The Constitutional Court of the Republic of Belarus comprising of the Presiding Officer - Chairman of the Constitutional Court G.A. Vasilevich, Deputy Chairman A.V. Maryskin, judges T.S. Boiko, G.A. Vorobei, K.I. Kenik, V.V. Podgrusha, A.A. Sarkisova, A.G. Tikovenko, R.I. Filipchik, G.B. Shishko, V.Z. Shuklin has examined on the grounds of Article 40 and part one of Article 116 of the Constitution of the Republic of Belarus the constitutional motion of the Commission on human rights, national relations and mass media of the House of Representatives of the National Assembly of the Republic of Belarus, leading trade union bodies, certain trade union members, applications of other bodies and organizations on constitutionality of point 2 of Resolution of the Council of Ministers of the Republic of Belarus of 14 December 2001 No. 18 "On measures on protection of rights of members of trade unions".

The main attention in the applications has been paid to the fact, that as a result of adoption by the Council of Ministers of the specified Resolution there are violations of the rights of workers - trade union members to dispose freely of their wages, including the right to deduction of the sums of trade union fees from wages on the basis of a statement of a worker for transfer them cashless to the accounts of trade union bodies. Attention has been paid to the inconsistency of point 2 of the given Resolution with Decision of the Constitutional Court of 21 February 2001 "On the procedure of payment of trade union fees". Having heard a representative of the Government - V.G. Golovanov, Minister of Justice and F.P. Vitko, Chairman of Federation of Trade Unions of Belarus, analyzed the provisions of the Constitution, norms of international legal acts, Labour Code, laws and other enforceable enactments of the Republic of Belarus, the Constitutional Court emphasizes the following.

1. In accordance with the Constitution everyone shall be entitled to freedom of association (Article 36). Citizens shall have the right to protection of their economic and social interests, including the right to form trade unions (Article 41).

Those constitutional provisions has been realized in the Law "On Trade Unions" under which citizens shall have the right to form trade unions voluntarily of their own choice, as well as to become members of trade unions under the condition of the observance of their statutes (provisions) (Article 2). Trade Unions shall independently elaborate and approve their statutes (provisions), shall specify the structure, elect leading bodies, organize their activities (Article 3). Trade union statutes stipulate the obligation of trade union members to pay membership fees monthly in the prescribed procedure and to the prescribed extent. Payment of membership fees - voluntarily assumed obligation connected with membership in a trade union organization. International legal acts, in particular, ILO Convention No. 95 "On Protection of Wages" enshrines that deductions from wages shall be permitted only under conditions and to the extent prescribed by national laws or regulations or fixed by collective agreement or arbitration award. Part one of Article 107 of the Labour Code stipulates that deductions from wages may be made only in instances specified in the legislation. According to part four of the given Article an employer shall be obliged to make deductions from wage of a worker under his/her written statement for making cashless payments. Interpretation of the specified norms of Article 107 of the Labour Code in the aggregate shall make it possible to conclude, that even in the presence of a written statement of a worker an employer is under legal duty to make deductions from a wage of a worker for making cashless payments, if it is directly envisaged in the legislation (statement on alimony deduction, on deductions for compensation of the material damage caused).

Otherwise an employer is under legal duty under unilateral will of a worker to make any deductions, for example, communal payments, membership fees of workers who are members of other public associations etc. As it follows from Article 7 of the Labour Code, local enforceable enactments (collective agreements etc.) shall not be referred to the acts of legislation. Acts of legislation according to the Labour Code shall have higher legal force than local enforceable enactments have. Previous, including at the moment of delivery by the Constitutional Court of its Decision of 21 February 2001 "On the procedure of payment of trade union fees", practice of deduction and transfer of trade union membership fees under the statement of a worker has been based on Resolution of the Cabinet of Ministers of the Republic of Belarus and the National Bank of the Republic of Belarus of 14 November 1996 No. 726/14 "On transfer of trade union membership fees" which has ordered to ensure under collective contracts (agreements) first and foremost transfer of trade union membership fees to running accounts of trade union bodies and to use for those purposes resources of the economic entities allocated for urgent needs.

