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ILCCR: Examination of individual case concerning Convention No. 87, Freedom of Association and Protection of the Right to Organise, 1948 Romania (ratification: 1957) Published: 2007Description:(ILCCR Individual Observation) Convention:C087 Country:(Romania) Session of the Conference:96 Document:22 Subject classification: Freedom of Association Subject classification: Collective Bargaining and Agreements Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 132007ROM087 A Government representative recalled that in her country collective agreements were regulated in the Labour Code, as well as in Act No. 130/1996 on bargaining agreements. Collective bargaining agreements were concluded between an employer or employers' organizations and workers, either represented by unions or otherwise, and covered working conditions, wages, as well as other rights and obligations that fell within the sphere of an employment relationship. In accordance with Act No. 130/1996, these agreements were concluded for a specified period of at least 12 months. The parties concerned could also decide to prolong the duration of the agreement according to conditions previously agreed. The legislation established mandatory annual collective bargaining for all enterprises, with the exception of enterprises employing less than 21 workers, with the negotiations being initiated by the employer. If this did not take place, negotiations were undertaken at the request of the trade union, or representatives of the trade unions, within 15 days from the request being presented. Labour disputes were defined as all conflicts between the social partners with respect to employment relations and were regulated by Act No. 168/1999 on the settlement of labour disputes. This Act made a clear distinction between conflicts of rights and conflicts of interests. Labour disputes concerned the right to exercise certain rights, or the establishment of certain obligations, arising out of laws, as well as collective agreements or individual employment contracts, which were considered by the Act as conflict of rights. On the other hand, labour disputes related to the establishment of employment conditions during the negotiation of a collective agreement, were disputes that concerned professional, social or economic interests of workers, and thus were considered conflicts of interest. The Act also established the legal framework for declaring conflicts of interest. Such conflicts were possible, particularly when an enterprise refused to bargain collectively; did not accept the workers' claims; refused without a reason to sign a collective agreement even though negotiations were completed; or did not fulfil the legal obligation to call for the mandatory annual negotiations. Within the scope of Act No. 168/1999, workers did not have the right to declare a conflict of interests during the terms of a collective agreement, unless the enterprise did not fulfil its obligation to initiate annual negotiations concerning wages, hours of work, work programme or working conditions. The speaker pointed out that the observations of the National Confederation of Trade Unions (CARTEL ALFA), the National Trade Union Bloc (BSN) and the Democratic Confederation of Trade Unions of Romania (CSDR) were not justified in that the Ministry of Labour respected the provisions in Act No. 168/1999 on the settlement of labour disputes and had proceeded to nominate the delegates to conciliate conflicts of interest, after the regional Directorates of labour and social protection had received complaints from representative trade unions or the workers' representatives. In addition, the Romanian Senate approved in May 2007 amendments to sections 12 and 13 of Act No. 168/1999 that permitted workers to initiate a procedure for the resolution of conflict of interests during the term of a collective agreement. The Government undertook to continue its efforts to improve the legislative framework in accordance with the Conventions and Recommendations of the ILO. The Employer members noted that the case was legislative and wholly concerned the right to strike, in particular regarding three aspects: (1) suspending a strike if it endangered human life; (2) ending a prolonged strike by arbitration if it affected humanitarian interests; and (3) the procedure by which unions could seek conciliation of labour disputes prior to calling a strike. They noted that the Government and the complainant unions had provided reports since the Committee of Experts had last considered the case. The case was not new, going back to 1991. The legislation in question was Act No. 168/1999 of the year 2000, which replaced 1991 legislation on the settlement of labour disputes. Since Romania had entered a new political era, it had been in dialogue with the ILO on the structure of legislation regarding labour disputes. The legislation was a positive response to observations by the Committee of Experts. In its 2000 report the Committee of Experts "noted with satisfaction that the new legislation introduces provisions which respond to several of the concerns expressed in previous comments on the previous legislation". Since that time, progress had been demonstrated by the Government. It had responded to the Committee's observations of 2006 in each of the three areas of