WORKERS’ REPRESENTATION IN THE REPUBLIC OF BELARUS: LEGAL ISSUES

Kirill Tomashevski – Head of the labour and corporate law department of International University ”MITSO”, PhD, Associate Professor

e-mail: k_tomashevski@tut.by

Abstract

Institution of representation plays an important role in realization of rights and legitimate interests in the sphere of labour law by workers and employers. With the help of their representatives workers take part in organization management, creation of local corporate norms, take part in collective bargaining and collective labour disputes, control the labour legislation and collective agreements execution. This is particularly relevant to organizations with a large quantity of workers, where it is rather difficult for an employer to ‘hear the voice’ of each worker.

Kew words: workers’ representation, trade union, labour law, employer, legislation, occupational safety and health, authorized person.

I. Historical introduction of workers’ representation in the USSR and Belarus

History of workers’ representation on the territory of modern Belarus goes back to 1894, when the first trade union of bristle workers was founded. In 1901-1902 strike committees, factory commissions, workshop gatherings etc. on some plants have often been organized. They became predecessors of big[1] trade unions.

One of the first attempts to establish workers’ representation in Russia (and alongside in Belarusian provinces) was made in Russian Empire Law on ‘Implementation of stewards in industrial enterprises’[2]. Trade unions were legalized only with adoption of a Law called ‘Temporary rules on professional communities established for individuals employed by trade and industrial enterprises (03/04/1906)’[3].

In Soviet times (before the middle of 1980^th) the only representation bodies of workers were the trade unions. With the adoption of the USSR law ‘On work collectives and enhancement of their role in management of plants, institutions and organizations’ (06/17/1983) and after that in the BSSR Labour Code (1972, chapter XV-A), such collective subject of labour law as work collective was legally formed. Russian scholar L. Bugrov was right when writing: ‘The life itself has put a question about emerged and probable in the nearest future balance between competence of work collectives and trade union organizations on enterprises’[4]. Belarusian scholar A. Voytik reasonably writes about the necessity of package settlement of work collectives’ legal status.[5] It is necessary to mention, that this problem has not been solved presently neither by labour legislation, nor by labour law doctrine.

In spite of reasonably detailed examination of legal status of work collectives in 1970-1980[6], the problem of workers' representation in labour law hasn’t been examined in details in academic labour law. The questions of workers’ participation in management of organization in modern conditions were raised by M. Lushnikova, A. Lushnikov[7], V. Vasilyev[8], V. Melnikova[9], but those are just the first steps in a solution of the problem.

Besides, while the questions of trade union representation are partly examined in the science[10], the problem of non-trade union representation was hardly raised in labour law and hasn’t been solved until now.

After the collapse of the USSR the institute of representation has undergone a lot of changes in legislation of Eastern Europe independent states. This gives a field for the comparative law research. Important methodological basis for this research is laid by conventions and recommendations of International Labour Organization (ILO), decisions of the ILO Committee on Freedom of Association, other publications of the ILO and general conclusions of European Court of human rights[11].

The Labour Code of the Republic of Belarus (1999) with changes and amendments[12] is the basis of legal control for workers’ representation in Belarus. It is stated in Article 4 that the Labour Code regulates relations between employees (their representatives) and employers. Two out of three goals stated in Article 3 of the Labour Code (development of social partnership; establishment and protection of mutual rights of employees and employers) cannot be reached without effective mechanism of not only employer representation, but interests of workers in individual and collective labour relations.

II. The experience of non-trade union representation in issues of occupational safety and health

In Belarusian companies where plant-level trade union bodies exist, public control over the occupational safety and health legislation compliance is exercised by trade unions through their technical inspector and through social inspector for occupational safety and health.

The rights of technical inspectors of labour are enumerated in Part 2 Article 38 of the Law of the Republic of Belarus “On occupational safety” of 23.06.2008 No. 356-3 2008[13]. In details the procedure of exercising of public control by trade unions and powers of trade unions’ representatives, taking part in examinations, are specified in the Decree of the President of the Republic of Belarus from 05.06.2010 No. 240 “On exercising of public control by trade unions”[14], in which the Provision on exercising of public control by trade unions, their organizational structures, associations of such unions and their organizational structures in the form of exercising control was approved.

