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Tomashevski, K. L. (2022) The Right to Strike and Freedom of Association in Belarus: Actual Problem in Light of ILO and UN Standards. European and Asian Law Review. 5 (2), 70-75. DOI: 10.34076/27821668 2022 5 2 70.
UDC 349.2
BISAC LAW054000
DOI: 10.34076/27821668_2022_5_2_70
Research Article
THE RIGHT TO STRIKE AND FREEDOM OF ASSOCIATION IN BELARUS: ACTUAL PROBLEM IN LIGHT OF ILO AND UN STANDARDS
KIRILL L. TOMASHEVSKI
International University 'MITSO' ORCID ID: 0000-0002-4098-4943
The article will briefly review the international standards of the United Nations and the ILO regarding the interpretation of the right to strike. Then the author examines the norms of the current labor legislation of Belarus, which regulate the procedure for organizing a strike. Special attention in the article will be paid to the new law of May 28, 2021 No. 114-Z, which significantly restricted the right to strike, prohibiting political demands and introducing a number of new grounds for dismissal related to participation or campaigning for strikes. The author substantiates measures to liberalize the legislation of Belarus in terms of the right to strike.
Key words: freedom of association, strike, trade unions, labour rights, ILO, employee
Introduction
In 2020 the Republic of Belarus faced not only the economic and social consequences of the coronavirus pandemic, but also the equally serious consequences of the presidential election campaign. As part of these elections, Belarusian trade unions were involved in political processes. After unrecognized by many countries of the world (EU countries, USA, Canada, Ukraine, etc.) the results of the Presidential election, there were strikes of employees of a number of enterprises. The decision of the Minsk regional court to declare the strike at a large mining enterprise 'Belaruskali' illegal once again demonstrated the complexity of organizing and conducting a strike under the legislation of Belarus.
Our report will examine the interpretation of the right to strike in the UN human rights pacts, the interpretation of the Committee on freedom of Association of the ILO Administrative Council, and Belarusian legislation. The author will put forward proposals to liberalize the legislation on strikes, which will make it possible to organize and conduct it legally, taking into account international standards and foreign experience.
One of the consequences of the political crisis in Belarus in 2020 was the mass withdrawal of workers from trade unions affiliated with the Federation of trade unions of Belarus, whose leadership actively supported the candidacy of Alexander Lukashenko during the presidential election campaign.
The Law adopted of May 28, 2021, which will enter into force at the end of June, will be analyzed, which further restricts the right to strike and introduces rules on the dismissal of employees who participated in the illegal strike, who were subjected to administrative arrests or calling for participation in strikes. An assessment of these changes is given, and the positions of the Committee of Experts of on the application of ILO conventions and recommendations on the compliance of the policy of the Belarusian authorities in the aspect of freedom of association and the right to strike are given.
Copyright© 2022. The Authors. Published by Ural State Law University named after V. F. Yakovlev. This is an open access article distributed under the CC BY-NC 4.0. license http:llcreativecommons.orglllicenselby-ncl4.0I
Materials and Methods
In this research the following methods are used: general scientific (analysis, synthesis, comparison) and special legal (formal-legal, comparative-legal, legal modeling).
Results
The results of the research are presented in the Conclusion.
Discussion
The right to strike, as you know, is proclaimed at the universal level in a number of UN documents. In accordance with Article 8, part 1 (d), of the International Covenant on Economic, Social and Cultural Rights, adopted by General Assembly resolution 2200 A (XXI) of December 16, 1966, and ratified by the Republic of Belarus, the States parties to the present Covenant undertake to ensure the right to strike, provided that it is exercised in accordance with the laws of each country.
Part 4 of Article 6 of the European Social Charter of 1996, ratified by Russia and not ratified by the Republic of Belarus, establishes the right of employees and entrepreneurs to collective action in the event of a conflict of interest, including the right to strike.
The right to strike, although not explicitly enshrined in the ILO conventions, is derived from the right to organize trade unions, in the practice of the Committee on Freedom of Association (CFA) of the Governing Body of the International Labour Organization (ILO)1. According to N. L. Lyutov and E. S. Gerasimova, despite the absence of this right in the fundamental ILO Conventions No. 87 and No. 98, CFA recognizes the right to strike as an integral part of the freedom of association enshrined in these conventions (Lyutov & Gerasimova, 2015: 39). However, it is appropriate to recall the well-known crisis in the ILO in 2012, when employers' associations, together with government delegates, blocked the formation by the Conference Committee on the Application of Standards of 'short list' of 25 cases drawn from the Annual Report of the ILO Committee of Experts on the Application of Conventions and Recommendations list in countries where violations of ILO conventions are allowed, under the pretext that the Committee of Experts does not have a mandate on the interpretation of the right to strike.
