Dissolved for international solidarity

In the mid-20th century, freedom of association was internationally recognized as a basic human right and a fundamental principle of the International Labour Organization.  Laws making it mandatory for employers to recognize workers’ unions and negotiate with them were perhaps the key factor in advancing employer-employee dialogue and decreasing violent trade conflicts. Today, workers’ rights to form trade unions and to engage in collective bargaining are rarely challenged openly but often ignored in practice. Just as before, employees trying to exercise this right are likely to face government pressure, legal barriers of all types and retaliation ranging from dismissals to physical attacks.

Freedom of association and Russia’s trade union movement

Russia’s laws and Constitution guarantee freedom of association, including the right to form trade unions for advancing workers’ interests and the freedom to set up and run non-governmental associations.

Like other European countries, Russia ratified the ILO’s fundamental Conventions No. 87 and No. 98 concerning freedom of association and collective bargaining and the right of all workers and entrepreneurs to form and join organizations without previous authorization, thereby making a commitment to respect the said principles and rights.

However, throughout Russia’s modern history, trade unions have faced problems with carrying out their daily activities, since despite recognizing the rights stipulated in the said ILO conventions, Russia has failed to provide adequate mechanisms supporting their implementation.

Unlike many European countries in which trade unions emerged and developed in a consistent manner over time, Russia’s trade union movement has had an unusual history. Traditionally a powerful force fighting to improve working conditions, trade unions definitely played a crucial role in improving workplace standards in the twentieth century. In the Soviet period, however, independent unions were virtually eliminated, and many union leaders and activists fell victims to the Great Terror in the late 1930s. The Soviet state reduced trade unions to mere servants of the regime and made them part of governance, law-making, party politics and propaganda. Having lost their role of protecting and representing workers, the unions performed this unnatural function instead. In subsequent years, the Soviet government heavy-handedly suppressed any attempts at worker solidarity actions or to create independent organizations. It was only at the turn of the 1980s and 1990s that Russia saw a revival of the labor movement and independent grassroots unions, marked by mass strikes, rallies and speeches which contributed greatly to the overall democratization of society.

In the post-Soviet era, trade union roles and objectives went through a major revision. This involved the emergence of “social partnership”¹A concept of labor relationships that can be defined as a tri- or multi-partite arrangement involving employers, trade unions, and public authorities. and the adoption of labor legislation informed by international standards, granting unions a new legal status and mandate.

The surviving Soviet-era trade unions had lost their former power and required serious reforms, while new independent, democratically-governed unions were gaining influence. A particularly good example is the Russian Confederation of Labour, (KTR), a national association established in 1995, which brought together the country’s independent unions in 2011.

In recent years, the number of trade unions in Russia, as in many European countries, has declined, but unions are still the most numerous of nongovernmental entities in Russia.² The estimated total number of FNPR and KTR members exceeds 20 million people. Second only to the Federation of Independent Trade Unions of Russia (FNPR),³In 1991, following the collapse of the USSR, FNPR became the successor to the All-Union Central Council of Trade Unions (AUCCTU) which brought together all trade unions existent in the USSR. KTR’s membership includes more than 20 national and interregional trade unions.

True to the principle of international solidarity, KTR and FNPR are members of the largest international association of trade unions, the International Trade Union Confederation (ITUC). Member unions of both KTR and FNPR are affiliated with various international federations of trade unions and the IndustriALL Global Union.

Like other nongovernmental organizations in Russia, independent unions face difficulties, such as undue employer and state interference in union activity, barriers to collective bargaining, discrimination against union members, limited opportunities to set up and register new organizations, disproportionate restrictions on the right to strike, and sometimes pressure, persecution, criminal charges and violent attacks against trade unionists.

In this context, the decision of the St. Petersburg City Court of 1 January 2018 to dissolve one of KTR’s member organizations, the Interregional Trade Union Workers’ Association  (ITUWA; site in Russian only), raises particular concerns as an instance of “foreign agents” enforcement against a trade union.