The specified Resolution has been found to be invalid by Resolution of the Council of Ministers of the Republic of Belarus and the National Bank of the Republic of Belarus of 21 June 2001 No. 914/13, i.e. after adoption of Decision of the Constitutional Court of 21 February 2001. Resolution of the Council of Ministers of 14 December 2001 No. 1804 has specified that payment of trade union membership fees shall be made personally by workers without deduction of fees from their wages (point 2). The Constitutional Court of the Republic of Belarus pays attention to the fact, that in General Agreement of 24 December 1997 among the Government, republican associations of employers and trade unions for 1998 - 2000 the parties have been agreed to include into branch and local tariff agreements, as well as into collective agreements the provisions on transfer at the fixed terms of trade union membership fees to banking accounts of trade union organizations in accordance with Resolution of the Cabinet of Ministers and the National Bank of 14 November 1996 No. 726/14. The effective at the present moment General Agreement among the Government, republican associations of employers and trade unions for 2001 - 2003 signed of 25 May 2001 contains no analogous provision.

Thus, at the present time on national-wide level there are no acts of legislation which shall serve a legal ground as for the entrusting of an employer with the duty to deduct trade union fees. There is also no specification in the legislation of the resources of expenses of an employer for making those deductions and their transfer to the accounts of trade union organizations.

Therefore, as a result of adoption by the Council of Ministers of Resolution of 14 December 2001 No. 1804 am employer shall have the right to refuse to make deductions of trade union fees from wages of workers and transfer them to the accounts of trade union bodies even in instances of the presence of a written statement of a worker. At it follows from the analysis of Resolution of the Council of Ministers of 14 December 2001 No. 1804 and from the practice of payment of trade union fees, one of the grounds for the adoption of the specified Resolution was non-transfer by certain employers to the accounts of the relevant trade union bodies of resources deducted from wages of workers, especially by those employers, who have obtained credits for payment of wages. Thereby, in many instances crediting of trade union activities has been exercised mediated. Delay in transfer of the sums of wages deducted in account of payment of trade union membership fees was resulted in numerous applications of trade union bodies to different instances.

2. In the Decision of 21 February 2001 the Constitutional Court has analyzed the effective at the moment of its delivery enforceable enactments and practice of their application. The Constitutional Court has come to the conclusion, that the legislation at that moment has allowed payment of trade union membership fees by way of cashless payments through accounting departments of organizations. The Constitutional Court has grounded its Decision on the effective at that period Resolution of the Cabinet of Ministers and the National Bank of 14 November 1996 No. 726/14. While examining the given issue, the Constitutional Court has paid attention to numerous instances of deductions of trade union fees without written statement of a worker.

It was emphasized both unlawfulness of the practice in question and the practice when deductions were made with respect to the workers, who were not at all trade union members. Based on the analysis of the national legislation and on the international legal acts, the Constitutional Court in its Decision of 21 February 2001 has indicated that it was impossible to make any deductions from wages of workers besides those specified in the laws. Adoption by the Council of Ministers and the National Bank of Resolution of 21 June 2001 No. 914/13 on finding to be invalid Resolution of the Cabinet of Ministers and the National Bank of 14 November 1996 No. 726/14 shall be within the competence of the Government which is entitled by the lawmaker to adopt enforceable enactments in elaboration of the provisions of the Labour Code, Article 107 of the specified Code included. Due to this the Constitutional Court notes that point 2 of Resolution of the Council of Ministers of 14 December 2001 No. 1804 shall not collide with Decision of the Constitutional Court of 21 February 2001, because by delivering this Decision the subject of examination of the Constitutional Court were applications concerning the possibility of collection of trade union fees through accounting department of organization without written consent of a worker.

The Constitutional Court shall pay attention to the fact, that traditions of trade union activities during Soviet period, permanent care of them on behalf of the State, equally with entrusting them with some state functions, have transformed trade unions into a part of state mechanism. At the same time, care to a considerable extent on collection of trade union fees has been shifted from leading bodies (the most active members), who had to carry out routine with their members, on to employers (accounting departments of organizations). This resulted in the increase of the state influence on trade unions, in weakening of relations between leading trade union bodies and ordinary trade union members. In spite of change at the modern period of the tasks and functions of trade unions, there is still former formal and bureaucratic approach towards the collection of trade union fees. That was also confirmed in the process of examination of 21 February 2001 by the Constitutional Court of the issue on the procedure of payment of trade union fees. It was revealed that payment of trade union membership fees has been made under previous scheme, very often disregarding opinion of a worker, at times, there have been no clearing up whether he/she is a trade union member, and if he/she is a trade union member, then of which one exactly.