contention, and the Government spokesperson had, at the present sitting, refuted assertions made by union complainants that the relevant administrative authorities were refusing to receive union applications for conciliation prior to strike action. The Government had replied that orders had been issued to this effect and that some disputes had been registered. The Committee of Experts had noted this information and made no observation. This fact did not need to be taken further, he said. The speaker stated that the legislative aspects of the case were more difficult. The Committee of Experts had requested the Government to provide copies of decisions made in the exercise of arbitration powers to bring prolonged strikes to an end, which, he claimed, was a reasonable request. However, the Committee of Experts had also called for the legislation to be brought in line with Convention No. 87 in so far as it concerned the right to suspend or end strikes. The Committee had asserted that arbitration to end a collective dispute was only acceptable in three circumstances. In doing so, the Committee inferred, but did not expressly state, that the current legislative references in Romanian legislation to "humanitarian interests" or the "life or health of individuals" fell outside the strict definition adopted by the Committee of Experts as regarded the ending of labour disputes. This was not an issue that the Employer members wished to debate in the present forum. Anything the Committee observed at the present hearing should take into account the fact that in 2000 it had noted certain aspects of Act No. 168 "with satisfaction". Indeed the arbitration provisions were specially identified both in 2000 and in the current report. The Committee of Experts' report also made mention of some disagreement between the complainant unions and the Government over disputes that were conflicts of rights rather than conflicts of interest. The Government had also noted this in its remarks. The 2002 observation of the Committee of Experts specifically "noted with interest that the new Act clarifies the distinction between the disputes of rights and disputes of interest". The Employer members therefore considered that the Committee of Experts had acted appropriately in not calling for legislative amendment in this respect, but believed that technical assistance could be provided by the ILO to the tripartite constituents. The Worker members noted that this was not the first time that the Committee of Experts had examined cases concerning labour disputes in Romania. It had in fact come to the conclusion that the legislation on labour disputes that came into force in 2000 was to some extent incompatible with the Convention - as had been stressed by the unions in their comments and complaints before the Committee on Freedom of Association. There were several reasons justifying the Conference Committee dealing with this case for the first time. Firstly, section 62 of the Act on the settlement of labour disputes allowed the management of an establishment to submit unilaterally a dispute to an arbitration committee if the continuation of the strike risked affecting humanitarian interests. The Committee of Experts decided that such a condition was too vague and went beyond the limits of the right to strike as permitted by ILO standards as far as certain public servants and essential services in the strict sense of the term were concerned, namely, those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee of Experts' request, made in 2005, that the provision be repealed, had not been acted on. In addition, legal texts obliged the social partners to resolve conflicts of interest through prior conciliation procedures; a strike became unlawful if it concerned a conflict of rights or if the conciliation procedure had not been respected. Strict regulation therefore endangered the right to strike and created situations in which a strike could be considered unlawful by employers, the public authorities and the courts. The refusal by regional labour offices to register requests for conciliation submitted by the unions in case of a breakdown in negotiations also had the effect of preventing conciliation and also all strikes. The Committee of Experts seemed to have been satisfied by the Government's reply that trade unions had not lodged a complaint with the relevant judicial bodies, though the Romanian Worker members would demonstrate that this did not correspond to the reality. The observation made to Romania could have dwelt more on the distinction that the Act on the settlement of labour disputes made between conflicts of interest and conflicts of rights. As a member of the European Union since January 2007, Romania had rights and duties, one of which was to respect the right to strike, guaranteed by the Charter of Fundamental Rights, without making a distinction between conflicts of interest and conflicts of rights. The Romanian authorities had encountered many problems in the recognition of freedom of association, including the right to strike, and had subjected the fundamental rights of workers to a range of procedural constraints. The Committee on Freedom of Association had regularly received complaints from Romanian trade unions and had recalled the fundamental importance of the right to strike. Conflicts of rights represented legitimate