At the same time, the existing legislation of the Republic of Belarus allows participation of authorized persons for occupational safety and health in exercising public control in the organizations without plant-level trade union bodies.

According to Part 4 Article 38 of the Law o “On occupational safety and health”, public control over the occupational safety and health in the company can be exercised by authorized persons for occupational safety and health. The elections of such authorized persons are held on a general meeting of workers. They are elected for a period of 2-5 years. At the same time their number is determined. Authorized persons for occupational safety and health exercise public control over the occupational safety and health legislation compliance in accordance with the rules set by the Government of the Republic of Belarus, or its authorized body.

These rules were set in the Instruction for the procedure of exercising of public control over the occupational safety and health legislation compliance by authorized persons for occupational safety and health, approved by the Decree of the Ministry of Labour and Social Protection of the Republic of Belarus in 28.11.2008 No 179 (hereafter – the Instruction).

In accordance with Article 3 of the Instruction, if there is no trade union in the company, public control over the occupational safety and health legislation compliance can be exercised by authorized persons. This refers to non-trade union representation of workers’ interests on exercising control over the questions of occupational safety and health.

The need for the institution of ‘authorized persons’ on the questions of occupational safety and health emerges mostly in the companies of small and medium-sized business, where trade unions often don’t exist.

Upon the results of general meeting of workers of an organization, on which the elections are held, a protocol is made up. The authorized persons are given the abstract of record form the protocol of the meeting. This abstract of record is the document, which approves the powers of the authorized persons to exercise public control over the occupational safety and health legislation compliance.

The instruction doesn’t specify the procedure of holding of general meeting, demands to quorum, that seems to be a legal gap. It may be solved with use of Part 3 Article 389 of the Labour Code, which determines demands to quorum when holding a meeting about calling a strike: more than a half of the total amount of workers must be present on a general meeting; on a conference – attendance of not less than 2/3 of delegates is required.

Along with that we suppose that for making a decision about election of authorized person the simple majority of voices (50% + 1 vote) is enough, because the legislation doesn’t set any particular demands on this question. According to the common practice the voting can be either open or secret.

Authorized persons can be called off before the term of their powers upon the decision of the meeting or conference on which they were elected, if they don’t fulfill assigned functions or don’t show the needed diligence on protection of workers’ rights in the occupational safety and health issues (Article 5 of the Instruction).

It is interesting that Article 6 of the Instruction defining with whom workers’ authorized persons organize their work, mention among others “persons authorized by other workers’ representative bodies”. By doing this the Ministry of Labour and Social Protection confirms the legality and legal basis for creation and functioning of other (non-trade union) bodies, authorized by workers (e.g. council of labour collective).

The status of authorized persons is defined by the Law On occupational safety and health, Standard Instruction on exercising control over the occupational safety and health legislation compliance in a company, approved by the Decree of the Ministry of Labour and Social Protection of 26.12.2003 No. 159[15], by other legislative acts, agreement, local laws and regulations of an organization.

Authorized persons – at least annually – report on a general meeting (conference) of workers of about assigned functions (Article 8 of the Instruction).

The main responsibilities and functions of assigned persons are specified in Article 2 of the Instruction. The main responsibilities of the authorized persons are:

- Assistance in creation in an organization (corporate organization unit) of healthy and safe work conditions;

- Exercising of public control over the occupational safety and health legislation compliance by the company;

- Providing assistance to workers on defense of their occupational safety and health rights;

For carrying out their responsibilities, authorized persons have a right to:

- Carry out inspections on complying with the occupational safety and health legislation;

- Make inquiries and receive information from an employer and state administrative bodies about industrial accidents, occupational diseases and other information on the questions of exercising control over the occupational safety and health legislation compliance;

- Make reports about rectifying violations discovered in the field of the occupational safety and health legislation compliance;

