Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Géorgie (Ratification: 1993)

Autre commentaire sur C098

Observation

Demande directe

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The Committee takes note of the observations of the Georgian Trade Union Confederation (GTUC) received on 20 September 2021, which refer to the matters raised by the Committee below.

The Committee notes that the Labour Code has been revised in 2020.

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee recalls that in its previous comments it had raised questions regarding the protection against anti-union discrimination at the time of hiring, as well as in cases of non-renewal of employment contracts.

The Committee notes the Government’s indication that in 2019, changes were made to the Law on Elimination of All Forms of Discrimination. According to the Government, new provisions, pursuant to which, the principle of equal treatment, which expressly applies to members of trade unions and covers trade union activities, shall apply to labour and pre-contractual relations, were added to the Law; similar provisions were included in the Labour Code. The Government further indicates that through the amendments introduced to the Law on the Public Defender in 2020, the mandate of the Ombudsman in cases of discrimination was extended. The Committee notes the detailed information provided by the Government on the extended mandate of the Public Defender in alleged cases of discrimination, including anti-union discrimination. The Committee welcomes the new legislative amendments. In particular, it notes with satisfaction section 7 of the Labour Code as amended, according to which, where a job candidate or employee alleges facts and/or circumstances which give rise to a reasonable belief that an employer has violated the prohibition against discrimination, the burden of proof shall rest with the employer. The Committee also notes with interest sections 77 and 78 of the Labour Code, pursuant to which, any violation by an employer of the provisions prohibiting discrimination shall result in either a warning or a fine in a threefold amount provided for the violation of other provisions of the Labour Code; if the same act is committed again within one calendar year, the amount of the fine doubles. The Committee also notes with interest that by virtue of sections 5 and 47 of the Labour Code, the prohibition of anti-union discriminations also covers termination of employment due to the expiration of an employment contract. While noting with interest that section 48 of the Labour Code imposes an obligation on an employer, upon request by an employee, to substantiate in writing the grounds for terminating employment, the Committee understands that this obligation does not apply to cases of non-renewal of a contract. The Committee takes note of the information provided by the Government on the number of cases of anti-union discrimination examined. The Committee requests the Government to provide information on the application in practice of the amended legislative provisions, including on the number of complaints of anti-union discrimination at the time of hiring and non-renewal of employment contracts and the fine imposed and their amounts.

Article 2. Interference by employers in internal trade union affairs. In its previous comments, recalling the need for the legislation to make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions for acts of interference against workers’ and employers’ organizations, the Committee had requested the Government to indicate the provisions providing for the remedies and/or sanctions for violation of (previous) section 40.3 of the Labour Code and section 5 of the Law on Trade Unions, which prohibited all forms of interference and provided for independence of trade union organizations from employers and their organizations. The Committee had requested the Government to provide any administrative or judicial decision in this respect.

The Committee notes the Government’s indication that pursuant to section 26 of the Law on Trade Unions, cases of violation of trade union rights shall be considered by courts and that pursuant to section 27(2) of that Law, trade unions and their associations, as well as trade union members have the right to file claims or complaints with a court in cases of violation of the legislation, or fail to fulfil obligations set out in collective agreements. In addition, section 166 of the Criminal Code provides for liability for unlawful interference with the establishment of public associations or with their activities committed with violence, threat of violence or the use of official position, and punishes such acts by a fine or corrective labour for a term of up to one year or house arrest for a term of six months to two years, or by imprisonment for a term of up to two years. The Committee also notes the fines provided for in above-mentioned section 77 for the violation of the provisions of the Labour Code, including its new section 54, which prohibits interference in the activities of employers’ associations and employees’ associations in each other’s activities. The Committee notes the Government’s indication that during the reporting period, the courts of Georgia did not consider any cases of alleged interference. The Committee requests the Government to keep providing information in this regard.

The Committee recalls that it had previously expressed the hope that steps would be taken by the Government to ensure that compliance with the rights enshrined in the Convention was subject to monitoring by the public authorities. The Committee notes with interest sections 75 and 76 of the Labour Code as amended, which designate the Labour Inspection Service as the body responsible for State supervision over compliance with the labour legislation.

Article 4. Promotion of collective bargaining. The Committee had previously requested the Government to provide information on any progress made towards strengthening the labour administration and institutionalizing social dialogue and in particular on the adoption of the amendment of Decree N301 on Labour Dispute Settlement Procedures, in consultation with the social partners. The Committee notes the information provided by the Government on the number of conciliation procedures during the reporting period and their success rate, as well as on the training of 15 participants on collective bargaining disputes. In the absence of information regarding the adoption of the amendment of Decree N301, the Committee requests the Government to provide information on the developments in this regard.

The Committee had also requested the Government to provide information on all progress made in ensuring that the content of section 48(5) of the Labour Code, which provided that at any stage of a dispute, the Minister can terminate conciliatory procedures, promoted the negotiated resolution of collective labour disputes. The Committee notes that section 63(5) of the amended Labour Code is to the same effect. It further notes the Government’s explanation that the right of the Minister to terminate the conciliation procedures is a consequence of his or her right to appoint a dispute mediator and to commence conciliatory procedures. The Committee notes that the GTUC raises several concerns regarding the right of the Minister to terminate conciliatory procedures without regard to the opinion of the parties to the dispute. The Committee requests the Government to take the necessary steps, in consultation with the social partners, to review section 63(5) of the Labour Code so as to ensure that it promotes the negotiated resolution of collective labour disputes. It requests the Government to provide information on all developments in this regard.

The Committee notes the information provided by the Government on the number of collective agreements in force and workers covered. It requests the Government to continue providing such information in its reports. The Committee also requests the Government to provide its comments on the alleged by the GTUC violations of collective bargaining rights at a number of enterprises.