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1. Application of the Convention in practice. The Committee takes note of the information provided in the Government’s report received in August 2008, including the information responding to its 2007 direct request. The Committee notes the statistical information compiled by the Supreme Court of Justice on the number of individual labour disputes concerning the reinstatement of dismissed workers to the labour market which were examined between 2006 and the first semester of 2008. The Committee would appreciate if the Government would continue to provide information on the manner in which the Convention is applied in practice, including available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons (including examples of information provided by the employers to the workers’ representatives concerned in cases of collective dismissals, as envisaged under Article 13, paragraph 1, of the Convention).

2. Article 2, paragraphs 2 and 3. Adequate safeguards in case of recourse to contracts of employment for a specified period. In its 2007 direct request, the Committee noted that the Labour Code permitted fixed-term contracts of up to five years, and requested information on whether there were adequate safeguards in respect of these workers. The Government replies that workers on fixed-term contracts have the same rights as other employees, except that their contracts terminate when the term of contract expires and that, although severance pay is not paid, they are entitled to unemployment benefits. It further states that it does not have information on the number of workers affected by fixed-term contracts. The Committee reiterates its interest in receiving practical information on how the protection of the Convention applies to workers on fixed-term contracts. Please also provide copies of court decisions by which tribunals have dealt with this issue.

3. Article 4. Valid reason for termination. The Committee notes from the Government’s reply that an employee has the right to challenge the validity of a dismissal in the courts. Although the Government supplied the statistics of the cases of “illegal dismissal”, it did not supply leading court judgements as requested. The Committee reiterates its interest in receiving information on how the courts are addressing cases of “illegal dismissal” for the purposes of assessing compliance with Article 4 of the Convention.

4. Article 5. Invalid reasons for termination. The Government indicates that section 82(i) of the Labour Code, as amended by Law No. 8-XVI of 9 February 2006, provides for termination of employment where the heads of state units, or heads of the units in which the State is a majority shareholder, reach the age of 65. The Government states that this provision was not intended to discriminate against persons who reach the age of retirement. Section 82(i) of the Labour Code does not deprive persons with appropriate qualifications and capacity, who have reached the age of retirement, from the right to work. Accordingly, such persons can conclude labour contracts for periods of up to two years for positions other than that of the head of unit, which may subsequently be prolonged for a period that does not exceed five years. The Committee welcomes the information provided and requests that the Government continue to provide practical information on the application of the Convention to workers who have reached the age of retirement.

5. Article 5(c) of the Convention. Invalid reason for termination of employment. The Committee refers to its 2007 direct request and again asks the Government to specify how it ensures that the filing of a complaint or the participation in proceedings against an employer involving alleged violations of laws or regulations or the recourse to a competent administrative authority does not constitute a valid reason for termination.

6. Article 7. Procedure prior to termination. The Committee notes that section 206 of the Labour Code provides for the disciplinary sanctions that may be taken by an employer, which includes the possibility of dismissing an employee in respect of the grounds set out under section 86(1)(g), (k), (m), (o) and (r) of the Labour Code. It notes that section 208 provides for a disciplinary procedure in respect of disciplining sanctions, including dismissals. The Committee requests the Government to provide information on the manner in which these provisions of the Labour Code are applied in practice to ensure that a worker whose termination is envisaged for reasons of conduct or performance is provided an opportunity to defend himself against the allegations made. In particular, please provide copies of court decisions applying these provisions of the Labour Code.

7. Article 11. Period of notice. In response to the Committee’s 2007 direct request, the Government reports that, where termination of the labour contract is based on section 86, paragraph (1)(a), (f), (l), (n) and (s)–(z) of the Labour Code, the provision of notice is only mandatory if it is foreseen in the applicable collective agreements. The Committee requests the Government to clarify how it is ensured that persons who are not covered by applicable collective agreements are entitled to receive a reasonable period of notice or compensation in lieu thereof, as required under the Convention.

