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A Government representative recalled that in her country collective agreements were regulated in the Labour Code, as well as in Act No. 130/1996 on bargaining agreements. Collective bargaining agreements were concluded between an employer or employers' organizations and workers, either represented by unions or otherwise, and covered working conditions, wages, as well as other rights and obligations that fell within the sphere of an employment relationship. In accordance with Act No. 130/1996, these agreements were concluded for a specified period of at least 12 months. The parties concerned could also decide to prolong the duration of the agreement according to conditions previously agreed. The legislation established mandatory annual collective bargaining for all enterprises, with the exception of enterprises employing less than 21 workers, with the negotiations being initiated by the employer. If this did not take place, negotiations were undertaken at the request of the trade union, or representatives of the trade unions, within 15 days from the request being presented. Labour disputes were defined as all conflicts between the social partners with respect to employment relations and were regulated by Act No. 168/1999 on the settlement of labour disputes. This Act made a clear distinction between conflicts of rights and conflicts of interests. Labour disputes concerned the right to exercise certain rights, or the establishment of certain obligations, arising out of laws, as well as collective agreements or individual employment contracts, which were considered by the Act as conflict of rights. On the other hand, labour disputes related to the establishment of employment conditions during the negotiation of a collective agreement, were disputes that concerned professional, social or economic interests of workers, and thus were considered conflicts of interest.

The Act also established the legal framework for declaring conflicts of interest. Such conflicts were possible, particularly when an enterprise refused to bargain collectively; did not accept the workers' claims; refused without a reason to sign a collective agreement even though negotiations were completed; or did not fulfil the legal obligation to call for the mandatory annual negotiations. Within the scope of Act No. 168/1999, workers did not have the right to declare a conflict of interests during the terms of a collective agreement, unless the enterprise did not fulfil its obligation to initiate annual negotiations concerning wages, hours of work, work programme or working conditions.

The speaker pointed out that the observations of the National Confederation of Trade Unions (CARTEL ALFA), the National Trade Union Bloc (BSN) and the Democratic Confederation of Trade Unions of Romania (CSDR) were not justified in that the Ministry of Labour respected the provisions in Act No. 168/1999 on the settlement of labour disputes and had proceeded to nominate the delegates to conciliate conflicts of interest, after the regional Directorates of labour and social protection had received complaints from representative trade unions or the workers' representatives. In addition, the Romanian Senate approved in May 2007 amendments to sections 12 and 13 of Act No. 168/1999 that permitted workers to initiate a procedure for the resolution of conflict of interests during the term of a collective agreement. The Government undertook to continue its efforts to improve the legislative framework in accordance with the Conventions and Recommendations of the ILO.

The Employer members noted that the case was legislative and wholly concerned the right to strike, in particular regarding three aspects: (1) suspending a strike if it endangered human life; (2) ending a prolonged strike by arbitration if it affected humanitarian interests; and (3) the procedure by which unions could seek conciliation of labour disputes prior to calling a strike.

They noted that the Government and the complainant unions had provided reports since the Committee of Experts had last considered the case. The case was not new, going back to 1991. The legislation in question was Act No. 168/1999 of the year 2000, which replaced 1991 legislation on the settlement of labour disputes. Since Romania had entered a new political era, it had been in dialogue with the ILO on the structure of legislation regarding labour disputes. The legislation was a positive response to observations by the Committee of Experts. In its 2000 report the Committee of Experts "noted with satisfaction that the new legislation introduces provisions which respond to several of the concerns expressed in previous comments on the previous legislation". Since that time, progress had been demonstrated by the Government. It had responded to the Committee's observations of 2006 in each of the three areas of contention, and the Government spokesperson had, at the present sitting, refuted assertions made by union complainants that the relevant administrative authorities were refusing to receive union applications for conciliation prior to strike action. The Government had replied that orders had been issued to this effect and that some disputes had been registered. The Committee of Experts had noted this information and made no observation. This fact did not need to be taken further, he said.

The speaker stated that the legislative aspects of the case were more difficult. The Committee of Experts had requested the Government to provide copies of decisions made in the exercise of arbitration powers to bring prolonged strikes to an end, which, he claimed, was a reasonable request. However, the Committee of Experts had also called for the legislation to be brought in line with Convention No. 87 in so far as it concerned the right to suspend or end strikes. The Committee had asserted that arbitration to end a collective dispute was only acceptable in three circumstances. In doing so, the Committee inferred, but did not expressly state, that the current legislative references in Romanian legislation to "humanitarian interests" or the "life or health of individuals" fell outside the strict definition adopted by the Committee of Experts as regarded the ending of labour disputes. This was not an issue that the Employer members wished to debate in the present forum. Anything the Committee observed at the present hearing should take into account the fact that in 2000 it had noted certain aspects of Act No. 168 "with satisfaction". Indeed the arbitration provisions were specially identified both in 2000 and in the current report.

The Committee of Experts' report also made mention of some disagreement between the complainant unions and the Government over disputes that were conflicts of rights rather than conflicts of interest. The Government had also noted this in its remarks. The 2002 observation of the Committee of Experts specifically "noted with interest that the new Act clarifies the distinction between the disputes of rights and disputes of interest". The Employer members therefore considered that the Committee of Experts had acted appropriately in not calling for legislative amendment in this respect, but believed that technical assistance could be provided by the ILO to the tripartite constituents.

The Worker members noted that this was not the first time that the Committee of Experts had examined cases concerning labour disputes in Romania. It had in fact come to the conclusion that the legislation on labour disputes that came into force in 2000 was to some extent incompatible with the Convention - as had been stressed by the unions in their comments and complaints before the Committee on Freedom of Association.

There were several reasons justifying the Conference Committee dealing with this case for the first time. Firstly, section 62 of the Act on the settlement of labour disputes allowed the management of an establishment to submit unilaterally a dispute to an arbitration committee if the continuation of the strike risked affecting humanitarian interests. The Committee of Experts decided that such a condition was too vague and went beyond the limits of the right to strike as permitted by ILO standards as far as certain public servants and essential services in the strict sense of the term were concerned, namely, those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee of Experts' request, made in 2005, that the provision be repealed, had not been acted on.

In addition, legal texts obliged the social partners to resolve conflicts of interest through prior conciliation procedures; a strike became unlawful if it concerned a conflict of rights or if the conciliation procedure had not been respected. Strict regulation therefore endangered the right to strike and created situations in which a strike could be considered unlawful by employers, the public authorities and the courts. The refusal by regional labour offices to register requests for conciliation submitted by the unions in case of a breakdown in negotiations also had the effect of preventing conciliation and also all strikes. The Committee of Experts seemed to have been satisfied by the Government's reply that trade unions had not lodged a complaint with the relevant judicial bodies, though the Romanian Worker members would demonstrate that this did not correspond to the reality. The observation made to Romania could have dwelt more on the distinction that the Act on the settlement of labour disputes made between conflicts of interest and conflicts of rights. As a member of the European Union since January 2007, Romania had rights and duties, one of which was to respect the right to strike, guaranteed by the Charter of Fundamental Rights, without making a distinction between conflicts of interest and conflicts of rights.

The Romanian authorities had encountered many problems in the recognition of freedom of association, including the right to strike, and had subjected the fundamental rights of workers to a range of procedural constraints. The Committee on Freedom of Association had regularly received complaints from Romanian trade unions and had recalled the fundamental importance of the right to strike. Conflicts of rights represented legitimate interests that a trade union organization should be able to defend. Next October, the Committee would be investigating new complaints on the issue.

In conclusion, the Worker members recalled that the compulsory arbitration procedure foreseen by section 62 of the 1999 Act should be repealed, as the Committee of Experts had already proposed for a second time. In addition, the distinction between conflicts of interest and conflicts of rights, on which the entire legislation was founded, was contrary to ILO principles, principally the right to strike. Finally, the prerequisite for conciliation procedures risked endangering the right to strike if regional labour offices refused to register requests for conciliation. In view of Romania's entry into the European Union and recent developments reported by Romanian Worker members both regarding the social partners and the courts, the Worker members were satisfied that, with ILO assistance, the Romanian authorities could be convinced to modify the 1999 Act in order to make it compatible with ILO standards.

The Worker member of Romania recalled that his country had ratified Convention No. 87 in 1957, a Convention whose principles were reflected in article 43 of the national constitution as well as the Labour Code and the Act on the settlement of labour disputes. The Ministry of Labour, however, had refused to register the requests for conciliation submitted by trade unions in the case of unjustified delays in commencing mandatory annual collective negotiations or the refusal by employers to accept trade union demands with regard to hours of work, wages or working conditions. Conciliation was a compulsory step without which striking was impossible. The authorities' attitude resulted in a restriction in workers' right to strike, as was evidenced by the 37 per cent reduction in the number of strikes according to official sources, and the increase in spontaneous social conflicts which were harmful for working relations and could have unexpected consequences. This refusal to register conflicts of interest constituted a violation of article 40 of the Romanian constitution, which provides for the right to strike, section 12 of the Act on the settlement of labour disputes, Articles 3 and 8 of Convention No. 87 and the amended European Social Charter despite its having been ratified in its entirety.

