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 the complaints of citizens on the procedure of payment of trade union fees.

The complaints put the issue on constitutionality of collection of trade union fees through accounting department of the organization without written consent of the employee.

Having analyzed the norms of the Constitution of the Republic of Belarus, international legal acts, labour legislation, norms of collective contracts (agreements), as well as the practice of their application, the Constitutional Court has found the following.

Under Article 36 of the Constitution everyone shall be entitled to freedom of association. Article 41 of the Constitution guarantees citizens the right to protection of their economic and social interests, including the right to form trade unions and conclude collective contracts (agreements), and the right to strike.

According to Article 2 of the Law “On trade unions” citizens shall have the right to form voluntarily at their own choice trade unions, as well as to join trade unions under conditions of the observance of their statutes (rules). Part two of Article 3 of the given Law stipulates that trade unions shall independently work out and approve their statutes (rules), determine the structure, elect leading bodies, organize their activities, hold meetings, conferences, plenums, congresses. Article 27 of the Law “On trade unions” establishes that the sources, the procedure of forming and use of the means of trade union budget shall be specified in the statutes (rules) of trade unions. Statutes of trade unions stipulate that a citizen who expressed her/his wish to belong to the trade union, who acknowledges trade union statute, who pays duly membership fees and is not member of any other trade union may be a member of the trade union. Statutes shall envisage the obligation of a member of trade union to pay monthly membership fees in the established procedure and amount.

Cashless procedure of payment of trade union membership fees has been established by Resolution of the Presidium of All-Union Central Council of Trade Unions of 26 June 1982 No. 9-3 “On the procedure of introduction of cashless payment of trade union membership fees”. Such procedure of payment of membership fees had to be introduced under the decision of the council of trade unions only with the consent of trade union member with obligatory presence of her/his written application.

General agreement of 24 December 1997 (with alterations and addenda of 12 February 1999 and of 24 December 1999) between the Government of the Republic of Belarus and republican associations of employers and trade unions for 1998 — 2000, parties had come to the agreement to include in sectoral and local tariff agreements, as well as in collective contracts the provision on transfer trade union membership fees, within the term fixed, to bank accounts of trade union organizations in accordance with Resolution of the Cabinet of Ministers of the Republic of Belarus and of the National Bank of the Republic of Belarus of 14 November 1996 No. 726/14 “On transfer of trade union membership fees”. That resolution envisages ensuring, according to collective contracts (agreements), immediate transfer of trade union membership fees to running accounts of trade union bodies and to use for those purposes the means of the economic entities allocated for urgent needs.

Provisions on transfer in cashless form of trade union membership fees are contained in both the agreements concluded on sectoral level by the relevant republican trade unions, by the state bodies and in collective contracts of organizations.

Procedure of payment of monthly membership fees, in particular for trade unions, which are members of Belarusian Trade Union Federation, shall be envisaged in Model instruction on the procedure of payment and accounting of admission and monthly trade union membership fees approved by Presidium of the Council of Belarusian Trade Union Federation of 23 September 1999 (protocol No. 50). According to point 3.2 of the Instruction in question monthly trade union membership fees deducted from the wages on the main place of employment may be paid under the written application of trade union member in cashless order through accounting department of an enterprise, organization, establishment of various forms of ownership. Trade union members who expressed no wish to pay monthly trade union membership fees in cashless order shall pay those fees from wages for the expired period on the main place of employment in cash as per account book of the established form to the trade union group organizer or to the treasurer of trade union (workshop) committee (point 3.3 of the Instruction).

Having analysed the specified enforceable enactments, the Constitutional Court comes to the conclusion that effective legislation shall allow to pay trade union membership fees by way of cashless payment through accounting department of an enterprise. Such procedure is not at variance with the Constitution, with international legal acts and with the laws of the Republic of Belarus. At the same time the Constitutional Court emphasizes that cashless procedure of transfer of trade union membership fees is admissible and simplifies their payment, but the choice of the procedure of payment is for the employee — for trade union member.

The employee may submit an application on transfer of trade union membership fees to the accounts of trade union bodies by way of cashless transfer by accounting department of an enterprise or to pay them in cash as per account book of the established form to the trade union group organizer or to the treasurer of trade union committee.