Enforcing the Foreign Agents Law against a trade union

The amendments⁴Federal Law No.121-FZ of 20 July 2012 of 13 July 2012 to the Law on Non-profit Organizations require Russian non-profits which engage in a vaguely defined “political activity” and receive funding from abroad to apply for registry as “performing the functions of a foreign agent.”⁵Article 2, para 6, of Federal Law No.7-FZ of 12 January 1996 on Non-profit Organizations.  The law has established a number of additional duties and restrictions for such organizations and criminal sanctions for non-compliance. Following a series of large-scale inspections of NGOs by prosecutors and Ministry of Justice officials, more than 100 Russian organizations were found to be performing the functions of foreign agents. The first to be affected were human rights groups, some of which were later dissolved. According to experts, this enforcement campaign left certain Russian regions without independent human rights organizations. In January 2018, the registry of NGOs “performing the functions of a foreign agent” listed 84 organizations, including charitable foundations, analytical and research centers, and others.

The amendments mention employer associations — but not trade unions — among the types of organizations explicitly exempt from “foreign agent” obligations. Since unions are thus not exempt, there has been a discussion as to whether or not “foreign agent” rules apply to them as well.

A review of Russian legislation reveals that the Law on Non-profit Organizations shares some of its provisions with the Law on Trade Unions, Their Rights and Guarantees of Activity applicable to unions specifically and thus having priority over the former law as far as unions are concerned. This means that the Law on Non-profit Organizations (as amended) applies to trade unions only in matters which are not regulated by the Law on Trade Unions.

It appears that the reason why the Law on Non-profit Organizations does not explicitly exempt trade unions from the “foreign agent” obligations is the clause in the Law on Trade Unions which prohibits government and local self-government bodies and officials from interfering with union activities if such interference can cause undue restriction of union rights or lawful activities; in particular, executive government agencies are not allowed to oversee trade union finances other than proceeds from business operations.

In contrast, the Federal Law on Associations of Employers does not contain such a clause, which is perhaps the reason why it is explicitly exempt from the sphere of application of Article 2, paragraph 6 of the Law on Non-profit Organizations to ensure that social partners enjoy equal rights in terms of freedom of association.

Otherwise, the possibility of enforcing “foreign agents” provisions against trade unions would lead to inequality between trade unions and employer associations in contravention of the core principle of social partnership, which is equality of parties.

Additionally, the obligations of financial reporting to executive authorities and additional registration as “foreign agents” would blatantly violate the fundamental rights of trade unions as stipulated by ILO Convention No. 87, specifically the prohibition to oversee and interfere with union finances. It would also contravene the established provisions of Russian law concerning trade union status and freedom of association.

It follows from the above discussion that the legislator’s choice not to mention trade unions in the Law on Foreign Agents is “qualified silence” based on the fact that union registration, functioning and supervision is regulated by a dedicated law and does not require dual regulation.

Court rules to dissolve ITUWA based on foreign agents law

In this context, the St. Petersburg City Court’s ruling to dissolve one of Russia’s most active trade unions, the Interregional Trade Union Workers’ Association (ITUWA), merits separate analysis.

The ITUWA was established in 2006 by employees of the Ford Motor Company plant in Vsevolozhsk, Leningrad Region, and AvtoVAZ plant in Togliatti, Samara Region. In 2014, the ITUWA modified its structure to extend beyond the automotive industry and to admit workers of other occupations.

Since its establishment, the union’s mission has been to represent its members, protect their social and labour rights, and promote solidarity by engaging with Russian and international trade union movement’s efforts aimed at social and economic advancement of all workers. A victorious strike at the Ford plant in 2007 earned the ITUWA recognition both in Russia and worldwide. In subsequent years,the  ITUWA negotiated collective bargaining agreements beneficial to employees at the Ford, Volkswagen and Benteler Automotive plants. In 2015, the Volkswagen plant introduced a 36-hour workweek⁶Normally, the workweek in Russia is 40 hours long. thanks to the ITUWA’s efforts. Over the past two years, the ITUWA has been working with employers to improve enterprise economy and avoid layoffs.

As part of its mission to serve members and contribute more broadly to economic and social advancement of all Russian workers, ITUWA has been offering training courses to union activists, participating in public events, putting forward and promoting proposals for better trade legislation, updating information on its website, and supporting a trade union group in VKontakte social network.

In June 2017, the Prosecutor’s Office in Krasnogvardeysky District of St. Petersburg launched an ad-hoc inspection of ITUWA to check its compliance with the legislation on non-profit organizations; officially, the inspection was triggered by an individual report of alleged violations.