- Inspect workplaces, demand from an employer results of the inspection of conditions of work, industrial buildings, technological processes and facilities, which create danger for life and health of workers and associates;

- Take part in the work of commissions on testing and acceptance for operation, safety review of conditions of work of industrial objects and supplies and materials with a view to determine their compliance to requirements of the labour legislation, in exercising of evaluation of workplaces on conditions of work, in creation of labour safety regulations, activities on accidents prevention and improvement of working conditions;

- Demand from an employer and from employer’s authorized official person results of corrective actions in the occupational safety and health requirements, which pose a threat to life and health of workers, and in case of instant danger to life and health they have a right to suspend work before the violations are corrected;

- Inform workers about detected violations in the occupational safety and health requirements, conditions of work and occupational safety and health in the company;

- Other activities, as provided for in the occupational safety and health legislation and agreements.

According to Article 11 of the Instruction, the reports of official persons are necessary for consideration. The authorized official person of an employer, who was given in a report, has to consider it and within one month time and has to provide an authorized person with the results of the consideration.

When necessary the report is sent to state supervision and control bodies over the compliance with the occupational safety and health legislation of the Republic of Belarus.

Employers provide authorized persons with necessary conditions for exercising public control over the occupational safety and health legislation compliance; provide them with rules and instructions, other legislative acts on occupational safety and health; provide assistance in training of newly elected authorized persons on the questions of labour protection (Article 12 of the Instruction).

Authorized persons exercise their activity on public control over the labour protection legislation compliance without signing any contract (labour or civil), and without any remuneration. We suppose that such authorized persons need additional guarantees of the rights presented to them (such as wages payment and release from work during the inspection). In other case they won’t be able to exercise effective control over the labour labour protection compliance.

At present time authorized persons can demand preservation of average wages in case of carrying out responsibilities on public control during working hours in virtue of Part 3 Article 101 of the Labour Code, which notes ‘carrying out of other state or public responsibilities in cases as provided for in the legislation’.

In some cases employers impose pressure on authorized persons, detecting violations in the labour protection legislation, by inflicting disciplinary punishments on them for absence from the work place during the inspections, and even dismissing them for non-attendance or systematic breach of duties or improper execution of work duties. To avoid such abuse from the side of employers and workers, we suppose that if there is other workers’ representative body in a company, it is necessary to specify the procedure similar to dismissal of a member of trade union (2 weeks’ notice) or those of a chairman of trade union (agreement of workers’ representative body).

Thus, the guarantees to authorized persons need to be specified more clearly in the legislation, because in those organizations which don’t have a trade union, collective agreements as a rule are not signed.

Conclusion

In conclusion we will sum up the information and offer some prospects for further development of different forms of workers’ representation in Belarus.

1. Trade union representation remains prioritized in the Republic of Belarus in the conditions when more than a half of the population are members of trade unions, being a part of Federation of Trade Unions of Belarus (the vast majority of workers) or independent trade unions.

2. The procedure for creating of other workers’ representative bodies is not specified in the legislation, which complicates representation and protection of workers’ interests in the organizations that doesn’t have primary trade union bodies, or if workers don’t want to enter existing trade union.

3. The legislation of the Republic of Belarus is inconsistent in the questions of participation of workers’ representative bodies in creation of cooperative bodies with employer, adoption of local company acts and dealing with different problems resulting from labour relations. In these cases the legislation favours trade unions.

4. Lack of complex legislative regulation on workers’ participation in management of the company, forms of such participation, leads to almost lack of industrial democracy in such important issues as key managerial decisions dealing with labour and social-economic conditions of work (winding-up of the company and reorganization, privatization, sale, bankruptcy redundancy etc.).

5. The adoption of complex legislative act concerning the participation of workers in management of the companies may be advisable to improve the situation.

6. In creation of such act it seems to be advisable to examine the foreign experience in this field. In addition it is necessary to take into account the positive and negative experience of the legislative regulation of the activities of work collectives in USSR in 1980^th.

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