Contrary to the Government's assertions, it had officially prohibited regional bodies from applying conciliation procedures in practice in the case of conflicts of interest in such cities as Constanta, Prahova, Sibiu, Dolj, Gorj, Vilcea, Bucharest, etc. The trade unions had attempted to lodge an appeal against these measures and obtained final and binding decisions, obliging the authorities to register conflicts of interest.

The social partners, as well as the Committee of Experts on many occasions, had requested that the Act on the settlement of labour disputes be amended, both with regard to registering conflicts of interest involving collective agreements valid for multiple-year, as well as with regard to sections 55, 56, 60 and 62 concerning the suspension of strikes by judicial means and the use of arbitration. Nevertheless, last May the Parliament had rejected all the amendments proposed by the social partners and had also ignored the observations of the Committee of Experts. The Act therefore continued to be ambiguous and open to various interpretations.

In conclusion, the speaker noted that this was the second time that Romania had been included in the list of individual cases, and considered that it was time for a technical assistance mission to be sent to assess the manner in which the Government was carrying out its obligations.

The Worker member of Hungary, quoting the Committee of Experts, recalled that the law on the settlement of labour disputes in Romania did not provide in practice for the fundamental right of workers to organize collective action or strikes. The right to strike was one of the essential means for workers and their organizations to promote and defend their economic and social interests and was a corollary to the right to organize as protected by Convention No. 87.

She said that Romanian legislation set up a number of prerequisites that had to be met in order to make a strike lawful, e.g. issues regarding wages, working conditions and working time had to be negotiated on an annual basis. The law stipulated clearly that, to resolve conflicts, a conciliation stage was mandatory prior to taking strike action. In the absence of this prior conciliation process, a strike would be judged illegal. The consequences were that if an employer did not want to sit down at the conciliation table, he or she could unilaterally hinder a strike without reasonable cause or explanation. Even in those cases where workers could initiate strike action, an employer could demand the suspension of the strike in court or go to arbitration on humanitarian grounds after a strike had begun. These regulations showed that the law was very complicated and left many openings for a strike to be declared illegal. The Committee on Freedom of Association had declared that the legal procedure for declaring a strike should not be so complicated as to make it practically impossible to declare a legal strike. Romanian legislation, she declared, was not in line with this rule. The CFA had emphasized that although a strike may be temporarily restricted, such a restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which parties concerned could take part at every stage. The suspension of a strike and its termination by an irrevocable court decision or compulsory arbitration process could not be seen as being in compliance with the principles of Convention No. 87.

Collective action was the essence of the trade union movement and the limitation of industrial action through complicated and controversial legislation was a serious violation of the principles of freedom of association. The speaker therefore urged the Government to change the law so as to be fully in line with the principles and rules of Convention No. 87.

The Government representative, having taken note of the discussion, concluded by reiterating her Government's willingness to resolve this matter. In this respect, the Government accepted a technical assistance mission to facilitate bringing the legislation into line with Convention No. 87.

The Employer members declared that, while considerable legislative progress had been made in Romania, there were problems of interpretation or application that might exist in the current legislation and this could only be resolved at the national level. The Employer members believed that the matter could be assisted by a process of a technical nature at national level, designed to achieve consensus, which would focus on the interpretation of the national law. They suggested that a specialist, who had the support of the tripartite stakeholders and the ILO, could be tasked to work with employers, unions and the Government in the light of the conclusions and observations of the present Committee. This would be a practical approach which would remove the need for the case to be studied again by the Committee.

The Worker members noted the reactions of the different speakers and asked the Government to thoroughly review the legislative framework concerning collective conflicts, and Act No. 168 of 12 November 1999 in particular. Indeed, the reports of the Committee of Experts as well as those of the Committee on Freedom of Association noted that section 62 of the Act, which obliged workers to initiate arbitration procedures, did not comply with Convention No. 87. It was unacceptable to use concepts as vague as the concern for humanitarian interests to justify the prohibition of the right to maintain a strike for longer than the first 20 days. This provision should, therefore, be repealed.

Furthermore, the distinction the legislation made between conflicts of interest and conflicts of rights was problematic as was the functioning of the conciliation procedures, particularly where regional administrative offices refused to register conciliation requests from trade unions, which was tantamount to prohibiting the exercise of the right to strike. An agreement made between Romanian employers and trade unions, which envisaged the amendment of the Act of 1999, was being blocked by the public authorities. Those authorities had to be encouraged by the Committee to take these proposals into consideration and open up a frank dialogue between the social partners with a view to adapting the abovementioned legislation. Indeed, so long as the right to strike was rigidly regulated, it was likely that a multitude of spontaneous strikes would occur that would be harmful to working relations.

The Worker members noted that the Government had indicated that it was open to the idea of receiving a technical mission so as to benefit from the assistance and experience of the Office in the matter. They invited the Committee of Experts to follow carefully the development of the situation, both in law and in practice, so as to be able to evaluate the progress made next year.

The Committee took note of the statement made by the Government representative, as well as the discussion that took place thereafter. The Committee recalled that the Committee of Experts has been referring for some time to legislative restrictions relating to the rights of workers' organizations to organize their administration and activities and to formulate their programmes and organize collective action. The Committee also noted previous observations made, and the legislative history of this matter.

The Committee noted the information provided by the Government according to which certain amendments to the Act on the Settlement of Labour Disputes were currently before the Romanian Parliament.

The Committee requested the Government to take the necessary measures, in full consultation with the social partners concerned and with a view to reaching a consensual solution, to ensure that its law and practice was in conformity with the Convention. It noted the Government's acceptance of an ILO technical assistance mission in this regard. It requested the Government to provide detailed information concerning the distinction made between disputes of rights and disputes of interest and the registering of disputes for conciliation, including any relevant statistics, administrative decisions and court judgements, in its next report to the Committee of Experts. It hoped that the Committee of Experts would be in a position in the near future to note the progress made on the pending matters.

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A Government representative recalled that the observations made by the Committee of Experts were not new and had already been discussed by the present Committee. They basically concerned trade union unity and the link between the Party and the unions which, in the Committee of Experts' opinion, were in contradiction with the principles inscribed in the present Convention. After reaffirming that his Government did not share this point of view, he stressed the conformity of the national legislation and practice with the Convention. He recalled that the unity of the trade union movement was linked to tradition, the origins of which were to be found in the beginning of the workers' movement in his country. The aspiration towards unity in the trade union movement continued to correspond to the desire of all the workers of the world. It was also notorious that, in several countries represented on this Committee, there was a recognised trade union unity. It was incorrect to maintain that trade union unity was imposed in his country through legislation either directly or indirectly. In this regard, article 27 of the Romanian Constitution provided that citizens had the right to associate with a view to forming, in particular, trade union organisations. As for section 2 of Act No. 52 respecting occupational trade unions, it granted to all persons working in the same occupation or in similar occupations, the right freely to establish occupational unions without prior authorisation; no one could be forced to join a union against his will. In addition, under section 17 of Act 52, the establishment, organisation and functioning of occupational unions were freely determined by their members. It was therefore clear from these provisions that the relevant legislation neither directly, nor indirectly, imposed trade union unity.

The Government representative recognised that the Labour Code only mentioned the General Confederation of Trade Unions (UGSR); but this merely reflected a situation existing for over a century of the workers' movement of his country. It was also true that, by virtue of Act. No. 5 of 1978, self-management had been institutionalised. This Act specified that the supreme management forum in economic units was the general assembly of workers and that the executive governing body of this assembly was the workers' council, in which one-third of the members are directly elected by the General Assembly among the workers, irrespective of their membership in the union or other social organisations. Subsequently, in 1981, legislation had been adopted on the creation of the congress of workers' councils, of the national council of workers, of management councils of ministries and other bodies at the national level. These bodies examined and adopted the various economic and social development programmes, as well as the legal regulamentary principles before they were submitted to Parliament for approval. It had to be noted that in the management councils of ministries - in addition to the representative of the General Confederation of Trade Unions - there were one-third of the members who represented workers in production units independently of their membership in trade unions or social organisations set up by the workers' councils. As regarded the higher State bodies, workers' organisations other than the General Confederation of Trade Unions were also represented, for instance: the Central Union of Craftmen's Cooperation; the Central Union of Agricultural Production Cooperatives; the Central Union of Consumers' Cooperatives, etc. In our conceptions and practice, the participation of workers to the decision-making process is the expression of the concrete and real possibility given to all the citizens of the country - without any discrimination - to participate in the direction of the society, on a global plane and at all the administrative and socio-economic levels, a direction conceived and implemented within the context of dialectical unity of its constitutive components: the elaboration and adoption of decisions, their practical implementation and the control on their method of realisation. This meant that the Committee of Experts' conclusions that the GCTU had the exclusive representation of the workers before the higher state bodies, including the Ministry of Labour, had no real basis.

With regard to the links between the Communist Party and the trade unions, his Government still considered that Article 3(2) of the Convention, which referred to the public authorities and not political parties, was not relevant to this question. The speaker recalled that, in Romania, the public authorities were the following: the Government, the Council of State and the Great National Assembly. Consequently, the Committee of Experts' references to article 26 of the national Constitution and to section 165 of the Labour Code, which laid down the role of the Party as a guiding political force went beyond the legal aspects of the question and dealt with problems that were not covered by the Convention. In conclusion, the Government representative considered that Romanian legislation covered the provisions of Convention No. 87. Union monopoly and the links between unions and the Party are historical realities which existed long before the ratification of Convention No. 87 by Romania. These realities do not result from the legislation but from the workers' will itself. At the present time, they continue fully to reflect their will. However, given that certain provisions could give rise to misunderstandings, the Romanian authorities were continuing to take pains to make them clearer. After all, the democracy achieved until now in Romania was not considered to be an immutable system. As in other areas of activity, it could be perfected and subject to adaptation to real conditions which were in constant evolution. This explained why the five-year plan for 1991-95 stressed continuing improvement in the organisation and management of the global social and legal system which would, no doubt, mark a new stage in the development of participative democracy in his country. The Committee of Experts would be kept informed.

