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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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In its previous comments, the Committee had requested the Government to provide its comments on the observations of the International Trade Union Confederation (ITUC) received on 1 September 2018, as well as on the observations of the Block National Trade Unions (BNS), the Confederation of Democratic Trade Unions of Romania (CSDR) and the National Trade Union Confederation (CNS ‘CARTEL ALFA’) received on 31 August 2018 referring to matters examined in this observation. Noting that the Government has not yet provided its reply to the above-mentioned observations, the Committee reiterates its previous request.

Articles 1, 2 and 3 of the Convention. Effective protection against acts of anti-union discrimination and interference. In its previous comments, the Committee requested the Government to specify the legal provisions that sanction acts of anti-union discrimination and to provide detailed information on the number of cases of anti-union discrimination and employers’ interference, including the sanctions and remedies applied. The Committee notes that according to the information provided by the Government: (i) labour legislation does not include sanction regulations regarding acts of anti-union discrimination; however conflicts related to the conclusion or execution of individual labour contracts fall within the jurisdiction of the courts, which, upon request may decide according to section 253 of the Labour Code providing compensation in case of violation of rights; (ii) in 2016, Act No. 62 of 2011 concerning social dialogue (Social Dialogue Act, (SDA)) was amended in order to extend the protection against anti-union dismissal of trade union officers during and two years after the end of the mandate for reasons not related to the employee, for professional misconduct or for reasons connected with the fulfilment of the mandate (paragraph 11, section 10 of the SDA, as amended); (iii) the Constitutional Court considered that the protection granted to trade union officers was unconstitutional, that trade union immunity must operate exclusively in relation to trade union activity and in the face of an objective situation of dismissal not related to the employee, trade union officers have to be in an analogous situation with the other employees who do not exercise trade union functions (sentence No. 681/2016).

The Committee notes that section 10 of the SDA prohibits the amendment and termination of individual labour contracts for grounds regarding union membership, and that section 220(2) of the Labour Code provides protection specifically to trade union officers for anti-union acts (including dismissals) but that none of the mentioned provisions set specific sanctions in case of their violation. Noting, additionally, that section 253 of the Labour Code, referred to by the Government and applicable to any violation of labour rights, provides for compensation for the damage caused by the employer on the general basis of contract civil liability, the Committee observes therefore that the current legislation does not set specific sanctions applicable to acts of anti-union discrimination. In this regard, the Committee recalls that acts of anti-union discrimination should be subject to effective and dissuasive sanctions and that, to this end, they should be higher than those set for other violations of labour rights.

In light of the above, the Committee requests the Government to take measures to amend the relevant legislation in order to guarantee that acts of anti-union discrimination are subject to specific and dissuasive sanctions. Furthermore, noting that the Constitutional Court considered that the trade union immunity must operate exclusively in relation to trade union activity, the Committee requests the Government to indicate how the burden of proof is placed in cases of allegations of anti-union discrimination affecting trade union officers. It further requests the Government to provide detailed information on the number of cases of anti-union discrimination and employer interference brought to the various competent authorities, the average duration of the relevant proceedings and their outcome, as well as the sanctions and remedies applied in such cases.

Tripartite discussion of recent anti-union practices. The Committee notes the Government’s indication that the social partners were not interested in including in the agenda of the Tripartite National Council for Social Dialogue matters related to trade union discrimination. It also notes that in its 2018 observations the ITUC raised that trade unions are subjected to systematic anti-union discrimination, which undermines their existence and the protection they provide to workers. The Committee, therefore, requests the Government to ensure that anti-union practices, and in particular preventive measures, will be subject to tripartite discussions. It requests the Government to provide information on any further progress in this regard.

Article 4. Promotion of collective bargaining. Negotiation with elected workers’ representatives. In its previous comments, the Committee had pointed out that section 135(1)(a) of the SDA (Act No. 62 of 10 May 2011; and subsequent amendments) raised problems of incompatibility with the Convention, because in cases where a non-representative union (pursuant to section 51 of the SDA, a union that does not have at least half plus one of the number of workers of the undertaking) was not affiliated to a representative sectoral federation, the negotiation of a collective agreement erga omnes could be carried out exclusively by elected workers’ representatives, thus rendering obsolete the right of unions considered as non-representative to negotiate on behalf of their own members. It had recalled in this regard that collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level, and that appropriate measures should be taken, wherever necessary, to ensure that the existence of elected workers’ representatives is not used to undermine the position of the workers’ organizations concerned. The Committee notes the Government’s indication that: (i) the SDA was not enacted with an aim of favouring collective bargaining with employees’ representatives; and (ii) section 134(2) of the SDA, was amended in 2016 as follows: “if the union is not representative, representation is made by the federation to which the union is affiliated, if the federation is representative at the level of the sector to which the unit belongs; where no unions are constituted by the elected representatives of the employees” (Law No. 1/2016). The Committee further notes that in their 2018 observations, the BNS, the CSDR and the CNS ‘CARTEL ALFA’ alleged that elected workers’ representatives have been used to undermine negotiations efforts of representative unions and that in 2017 more than 92.5 per cent of collective agreements in the private sector were negotiated and signed by elected workers’ representatives. It further notes that according to the statistics provided by the ITUC, while in 2010 all collective agreements were negotiated and signed by trade unions, in 2017 only 14 per cent of all collective agreements concluded were signed by trade unions, and 86 per cent were concluded by elected workers’ representatives. The Committee recalls that, since, under the terms of the Convention, the right of collective bargaining lies with workers’ organizations at all levels, and with the employers and their organizations, collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level (see the 2012 General Survey on the fundamental Conventions, paragraph 239). While taking due note of the amendment of section 134(2) of the SDA, the Committee requests the Government to clarify whether the negotiating powers granted to the elected workers’ representatives exist only when there is no trade union. Further noting with concern the statistics submitted by the national unions and the ITUC, the Committee requests the Government to provide its comments thereon.