8. Article 12. Severance allowance and other income protection. In response to the Committee’s 2007 direct request, the Government reports that unemployment benefit is additional to severance pay. The Committee notes from the Government’s report that section 30 of Law No. 102-XV of 13 March 2003, persons who satisfy the following conditions: (i) they are registered at the National Employment Agency, belonging to the territorial area the office is charged with; (ii) they have worked and have a contribution period in the state social insurance system of at least six months of the last 24 calendar months prior to the date of registration; and (iii) they do not obtain taxable incomes according to the law, and have had their employment terminated on one of a series of grounds enumerated, shall be entitled to receive unemployment benefits. The Government further indicates that severance pay is not paid in cases of dismissal due to disciplinary reasons, unless it is otherwise foreseen by relevant collective agreements. The Committee asks the Government to supply it with a copy of Law No. 102-XV of 13 March 2003 and to provide more information on the way section 30 of that law is applied in practice. It also asks for information on the role of collective agreements in the provision of severance pay, so as to allow the Committee to better assess whether all persons covered by the Convention are entitled to severance payment, benefits from unemployment insurance, or a combination of the two. Please also provide copies of any court decisions which address this matter.

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1. Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s report received in November 2006 and the adoption of Law No. 154-XV of 28 March 2003 issuing the Labour Code of the Republic of Moldova. It notes, in particular, that, according to the statistics in the Government’s report, 320 individual labour disputes concerning cases of dismissal were submitted to the judicial authorities in 2005 and 249 cases were examined. During the first three months of 2006, 79 cases were submitted to the judicial authorities, 42 of which were resolved. The Committee asks the Government to continue providing information on the manner in which the Convention is applied in practice, in particular on the activities of the courts or the competent labour administration authorities.

2. Article 2, paragraphs 2 and 3, of the Convention. Safeguards in the event of recourse to fixed-term contracts. The Committee notes sections 54(2), and 55 of the Labour Code, which provide that, in certain cases, the employer may resort to a fixed-term contract for a maximum duration of five years. The Committee asks the Government to provide detailed information on the manner in which the protection afforded by the Convention is ensured for all workers engaged under a fixed-term contract in pursuance of these sections, and to indicate the number of workers affected by these measures.

3. Article 4. Valid reason for termination. The Committee notes section 86(1), of the Labour Code, which lists the various valid reasons for termination. It asks the Government to indicate the manner in which it is ensured in practice that the employment of a worker is not terminated without a valid reason, as referred to under Article 4 of the Convention, and to provide copies of any relevant court decisions.

4. Article 5. Invalid reasons for termination. The Committee notes the new section 82(i) of the Labour Code, inserted by Law No. 8-XVI of 9 February 2006. In its observations received in July 2006 on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Confederation of Trade Unions of the Republic of Moldova (CSRM) stated that this new provision allows for the termination of an employment contract in cases where the employee has reached retirement age and that it discriminates on the basis of age and will lead to the unjust dismissal of older workers. In this respect, the Committee recalls that the Termination of Employment Recommendation, 1982 (No. 166) in its Paragraph 5(a) indicates that “age, subject to national law and practice regarding retirement” should not constitute valid reasons for termination. It refers to its 2006 observation on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and asks the Government to provide any available information on the implementation of section 82(i) of the Labour Code. The Government is also asked to specify the manner in which it is ensured that the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations, or recourse to competent authorities, does not constitute a valid reason for termination.

5. Article 7. Procedure prior to termination. In its report, the Government states that, in cases where dismissal is based on the disciplinary reasons set forth in section 86(1)(g), (k), (m), (o) and (r), the employer must ask the worker whose termination of employment is contemplated to provide a written explanation of the offence committed (sections 208 and 209 of the Labour Code). The Committee notes that for dismissals based on the other reasons set forth in section 86(1), the worker does not seem to be provided with any opportunity to defend himself against the allegations made. In this respect, it reminds the Government that the purpose of this Article of the Convention is to ensure that any decision to terminate employment is preceded by dialogue and reflection between the parties (General Survey on the protection against unfair dismissal, 1995, paragraph 148). The Committee asks the Government to indicate the manner in which it is ensured that a worker whose termination of employment is contemplated for a reason set forth in section 86(1), other than those mentioned under points (g), (k), (m), (o) and (r), is not dismissed before being provided with an opportunity to defend himself against the allegations made.