The Workers' members, after indicating that the discussion of this case could enable the repetition of a number of observations which had already been made on several occasions, recalled that a complaint had been presented by the International Confederation of Free Trade Unions (ICFTU) to the Committee on Freedom of Association concerning a number of very specific points. In 1990, logically, the Conference should have information on the state of the question. They expressed their concern at the statement of the Government representative who rejected the interpretation given by the Committee of Experts, and they feared that the situation was a stalemate. They wondered whether the examination of this case would not better be handled by another body, and asked the Governing Body whether it would be opportune to have a Commission of Inquiry or some other procedure given the fundamental divergence which had existed for a great many years. They believed that the most important problem was to know whether in a country like Romania there were trade union organisations other than the organisation which existed today. It was unimaginable that, if in Romania there was total freedom for workers to create trade union organisations of their own choosing, there were no organisations other than the Confederation which existed, and which was therefore unique. Indeed, one could have a theoretical text, but in practice other measures, in particular threats, could make implementation of that text impossible. According to article 26 of the Constitution, the Romanian Communist Party guided the activities of mass organisations. Consequently, in their opinion, even if one tried to distinguish between the public authorities and political authorities, they were in reality one and the same authority.

In addition, section 165 of the Labour Code laid down that trade unions should mobilise the masses in order to carry out the programme of the Romanian Communist Party. Sections 113, 116, 119, 122 and 153 of the Code entrusted one expressly named trade union - the UGSR - with the exclusive duty of representing the workers. These provisions showed that the existence of free unions able to draw up their proper statutes in full independence with regard to the UGSR and the Communist Party, was questionable. The Workers' members also noted that there was no more talk of new legislation on trade unions to which reference had been made at a certain time. In view of the Committee of Experts' report and the discussion in the present Committee, they h that the Committee on Freedom of Association would be in a position to clarify the situation.

A Worker member of France recalled a number of facts showing that the allegations presented by the Government representative did not stand up to close examination. For example, in June 1988, 34 workers from an armaments factory who had met to discuss the creation of an independent union had been arrested by the police and a number of them were still in prison today. Several dozen workers were still detained following the demonstrations in Brazov, which took place in November 1987, despite a so-called amnesty decreed in 1988. Even worse, between 50 and 80 workers had been reported missing since these events, and 60 workers had been sentenced to terms of imprisonment of as long as three years for having attempted to establish independent unions. Other attempts had been made in June 1988, but were met with brutality against arrested persons, who were transferred to other jobs and subjected to severe conditions. One worker who had tried to form an independent group of workers in September 1983 was still serving a ten-year prison sentence. The present Committee's attention also had to be drawn to the fact that the physical safety of Romanians living abroad had also been threatened; several dissidents had received death threats. while not wishing to enumerate situations of this kind, the speaker recalled the case of those who. only because they had participated in meetings, had been dismissed and found themselves under constant police threat and brutality during repeated arrests. All these facts showed that the ICFTU's complaint was more than ever justified and the inquiry that would be carried out would show that the information supplied by the Government representative had no other aim than to delude, giving the impression that it was a non-reply.

The Employers' members pointed out that since at least 1974, the Committee of Experts had been requesting Romania to amend its legislation on the issues that were being discussed here. Until now, the Government had replied to these demands in varying ways. For two years in succession, the Government did not appear before the present Committee. Sometimes it used a Member of arguments saying that the facts put forward were not correct, or the legal basis was different, or the assessment made by the Committee of Experts was totally wrong. In the end, the Government indicated that, in the future, the question could be debated. While it was true that the problem of trade union unity was not unique to Romania, the reasons given by the Government representative, in particular the tradition reason, were quite irrelevant. The fact that, traditionally, there were many unions or only one union, was not part of the present Committee's discussions, since that was not the point in the present Convention. What the Convention required was that there be the real possibility of freely creating unions and employers' organisations. The institutionalisation in the legislation of trade union unity was a serious violation of freedom of association. The same went for the very close links with a political party laid down in the Constitution. In this respect, the reply given by the Government representative had been extremely vague. He had started by denying the existence of such a link, then he had stated that there could indeed be reflection on it. According to the law as it stood, trade unions in Romania had no possibility to draw up their own statutes and, on the contrary, were tied to those of the UGSR.

It was an undeniable fact that the violations of the Convention covered three points: trade union unity laid down in the law; the existence of a close link with the Communist Party; and the absence of any autonomy as regarded internal statutes. This meant that there was no independence for collective bargaining, which was naturally a fundamental element for freedom of association. In the absence of detailed information from the Government representative, particularly on the amendments which had to be made, the Employers' members regretted to have to observe that both the legislation and the practice in Romania constitued a violation of the Convention which had lasted for a very long time. That was why they insisted urgently that the situation be changed.

The Government representative, while rejecting the assertion that his Government had violated Convention No. 87, emphasised that the present Committee was not the place to discuss the complaint presented by the ICFTU. His Government had already communicated a preliminary reply on it, and a final reply would soon be drafted.

The Committee took note of the information supplied by the Government representative and of the debate that ensued. The Committee expressed its deep concern at the fact that the Government had not taken any measures in response to the comments that had been made by the Committee of Experts for a number of years and it recalled the importance of the questions raised in the observation of the Committee of Experts. It urged the Government to adopt very rapidly the amendments required to bring its legislation into conformity with the Convention.

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A Government representative referred to the report of his Government dealing with the comments of the Committee of Experts. He added that the Committee of Experts, in its comments on the application of this Convention had omitted to point out that the fundamental Romanian law on trade unions was the 1952 Act on Professional Trade Unions. At the end of Section 2 of this Act, it was specified that nobody could be obliged to belong, not to belong or to cease to belong to a professional trade union organisation against his own will. With regard to Section 164 of the Labour Code this, far from limiting the right of association, established details of the procedure to allow for its exercise in practice. Section 164 stipulated that trade unions were professional organisations constituted by virtue of the right of association established by the Constitution and the above mentioned 1952 Act; and that they operated on the basis of the statute of the General Confederation of Trade Unions, of the unions set up by branch of activity and of the trade union organisations in production units. It was clear from this that none of the existing provisions of Romanian law obliged plant unions or unions set up by branch of activities to affiliate to a higher-level trade union organisation or to any other kind of trade union organisation.

Regarding the link between the Communist Party and Romanian trade unions, the subject of a comment by the Committee of Experts, under the Constitution the guiding role of the Party consisted in determining the aims and general development guidelines of Romanian society. Consequently, the links between the Party and the trade unions constituted a substantial contribution to the growing importance and role of trade unions in the economic and social life of the country. This role of the trade unions was amply reflected in a series of laws, as for example Act No. 5 which, together with others, guaranteed an appropriate framework, created above all in recent years for the broad and direct participation of trade unions as an integral part of the system of workers' self-management.

As it had done up to now, the Romanian Government would continue to keep the ILO informed of any new laws or measures adopted in areas of concern to the ILO, including this matter.

The Worker member of the United States said that the system of trade union monopoly created by law (as was the case in Section 164 of the Romanian Labour Code) had always been considered by the Committee of Experts and the present Committee as contrary to the Convention, and each time such a situation had occurred they had insisted that it should be remedied.

The Workers' members thanked the Government representative for the information provided and urged the Committee of Experts to examine the fundamental law on trade unions of Romania. The Government representative had stated that the legislation had guaranteed the right to affiliate to a trade union and not to affiliate. The right not to affiliate was an important freedom, since it would be a very grave situation if, for example, one had to belong to a trade union in order to obtain work. This was a real freedom to the extent that not belonging to a trade union did not imply any prejudice for workers' interests. The question of freedom of affiliation was related to the question of the links between the Party and the trade union. This was something more problematic and difficult to comprehend. There existed a possibility of participating in the drafting of laws and collective agreements, of collaborating in economic and social life, but on the condition that one belonged to the single existing trade union organisation. On this point there was a problem in Romania that had been recognised by the Committee of Experts (which referred to its General Survey in its organisation), by the present Committee and by the Committee on Freedom of Association. The Party determined the guidelines to be followed, and the trade union organisation had to fall in line with these. There was thus a problem of autonomy and of genuine trade union freedom. Even when there was a single Party, there should be a possibility of having various trade union organisations at the level of the enterprise, of branches of activity, at the sectoral level, and within the various professions. The Committee on Freedom of Association had had the opportunity to conclude that the facts and data presented to it had amply demonstrated the practical impossibility of establishing alternative trade union organisations if this were to be the desire of the workers. Consequently, the question of trade union monopoly should continue to be a matter for dialogue and revision.