interests that a trade union organization should be able to defend. Next October, the Committee would be investigating new complaints on the issue. In conclusion, the Worker members recalled that the compulsory arbitration procedure foreseen by section 62 of the 1999 Act should be repealed, as the Committee of Experts had already proposed for a second time. In addition, the distinction between conflicts of interest and conflicts of rights, on which the entire legislation was founded, was contrary to ILO principles, principally the right to strike. Finally, the prerequisite for conciliation procedures risked endangering the right to strike if regional labour offices refused to register requests for conciliation. In view of Romania's entry into the European Union and recent developments reported by Romanian Worker members both regarding the social partners and the courts, the Worker members were satisfied that, with ILO assistance, the Romanian authorities could be convinced to modify the 1999 Act in order to make it compatible with ILO standards. The Worker member of Romania recalled that his country had ratified Convention No. 87 in 1957, a Convention whose principles were reflected in article 43 of the national constitution as well as the Labour Code and the Act on the settlement of labour disputes. The Ministry of Labour, however, had refused to register the requests for conciliation submitted by trade unions in the case of unjustified delays in commencing mandatory annual collective negotiations or the refusal by employers to accept trade union demands with regard to hours of work, wages or working conditions. Conciliation was a compulsory step without which striking was impossible. The authorities' attitude resulted in a restriction in workers' right to strike, as was evidenced by the 37 per cent reduction in the number of strikes according to official sources, and the increase in spontaneous social conflicts which were harmful for working relations and could have unexpected consequences. This refusal to register conflicts of interest constituted a violation of article 40 of the Romanian constitution, which provides for the right to strike, section 12 of the Act on the settlement of labour disputes, Articles 3 and 8 of Convention No. 87 and the amended European Social Charter despite its having been ratified in its entirety. Contrary to the Government's assertions, it had officially prohibited regional bodies from applying conciliation procedures in practice in the case of conflicts of interest in such cities as Constanta, Prahova, Sibiu, Dolj, Gorj, Vilcea, Bucharest, etc. The trade unions had attempted to lodge an appeal against these measures and obtained final and binding decisions, obliging the authorities to register conflicts of interest. The social partners, as well as the Committee of Experts on many occasions, had requested that the Act on the settlement of labour disputes be amended, both with regard to registering conflicts of interest involving collective agreements valid for multiple-year, as well as with regard to sections 55, 56, 60 and 62 concerning the suspension of strikes by judicial means and the use of arbitration. Nevertheless, last May the Parliament had rejected all the amendments proposed by the social partners and had also ignored the observations of the Committee of Experts. The Act therefore continued to be ambiguous and open to various interpretations. In conclusion, the speaker noted that this was the second time that Romania had been included in the list of individual cases, and considered that it was time for a technical assistance mission to be sent to assess the manner in which the Government was carrying out its obligations. The Worker member of Hungary, quoting the Committee of Experts, recalled that the law on the settlement of labour disputes in Romania did not provide in practice for the fundamental right of workers to organize collective action or strikes. The right to strike was one of the essential means for workers and their organizations to promote and defend their economic and social interests and was a corollary to the right to organize as protected by Convention No. 87. She said that Romanian legislation set up a number of prerequisites that had to be met in order to make a strike lawful, e.g. issues regarding wages, working conditions and working time had to be negotiated on an annual basis. The law stipulated clearly that, to resolve conflicts, a conciliation stage was mandatory prior to taking strike action. In the absence of this prior conciliation process, a strike would be judged illegal. The consequences were that if an employer did not want to sit down at the conciliation table, he or she could unilaterally hinder a strike without reasonable cause or explanation. Even in those cases where workers could initiate strike action, an employer could demand the suspension of the strike in court or go to arbitration on humanitarian grounds after a strike had begun. These regulations showed that the law was very complicated and left many openings for a strike to be declared illegal. The Committee on Freedom of Association had declared that the legal procedure for declaring a strike should not be so complicated as to make it practically impossible to declare a legal strike. Romanian legislation, she declared, was not in line with this rule. The CFA