Representativeness criteria and coverage of collective bargaining. The Committee recalls that it had previously noted that section 51 of the SDA which sets out the representativeness criteria at enterprise level (union membership of at least 50 per cent plus one of the workers of the enterprise) required to be amended so as to ensure the possibility for unions that had not secured the absolute majority requested by that provision to be able to bargain collectively. The Committee had further noted that the SDA (2011) had resulted in a drastic decrease in the number of collective agreements concluded at the enterprise level and at the sectoral level. The Committee notes the Government’s information that bipartite and tripartite consultations on collective bargaining procedures have not led to an agreement between the social partners. The Government further indicates that upon its request for technical assistance, the Office drafted a technical memorandum regarding the revision of the SDA and that the comments of the Office are currently under parliamentary discussion. As to the number of collective agreements concluded, the Committee notes that according to the Government: (i) at the enterprise level, in 2013, there were 8,367 collective agreements, while in 2016, there were 9,366 collective agreements (approximately 33 per cent of the workers); and (ii) at sectoral level, in 2014, there were three contracts, while in 2016 there were none. On the other hand, the Committee notes that according to the ITUC, the BNS, the CSDR and the CNS ‘CARTEL ALFA’: (i) the SDA severely undermined the capacity of first-level unions to represent workers in collective bargaining – the representativeness criteria have only been met in nine out of the 30 sectors, which are thus the only ones represented by trade unions; (ii) trade unions have not been consulted on the proposed amendments to the SDA and the Government did not take into consideration the joint proposal made by the organizations above. The Committee further notes that, according to the European Foundation of the Improvement of Living Conditions and Working Conditions (EUROFOUND), the 2011 SDA led to the concentration of collective bargaining at company level and collective bargaining coverage has declined from almost 100 per cent in 2010 to approximately 35 per cent in 2013 and only 15 per cent (952,911 employees) in 2017. In view of the above and recalling its previous comments, the Committee requests the Government to take, in full consultation with the most representative workers’ and employers’ organizations, all the necessary measures to amend the representativeness thresholds so as to effectively promote collective bargaining at all levels.

Articles 4 and 6. Collective bargaining in the public sector. Public servants not engaged in the administration of the State. The Committee had previously noted that salaries under Act No. 284/2010 on Unitary Salaries of the Staff Paid from the Public Budget were based on a legislatively established coefficient and had requested the Government to ensure that the wages of all public servants not engaged in the administration of the State are not excluded from the scope of the collective bargaining. The Committee notes the Government’s indications that the Convention does not explicitly provide for the obligation of State parties to bargain collectively on wages, that the fixing of wages shall be at the discretion of national practice, and that a new salary law implemented in 2017 (Law No. 153/2017-Unique Pay Law), in consultation with social partners, set up an agreed mechanism for wage increases of staff paid by the State budget beginning in 2020. With respect to the discussions regarding the draft amendment to Act No. 284/2010, the Government indicates that despite the consultations carried out between 2014–16 by the bipartite and tripartite working groups, no consensus was reached in that regard. The Committee recalls that, in accordance with the Convention, public servants not engaged in the administration of the State should be able to negotiate their wage conditions collectively and that mere consultation with the unions concerned is not sufficient to meet the requirements of the Convention in this respect. However, the special characteristics of the public service described above require some flexibility, particularly in view of the need for the state budget to be approved by Parliament (see the 2012 General Survey on the fundamental Conventions, paragraph 219). Highlighting once again the need to ensure that wages are included in the scope of the collective bargaining for all public servants not engaged in the administration of the State, the Committee once again requests the Government to take the necessary measures, in full consultation with the social partners and, if necessary, with technical assistance from the Office, to bring national law and practice into conformity with Article 4 of the Convention, fixing for example upper and lower limits for the wage negotiations with the trade unions concerned.