Moreover, with reference to the third point of the observations of the Committee of Experts, the Workers' members pointed out that in any system (socialist, capitalist, etc.) there had always been in enterprises, whether or not they were State enterprises, divergent interests and negotiations and therefore conflicts. They should continue to examine all the matters raised by the Committee of Experts, and try to see how modifications and progress could be obtained.

The Employers' members stated that the principal problem to be discussed was the matter of trade union monopoly, through a single trade union system which placed in question or nullified the right of free affiliation and trade union freedom. Certainly, the provision that workers could not be obliged to belong, not to belong or to cease belong to a trade union was in line with the requirements of the Convention. This was a matter of so-called negative trade union freedom, but another aspect which should not be forgotten was the freedom to establish a trade union organisation or to affiliate to a trade union organisation in the event that one did not like the existing trade unions. The Convention required respect for both aspects of trade union freedom as inseparable aspects of trade union freedom as a whole. Legislation which enshrined a single trade union system, thus impeding the existence of other types of trade union organisation, did not respect the Convention either in letter or in spirit. This was also the opinion of the Committee of Experts which had urged the Government to adopt measures to amend its legislation and practice and bring them into conformity with Article 2 of Convention No. 87. The Employers' members associated themselves with the above-mentioned requests by the Committee of Experts, and they would continue to do so far as long as no change was registered.

With regard to the institutional links between the trade unions and the Party, the Government representative had confirmed the facts and referred to the reasons for such institutional links. The Employers' members agreed with the view of the Committee of Experts that such institutional links constituted a limitation that was incompatible with the provisions of the Convention.

Regarding the comments of the Committee of Experts on labour disputes, concern must be expressed since this was a matter in which the essential requirements of the Convention were not complied with. They were in agreement with the comments of the Committee of Experts.

The Government representative stressed that he had emphasised legislative matters and had avoided discussion of problems that had already been discussed over a long period in the present Committee. Finally, he recalled that what the Committee of Experts had referred to as trade union monopoly had existed in the history of the Romanian trade union movement even before the Revolution.

The Committee took note of the discussion that had taken place and in particular the information provided by the Government representative. The Committee noted, however, that important divergencies continued to exist between the legislation and the Convention regarding all the questions raised by the Committee of Experts in its comments. The Committee asked the Government to give close consideration to the comments made by the Committee of Experts on these matters in any future review of the legislation. The Committee expressed its hopes that the Government would continue to report on developments in the situation, and that progress could soon be realised towards bringing the legislation into conformity with the Convention.

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In its previous comments, the Committee had noted that pursuant to an ILO mission, the social partners that are representative at the national level in Romania, as well as representatives of the Romanian Government, signed a memorandum in which they agreed to improve the legal framework on labour and social dialogue. In this regard, the Committee notes that the Government indicates that: (i) the elaboration of Act No. 168/1999 on the settlement of labour conflicts is part of the 2010 legislative schedule; (ii) Act No. 130/1996 on collective agreements and Act No. 54/2003 on trade unions will be debated within the social dialogue commissions from the Ministry of Labour, Family and Social Protection at the latest in December 2010; and (iii) the modification of Act No. 188/199 on the status of civil servants (with its amendments in Law No. 864/2006) was modified by Act No. 140/210 adopted by Parliament on 8 July 2010 but is currently under review.

In this respect, the Committee hopes that in the context of the revision of the abovementioned legislation, due account will be taken of its previous comments which read as follow:

–      the need to amend section 13(2) of the Labour Code so that minors have the right to join unions without parental authorization as soon as they are authorized to work, i.e. in certain cases from the age of 15;

–      the need to bring section 4 of Act No. 54/2003 on trade unions into line with section of Act No. 188/1999 respecting the conditions of service of public officials (which guarantees the right of association of public officials) so as to ensure that all public servants, with the possible exceptions found in Article 9 of the Convention, have the right to organize; also the need to indicate progress made in the framework of the reform of Act No. 54/2003, with regard to the recognition of the right of high-level officials to organize;

–      the need to amend section 2(4) of Act No. 54/2003 on trade unions so that workers exercising more than one occupational activity have the right to establish and join more than one organization of their own choosing;

–      the need to review the process of registration of trade unions and amendment to trade union by-laws so as to shorten the procedure substantially and remove the rule imposing the requirement of prior approval for amendments to internal rules; such modifications should be effective once they have been approved by the competent bodies of the trade union and upon their submission to the competent authority, as is the case for any modification to the composition of the executive bodies of a trade union (sections 14, 17(2), 19, 42–48 of Act No. 54/2003);

–      the need to review section 23 of Act No. 54/2003 on the circumstances and conditions under which the assets of a union may be subject to liquidation (currently, they may not be subject to such liquidation except in the proportion necessary for the payment of debts to the state budget) so as to ensure its conformity with the right of trade unions to organize their administration in full freedom;

–      the need to limit the powers afforded to state administrative bodies under section 26(2) of Act No. 54/2003 (control over the economic and financial activity and payment of debts to the state budget) to the circumstances and conditions which would be in line with the Convention, i.e. supervision is limited to the obligation of submitting periodic financial reports or in case of serious grounds for believing that the actions of an organization are contrary to its rules or the law (e.g. in order to investigate a complaint, or if there have been allegations of embezzlement);

–      the need to amend section 27 of Law No. 188/1999 as amended by Act No. 864/2006 so as to ensure that high-level civil servants are not automatically suspended when they choose to carry on their activities in the management of a trade union and that the matter will be subject to consultations with the union concerned;

–      the need to amend section 28 of Act No. 188/1999 (as amended by Act No. 864/2006) so as to ensure that the payment of wages to public servants on strike is not excluded from the scope of negotiations between the parties concerned.

The Committee trusts that the Government will be in a position to report progress soon on all the issues raised above and encourages the Government to avail itself of the technical assistance of the Office if it so wishes.

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The Committee notes the Government’s reply to the comments made by the International Trade Union Confederation’s (ITUC) in a communication dated 24 August 2010 and to the comments made by the General Confederation of Industry of Romania (UGIR) in a communication dated 19 August 2010. The Committee further notes the comments made by the National Trade Union Confederation “CNS Cartel Alfa” in a communication dated 6 April 2010, indicating that Law No. 144/2007 (article 41, paragraph (1), point 35) provides that presidents, vice-presidents, secretaries and treasurers of trade union federations and confederations are obliged to publicly declare their wealth and grant the power to state bodies to verify such statements. The Committee finally notes the comments made by the Block of National Trade Unions (BNS) in a communication dated 1 September 2010. The Committee requests the Government to provide its observations on all these comments.

Draft labour legislation. In its previous comments, the Committee had noted that pursuant to an ILO mission, the social partners that are representative at the national level in Romania, as well as representatives of the Romanian Government, signed a memorandum in which they agreed to improve the legal framework on labour and social dialogue. In this regard, the Committee notes that the Government indicates that: (i) the elaboration of Act No. 168/1999 on the settlement of labour conflicts is part of the 2010 legislative schedule; (ii) Act No. 130/1996 on collective agreements and Act No. 54/2003 on trade unions will be debated within the social dialogue commissions from the Ministry of Labour, Family and Social Protection at the latest in December 2010; and (iii) the modification of Act No. 188/199 on the status of civil servants (with its amendments in Law No. 864/2006) was modified by Act No. 140/210 adopted by Parliament on 8 July 2010 but is currently under review.

In this regard, the Committee hopes that in the context of the revision of the abovementioned legislation, due account will be taken of the issues raised in its previous comments which read as follow:

–      the need to amend section 62 of Act No. 168/1999 on the settlement of labour disputes (according to which the management of a production unit may submit a dispute to an arbitration commission in the event that a strike has lasted for 20 days without any agreement being reached between the parties and its continuation would affect humanitarian interests) so that compulsory arbitration may only be imposed in essential services in the strict sense of the term and for public servants exercising authority in the name of the State;

–      the need for detailed information on the application of sections 55–56 of Act No. 168/1999 on the settlement of labour disputes (according to which the management of a production unit may demand the suspension of a strike, for a maximum period of 30 days, if it endangers the life or health of individuals, and an irrevocable decision may be taken in this respect by the Court of Appeal) and sections 58–60 of the same law (under which the management can request the court to pronounce itself on the illegality of a strike and its ending by issuing an urgent ruling within three days), and to provide copies of decisions handed down under these provisions;

–      the need to amend section 66(1) of Act No. 168/1999 on the Settlement of Labour Disputes – which requires that in case of strike in units of public transport one third of the unit’s normal activity must be ensured – so as to allow for the minimum services in this sector to be negotiated by the social partners concerned rather than set by the legislation; in the absence of agreement between the parties, minimum services should be determined by an independent body.

The Committee trusts that the Government will be in a position to report progress in the near future on all the issues raised above in the framework of the law reform currently under way, and encourages the Government to continue to avail itself of the technical assistance of the Office if it so wishes.

The Committee is raising other points in a request addressed directly to the Government.

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The Committee notes with interest from the Government’s report that a tripartite working group has been set up in order to examine the amendment of Act No. 130/1996 on collective agreements, Act No. 168/1999 on the settlement of labour disputes and Act No. 54/2003 on trade unions. In this framework, all the issues previously raised by the Committee will be examined with a view to their resolution. At present, the working group focuses on a draft bill to amend Act No. 130/1996 on trade unions.

