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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Romania (RATIFICATION: 1957)

Other comments on C087

Observation

Direct Request

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Article 2. Right to organise without distinction whatsoever. Scope of the Social Dialogue Act (SDA), 2022. The Committee observes that the law explicitly prohibits membership in trade unions for certain categories of workers: persons who hold positions with public dignity or similar (elected persons or politically appointed as defined by the Administrative Code and the Constitution), magistrates, personnel with military status from the Ministry of National Defence, the Ministry of Internal Affairs, the Romanian Intelligence Service, the Protection and Guard Service, the Foreign Intelligence Service and the Special Telecommunications Service, as well as the units and subunits under their subordination or coordination (section 4). The Committee recalls in this regard that, in line with the Convention, all workers should be granted the right to organize with only the permissible exceptions of the police and the armed forces (Article 9 of the Convention). The Committee therefore requests the Government to indicate the applicable legislation, if any, that grants the right to organize to the above categories of workers (with the exception of the armed forces and the police) and to take the necessary measures to ensure that the national legislation is fully in compliance with the Convention.

Trade union registration. The Committee notes that sections 16 and 48 of the SDA provide that parties who are dissatisfied with a court’s decision to register or de-register an organization may file an appeal within 15 days from the court’s decision. The Committee requests the Government to provide information on the application of these provisions in practice, in particular to indicate whether the stipulated period allows the parties sufficient time to present an appeal.

Article 3. Right of workers’ organizations to elect their representatives in full freedom. Civil servants. In its previous comments, the Committee had drawn the Government’s attention to the need to amend section 29(3) of Act No. 188/1999 on the civil servant statute, which provides that high-level civil servants or civil servants with budgetary responsibilities are suspended if they choose to exercise activities in the management of a trade union. The Committee notes the Government’s indication that while the Government Emergency Ordinance No. 57/2019 on the Administrative Code repealed Law No. 188/1999, section 29(3) of the 2019 Ordinance is identical to section 29(3) of the repealed law and similar content is also included in section 415(3) of the Ordinance (suspension from civil servant position if elected to union office in a paid position). Observing that no progress has been achieved in this regard, the Committee once again recalls that there are cases where it is not necessary for the civil servant to be suspended and that it would therefore be more appropriate to leave such matters for consultation with the organizations concerned. The Committee requests the Government to amend sections 29(3) and 415(3) of the Government Emergency Ordinance No. 57/2019 to ensure that high-level civil servants or civil servants with budgetary responsibilities are not automatically suspended when they choose to exercise activities in the management of a trade union, and that the matter is the subject of consultations with the organizations concerned. The Committee requests the Government to provide information on all steps taken to that end.

Eligibility conditions for trade union officers. In its previous comment, the Committee requested the Government to provide information on the list of offences that can limit eligibility to trade union office under section 8 of the now repealed SDA and on the duration of such ineligibility. The Committee notes that the Government does not provide a response in this respect but observes that section 8 of the newly adopted SDA reflects the previous legislation. In light of the above, the Committee requests the Government once again to indicatethe list of offences that can lead to ineligibility to hold trade union office under section 8 of the new Social Dialogue Act and whether such ineligibility only applies for the duration of the sentence.

Right of workers’ organizations to organize their activities and to formulate their programmes.Minimum services. In its previous comments, the Committee had requested the Government to take measures to amend section 205 of the SDA, which established minimum services by law for certain sectors, to allow for minimum services to be negotiated by the social partners concerned. The Committee notes that the Government does not provide any information in this regard but observes that section 173 of the newly adopted legislation sets, as a precondition for the exercise of the right to strike in certain sectors, the provision of minimum services (the health and social assistance units, telecommunications, public radio and television, units of the national energy system, operative units from the nuclear sectors, railway transport units, units that ensure public transport and sanitation in localities, as well as the supply of the population with gas, electricity, water and heat). While noting that in the essential services and public services of fundamental importance listed above minimum services can be used, the Committee recalls that (i) these services should be genuinely and exclusively minimum services, and (ii) workers’ organizations should be able to participate in their determination. The Committee therefore requests the Government to engage in consultations with the social partners to ensure that the social partners concerned can participate in the determination of minimum services; in the absence of agreement, minimum services should be determined by an independent body. The Committee requests the Government to provide information on all measures taken in this respect.

Strike in the civil service. In its previous comment, with respect to the issue of wage payments to public servants on strike, the Committee invited the Government to amend section 30(2) of the now repealed Act No. 188/1999 so that the suspension of wages of public servants on strike can be the subject of negotiation between the parties concerned. The Committee notes the Government’s indication that section 416 of the Government Ordinance No. 57/2019 stipulates that civil servants on strike do not receive salary and other benefits during the strike. The Committee also observes that section 160 of the SDA provides for the suspension of the individual employment contract of all employees on strike only at the initiative of the employees concerned. The Committee recalls that the concern raised relates to the payment of wages by the public employer, and that in imposing the suspension of such payment for all strikes, the provision restricts the freedom of the public employer and the unions concerned to agree otherwise. The Committee therefore invites the Government to amend section 416 of the Ordinance to allow suspension of wages during a strike of civil servants to be negotiated among the parties and requests the Government to provide information on the application in practice of section 160 of the SDA, particularly with regard to suspension of wages of public servants on strike.

Restrictions on the right to strike. The Committee observes that sections 170–172 of the newly adopted SDA impose restrictions on the right to strike of certain categories of workers. Section 170 prohibits the right to strike in, among others, Special Telecommunications Service, as well as “other categories of personnel who are prohibited from exercising this right by law”. Sections 171 and 172 further restrict the right to strike of personnel of air, naval or land transport of any kind, including personnel on board ships of the commercial navy under the Romanian flag, from the moment of departure of the mission until its completion; they can declare a strike only in compliance with International Conventions ratified by Romania. The Committee further notes that while section 1(30) of the SDA explicitly provides for strikes against the social and economic policy of the Government, section 154 stipulates that strikes cannot pursue political goals. The Committee recalls that, while the right to strike is not absolute, it should only be restricted in exceptional situations, such as essential services in the strict sense of the terms, for public servants exercising authority in the name of the State and in case of acute national or local crisis. In line with the above, the Committee requests the Government to provide information on the additional categories of personnel prohibited from the right to strike, as stipulated in section 170, and to engage with the social partners to ensure that all workers who do not fall within the permissible exceptions on the right to strike can exercise this right in line with the Convention. The Committee also requests the Government to provide further information on the type of strikes that would fall within the prohibition in sections 1(30) and 154 of the SDA.