6. Article 9, paragraph 3. Examination by the labour courts in the case of termination for reasons based on the operational requirements of the undertaking, establishment or service. The Government is requested to indicate whether the labour courts are empowered, in the case of appeal, to determine whether the termination was for reasons relating to the operational requirements of the undertaking, establishment or service, and to state the extent to which they are empowered to decide whether these reasons are sufficient to justify the termination.

7. Article 11. Period of notice. The Committee notes section 184 of the Labour Code which sets a period of notice of one to two months for dismissals based on certain reasons set out in section 86(1), of the Labour Code. The Committee asks the Government to indicate whether a period of notice must be respected in the case of dismissal based on the reasons set forth in section 86(1)(a), (f), (l), (n) and (s)–(z) of the Labour Code, and to specify the applicable legislative provisions.

8. Article 12. Severance allowance and other income protection. The Committee notes section 186 of the Labour Code which provides for the payment of a severance allowance in the case of dismissal based on certain reasons set forth in section 86(1), of the Labour Code. The Committee asks the Government to indicate whether workers dismissed for reasons set forth in section 86(1)(a), (f)–(s), (u)–(x) and (z) of the Labour Code are entitled to a severance allowance, benefits from unemployment insurance or a combination of both, in accordance with Article 12 of the Convention. The Government is also requested to specify whether provision is made for the loss of entitlement to severance allowance in the event of dismissal for serious misconduct and, if so, to indicate how serious misconduct is defined by legislation and practice, while providing copies of relevant court decisions.

9. Article 13, paragraph 1. Informing and consulting workers’ organizations. In its report, the Government states that section 88(1)(i), provides that an employer has the right to dismiss workers for reasons relating to the liquidation of the undertaking or in order to reduce the number of workers or staff, providing that he informs the trade unions of the respective undertaking or branch and engages in negotiations with them on the observance of workers’ rights and interests. The Committee asks the Government to indicate the procedures followed in these negotiations and the information that the employer must provide for the workers’ representatives concerned on such occasions. It also asks the Government to indicate the purpose of these consultations and to specify what is covered in practice by “workers’ rights and interests”.

[The Government is asked to reply in detail to the present comments in 2008.]

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The Committee notes the information contained in the Government’s detailed report for the period ending August 2001, including information provided in response to previous comments concerning Articles 7, 9, 10, 11, 12 and 13(2) of the Convention. It would appreciate receiving further information on the following points.

Article 2, paragraphs 2(a) and 3, of the Convention. With reference to previous comments, the Government states that section 26 of the Collective Agreement for 2001 allows for fixed-term contracts only when the work is of a temporary nature, or is a limited task, or is seasonal, or is work in the public service, or at the request of the worker, or in other cases permitted by law. section 16 of the Labour Code also permits the conclusion of special limited-term contracts in certain conditions. The Committee requests further information on any of the other cases permitted by law which are not listed above as well as on the safeguards which exist to prevent abuse of fixed-term contracts, and the percentage of the workforce covered by fixed-term contracts.

Articles 4 and 5. The Committee notes the list of valid reasons for dismissal provided by the Government in response to previous comments. It requests further information on whether section 263 of the Labour Code, which permits the establishment of other reasons, has been utilized.

Article 13, paragraph 1(b). The Committee notes the information provided by the Government on section 45(2) of the Labour Code and the collective agreements for 2001. It again requests information on whether employers are obliged to provide workers’ representatives with the opportunity to consult on measures to be taken to avert or to minimize the terminations, and measures to mitigate the adverse effects of any terminations on the workers concerned.

Part V of the report form. The Committee notes that there were 627 cases filed concerning unjustified dismissal and in 442 cases the workers were subsequently reinstated. The Committee would appreciate continuing to receive information on the manner in which the Convention is applied in practice.

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The Committee notes the information contained in the Government’s detailed first report. It would appreciate receiving a copy of the National Collective Agreement mentioned in the Government’s report, as well as further information on the following points.

Article 2, paragraph 2(a), in conjunction with Article 2, paragraph 3, of the Convention.  The Committee notes that under section 18 of the Labour Code there are two possible types of contracts - contracts for an indeterminate period and fixed-term contracts. Fixed-term contracts may last for up to five years, but are to be used only when the work relationship cannot be established for an indeterminate period, taking into account the nature of future work or the interests of the workers. The Committee recalls that fixed-term contracts may be excluded under the Convention, but are intended only to allow firms to hire workers for defined tasks for a relatively short period of time. It also points out that the uncertain future needs of the enterprise are taken into account in Article 4, which allows firms to terminate employment for reasons related to the operational needs of the enterprise. It would appreciate receiving further information on the percentage of the workforce engaged on fixed-term contracts and what safeguards exist to protect workers against abuse of fixed-term contracts.

Articles 4 and 5.  The Committee notes that under section 143(1) of the Labour Code a worker cannot be dismissed except by a decision of the administration that hired him or her, and only for the reasons listed in legislation. It notes, however, that under section 263, other laws may be enacted concerning valid bases for dismissal for certain categories of workers, and under section 33 other valid bases may be determined by agreement. It would appreciate receiving further information in regard to the bases which have been established by law or by agreement for dismissal of a worker.

The Committee also notes that section 42 of the Labour Code permits the dismissal of a worker on the request of the administrative court, if he or she has violated or does not respect the law, although the worker may appeal. Please forward information on how often, and under what circumstances, section 42 is used.

Article 7.  The Committee notes that under section 40 of the Labour Code in case of individual dismissal for reasons related to the worker, the employer must first consult the union. If the worker to be dismissed is not a member of a union, the employer must consult the "superior hierarchical organization". Please indicate whether the union or superior hierarchical organization would examine the allegations before agreeing to the termination.

Article 9, paragraph 2(a).  The Committee notes that there is no indication in the Government’s report or the Labour Code as to who has to discharge the burden of proof in an appeal against dismissal. The Committee recalls that under paragraph 2 of Article 9, the burden must be either shared or carried by the employer, but should not be borne alone by the worker. Please provide further information on the legislative or other provisions in regard to the burden of proof in an appeal against dismissal.

Article 10.  The Committee notes that neither the Government’s report nor the Labour Code specifies the remedies to be awarded in case of unjustified dismissal. Please provide information on what remedies are available.

Article 11.  Section 45/2 of the Labour Code states that a worker is entitled to a minimum of two months’ notice in case of lay-off. In case of mass redundancies, the employer is required to notify the union three months in advance. However, there is no indication of the right to notice in the case of termination related to an individual. The Committee recalls that under this Article of the Convention a reasonable period of notice is required in all cases of termination, including ones related to the capacity or conduct of the individual worker. The only exception is in cases of serious misconduct, the nature of which would make it unreasonable to require an employer to continue the employment relation during the period of notice. Please provide further information on the period of notice generally required in cases of termination of employment related to the capacity or conduct of the individual worker.

Article 12.  The Committee notes that section 45/3 of the Labour Code specifies the indemnities due to a worker in case of termination related to the needs of the enterprise, and section 41 specifies the indemnities due to a worker in case of termination on account of military service, or another worker returning to fill the post, or inability to transfer the worker to another post. Furthermore, under section 45/4 all unemployed persons, defined as those capable of and willing to work, are entitled to unemployment assistance or government-sponsored work, provided they are unemployed "for reasons independent of themselves", and have no position or income. Please clarify whether persons who are dismissed for reasons related to their capacity or conduct also qualify for unemployment assistance.

Article 13, paragraph 1(b).  Section 45/2 of the Labour Code states that in case of mass redundancies, the employer must give the union a minimum of three months’ notice. However, it does not require the employer to provide an opportunity for consultation on the measures to be taken to avert or minimize the number of terminations. The Committee recalls that under Article 13, paragraph 1(b), the employer shall, in accordance with national law and practice, give the workers’ representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimize the terminations and to mitigate the adverse effects of any terminations on the workers concerned. Please provide further information on how this provision is given effect.

Article 13, paragraph 2.  Section 45/2 of the Labour Code states that the requisite procedures apply in case of mass redundancies. Please specify what is regarded as mass redundancy for the purpose of paragraph 1 of Article 13, in particular the minimum number or percentage of the workforce affected for redundancy to be considered a mass redundancy.

Part V of the report form.  Please provide further information on the manner in which the Convention is applied in practice, including statistics on the number of appeals against termination, the outcome of such appeals, and any remedies awarded.