The Committee recalls that the issues previously raised include:

–      the need to amend section 13(2) of the Labour Code so that minors have the right to join unions without parental authorization as soon as they are authorized to work, i.e. in certain cases from the age of 15;

–      the need to bring section 4 of Act No. 54/2003 on trade unions in line with section of Act No. 188/1999 respecting the conditions of service of public officials (which guarantees the right of association of public officials) so as to ensure that all public servants, with the possible exceptions found in Article 9 of the Convention, have the right to organize; also the need to indicate progress made in the framework of the reform of Act No. 54/2003, with regard to the recognition of the right of high-level officials to organize;

–      the need to amend section 2(4) of Act No. 54/2003 on trade unions so that workers exercising more than one occupational activity have the right to establish and join more than one organization of their own choosing;

–      the need to review the process of registration of trade unions and amendment to trade union by-laws so as to shorten the procedure substantially and remove the rule imposing the requirement of prior approval for amendments to internal rules; such modifications should be effective once they have been approved by the competent bodies of the trade union and upon their submission to the competent authority, as is the case for any modification to the composition of the executive bodies of a trade union (sections 14, 17(2), 19, 42–48);

–      the need to review section 23 of Act No. 54/2003 on the circumstances and conditions under which the assets of a union may be subject to liquidation (currently, they may not be subject to such liquidation except in the proportion necessary for the payment of debts to the state budget) so as to ensure its conformity with the right of trade unions to organize their administration in full freedom;

–      the need to limit the powers afforded to state administrative bodies under section 26(2) (control over the economic and financial activity and payment of debts to the state budget) to the circumstances and conditions which would be in line with the Convention, i.e. supervision is limited to the obligation of submitting periodic financial reports or in case of serious grounds for believing that the actions of an organization are contrary to its rules or the law (e.g. in order to investigate a complaint, or if there have been allegations of embezzlement);

–      the need to amend section 27 of Law No. 188/1999 as amended by Act No. 864/2006 so as to ensure that high-level civil servants are not automatically suspended when they choose to carry on their activities in the management of a trade union and that the matter will be subject to consultations with the union concerned.

The Committee requests the Government to indicate in its next report any measures taken or contemplated in the framework of the labour law reform to address all the issues raised above.

The Committee also notes that Act No. 864/2006 amended section 28 of Act No. 188/1999 so as to prohibit the payment of wages to public servants on strike. The Committee considers that this issue should not be excluded from the scope of negotiations between the parties concerned. It therefore requests the Government to indicate any measures taken or contemplated to lift the provision of section 28(2) of Act No. 188/1999 as amended by Act No. 864/2006.

The Committee trusts that the Government will be in a position to report progress soon on all the issues raised above and encourages the Government to avail itself of the technical assistance of the Office if it so wishes.

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The Committee takes note of the communication by the International Trade Union Confederation (ITUC), dated 29 August 2008, referring to the need for specialized labour courts to improve the enforcement of labour legislation and the Government’s reply.

The Committee also takes note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2509 (344th Report, paragraphs 1216–1248).

The Committee takes note of the report of the technical assistance mission to Romania which took place in May 2008 in the context of the follow-up to the conclusions reached by the Conference Committee on the Application of Standards in 2007.

The Committee notes with interest from the Government’s report that pursuant to the ILO mission, the social partners that are representative at the national level in Romania, as well as representatives of the Government, signed a memorandum in which they agreed to improve the legal framework on labour and social dialogue and to request specialized ILO technical assistance on the legislative texts concerning: the right to freedom of association for trade unions and employers’ organizations (Act No. 54/2003 which according to the Government, is currently under discussion before Parliament); collective agreements (Act No. 130/1996); and settlement of industrial disputes (Act No. 168/1999). These issues have been included in the 2008-09 Decent Work Agenda concerning Romania as a result of extensive consultations carried out between the Ministry of Labour, Family and Equal Opportunities and the representative social partners, as well as the ILO, on 8 and 17 July 2008. A tripartite working group has been set up in order to examine amendments to the abovementioned Acts. In this framework, all the issues previously raised by the Committee will be examined with a view to their resolution. During the International Labour Conference of 2008, a timetable has been adopted for the work of this working group. At present, the working group focuses on a draft bill to amend Act No. 130/1996 on trade unions.

The Committee recalls that the issues raised in its previous comments are the following:

–      the need to amend section 62 of Act No. 168/1999 on the settlement of labour disputes (according to which the management of a production unit may submit a dispute to an arbitration commission in the event that a strike has lasted for 20 days without any agreement being reached between the parties and its continuation would affect humanitarian interests) so that compulsory arbitration may only be imposed in essential services in the strict sense of the term and for public servants exercising authority in the name of the State;

–      the need for detailed information on the application of sections 55 and 56 of Act No. 168/1999 on the settlement of labour disputes (according to which the management of a production unit may demand the suspension of a strike, for a maximum period of 30 days, if it endangers the life or health of individuals, and an irrevocable decision may be taken in this respect by the Court of Appeal) and 58–60 of the same law (under which, the management can request the Court to pronounce itself on the illegality of a strike and its ending by issuing an urgent ruling within three days), and to provide copies of decisions handed down under these provisions;

–      the need to continue to provide information on the application in practice of section 12(e) of Act No. 168/1999 on the settlement of labour disputes (according to which a conflict of interest can be declared in case the parties fail to reach agreement in the framework of the compulsory annual negotiations concerning wages, working hours, the work programme and work conditions), in the light of previous comments made by workers’ organizations on the distinction between conflicts of interests and conflicts of rights which is reportedly applied in practice in a selective manner and on a case by case basis, leading to uncertainty on whether trade unions will be able to exercise the right to strike in each case.

The Committee requests the Government to indicate in its next report the measures taken or contemplated to address the above issues and to provide the information requested by the Committee.

The Committee notes that in Case No. 2509 the Committee on Freedom of Association requested the Government to amend section 66(1) of Act No. 168/1999 on the Settlement of Labour Disputes – which requires that in case of strike in units of public transport one-third of the unit’s normal activity must be ensured – so as to allow for the minimum services in this sector to be negotiated by the social partners concerned rather than set by the legislation; in the absence of agreement between the parties, minimum services should be determined by an independent body. The Committee requests the Government to indicate measures taken or contemplated in this regard.

The Committee trusts that the Government will be in a position to report progress soon on all the issues raised above in the framework of the law reform currently under way, and encourages the Government to continue to avail itself of the technical assistance of the Office if it so wishes.

The Committee is also raising other matters in a request addressed directly to the Government.

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The Committee notes the Government’s report and its reply to the comments made by the National Confederation of Trade Unions (CARTEL ALFA) of 15 November 2006 concerning the application of the Convention. The Committee also notes the debate which took place within the Conference Committee in June 2007 and particularly the fact that the Government accepted a technical assistance mission with regard to bringing its law and practice into conformity with the Convention.

The Committee notes the Government’s indication that on 19 July 2007, Parliament adopted Act No. 261/9 concerning the settlement of labour disputes, amending and supplementing Act No. 168/1999. The Government points out that a new clause (e) has been introduced into section 12, adding the words: “in case of divergence from the compulsory annual negotiations concerning wages, working hours, the programme of work and conditions of work”. Nevertheless, the Committee considers that this amendment is not sufficient to settle all the issues raised in its previous observation (with regard to the settlement of labour disputes – sections 55 to 62 – particularly section 62 concerning submission of a dispute to the arbitration commission when the strike lasts over 20 days) and direct request. In this regard, the Committee hopes that the technical assistance mission accepted by the Government will take place in the near future.

Moreover, the Committee requests the Government to communicate its observations, in the context of the regular reporting cycle, at the next session in November–December 2008, on issues connected with the legislation and the practical application of the Convention which are mentioned in its previous observation (see 2006 observation, 77th Session).

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The Committee notes the Government’s report and observes that it does not reply to most of the matters raised in its previous comments.

Article 2 of the Convention. 1. In its previous comments, the Committee noted that, under section 3 of Act No. 54/2003 on trade unions, employees reaching the age of 16 have the right to join trade unions without parental authorization. It also noted that section 13(2) of the Labour Code allows persons of 15 years of age to conclude a contract of employment for certain types of work subject to the agreement of their parents or legal representatives. Recalling that minors who are legally entitled to work, whether as workers or apprentices, should have the right to join trade unions without parental authorization, the Committee requests the Government to clarify whether workers of 15 years of age have the right to join trade unions without parental authorization. If this is not the case, the Committee requests the Government to take the necessary measures to ensure that they are covered by section 3 of Act No. 54/2003 and that they have the right to join unions without parental authorization, once they are authorized to work.