The right to strike is enshrined in ILO Convention No. 87, as well as within the broader international legal framework. Indeed, it can be said that the right to strike is now customary international law. The supervisory system of the ILO was correct in observing that the right to strike exists, and acted within their constitutional mandate and in conformity with the rules of treaty interpretation in so holding protects the right to strike (Tomashevski, 2012: 37-39).
The national legislation of the Republic of Belarus also recognizes the right of workers to strike, and at the constitutional level. According to part 3 of Article 41 of the Constitution of the Republic of Belarus, citizens have the right to protect their economic and social interests, including the right to strike. A more detailed regulation of this right is found in Articles 388-399 of the Labour Code of the Republic of Belarus.
Recall that a strike is a stage of resolving a collective labour dispute, consisting in the temporary voluntary refusal of employees to perform (in whole or in part) their labour duties.
Let us pay attention to the following important procedural features of a strike under Belarusian law: a strike can be declared provided that such mandatory stages of a collective labour dispute as a conciliation commission and labour arbitration have been passed, and the decisions taken at these stages did not suit the side of the workers represented by the trade union (their association),
the decision to hold a strike is taken at a meeting or conference by secret ballot (2/3 of the employees present). Quorum requirements: at a meeting-at least 1/2 of employees, at a conference-at least 2/3 of delegates (Article 389 of the Labour Code),
the representative body of employees must notify the employer in writing of the decision to hold a strike no later than two weeks before it begins,
1 Freedom of association - Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO. Fifth (revised) edition, 2006. Available at: https://www.ilo.org/global/standards/applying-and-promoting-internation-al-labour-standards/committœ-on-freedom-of-association/WCMS_090632/lang--en/index.htm [Accessed: 1 June 2022]. Freedom of Association. Compilation of decisions of the Committee on Freedom of Association. Geneva, 2018. Available at: https://www.ilo. org/global/standards/subjects-covered-by-internat^onal-labour-st^ndards/freedom-of-association/WCMS_632659/lang--en/index. htm [Accessed: 1 June 2022].
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after receiving a notice of a strike, the employer must immediately inform the owner or his authorized body, suppliers, consumers, transport organizations, local executive and administrative bodies (Article 390 of the Labour Code),
the minimum required work is determined in the collective agreement or within 5 days from the date of the decision to hold a strike (Tomashevski & Volk, 2021: 434-435).
By the Law of the Republic of Belarus No. 114-Z of May 28, 2021 (hereinafter referred to as the Law)2 amendments have been made to the Labour Code of the Republic of Belarus (hereinafter - Labour Code) on issues related to the strike. This law was prepared in high secrecy.
On April 12, 2021, after the adoption of the Law in the first reading, the Executive Committee of the Belarusian Congress of Democratic Trade Unions appealed to the Parliament and the Government to withdraw the draft law from consideration, and also informed them that a request for immediate intervention was prepared and sent to the Director General of the ILO as a procedure used in emergency circumstances and requiring an emergency response to the situation with workers' rights on the part of the ILO and its management3.
As the Constitutional Court of Belarus notes in its decision from April 30, 2021 No. P-1267/20214, the adoption of the Law is due to the need to improve the legal regulation of public relations that develop when employees carry out work activities aimed at ensuring national security, protecting public order, the rights and freedoms of others. It is interesting that the Law itself does not indicate the purpose of its adoption, and there is no preamble in it.
Among the new grounds for dismissal of employees at the initiative of the employer, included in paragraph 7 of Article 42 of the Labour Code, we will single out two that directly relate to the exercise of the right to strike: 1) forcing employees to participate in a strike, creating obstacles for other employees to perform their work duties, calling employees to stop performing their work duties without good reasons, 2) participation of an employee in an illegal strike, as well as in other forms of refusal of an employee to perform their work duties (in whole or in part) for no good reason. Moreover, these grounds for the dismissal of an employee on the initiative of the employer are guilty and disciplinary.
The new norm on the possible dismissal of employees for participating in an illegal strike, as well as in other forms of refusal of an employee to perform their work duties (in full or in part) without good reason - this is essentially legalizing the lockout.
For comparison, Article 415 of the Labour Code of the Russian Federation prohibits a lockout, that is, the dismissal of employees at the initiative of the employer in connection with their participation in a collective labour dispute or in a strike. Although the lockout was not prohibited in Belarus (as in Russia), it was not allowed before this law.