On 1 December 2017, the Prosecutor of St. Petersburg, acting on behalf of an unspecified group of people, petitioned a court to dissolve the Interregional Trade Union Workers’ Association. No warnings or findings of violations had been issued to the ITUWA before.

On 10 January 2018, the St. Petersburg City Court satisfied the prosecutor’s petition and ordered the union’s dissolution, based on the following arguments:

1. The court found irregularities in how the ITUWA’s Charter and its subsequent amendments were incorporated, but did not consider these irregularities as gross or fatal.
2. ITUWA’s Charter does not specify the categories of people or types of occupations eligible for membership, making it possible for students, retired and unemployed people to join the union, which the court perceived as a “gross and fatal violation.” The court effectively found that membership of unemployed and retired persons, students and workers of various occupations in the union was illegal. This contravenes international law, specifically ILO conventions and the European Social Charter, as well as national legislation.
3. The court also found ITUWA in violation of the law for failing to register as a “foreign agent”, since the union was receiving foreign funds and engaging in political activity.

The court reached the following conclusions:

• Trade unions may engage in political activities in social and economic spheres;
• Any union engaging in such activities and accepting funds from foreign sources must register as an NGO performing the functions of a foreign agent.

What the court found to be ITUWA’s political activities included postings on ITUWA’s website and Vkontakte social network in support of trucker protests and wage indexation, and one other publication.

In addition to this, the court found two of the said postings to fall beyond the scope of activities permitted by the ITUWA’s Charter, as they did not explicitly concern workers’ social or occupational rights.

This incident of government interference with a trade union in retaliation for its statements and opinions violates the freedom of expression, and protecting the freedom of expression is one of the objectives of the freedom of association.⁷See ECtHR judgment in United Macedonian Organization Ilinden and Others v Bulgaria (No. 2), no. 34960/04. According to the ILO Committee on Freedom of Association (CFA), provisions imposing a general prohibition on political activities by trade unions are contrary to the principles of freedom of association. A general prohibition on trade unions from engaging in any political activities would not only be incompatible with the principles of freedom of association but is also unrealistic in practice.⁸Digest of decisions of the ILO Committee on Freedom of Association, 1996. para 455 321st Report, Case no. 2031. In a democratic society, trade unions play a fundamental role and their activities cannot be restricted to occupational issues but should include the economic and social advancement of all workers, while overall policy choices, particularly in economic matters, can directly affects workers’ situation.

The court also found the ITUWA to have accepted and used foreign funds, specifically those allocated by the IndustriALL Global Union, of which the ITUWA is an affiliate, to carry out a number of training workshops.

IndustriALL Global Union represents more than 50 million workers in 140 countries, including Russia. In addition to the ITUWA, nine other national-level Russian unions are its members. As an affiliated trade union, the ITUWA must pay an annual affiliation fee according to IndustriALL Global Union’s Statutes, and is entitled to financial support from IndustriALL to implement programs advancing the union’s goals and objectives.

International trade union solidarity is one of the key goals of the union movement and underlies the principle enshrined in ILO Convention No. 87, according to which any organization, federation or confederation shall have the right to affiliate with international organizations of workers and employers. Receiving assistance or support from an international trade union organization for creation, protection or advancement of a national union is a legitimate union activity.

Legal provisions allowing government authorities to ban an organization based on evidence of foreign funding are also incompatible with ILO Convention No. 87.

The Russian court’s ruling causes grave concerns as it defies the fundamental international freedom of association principles and rights as well as Russia’s legal provisions on trade unions. Clearly, the Russian court’s decision to impose the exceptional measure of liquidation against the Interregional Trade Union Workers’ Association constitutes an interference with freedom of association in the meaning of the Russian Constitution, ILO Convention No. 87 and the ECtHR case-law and can cause serious damage to the Russian trade union movement and to representation of workers’ occupational interests.

Appeals against the ruling have been filed with the Russian Supreme Court and the ILO Committee on Freedom of Association and are currently pending.

Update from 15/12/2019:

On May 22, 2018, The Supreme Court of Russia overruled the verdict of the Saint Petersburg city court from January 10, 2018, ruled to liquidate the Interregional Trade Union Workers’ Association, and by a new decision refused to satisfy the administrative claim of the Saint Petersburg prosecutor on the liquidation of ITUWA.

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