SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF BELARUS

of March 20, 2002 No. P-139/2002

About constitutionality of Item 2 of the resolution of Council of Ministers of the Republic of Belarus of December 14, 2001 No. 1804 "About measures for protection of the rights of members of labor unions"

Constitutional court of the Republic of Belarus as a part of the chairman - the Chairman of the Constitutional Court Vasilevich G. A., vice-chairman Maryskin A. V., Boyko T. S. judges., Vorobey G. A., Kenik K. I., Podgrusha V. V., Sarkisovoy E.A., Tikovenko A. G., Filipchik R. I., G.B. Cone, Shuklina V. Z. considered based on Article 40 and part one of article 116 of the Constitution of the Republic of Belarus appeals of Commission on Human Rights, to the national relations and mass media of the House of Representatives of National assembly of the Republic of Belarus, governing bodies of labor unions, certain members of labor unions, other bodies and organizations about constitutionality of Item 2 of the resolution of Council of Ministers of the Republic of Belarus of December 14, 2001 No. 1804 "About measures for protection of the rights of members of labor unions".

In addresses the main attention was paid to the fact that in connection with acceptance by Council of Ministers of the called resolution the rights of workers are violated - members of labor unions freely to dispose of the salary belonging to them, including the right to payroll deduction of the amounts of union dues based on the statement of the worker for their transfer via bank transfer into accounts of trade-union bodies. The attention to contradiction of Item 2 of this resolution to the solution of the Constitutional Court of February 21, 2001 was paid. "About payment procedure of membership union dues".

Having heard the representative of the Government of the Republic of Belarus Minister of Justice of the Republic of Belarus Golovanov V. G. and the Chairman of Federation of trade unions Belarusian Vitko F. P., having analyzed provisions of the Constitution, regulation of international legal documents, the Labor code, laws and other regulations of the Republic of Belarus, the Constitutional Court notes the following.

1. According to the Constitution everyone has right to liberty of associations (Article 36). Citizens have right of defense of the economic and social interests, including the right to consolidation in labor unions (Article 41).

These constitutional provisions are realized in the Law of the Republic of Belarus "About labor unions" according to which citizens have the right voluntarily to create labor unions at the choice, and also to join trade unions on condition of observance of their charters (provisions) (Article 2). Labor unions are independently developed and approve the charters (provisions), determine structure, elect governing bodies, will organize the activities (Article 3).

Charters of labor unions provide obligation of members of labor unions monthly in accordance with the established procedure and the size to pay the membership fees. Payment of the membership fees - voluntarily undertaken obligation connected with membership in the trade-union organization.

By international legal acts, in particular the Convention of the ILO No. 95 "About protection of the salary", it is provided that payroll deductions are permitted only in case of observance of conditions and in the sizes determined by the legislation of this country or established by collective agreements or arbitral decisions.

In part one of Article 107 of the Labor code it is specified that payroll deductions can be made only in cases, stipulated by the legislation. According to part four of this Article the employer shall make payroll deductions of the worker according to its written application for production of clearing settlements.

Interpretation of the given regulations of Article 107 of the Labor code in total allows to draw conclusion that even in the presence of the written application of the worker the employer shall make payroll deductions of the worker for production of clearing settlements if it is directly provided in the legislation (statements for advance payment of maintenance, for deduction for compensation of the caused material damage, etc.). Otherwise the employer would owe make on unilateral declaration of will of the worker any deduction, for example, for payment of utility payments, the membership fees of the workers consisting in other public associations, etc.

As appears from Article 7 of the Labor code, local regulations (collective agreements, etc.) do not belong to acts of the legislation. Acts of the legislation according to the Labor code have bigger legal force, than local regulations.

Existing earlier including at the time of removal by the Constitutional Court on February 21, 2001 of the decision "About payment procedure of membership union dues", practice of deduction and transfer of membership union dues according to the statement of the worker was based on the resolution of the Cabinet of Ministers of the Republic of Belarus and National Bank of the Republic of Belarus of November 14, 1996 No. 726/14 "About transfer of the union membership fees", it was offered to them to provide according to collective agreements (agreements) transfer in first-priority procedure for the union membership fees to current accounts of trade-union bodies, using for these purposes of means of subjects of managing, intended for urgent needs. The specified resolution was declared invalid by the resolution of Council of Ministers of the Republic of Belarus and National Bank of the Republic of Belarus of June 21, 2001 No. 914/13, that is after adoption on February 21, 2001 of the decision the Constitutional Court.

By the resolution of Council of Ministers of December 14, 2001 No. 1804 it is determined that payment of membership union dues is made personally by workers without deduction of fees from their salary (Item 2).

The constitutional court of the Republic of Belarus pays attention that the General agreement of December 24, 1997 between the Government, republican associations of employers and labor unions for 1998-2000 the parties agreed to include in industry and local tariff agreements, and also in collective agreements of regulations on transfer at the scheduled time of the union membership fees on bank accounts of the trade-union organizations according to the resolution of the Cabinet of Ministers and National Bank of November 14, 1996 No. 726/14.

In the General agreement existing at the moment between the Government, republican associations of employers and labor unions for 2001-2003 signed on May 25, 2001 the similar provision is absent.

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