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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Romania (RATIFICATION: 1958)

Other comments on C098

Observation

Direct Request

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Legislative reform. The Committee recalls that: (i) since 2012, it has been requesting the Government to amend the Social Dialogue Act of 2011 to ensure its conformity with the Convention; (ii) the application of the Convention gave rise, in 2021, to a discussion before the Conference Committee on the Application of Standards (hereinafter the Conference Committee); (iii) at the request of the Conference Committee, a technical assistance mission was conducted in May 2022, at the end of which the Office, at the request of the Government, prepared a technical memorandum concerning the draft reform of the Social Dialogue Act.

The Committee notes with satisfaction that Act No. 367/2022 on social dialogue was promulgated on 19 December 2022 and that, particularly with regard to the promotion of collective bargaining in the private sector, the Act took into consideration many comments and recommendations made by the Committee of Experts, the Conference Committee and the Committee on Freedom of Association (CFA) with respect to Case No. 3323.

Articles 1 and 2 of the Convention. Adequate protection against anti-union discrimination and interference. The Committee recalls that, for several years, it has been requesting the Government to take the necessary measures to strengthen the penalties applicable in cases of anti-union discrimination and interference, to ensure that they are sufficiently dissuasive, particularly for large enterprises. The Committee notes the information provided by the Government concerning the legislative amendments made by Act No. 367/2022 and by Act No. 283/2022 which revises several provisions of the Labour Code. The Committee notes in particular that: (i) Act No. 283/2022 incorporates into sections 5 and 6 of the Labour Code provisions that protect workers, including trade union representatives, against any reprisals following actions to defend rights; fines between 4,000 Romanian New Lei (RON) and RON8,000 (equivalent to between US$220 and US$880) may be imposed; (ii) similarly, Act No. 367/2022 prohibits any discrimination based on trade union membership or activity, and also prohibits any anti-union acts, including dismissal, and provides for the protection of trade union representatives and elected representatives against any act intended to prevent them from exercising their representation mandate; and (iii) section 175 of Act No. 367/2022 establishes fines of between RON30,000 and RON50,000 (between US$6,600 and US$11,000) for anti-union acts. The Committee also notes the detailed information of the National Council for Combating Discrimination (CNCD) on its mandate, its activities, and the penalties that it is authorized to impose, including fines of between RON1,000 and RON30,000 (between US$220 and US$6,600) for discrimination against individuals and between RON2,000 and RON100,000 (between US$440 and US$22,000) for discrimination against a group of persons or a community. The CNCD adds that, between 2019 and 2022: (i) it examined 39 complaints of anti-union discrimination; (ii) in nine cases, discrimination was determined, leading to six warnings and three fines (RON2,000 (US$440), RON4,000 (US$660), and RON10,000 (US$2,200), respectively); and (iii) four of the nine decisions were appealed before the courts.

The Committee notes these various elements. While welcoming the increase in the fines established by Act No. 367/2022, which revised the Social Dialogue Act of 2011 (an increase of over 50 per cent from which, however, the effects of inflation should be deducted), the Committee notes at the same time that: (i) the only information on the imposition of fines concerns small fines levied in three cases by the CNCD, and no details were provided on any decisions taken by the labour inspectorate or the courts; and (ii) the Government did not indicate, as had been requested, whether the competent authorities have the possibility to order the reinstatement of persons dismissed for their trade union activities. Recalling the importance of being able to apply dissuasive penalties through effective procedures for cases of acts of anti-union discrimination and interference, the Committee requests the Government to: (i) provide information on the application in practice of the penalties established by section 175 of Act No. 367/2022; (ii) specify whether reinstatement is a possible penalty in cases of dismissalbased on trade union affiliation or activity; and (iii) provide full information on the number of cases of anti-union discrimination and interference brought before the various competent authorities (the labour inspectorate, the courts and the CNCD), the average duration of proceedings and the type of decisions taken.

Article 4. Promotion of collective bargaining at the enterprise level. The Committee notes with satisfaction that, further to its previous comments, Act No. 367/2022 has: (i) strengthened the key role of trade union organizations by providing that elected staff representatives may only negotiate collective agreements in the complete absence of trade union organizations in the enterprise (sections 57, 58 and 102 of the Act); (ii) lowered from 50 per cent to 35 per cent the proportion of affiliated workers in an enterprise required in order for a trade union to be considered representative (section 54); and (iii) provided for various arrangements (section 102) to allow for bargaining with workers’ organizations if no trade union reaches the aforementioned representativeness threshold in the enterprise (in particular through the participation of representative federations or confederations at the sectoral or national level, to which the enterprise trade union would be affiliated or, in the absence of such organizations, by allowing for joint bargaining by all trade unions present in the enterprise). The Committee further notes the extension of the obligation to bargain to enterprises with between ten and 20 workers (section 97).

Promotion of collective bargaining at the sectoral and national levels. The Committee notes with satisfaction that, further to its previous comments, Act No. 367/2022 (section 54): (i) reduces from 7 per cent to 5 per cent the percentage of affiliated workers in a sector of activity required in order for a trade union federation to be considered representative; (ii) provides that, if a trade union organization does not reach this threshold in the sector concerned, a representative confederation at the national level may bargain on behalf of its members in that sector; and (iii) explicitly provides for the possibility of negotiating agreements at the national level (section 102). The Committee adds that the Act contains various additional measures aimed at promoting collective bargaining and increasing its coverage: (i) the redefinition of sectors of economic activity to facilitate collective bargaining within them; (ii) the establishment of a procedure to extend sectoral and national collective agreements beyond their signatories; and (iii) the creation of an obligation to bargain at the sectoral level.

The Committee requests the Government to provide information on the implementation in practice of the various provisions referred to above which are aimed at promoting collective bargaining at all levels, by providing, in particular, detailed information on: (i) the number and level of collective agreements concluded, the sectors concerned and the level of coverage of collective bargaining, distinguishing the contribution of each level of negotiation; and (ii) the respective proportion of agreements concluded by trade union organizations and by elected workers’ representatives at the enterprise level.

Articles 4 and 6. Collective bargaining with public servants not engaged in the administration of the State. The Committee recalls the 2021 conclusions of the Conference Committee on collective bargaining in the public sector, and its 2019 comments concerning the need for wages to be included in the scope of the collective bargaining for all public servants not engaged in the administration of the State. The Committee notes the Government’s indication regarding the provisions of section 105 of Act No. 367/2022 on staff paid from the state budget, according to which: (i) collective agreements cannot contain clauses regarding wage entitlements of which the granting and amount are established by the legislation in force; (ii) collective labour agreements may, nevertheless, provide for bargaining after the approval of the income and expenditure budgets of the respective units, within the limits and under the conditions established by the latter; and (iii) where wage entitlements are set in special laws between minimum and maximum limits, the concrete wage entitlements are determined by collective bargaining. The Committee requests the Government to specify: (i) the different categories of public sector workers covered by section 105 of Act No. 367/2022; and (ii) the content and scope of financial negotiations for employees paid by the State to which the aforementioned provision refers.