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The Committee notes the comments submitted by the Confederation of Trade Unions of the Republic of Moldova (CRSM) in a communication dated 4 September 2009 and the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 6 September 2010 concerning the issues raised by the Committee below. The Committee also notes the Government’s reply to the 2008 ITUC comments.

Articles 1 and 2 of the Convention. Sanctions against acts of anti-union discrimination and of interference. In its previous observation, the Committee had noted that section 61 of the new Code on Contraventions adopted in 2008 provided for the application of fines in the amount of 40 to 50 conventional units (one unit equals 20 MDL) for the obstruction of the right of workers to establish and join trade unions. The Committee had further noted the Government’s indication that the working group, constituted of representatives of the Ministry of Economy and Trade, the National Confederation of Trade Unions and the Ministry of Justice, examined the possibility of setting administrative sanctions against acts of interference in trade union activities, not covered by section 61. The Committee had requested the Government to provide information on any new developments in this respect and to ensure that these sanctions are applied through effective and expeditious procedures. The Committee notes that the ITUC and CRSM indicate that the scope of section 61 of the Code on Contraventions is very limited since it sanctions solely the obstruction of workers’ right to establish and join trade unions and not all acts of anti-union discrimination and interference as prohibited by section 37(1) of the Law on Trade Unions. The Committee further notes that the Government indicates in its report that the possibility of amendment of section 61 of the Code on Contraventions will be reviewed in the near future. The Committee also notes the Government’s statement in its reply to the 2008 ITUC comments that up until the adoption of the new Code on Contraventions, violations of trade union rights were covered by section 41 of the Code of Administrative Contraventions, which sanctioned violations of labour legislation and provided for the application of fines amounting to up to 250 conventional units. The Committee notes that section 55 of the new Code on Contraventions is a similar provision to section 41 of the repealed Code of Administrative Contraventions, which sanctions violations of labour legislation but provides for the application of lower fines (amounting up to 50 conventional units for individuals, 75 conventional units for responsible persons and up to 120 conventional units for legal entities). It further notes that, according to the ITUC, law enforcement remains weak. The Committee recalls the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2317 where it had requested the Government to actively consider, in full and frank consultations with social partners, legislative provisions expressly sanctioning violations of trade union rights and providing for sufficiently dissuasive sanctions against acts of interference in trade union internal affairs (see 350th Report). The Committee considers that neither section 61, nor section 55 the Code on Contraventions provide for sufficiently dissuasive sanctions against acts of anti-union discrimination and acts of interference. The Committee expresses the firm hope that the necessary legislative amendments ensuring the adequate protection of workers’ and employers’ organizations against acts of anti-union discrimination and interference will soon be adopted. In this respect, the Committee requests the Government to ensure that the legislative texts adopted in the future provide for sufficiently dissuasive sanctions in cases of violation and for effective and expeditious procedures to guarantee their application in practice.

Article 4. Compulsory arbitration. In its previous observations, the Committee had requested the Government to amend section 360(1) of the Labour Code, which allowed the imposition of arbitration by the authorities at the request of one party so as to ensure that recourse to compulsory arbitration is possible only in the context of essential services in the strict sense of the term (i.e. services, the interruption of which would endanger the life, safety or health of the whole or part of the population) or for public servants engaged in the administration of the State. The Committee notes the Government’s indication that the question of amendment of section 360(1) of the Labour Code will be examined after discussions with the social partners on the issue concerning determination of minimum services in the case of strike. The Committee also notes the Government’s intention to amend section 359(2) of the Labour Code, pursuant to which in order to settle a collective dispute the parties may, within three calendar days from the beginning of the dispute, establish a conciliation commission formed of an equal number of representatives of the parties to the dispute, so as to repeal the time frame within which a conciliation commission should be established. The Committee expresses the hope that the necessary amendments to section 360(1) of the Labour Code will be adopted in the near future so as to ensure that the referral to compulsory arbitration is possible only upon request by both parties to the dispute, or for essential services in the strict sense of the term or for public servants engaged in the administration of the State. The Committee requests the Government to indicate measures taken or envisaged in this regard.