2. In its previous comment, the Committee noted that section 4 of Act No. 54/2003 on trade unions denies the right to establish trade unions to, among other categories: persons holding managerial and public positions, magistrates, staff members of the Ministry of Justice, the Romanian intelligence service, protection and guard services, the foreign intelligence service, special telecommunications services, “as well as from the units in their subordination”. The Committee emphasized that the only exception authorized by the Convention concerns members of the police and the armed forces under Article 9. In particular, civilians working in military installations or in the service of the army should have the right to establish unions. With regard to executive and managerial staff, and staff “in positions of trust”, the Committee recalled that these categories of workers should have the right to establish their own unions and that they should not be defined too broadly and should, in particular, be limited to persons exercising managerial or policy-making responsibilities. The Committee notes the Government’s indications in its report that: (1) with regard to military personnel in the Ministry of Justice, section 4 of Act No. 54/2003 is no longer valid, as such personnel have been demilitarized and are now governed by the general rules respecting the establishment of trade unions, the right to strike, etc. (these consist of public officials governed by the special conditions of service of the national administration of prisons and public officials governed by the special conditions of service of the Ministry of Justice): the status of these officials is governed by Act No. 293/2004; (2) with regard to members of the judiciary, there are no provisions on the establishment of trade unions and, in principle, members of the judiciary cannot establish trade unions, conclude individual or collective agreements, negotiate, participate in strikes or exercise other collective rights recognized for other employees. There are however special instruments to protect and promote the professional and social interests of members of the judiciary. Magistrates and prosecutors are free to organize and may join local, national or international professional organizations with a view to protecting their professional interests (Act No. 303/2004); (3) with regard to specialized auxiliary workers in the law courts and prosecutors’ offices, section 61 of Act 567/2004 on the conditions of service of specialized auxiliary personnel in law courts and prosecutors’ offices provides that they are free to establish and join trade union organizations and to engage in strike action, but have to comply with the principles of the continuity and expeditious nature of judicial activities; and (4) section 27 of Act No. 188/1999 respecting the conditions of service of public officials, as amended by Act No. 251/2006, guarantees the right of association of public officials. Recalling that Article 2 of the Convention provides that workers and employers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing without previous authorization, the Committee requests the Government to adopt measures to guarantee explicitly to public officials other than the high-level officials referred to in section 4 of Act No. 54/2003, the right to establish trade unions. The Committee further recalls that, with regard to high-level officials, it considers that it is not necessarily incompatible with freedom of association to deny them the right to belong to the same trade unions as other workers, on condition that two requirements are met: that they have the right to form their own associations to defend their interests and that the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities. The Committee requests the Government to adopt measures so that these officials can establish and join organizations of their own choosing to defend their occupational interests. The Committee requests the Government to keep it informed of any amendment to Act No. 54/2003 which would bring its section 4 into conformity with section 27 of Act No. 188/1999 and, in case such amendment has not yet been made, to take the necessary measures to ensure that Act No. 54/2003 is in conformity with Act No. 188/1999.

3. In its previous comment, the Committee noted that, under section 2(4) of Act No. 54/2003, a person may only belong to one trade union organization at a time. Recalling that it is desirable for workers exercising more than one occupational activity in different occupations or sectors of activity to have the possibility of joining the corresponding trade unions, the Committee once again requests the Government to take the necessary measures to amend section 2(4) of the Act so that workers exercising more than one occupational activity have the right to establish and join organizations of their own choosing.

4. The Committee noted in its previous comment that sections 14 to 19 of Act No. 54/2003 govern the procedure applicable to the registration of trade unions and their acquisition of legal personality. It noted that the application for registration must be submitted by an authorized representative of the founding members of the trade union to the court of first instance. The court examines whether all the required information has been submitted and whether the constitution and rules of the trade union are in conformity with “the legal provisions in force”. The Committee noted that such an examination is undertaken within specific time limits and may take up to 27 days. It results in a judgement under which the registration is either accepted or rejected. The judgement can be appealed against, particularly by the prosecutor, and the whole procedure of appeal can take up to 65 days. Trade unions acquire legal personality upon their registration, as confirmed in the final judgement accepting the application (registration must occur within seven days of the date on which the judgement of the court of first instance becomes final). The Committee noted that this procedure applies to any modification of the constitution and rules of the trade union. A similar procedure applies to the registration of higher level organizations under sections 42 to 48 of Act No. 54/2003.

The Committee emphasized that, when legislation makes the acquisition of legal personality a prerequisite for the existence and functioning of organizations, the conditions for acquiring legal personality must not be such that they amount to a de facto requirement for previous authorization to establish an organization, which would be tantamount to calling into question the application of Article 2 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 76). The Committee therefore once again requests the Government to specify the scope of the legal basis on which the court of first instance undertakes the examination of the documents submitted by the founding members and, in particular, whether the reference to the “legal provisions in force” includes only those laid down in Act No. 54/2003, or whether the term refers to other laws or regulations and, if so, to specify in its next report the provisions in question.

With regard to the procedure itself, the Committee notes that it can take nearly 100 days if an appeal is lodged and could thus constitute an impediment to the free establishment of workers’ organizations. The Committee emphasized previously that the considerations outlined above are also relevant to the registration procedure applicable to higher level organizations under sections 42 to 48. Trade unions should be in a position to acquire legal personality following a simple registration procedure, without any undue delay, once formalities such as the submission of the required documents and a rapid examination by the competent authority have been observed. The Committee therefore once again requests the Government to provide detailed information on the manner in which the registration procedure functions in practice, including the amount of time necessary for a final decision. As it would appear that a decision to register a union is not legally valid until the final judgement has been rendered in the case of an appeal (section 17(2)), and that this process can be excessively long, the Committee further requests the Government to amend these provisions so as to ensure that the initial court decision to register a union is legally valid pending the final judgement.

Article 3. 1. The Committee noted in its previous comments that the procedure governing the registration of unions is also applicable to modifications of the rules of trade unions (as well as the rules of higher level organizations), which must therefore be approved by the courts. The Committee refers to its comments made above on the length of the procedure which, in the case of amendments to internal rules, could be tantamount to interference by the public authorities in the internal affairs of trade unions, thereby creating a serious obstacle to their freedom of organization and functioning. The Committee once again requests the Government to take the necessary measures to shorten the procedure substantially, particularly in relation to appeals, and to remove the rule imposing the requirement of prior approval for amendments to internal rules, so that such modifications are effective once they have been approved by the competent bodies of the trade union and upon their submission to the competent authority, as is the case for any modification to the composition of the executive bodies of a trade union.

2. The Committee noted previously that, under section 8 of Act No. 54/2003, candidates for trade union office must enjoy “full capacity to exercise their rights” and not be “under an accessory conviction prohibiting the right to occupy a position or exercise a profession similar to that carried on by the person convicted for committing the offence”. The Committee once again requests the Government to confirm that this condition related to the criminal record means that individuals are barred from election as trade union officers only during any period for which they have been lawfully deprived of the exercise of their civic rights due to a criminal conviction.

3. The Committee noted previously that, under section 23 of Act No. 54/2003, the fixed and moveable assets of a trade union acquired for its meetings, its library or for the training of its members “may not be subject to liquidation, except in the proportion necessary for the payment of debts to the state budget”. The Committee emphasized that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes, in particular, autonomy and financial independence and the protection of the assets and property of these organizations (see General Survey, op. cit., paragraph 124). The Committee therefore once again requests the Government to clarify the circumstances and the conditions under which the assets of a union may be subject to liquidation so that it can examine the compatibility of section 23 of Act No. 54/2003 with Article 3 of the Convention.

4. The Committee noted previously that, under section 26(1) of Act No. 54/2003, the control of the trade union’s “own financial activity” shall be carried out by the board of auditors, operating in accordance with the rules of the union. Under the terms of section 26(2), the control “over the economic and financial activity carried out by a trade union, as well as over the determination and payment of debts to the state budget, shall be ensured by the competent bodes of the national administration, in accordance with the law”. The Committee recalls that it considers that there is no infringement of the right of organizations to organize their administration where, for example, the supervision is limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law; similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. In all cases, such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125). The Committee once again requests the Government to indicate the measures adopted or envisaged to limit the powers afforded to state administrative bodies under section 26(2) to the circumstances and conditions outlined above and to indicate whether such supervision is subject to review by the judicial authorities.

5. The Committee notes section 27(3) of Law No. 188/1999, as amended by Law No. 251/2006, which provides that, in cases where high or leading civil servants are elected to the management of trade unions, they are obliged to choose one of the two positions. If the civil servant chooses to carry on his/her activity in the management of the trade union, his/her relationship as civil servant shall be suspended for a period equal to the mandate he/she has in the management of the trade union. The Committee considers that there are cases where it is not necessary for the civil servant to be suspended and that, therefore, it would be more appropriate to leave such matters for consultation between the competent minimum organizing entity and the union concerned. The Committee requests the Government to amend section 27 of Law No. 188/1999 so as to ensure that civil servants are not automatically suspended when they choose to carry on their activities in the management of a trade union and that the matter will be subject to consultations with the union concerned.

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The Committee notes the Government’s report and its reply to the comments made by the National Confederation of Trade Unions (CARTEL ALFA), the National Trade Union Bloc (BSN) and the Democratic Confederation of Trade Unions of Romania (CSDR), received on 7 June 2006, and by the World Confederation of Labour (WCL), dated 3 November 2005. The Committee also notes the comments made by the International Confederation of Free Trade Unions (ICFTU), dated 10 August 2006, concerning matters already raised by the Committee, and the comments provided by the WCL on 6 September 2006 on the application of the Convention. The Committee requests the Government to reply to the comments of the ICFTU and the WCL.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that its comments of the past several years, as well as those of the WCL of 31 August 2005, have referred to sections 55, 56 and 62 of Act No. 168/1999 on the settlement of labour disputes. Under section 55 of the Act, the management of a production unit may demand the suspension of a strike, for a maximum period of 30 days, if it endangers the life or health of individuals, and an irrevocable decision may be taken in this respect by the Court of Appeal under the terms of section 56. With regard to section 62, the management of a production unit may submit a dispute to an arbitration commission in the event that a strike has lasted for 20 days without any agreement being reached between the parties and its continuation would affect humanitarian interests. With regard to the suspension of a strike under sections 55 and 56 and the ending of strike under sections 58‑60, the Committee requested the Government in its 2004 observation to provide detailed information on the application of these provisions in practice and, in particular, to indicate whether they are frequently invoked by the management of a production unit, and to provide copies of decisions handed down under these provisions. With regard to section 62, the Committee requested the Government to repeal the provision so as to fully guarantee the right of workers’ organizations to engage in industrial action to defend and further the occupational interests of their members.

With regard to the application of sections 58‑60, the Committee notes the Government’s indications that the court has established a time limit for dealing with an application to bring a strike to an end, which may be no longer than three days after it was lodged, and that it calls the parties to a hearing. The court examines the application to bring the strike to an end and issues an urgent ruling in which, after examining the case, it either sets aside the application by the enterprise or upholds the application and orders the strike to end on the grounds that it is unlawful. The Government indicates that Act No. 168/1999 provides in section 54(1) that participation in the strike or the organization of a strike, in compliance with the provisions of the law, is not a violation of the work duties of employed persons and cannot have negative consequences for those on strike or for the organizers. The Committee once again requests the Government to provide copies of the decisions handed down under these provisions with its next report.

In relation to section 62, the Government describes the content of the section and indicates that two conditions have to be fulfilled simultaneously for the management of an enterprise to be able to request arbitration, and that one of these conditions relates to aspects of a humanitarian nature. According the Government, measures adopted to protect humanitarian interests cannot be considered as a restriction on the right to strike. The Committee recalls that compulsory arbitration to end a collective labour dispute is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, for example in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population, and it requests the Government to adopt measures to ensure that the legislation is in compliance with the Convention in this respect.

Finally, the Committee notes the comments made by CARTEL ALFA, the BSN and the CSDR to the effect that, as a result of internal rules adopted by the Ministry of Labour, Solidarity and the Family, regional labour offices no longer register applications for conciliation submitted by trade unions as a consequence of a refusal by the employer to accept the workers’ claims in relation to the mandatory annual negotiations on wages, hours of work, the work programme and working conditions. CARTEL ALFA, the BSN and the CSDR recall that the conciliation phase is compulsory before calling a strike under the terms of Act No. 168/1999. They allege that the reasons given by labour officials relate in most cases to internal decisions of the Ministry of Labour or an incorrect interpretation of the Act, which considers this type of dispute as consisting of conflicts of rights (rather than conflicts of interests), which lie within the competence of the courts. The Committee notes the Government’s indications that: (1) the Ministry of Labour has not issued any internal written or verbal instruction to labour directorates not to register conflicts of interests; (2) the Ministry of Labour, through its territorial branches, has registered disputes which, in accordance with section 12, constitute conflicts of interests and has designated delegates for the conciliation of these labour disputes; (3) the Ministry of Labour has also registered as conflicts of interest the situations indicated in section 12(d) as exceptions. The Committee further notes the Government’s indication that the trade union organizations have not lodged a complaint with the relevant judicial bodies. The Committee notes this information.

The Committee notes Act No. 371/2005 of 13 December 2005 approving Ordinance No. 65/2005 issuing amendments and supplementing Act No. 53/2003 issuing the Labour Code and Act No. 251/2006 of 22 June 2006 issuing amendments and supplementing Act No. 188/1999 on the conditions of service of public officials. The Committee will examine these texts when the translation has been received.

The Committee is also raising other matters relating to the new Act on trade unions in a request addressed directly to the Government.

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With reference to its observation, the Committee requests the Government to submit information on the following points.

Article 2 of the Convention. 1. The Committee notes that under section 3 of Act No. 54/2003, employees reaching the age of 16 have the right to join trade unions without parental authorization. The Committee notes also that section 13(2) of the Labour Code, allows persons of 15 years old to conclude a contract of employment for certain works with the agreement of their parents or legal representatives. Recalling that minors who are legally entitled to work, whether as workers or as apprentices, should have the right to join trade unions without parental authorization, the Committee requests the Government to clarify whether workers of 15 years old have the right to join trade unions without parental authorization. If this is not the case, the Committee requests the Government to take the necessary measures so as to ensure that they are covered by section 3 of Act No. 54/2003 and that they have the right to join unions without parental authorization, once authorization to work has been provided.

2. The Committee notes that section 4 of Act No. 54/2003 denies the right to establish trade unions to, among others: persons holding managerial and public dignity positions, magistrates, the Ministry of Justice, Romanian intelligence service, protection and guard services, foreign intelligence service, special telecommunication services, "as well as from the units in their subordination". The Committee underlines that the only exception authorized by the Convention are the members of the police and armed forces under Article 9. In particular, civilians working in military installations or in the service of the army should have the right to establish unions. As regards executive and managerial staff, and staff "in positions of trust", the Committee recalls that these categories of workers should have the right to establish their own unions and that they should not be defined too broadly and should in particular be limited to persons exercising managerial or policy-making responsibilities. The Committee therefore requests the Government to indicate the measures taken to ensure that magistrates, persons holding managerial and public dignity positions, as well as the staff of the Ministry of Justice, Romanian intelligence service, protection and guard services, foreign intelligence service and special telecommunication services may establish and join organizations for the furtherance and defence of their occupational interests.

3. The Committee notes that under section 2(4) of Act No. 54/2003, a person may only belong to one trade union organization at the same time. Recalling that it would be desirable for workers exercising more than one occupational activity, in different occupations or sectors of activity, to have the possibility of joining the corresponding trade unions, the Committee requests the Government to take the necessary measures to amend section 2(4) so that workers exercising more than one occupational activity have the right to establish and join organizations of their own choosing.

4. The Committee notes that sections 14-19 of Act No. 54/2003, govern the procedure applicable to the registration of trade unions and thus the acquisition of legal personality. The Committee notes that the application for registration must be submitted by an authorized representative of the founding members of the trade union to the court of first instance. The court examines whether all the required information has been submitted and whether the constitution and rules of the trade union are in conformity with "the legal provisions in force". The Committee notes that this examination is undertaken within specific time limits and may take up to 27 days. It results in a judgement under which the registration is either accepted or rejected. The Committee notes that the judgement can be appealed against, in particular by the prosecutor, and that the whole procedure of appeal can take up to 65 days. The Committee notes that trade unions acquire legal personality upon the registration of the final judgement accepting the application (this registration must occur within seven days as of the date at which the judgement of the court of the first instance becomes final). The Committee notes that the procedure described above applies to any modification of the constitution and rules of the union. A similar procedure applies to the registration of higher-level organizations under sections 42-48 of Act No. 54/2003.

The Committee underlines that, when legislation makes the acquisition of legal personality a prerequisite for the existence and functioning of organizations, the conditions of acquiring legal personality must not be such that they amount to a de facto requirement for previous authorization to establish an organization, which would be tantamount to calling into question the application of Article 2 of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 76). The Committee therefore requests the Government to specify the scope of the legal basis on which the court of first instance undertakes the examination of the documents submitted by the founding members, and in particular, whether the reference to the "legal provisions in force" includes only those laid down in Act No. 54/2003 or whether the term refers to other laws or regulations and, if so, to specify in its next report the provisions in question. With respect to the procedure itself, the Committee notes that it can take nearly 100 days if an appeal is lodged and could thus constitute an impediment to the free establishment of workers’ organizations. The Committee underlines that the considerations made above are also relevant to the registration procedure applicable to higher-level organizations under sections 42-48. Trade unions should be in a position to acquire legal personality following a simple registration procedure, without any undue delay, once formalities such as the submission of documents and a rapid examination by the competent authority have been observed. The Committee therefore requests the Government to provide detailed information on the manner in which the registration procedure functions in practice, including the amount of time necessary for a final decision. As it would appear that a decision to register a union is not legally valid until the final judgement has been rendered in the case of an appeal (section 17(2)), and that this process can be excessively long, the Committee further requests the Government to amend these provisions so as to ensure that the initial court decision to register a union is legally valid pending the final judgement.

Article 3. 1. The Committee notes that the procedure applicable to unions’ registration is also applicable to modifications of trade unions’ rules (as well as higher-level organizations’ rules), which must thus be approved by the courts. The Committee refers to its comments made above on the length of the procedure which, as far as amendments to internal rules are concerned, could give rise to public authorities’ interference in trade unions’ internal matters and thus create a serious obstacle to their free organization and functioning. The Committee requests the Government to take the necessary measures so as to shorten substantially the procedure, particularly as concerns the possibility of appeal, and to remove the requirement of prior approval for the entry into force of amendments to internal rules and ensure that such modifications are effective once they have been approved by the union’s competent bodies and upon their submission to the competent authority, as is the case for the modification in the composition of union executive bodies.

2. The Committee notes with satisfaction that the requirement of Romanian nationality in order to be eligible for trade union office has now been repealed. The Committee further notes that under section 8 of Act No. 54/2003, candidates should have "full capacity of exercise" and should not "serve the complementary sentence of prohibiting the right to fill a position or exercise a profession similar to the one used by the person convicted for committing the offence". The Committee requests the Government to confirm that the condition linked to the criminal record means that individuals cannot be elected as trade union officers only during any period that they have been lawfully deprived of the usual electoral rights arising from citizenship due to a criminal conviction.