had emphasized that although a strike may be temporarily restricted, such a restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which parties concerned could take part at every stage. The suspension of a strike and its termination by an irrevocable court decision or compulsory arbitration process could not be seen as being in compliance with the principles of Convention No. 87. Collective action was the essence of the trade union movement and the limitation of industrial action through complicated and controversial legislation was a serious violation of the principles of freedom of association. The speaker therefore urged the Government to change the law so as to be fully in line with the principles and rules of Convention No. 87. The Government representative, having taken note of the discussion, concluded by reiterating her Government's willingness to resolve this matter. In this respect, the Government accepted a technical assistance mission to facilitate bringing the legislation into line with Convention No. 87. The Employer members declared that, while considerable legislative progress had been made in Romania, there were problems of interpretation or application that might exist in the current legislation and this could only be resolved at the national level. The Employer members believed that the matter could be assisted by a process of a technical nature at national level, designed to achieve consensus, which would focus on the interpretation of the national law. They suggested that a specialist, who had the support of the tripartite stakeholders and the ILO, could be tasked to work with employers, unions and the Government in the light of the conclusions and observations of the present Committee. This would be a practical approach which would remove the need for the case to be studied again by the Committee. The Worker members noted the reactions of the different speakers and asked the Government to thoroughly review the legislative framework concerning collective conflicts, and Act No. 168 of 12 November 1999 in particular. Indeed, the reports of the Committee of Experts as well as those of the Committee on Freedom of Association noted that section 62 of the Act, which obliged workers to initiate arbitration procedures, did not comply with Convention No. 87. It was unacceptable to use concepts as vague as the concern for humanitarian interests to justify the prohibition of the right to maintain a strike for longer than the first 20 days. This provision should, therefore, be repealed. Furthermore, the distinction the legislation made between conflicts of interest and conflicts of rights was problematic as was the functioning of the conciliation procedures, particularly where regional administrative offices refused to register conciliation requests from trade unions, which was tantamount to prohibiting the exercise of the right to strike. An agreement made between Romanian employers and trade unions, which envisaged the amendment of the Act of 1999, was being blocked by the public authorities. Those authorities had to be encouraged by the Committee to take these proposals into consideration and open up a frank dialogue between the social partners with a view to adapting the abovementioned legislation. Indeed, so long as the right to strike was rigidly regulated, it was likely that a multitude of spontaneous strikes would occur that would be harmful to working relations. The Worker members noted that the Government had indicated that it was open to the idea of receiving a technical mission so as to benefit from the assistance and experience of the Office in the matter. They invited the Committee of Experts to follow carefully the development of the situation, both in law and in practice, so as to be able to evaluate the progress made next year.
ConclusionsThe Committee took note of the statement made by the Government representative, as well as the discussion that took place thereafter. The Committee recalled that the Committee of Experts has been referring for some time to legislative restrictions relating to the rights of workers' organizations to organize their administration and activities and to formulate their programmes and organize collective action. The Committee also noted previous observations made, and the legislative history of this matter. The Committee noted the information provided by the Government according to which certain amendments to the Act on the Settlement of Labour Disputes were currently before the Romanian Parliament. The Committee requested the Government to take the necessary measures, in full consultation with the social partners concerned and with a view to reaching a consensual solution, to ensure that its law and practice was in conformity with the Convention. It noted the Government's acceptance of an ILO technical assistance mission in this regard. It requested the Government to provide detailed information concerning the distinction made between disputes of rights and disputes of interest and the registering of disputes for conciliation, including any relevant statistics, administrative decisions and court judgements, in its next report to the Committee of Experts. It hoped that the Committee of Experts would be in a position in the near future to note the progress made on the pending matters. |
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