The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.

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Articles 1 and 2 of the Convention. Sanctions against acts of anti-union discrimination and acts of interference. The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008 alleging insufficient protection against acts of anti-union discrimination and interference in trade union affairs, the issues previously raised by the Committee. It further notes Case No. 2317 pending before the Committee on Freedom of Association, which requested the Government to actively consider, in full and frank consultations with social partners, legislative provisions expressly sanctioning violations of trade union rights and providing for sufficiently dissuasive sanctions against acts of interference in trade union internal affairs (see 350th Report, paragraph 1422(b)).

The Committee recalls in this respect that it had previously noted the Government’s indication that the Parliament was discussing the draft of the new Code on Contraventions which sought the introduction of a fine for obstruction of lawful activities of trade unions and their bodies by high-level civil servants. The Committee notes with interest the Government’s indication that the new Code on Contraventions was adopted on 24 October 2008. Section 61 of the Code provides for the application of fines in the amount of 40 to 50 conventional units (one unit equals 20 MDL) for the obstruction of the workers’ right to establish and join trade unions. It further notes the Government’s indication that a working group, constituted of representatives of the Ministry of Economy and Trade, the National Confederation of Trade Unions and the Ministry of Justice, examined the possibility of setting administrative sanctions against acts of interference in trade union activities, which is currently not provided for in section 61. The Committee requests the Government to indicate any new developments in this respect and to ensure that these sanctions are applied through effective and expeditious procedures. The Committee further requests the Government to provide a copy of the relevant provisions of the Code on Contraventions.

Article 4. Compulsory arbitration. The Committee recalls that it had requested the Government to amend section 360(1) of the Labour Code according to which, if the parties to the collective labour dispute have not reached an agreement or disagree with the decision of the reconciliation commission, either party has the right to submit an application to settle the conflict in the judicial tribunals. The Committee notes the Government’s indication that section 360(1) is not applicable at the stage of elaboration of the initial draft collective agreement, in which case, section 32 applies. According to the latter, if within three months from the beginning of negotiations, consent has not been achieved on some of the agreement’s provisions, the parties are obliged to sign a collective agreement containing the clauses on which agreement has been reached. The disagreements that have not been settled are subject to further collective negotiations or are resolved according to the provisions of the Labour Code. As to the referral of the dispute to the judiciary, the Government indicates that this occurs when a party to the conflict feels that its rights have been violated. The Government also indicates that arbitration is a good solution for the collective conflicts which arise from the arbitrary interests under negotiation. While noting this information, the Committee refers to the clear wording of section 360(1) and once again recalls that arbitration imposed by the authorities at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements established in the Convention and thus the autonomy of the bargaining partners. Recourse to compulsory arbitration in cases where the parties do not reach an agreement through collective bargaining should be permissible only in the context of essential services in the strict sense of the term (i.e. services, the interruption of which would endanger the life, safety or health of the whole or part of the population) or for public servants engaged in the administration of the State. The Committee therefore once again requests the Government to take the necessary measures to amend the legislation so as to ensure that referral of the dispute to the judicial tribunals is possible only upon request by both parties to the dispute, or for essential services in the strict sense of the term or for public servants engaged in the administration of the State. The Committee requests the Government to indicate the progress made in this respect.

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The Committee notes the Government’s report as well as the Government’s reply to the comments made by the Confederation of Trade Unions of the Republic of Moldova (CRSM).

Articles 1 and 2 of the Convention. Sanctions against acts of anti-union discrimination and acts of interference. The Committee notes that the Government points to article 20 of the Constitution and to article 38 of the Law on Trade Unions according to which a trade union organization claiming violations of its legal rights can submit an application to the juridical instance which will express itself on the causes of the dispute by a motivated decision. The violation of trade union rights is sanctioned under article 41 of the Code on Administrative Contraventions (CAC) which provides for application of fines in the amount up to 250 units, which equals 5,000 MDL (section 26 of the CAC).