3. The Constitutional Court emphasizes, that taking into account the status of trade unions as social associations of citizens who associated voluntarily for the protection of their labour, social and economic rights and interests, and statute obligation of trade union members to pay membership fees personal payment of trade union fees without their deductions from wages, which is stipulated by point 2 of Resolution of the Council of Ministers of 14 December 2001 No. 1804, is not at variance with the basic principles of organization and activities of trade unions and, at the same time, shall reduce the dependence of trade union organizations on performing by employers of their duties concerning transfer of the deducted by them sums of trade union fees to the accounts of trade union organizations, though it makes additional charge for trade union active members on collection of fees which previously has been carried out by accounting departments of organizations. In instance of payment of trade union fees personally by the workers, employers should create normal conditions for trade union group organizers or for other persons authorized to collect fees. Taking into account the aforementioned and allowing at the given stage for the possibility of alteration by the acts of legislation of previous procedure of deductions and transfer of trade union fees, the Constitutional Court, at the same time, pays attention to the fact, that such an alteration shall not promote development of harmonious labour relations. As the Committee on freedom of association of Administrative Council of ILO recommends, in principle, such a situation shall be subject to avoid.

The Constitutional Court notes that, thereby, there is a necessity to improve mechanism of payments of trade union membership fees. In perspective, including taking into account the accumulated experience of application of Resolution of the Council of Ministers of 14 December 2001 No. 1804 and the revealed in practice positive and negative moments of its application there may be found more acceptable decisions for the development of harmonious labour relations. As the possible ways for overcoming disputable issues there may be their solution in new General Agreement, improvement of the Labour Code, the Law "On Trade Unions", other laws.

The Constitutional Court pays attention to the fact, that the envisaged by Resolution of the Council of Ministers of 14 December 2001 No. 1804 personal payment of membership fees shall not exclude the right of workers - trade union members, for whom their wages are transferring to their accounts in banking establishments, to make instructions for the banks on transfer trade union fees cashless to the accounts of trade union organizations, as it is stipulated by Articles 198 - 210 of the Banking Code of the Republic of Belarus.

On the grounds of the aforestated and guided by Article 40 and part one of Article 116 of the Constitution, Articles 7, 36, 38, 40 40¹ of the Law "On the Constitutional Court of the Republic of Belarus", Articles 43¹ and 73 of the Rules of Procedure of the Constitutional Court, the Constitutional Court

RULED:

1. To note, that the envisaged at the present stage in point 2 of Resolution of the Council of Ministers of the Republic of Belarus of 14 December 2001 No. 1804 "On measures for protection of the rights of members of trade unions" normative prescription on payment of trade union membership fees personally by worker without deductions of fees from their wages has been adopted by the Government of the Republic of Belarus within its competence and is not at variance with the basic principles of organization and activities of trade unions fixed in the Constitution and in the laws of the Republic of Belarus.

2. By force of the fact, that the established by point 2 of the specified Resolution procedure of personal payment of trade union fees without involving accounting departments of organizations is not an optimal one and stands in need of improvement, to propose the Council of Ministers of the Republic of Belarus with the purposes of development of social copartnership, harmonious labour relations to consider the issue on the improvement of the legislation concerning mechanism of deduction and transfer of trade union fees, including also while concluding new General Agreement among the Government of the Republic of Belarus, republican associations of employers and trade unions.

3. To note, that Resolution of the Council of Ministers of the Republic of Belarus of 14 December 2001 No. 1804 "On measures for protection of the rights of members of trade unions" shall not exclude the right of workers - trade union members, for whom wages are transferring to the accounts in banking establishments, to make instructions for the banks on transfer of trade union fees cashless to the accounts of trade union organizations, as it is stipulated by Articles 198 - 210 of the Banking Code of the Republic of Belarus.

4. The Present Decision shall come into legal force from the date of its adoption.

5. To publish the Present Decision in accordance with the effective legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich