Colonel-Lieutenant Stepanov, the city militia chief. Militia watched that trade unionists stayed inside the stadium and not near its entrance and videotaped the picket. This caused understandable tension amongst the trade unionists, but the action remained peaceful at all times.
Trade union activities of a non-protest nature have also been restricted. In November the above-mentioned BNP organisation at "Grodno Azot" requested the company management to provide them with rooms to celebrate the 15th anniversary of their activities at the enterprise. The enterprise director said he could not meet the union's request: according to the instructions of the executive committee of the city of Hrodna, an anniversary could only be celebrated for 25 years or more. A similar situation took place at the Lukoml city State Power Plant, where trade unions were initially allowed to celebrate their 15th anniversary in the Palace of Culture of Power Engineers. However, just a day before the event, the union received a letter from the power plant director, saying that such celebrations would be a violation of the law on mass activities.
State-owned companies against independent trade unions: The system of short-term contracts given to virtually all workers – a system responsible for the loss of hundreds of members of independent trade unions – remains in place despite the ILO criticism. Following the dispute about joining the FPB campaign to keep EU trade preferences, over 100 members of BNP at the "Polimir" company were forced to leave their trade union if they wanted their employment to be renewed. In September, the Belarusian Free Trade Union (SPB) lost four members in the Pushkin State Pedagogical University (city of Brest), who resigned from the trade union while facing an ultimatum from the university administration.
The largest enterprise-level independent trade union, the BNP primary organisation at the "Belaruskaliy" company, is prevented from meeting their representatives at work. On 9 October Vasili Korobov, the BNP president, was not allowed at "Belaruskaliy" and had his special access permit taken away. The instruction to prevent the union leader from visiting his organisation was given by Anatoly Makhlai, the company's deputy director for human resource and ideology. BNP wrote to the general director of "Belaruskaliy" and reported the incident to the prosecutor's office. However, Mr. Korobov has still not been issued an access permit or granted an entrance to "Belaruskaliy" at the time of writing.