Moreover, dismissal on the above-mentioned grounds, according to the amendments made to Article 46 of the Labour Code, is made without prior notice to the relevant trade union, as well as without the mandatory prior consent of the relevant trade union in cases where collective contracts, agreements provide for prior consent to the termination of the employment contract at the initiative of the employer. Thus, when dismissed on these new grounds, trade unions will generally be deprived of the right to protect employees from possible arbitrariness on the part of the employer.
The addition made to Part 5 of Article 49 of the Labour Code establishes the right of the employer to suspend an employee from work if the employee calls on other employees to terminate the performance of their labour duties without valid reasons. In fact, this right to suspension from work is also a hidden form of lockout, as well as restrictions on the right to strike, because without agitation and calls for a strike, it is not possible to organize it (at the meeting, more than 2/3 of the employees present must vote for it, while at the meeting there must be at least half of all employees of the organization).
The Constitutional Court of Belarus in its decision did not very convincingly try to justify the change in the Law of the legal regulation of the grounds and procedure for termination of an employment contract at the initiative of the employer by referring to the fact that it contributes to the exercise of the employer's rights in the field of labour management (by referring to Articles 13 and 44 of the Constitution, Articles 12 and 55 of the Labour Code).
2 National Legal Internet Portal of the Republic of Belarus. 29 May 2021, 2/2834.
3 Website of Belarusian Congress of Democratic Trade Unions. Available at: http://www.bkdp.org/news/1/2583/ispolkom-bkdp-prinyal-zayavlenie-v-svyazi-s-vvedeniem-v-strane-zapreta-na-provedenie-zabastovok/ [Accessed: 1 June 2022].
4 National Legal Internet Portal of the Republic of Belarus. 7 May 2021, 6/1795.
The above-mentioned Law, Article 388 of the Labour Code, is supplemented by the norm: 'During a strike, it is prohibited to make political demands'.
Legitimate questions arise: if political demands cannot be made during a strike, can striking workers criticize the governmental socio-economic policy if it reduces living standards of the population? Can they criticize the personnel policy of employers? What can they even demand? Only the fulfillment of the terms of the collective agreement and all...?
In support of the 'constitutionality' of this rule, the Constitutional Court of Belarus refers to Part 2 of Article 22 of the Law of the Republic of Belarus 'On Trade Unions', which establishes that when holding strikes on the initiative of trade unions, it is prohibited to make political demands. It is obvious that the norm introduced in the Labour Code tightens this ban, since sometimes strikes in Belarus were directed and organized not by trade unions, but by strike committees among the most active workers.
As a relatively recent example, we can recall the strike at Belaruskali at the end of August 2020, where the participants mainly put forward political demands (related to the holding of presidential elections, etc.), but also added socio-economic ones to the political demands (in particular, the preservation of the collective agreement and the abolition of the fixed-terms contract hiring system).
On August 18, 2020, the co-chairs of the strike committee notified the management of Belaruskali of the announcement of an indefinite strike, referring to Article 41 of the Constitution. Among the demands were: annulment of the results of the presidential election and prosecution of those responsible for fraud, release of political prisoners and participants of peaceful actions, prevention of prosecution of participants of the strike, appeal to the management of banks not to charge interest on loans from participants of the strike until its completion, as well as the preservation of the collective agreement at the enterprise until its expiration. Two days later, the strike committee received a clarification of the requirements - its co-chairs demanded the abolition of the fixed-terms contract system of employment. The Minsk Regional Court on September 11, 2020, at the request of the prosecutor of the Minsk region, declared the strike illegal5.
Many participants of this strike were brought to administrative responsibility for participation in unauthorized mass events, 49 employees who declared joining the strike were dismissed for violating labour discipline. The International Trade Union Confederation (ITUC) General Secretary Sharan Burrow after appealing the court's decision said: 'The Supreme Court's ruling, upholding a lower court decision, is yet another blow to the fundamental right of all workers to take strike action to defend their interests. The court system is totally subjugated to the will of Lukashenko, denying justice to workers and the people of the country'6.
In the comments of the Committee of Experts on the Application of Conventions and Recommendations (CEACR) adopted in 2020, which are published for the 109th session of the International Labour Conference in 20217. The Committee takes note of the allegations of the ITUC and the Belarusian Congress of Democratic Trade Unions about extreme forms of violence aimed at suppressing peaceful protests and strikes, as well as about the detention, imprisonment and torture of workers in detention after the presidential elections in August 2020: 'The Government points out that most of the persons mentioned by the Belarusian Congress of Democratic Trade Unions, have been brought to administrative responsibility for organizing and l or actively participating in illegal protest actions or calling for participation in such protest actions. The Government believes that holding individuals accountable for illegal actions cannot and should not be considered as harassment of workers and trade unionists for exercising their civil rights and freedoms, including the right to participate in sanctioned peaceful protests and legal strikes. The status of a worker or trade union leader does not create additional benefits or immunity'.