While studying the issue put in complaints the Constitutional Court has found that, on the whole, trade union members submit their applications on cashless transfer of trade union membership fees. However, in practice, there are deductions from wages for pay of trade union membership fees of those employees who submitted no such application. There are instances of deduction of trade union fees from the wages of the employees who are not trade union members.

The Constitutional Court emphasizes that employer shall have the right to make deductions from the wage of the employee for transfer in cashless order of trade union membership fees only in the presence of reliable information on whether an employee is a trade union member and whether he/she submitted the written application for pay of membership fees by way of cashless transfer. The given conclusion is based on the norms of the Labour Code of the Republic of Belarus, as well as on the norms of international legal acts.

In accordance with Article 107 of the Labour Code deductions from wages are possible only in instances specified in legislation. Analysis of the given norm of the labour legislation signifies that it is impossible to make deductions from wages of employees as recoupments on behalf of employer at his own discretion, as well as other deductions apart from those specified in law. That norm is based on the provisions of ILO Convention No. 95 “On the Protection of Wages” according to which 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 (Article 8).

Part four of Article 107 of the Labour Code envisages that employer is obliged to make deductions from wages of the employee under his/her written application for making cashless payments. That provision is in conformity with Article 6 of the specified ILO Convention No. 95 under which employers shall be prohibited from limiting in any manner the freedom of the employee to dispose of his wages.

Thus, both norms of international legal acts and the norms of national legislation shall establish that deductions from wages may be made only in instances specified in legislation or under written application of an employee.

The practice of application of enforceable enactments concerning payment of trade union membership fees shall signify undue control of trade unions over the observance of the labour legislation, the obligation to exercise such control is vested therein by Article 463 of the Labour Code of the Republic of Belarus and by the Procedure of exercise by trade unions of social control over the observance of the labour legislation of the Republic of Belarus approved by Resolution of the Council of Ministers of the Republic of Belarus of 23 October 2000 No. 1630.

With a view not to allow deductions from wages of those persons who are not trade union members and who submitted no written application on transfer of trade union membership fees in cashless order to the accounts of trade unions organizations, trade unions should present reliable information for employer about employees who are trade union members, as well as to maintain records of trade union membership fees and to exercise control over correctness of their pay.

Employers who make deductions from wages of employee for transfer trade union membership fees are also obliged to be guided by the norms of legislation envisaging the possibility for deduction under written application of employees only.

Any deductions from wages, including for payment trade union membership fees, should be made in accordance with the legislation of the Republic of Belarus and with the norms of international law.

Based on the aforestated and guided by Article 40, part one of Article 116 of the Constitution, by Articles 11, 36, 38, 40, 40¹ of the Law “On the Constitutional Court of the Republic of Belarus” the Constitutional Court 

RULED: 

1. To find that deduction of trade union membership fees from wages of the employee by way of cashless transfer to the accounts of trade union bodies is in conformity with the Constitution, with international legal acts, with the laws of the Republic of Belarus.

2. To pay attention of trade unions and employers to the violation on their behalf of the legislation which shall regulate the procedure of payment of trade union membership fees by employees — trade union members.

3. To emphasize that employers shall have the right to make deductions by way of cashless transfer of trade union membership fees to the accounts of trade union bodies only with the presence of written application of employee for such transfer. In case of the absence of such an application deductions from wages are illegal. To consider that employees — trade union members, who submitted no such applications and who put no issue on the unlawfulness of the practice took place with making such deductions from their wages by way of cashless transfer, thereby, in fact, gave their consent to such deductions under conditions that they have information thereabout (specification in pay sheets of employee etc.). Such practice is inadmissible in future on the basis of the requirements of Article 107 of the Labour Code of the Republic of Belarus and on the ground of the present Decision of the Constitutional Court.

4. To find deductions of sums of money from wages of employees to the account of payment of trade union membership fees to be a violation of the constitutional rights of employees who are not trade union members. Disputes arising in that connection may be settled according to the procedure specified in legislation.

5. To pay attention of trade unions to the absence of proper control on their behalf over the observance of the established procedure of payment trade union membership fees placing to their accounts.

6. The present Decision shall come into legal force from the date of its adoption.

7. To publish the present Decision in accordance with effective legislation.

Presiding Officer —

Chairman of the Constitutional Court

of the Republic of Belarus                                                                                               G.A. Vasilevich