The Committee notes that the Government refers to the comments of the CRSM according to which section 41 of the CAC does not describe in sufficiently specific terms the illegal actions that constitute obstructions of trade union activities. The Government points out that the Ministry of the Economy and Trade elaborated a draft law which sought the introduction of a new contravention into the CAC providing for the application of a fine in the amount from 75 to 200 conventional units for obstruction of lawful activities of trade unions and their bodies by high-level civil servants. The Government reports that it was, ultimately, decided to stop promoting the draft law in question, and suggested to Parliament to incorporate its content into the draft of the new Code on Contraventions which is currently being discussed in Parliament.

The Committee hopes that specific legislative provisions providing for effective and sufficiently dissuasive sanctions (civil, administrative or penal) in cases of anti-union discrimination and acts of interference will be adopted in the near future and requests the Government to keep it informed of new developments in this respect and to ensure that these sanctions are applied through effective and expeditious procedures.

Article 4. Compulsory arbitration. The Committee recalls that its previous comments concerned section 360(1) of the Labour Code according to which, if the parties to the collective labour dispute have not reached an agreement or disagree with the decision of the reconciliation commission, either party has the right to submit an application to settle the conflict in the judicial tribunals.

The Committee notes that the Government refers to an amendment under consideration which would exclude the obligation to examine collective labour conflicts within the conciliation commission before addressing the judicial instance. The Committee considers, however, that this amendment maintains the possibility of one of the parties submitting the dispute to the judicial instances.

The Committee recalls that arbitration imposed by the authorities at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements established in the Convention and thus the autonomy of the bargaining partners. Recourse to compulsory arbitration in cases where the parties do not reach an agreement through collective bargaining should be permissible only in the context of essential services in the strict sense of the term (i.e. services, the interruption of which, would endanger the life, safety or health of the whole or part of the population) or for public servants engaged in the administration of the State. The Committee again requests the Government to take the necessary measures to amend the legislation so as to ensure that referral of the dispute to the judicial tribunals is possible only upon request by both parties to the dispute, in the context of essential services in the strict sense of the term and for public servants engaged in the administration of the State.

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The Committee notes the Government’s report.

Comments made by the Confederation of Trade Unions of the Republic of Moldova (CSRM) and the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention. The Committee notes the comments made by the CSRM and the ICFTU in communications of 2005 and 2006, respectively, concerning the application of the Convention. The observations of both organizations concern legislative issues raised in the previous comments of the Committee, and more particularly to the absence of specific sanctions to be imposed for violation of trade union rights, as well as the violation of trade union rights in practice, as alleged in Case No. 2317 examined by the Committee on Freedom of Association in its 335th Report. According to the allegations, the Government has adopted a new Penal Code but it does not include sanctions regarding violations against trade unions. The allegations also concern acts of interference of the authorities in the organization of trade unions in the health sector, in the culture sector and in the education sector. The Committee regrets that the Government has not replied to these comments and requests the Government to send its reply without delay.

In its previous comments, the Committee had pointed out some discrepancies between the legislation and the Convention. The Committee regrets that the Government has not replied specifically to these comments. It must therefore repeat its previous observations.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee had noted that neither the Labour Code nor the new Penal Code adopted in April 2002, provided for specific sanctions to be imposed on employers found guilty of anti-union discrimination. The Committee had recalled that the effectiveness of legal provisions depends, to a large extent, on the way in which they are applied in practice and on the forms of compensation and sanctions provided. Legal standards are inadequate if they are not coupled with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application (see General Survey on freedom of association and collective bargaining, 1994, paragraph 224). The Committee again requests the Government to adopt specific provisions providing for sanctions to be imposed on employers found guilty of anti-union discrimination.

Article 2. Protection against acts of interference. The Committee had noted that the new Penal Code does not provide for sanctions against acts of interference. The Committee was of the view that legislation should make express provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application in practice of Article 2 of the Convention. Moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should explicitly lay down appeals and sanctions in order to guarantee the application of provisions prohibiting acts of interference (see 1994 General Survey, op. cit., paragraph 232). The Committee again requests the Government to adopt legislative provisions providing for effective and sufficiently dissuasive sanctions (civil administrative or penal) against acts of interference.