On March 2021 The Governing Body of the ILO has approved the report of the Committee on Freedom of Association (CFA) and its recommendations to the Government of Belarus. The CFA expresses serious and deep concern about the events in Belarus and notes the deterioration of the situation with respect to labour and trade union rights. 'The Committee considers that the current situation in Belarus is still far from ensuring full respect for the right to freedom of association and the application of the provisions of ILO Convention No. 87', the report says. In recent months (Autumn 2020), thousands of Belarusian employees and trade union activists have been subjected to repression in connection with their participation in peaceful
5 National Economic Newspaper (18 September 2020). No. 70.
6 Belarus: Right to Strike Setback, but World Championship Withdraws. Available at: https://www.ituc-csi.org/belarus-right-to-strike-setback?lang=en [Accessed: 1 June 2022].
7 Report of the Committee of Experts on the Application of Conventions and Recommendations (Articles 19, 22, 23 and 35 of the Constitution) Available at: https://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents/ meetingdocument/wcms_740979.pdf [Accessed: 1 February 2020].
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actions and strikes. At some point, at the peak of the strike activity, the industrial giants of Belarus -JSC Belaruskali, JSC Grodno Azot, the Belarusian Metallurgical Plant in Zhlobin, BelAZ in Zhodino, the Minsk Tractor Plant, the Minsk Wheel Tractor Plant and others-stopped their work. Belarusian employees faced mass administrative and criminal arrests, beatings, searches, dismissals from work, bans on strikes and collective actions. The Committee's recommendations call on the Government of Belarus to release all trade unionists who remain in custody and to drop all charges related to participation in peaceful protests and strikes, as well as to take all necessary measures to prevent human rights violations and ensure full respect for the rights and freedoms of employees8.
During the 109th session of the ILO General Conference, these facts in Belarus were the subject of active discussion.
The change made in Part 4 of Article 395 of the Labour Code leads to the fact that the decision of the regional (Minsk city) court to recognize the strike as illegal or the decision to hold it will be subject to immediate execution not after its entry into legal force (as now), and the day after it was issued.
According to the Constitutional Court of Belarus, this change in the legislative norm ensures the prompt execution of the court order, which is necessary to minimize the consequences of an illegal strike, including for the country's economy, and therefore obliges the participants of the strike to stop it and start working the next day after the strike is declared illegal.
Conclusion
Freedom of association and the right to strike as an integral part of it must be respected and ensured by all ILO Member States, including Belarus.
Thus, the Law of May 28, 2021 No. 114-Z, which will enter into force on June 29, 2021, deals with the restriction of the labour and socio-economic rights of employees to strike and to freedom of speech in employment relations, including under the threat of their dismissal on disciplinary grounds.
Moreover, the right to strike is constitutional, and freedom of speech (freedom of expression) in the field of work is essentially universal and generally recognized.
With the subsequent codification of the labour legislation of Belarus, it is necessary to reduce the number of disciplinary grounds for dismissal of employees, excluding those that restrict the right to strike, simplify the procedure for declaring a strike, and regulate the right of employees to collective action.
References
Lushnikova, M. V., Ramankulov, K. S. & Tomashevski, K. L. et al. (2017) Eurasian Labour Law. Moscow, Prospekt. (in Russian)
Lyutov, N. L. & Gerasimova E. S. (2015) International Labour Standards and Russian Labour Legislation. Moscow, Center for Social and Labour Rights. (in Russian)
Tomashevski, K. L. (2021) Problems of Freedom of Association and Scope of Collective Agreements in Belarus as a Challenge to International Labor Standards. Vestnik of Saint Petersburg University. Law. (4), 1082-1094. https://doi.org/10.21638/spbu14.2021.417. (in Russian)
Tomashevski, K. L. & Volk, E. A. (2021) Trudovoepravo [Labour Law]. Minsk, Amalfeya. (in Russian)
Information about the author
Kirill L. Tomashevski - Doctor of Juridical Sciences, Professor, Professor of the Civil Law Disciplines and Trade Union Work Department, International University 'MITSO' (Minsk, Belarus; e-mail: tomashevskii @mitso.by).
© K. L. Tomashevski, 2022
Date of Paper Receipt: February 11, 2022
Date of Paper Approval: April 11, 2022
Date of Paper Acceptance for Publishing: June 24, 2022
8 Website of Belarusian Congress of Democratic Trade Unions. Available at: https://bkdp.org/news/zaklyuchenie-komiteta-po-primeneniyu-norm-mezhdunarodnoj-organizaczii-truda [Accessed: 1 February 2022].