Article 4. Compulsory arbitration. The Committee had noted that, pursuant to section 360(1) of the Labour Code, if the parties to the collective labour dispute have not reached an agreement or disagree with the decision of the reconciliation commission, each of the parties to the dispute has the right to submit an application to settle the conflict in the judicial tribunals. As regards arbitration imposed by the authorities at the request of one party, the Committee had considered that it is generally contrary to the principle of the voluntary negotiation of collective agreements established in the Convention and thus the autonomy of the bargaining partners. Recourse to compulsory arbitration in cases where the parties do not reach an agreement through collective bargaining would be permissible only in the context of essential services in the strict sense of the term (i.e. services, the interruption of which, would endanger the life, personal safety or health of the whole or part of the population) and for public servants engaged in the administration of the State. The Committee requests again the Government to take measures to amend the legislation so as to ensure that referral of the dispute to the judicial tribunals is possible only upon request by both parties to the dispute.

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The Committee notes the comments made by the Confederation of Trade Unions of the Republic of Moldova (CSRM) and the International Confederation of Free Trade Unions (ICFTU) in communications dated 13 January and 31 August 2005, respectively, concerning the application of the Convention. The comments of both unions concern legislative issues raised in the previous direct request of the Committee, and more particularly to the absence of specific sanctions to be imposed for violation of trade union rights, as well as the violation of trade union rights in practice, as alleged in Case No. 2317 examined by the Committee on Freedom of Association in its 335th Report. The Committee requests the Government to provide its observations thereon.

The Committee will examine other matters raised in its previous comments (see 2004 direct request, 75th Session) in respect of the application of the Convention during the regular reporting cycle of 2006.

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The Committee notes the Government’s report. The Committee notes the adoption of the Labour Code (Law No. 154-XV of 28 March 2003).

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee notes that neither the Labour Code nor the new Criminal Code adopted in April 2002, provide for specific sanctions to be imposed on employers found guilty of anti-union discrimination. The Committee recalls that the effectiveness of legal provisions depends to a large extent on the way in which they are applied in practice and on the forms of compensation and sanctions provided. Legal standards are inadequate if they are not coupled with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application (see General Survey on freedom of association and collective bargaining, 1994, paragraph 224). The Committee requests the Government to adopt specific provisions providing for sanctions to be imposed on employers found guilty of anti-union discrimination.

Article 2. Protection against acts of interference. The Committee notes that the new Criminal Code does not provide for sanctions against acts of interference. The Committee is of the view that legislation should make express provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application in practice of Article 2 of the Convention. Moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should explicitly lay down appeals and sanctions in order to guarantee the application of provisions prohibiting acts of interference (see 1994 General Survey, op. cit., paragraph 232). The Committee therefore requests the Government to adopt legislative provisions providing for effective and sufficiently dissuasive sanctions (civil, administrative or penal) against acts of interference.

Article 4. The Committee notes that pursuant to section 360(1), if the parties to the collective labour dispute have not reached an agreement or disagree with the decision of the reconciliatory commission, each of the parties to the dispute has the right to submit an application to settle the conflict in the judicial instances. As regards arbitration imposed by the authorities at the request of one party, the Committee considers that it is generally contrary to the principle of the voluntary negotiation of collective agreements established in the Convention and thus the autonomy of the bargaining partners. Recourse to compulsory arbitration in cases where the parties do not reach an agreement through collective bargaining would be permissible only in the context of essential services in the strict sense of the term (i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) and in the public service. The Committee requests the Government to amend its legislation so as to ensure that referral of the dispute to the judicial instances is possible only upon request by both parties to the dispute.

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The Committee notes the first report of the Government.

The Committee takes note with satisfaction of the law on trade unions dated 7 July 2000, which complies with the requirements of the Convention.

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The Committee notes the Government's first report.

The Committee proposes to examine the conformity of the legislation in the Republic of Moldova with the provisions of the Convention as soon as it has at its disposal a translation of the Act respecting the collective labour agreement No. 1303-XII, of 25 February 1993, and of other relevant laws in one of the working languages of the ILO.