3. The Committee notes that under section 23 of Act No. 54/2003, the fixed and movable assets of a trade union acquired for its meetings, its library or for its members’ training and improvement courses "may not be pursued, except for those necessary for the payment of the debts to the state budget". The Committee underlines that the right of workers’ and employers’ organizations to organize their administration without interference by public authorities includes, in particular, autonomy and financial independence and the protection of assets and property of these organizations (see General Survey, op. cit., paragraph 124). The Committee therefore requests the Government to clarify the circumstances and the conditions under which unions’ assets can be pursued so that it can examine the compatibility of section 23 of Act No. 54/2003 with Article 3.

4. The Committee notes that under section 26(1) of Act No. 54/2003, the control of the trade union’s "own financial activity" shall be carried out by the commission of auditors functioning in accordance with the union’s rules. Under section 26(2), the control "over the economic and financial activity carried out by a trade union, as well as over the establishing and payment of the obligation to the state budget shall be carried out by the competent state administration bodies, according to the law". The Committee recalls that there is no infringement of unions’ right to organize their administration if, for example, the supervision is limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law; similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125). The Committee requests the Government to indicate the measures taken or envisaged to limit the powers granted to state administration bodies under section 26(2), to the abovementioned circumstances and conditions and to indicate whether such supervision is subject to the control of judicial authorities.

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The Committee notes the information contained in the Government’s report. It notes in particular the adoption of Act No. 429/2003 amending the Constitution, Act No. 53/2003 on the new Labour Code and the new Act No. 54/2003 on trade unions. The Committee notes that Act No. 188/1999 on civil servants has been amended by Act No. 251/2004 which the Committee will examine once it has received its translation. The Committee notes the Government’s comments on the observations submitted by the National Trade Union Bloc (BSN).

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that its previous comments related to sections 55 and 56, as well as to section 62 of Act No. 168/1999, on the settlement of labour disputes. The Committee recalls that under section 55, the management of a production unit may demand the suspension of a strike, for a maximum period of 30 days, if it endangers the life or health of individuals, and an irrevocable decision may be taken in this respect by the Court of Appeal under the terms of section 56. As regards section 62, the management of a production unit may submit a dispute to an arbitration commission in the event a strike has lasted for 20 days without any agreement being reached and its continuation would affect humanitarian interests. The Committee invited the Government to provide details and actual examples of the application of these provisions, including any court decisions handed down.

The Committee notes that the Government indicates that, under section 55, the decision of suspending a strike is taken by the competent court if the latter considers that the strike endangers the life or health of individuals. The Government states that the individuals concerned can be participants in the strike, members of the local community or any other beneficiaries of the service affected by the strike; their life or health could be endangered, for example, if the strike is taking place in a pharmaceutical company, in the thermal and energy sector, in transportations, communications, industry and medical services. With respect to section 62(1), the Committee notes that the Government merely reiterates the contents of the provision, underlining that a company may avail itself of the possibility provided for in section 62(1).

With respect to the comments submitted by BSN, the Committee notes that they relate to the right to strike as well. According to BSN, the social partners failed to reach an agreement on amendments to Act No. 168/1999. BSN submits that under the current legislation, many strikes are declared illegal and refers to the conditions imposed under the Act, on the exercise of the right to strike underlining that a small error of procedure can lead to a strike being declared illegal by a tribunal. BSN states that, in practice, tribunals are often requested to intervene in such situations. The Committee notes that, in its response to BSN, the Government describes the contents of section 58 of Act No. 168/1999, under which the management of a production unit can ask the competent tribunal to order the cessation of the strike, if the strike has been called without observing all the legal requirements or is taking place in an illegal manner. Under section 60, the tribunal’s decisions are final.

With respect to the suspension of a strike under sections 55 and 56 and its cessation under sections 58-60, the Committee considers that, while the terms of these provisions do not raise in themselves particular problems of compatibility with the Convention, it must be able to assess their practical impact on the exercise of the right to strike by workers’ organizations so as to ensure that their application does not make the exercise of the right to strike impossible or very difficult in practice. The Committee therefore asks the Government to supply in its next report detailed information on the practical application of these provisions and, in particular, whether they are frequently invoked by the management of a production unit, and to provide copies of decisions handed down under these provisions.

With respect to section 62, the Committee notes that, the arbitration committee which is called on to settle the dispute of interests, may, under sections 32 and 38, take irrevocable decisions, thus bringing a dispute to an end. The Committee would like to recall that restrictions on the right to strike by the imposition of compulsory arbitration can only be justified in respect of workers working in essential services and public servants engaged in the administration of the State. The circumstances set out in section 62(1) and under which the management of a production unit may unilaterally submit a dispute to the arbitration committee exceeds the restrictions to the right to strike that are compatible with the Convention. The Committee further notes that Act No. 168/1999 contains a number of safeguards to avoid damages which would be irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties. The Committee refers in this respect to the suspension of the strike under sections 55 and 56 mentioned above and to the minimum service that must be established in case of a strike in essential or public utility services, under section 66. The Committee therefore requests that the Government repeal section 62 so as to fully guarantee the right of workers’ organizations to engage in industrial action to defend and further the occupational interests of their members.

The Committee is raising a number of other points with respect to the new Act on trade unions in a request addressed directly to the Government.

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The Committee notes the comments made by the National Trade Union Bloc (BNS) in its communication dated 25 September 2003 concerning the application of the Convention and requests the Government to transmit any observations it might wish to make thereon with its report due in 2004 on the pending matters (see 2002 observation, 73rd Session).

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The Committee notes the information contained in the Government’s report. It notes in particular the new Employers Act (No. 356), which came into force in July 2001 and the new bill on trade unions which has been submitted to parliament for approval.

The Committee notes with interest that the new bill on trade unions contains provisions that take into account several of the concerns expressed by the Committee in its previous comments concerning the former legislation, particularly:

-  the requirement of Romanian nationality in order to be eligible for trade union office (there is no such requirement in the new bill);

-  the requirement of a clean criminal record in order to be eligible for trade union office (modified in the new bill: convictions for acts the nature of which does not call into question the integrity of the person concerned and involves no risks for the performance of trade union duties are no longer grounds for ineligibility);

-  the requirements that candidates to trade union office must belong to the trade union and employed in the production unit (no such requirements in the new bill);

-  the possibility for workers performing more than one job in different activities or sectors to join the corresponding unions (the new bill allows membership of more than one union).

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. In its previous comments, the Committee invited the Government to provide details and actual examples of the application of certain provisions of Act No. 168 on the settlement of labour disputes. The Committee notes that the Government’s report provides no reply to its previous comments, which read as follows:

-  Section 55 of Act No. 168 provides that the management of a production unit may demand the suspension of a strike, for a maximum period of 30 days, if it endangers the life or health of individuals, and that an irrevocable decision may be taken in this respect by the Court of Appeal under the terms of section 56. The Committee again requests the Government to specify the criteria relating to "the life or health of individuals", by providing, where possible, actual examples of court decisions handed down under this provision.

-  Section 62(1) of Act No. 168 provides that the management of a production unit may submit a dispute to an arbitration commission where a strike has lasted for 20 days without agreement and being reached and to continue it would affect humanitarian interests. Emphasizing that it should not be up to the management of the production units to evaluate whether the continuation of a strike affects humanitarian interests, the Committee requests the Government to clarify the concept "humanitarian interests" by providing, where possible, actual examples of the application of this provision.

The Committee again requests the Government in its next report to provide information and practical examples of the application of the legislation on the settlement of labour disputes. It also asks the Government to provide a copy of the new bill on trade unions as soon as it is adopted.

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The Committee took note of the information contained in the Government’s report.

The Committee notes that several provisions of the new Act on the settlement of labour disputes, which came into force in January 2000, mention "representative trade unions" in connection with, for example, rights disputes (sections 10, 11, 14, 17, 18, 20, 22, 33) and strikes (sections 42, 45, 46). The Committee requests the Government to provide details on this concept and to indicate the existing legal definitions, if any, and their consequences in practice on the rights and obligations of the various types of trade unions.

The Committee notes that, under section 45(3) of that same Act, sympathy strikes cannot last more than one day. Recalling in this respect that workers should be able freely to take such action provided the initial strike they are supporting is itself lawful, the Committee requests the Government to provide it in its next reports with information on the application of this provision in practice.

The Committee further notes that section 15(2)(a) of Act No. 54/1991 concerning trade unions provides that, in order to be registered (and obtain legal personality), a trade union must file the minutes of its constitution, signed by at least 15 founding members. The Committee requests the Government to indicate, with examples, what are the provisions which allow the establishment of trade union sections in production units with a low number of workers.

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The Committee notes the information contained in the Government’s report, particularly in relation to the new Act on the settlement of labour disputes, which came into force in January 2000 (Act No. 168), the observations made by the National Trade Union Bloc and the reports of the Committee on Freedom of Association on Cases Nos. 1891 and 2057 (320th Report of the Committee on Freedom of Association, March 2000).

The Committee notes with satisfaction that the new legislation introduces provisions which respond to several of the concerns expressed in its previous comments on the previous legislation, and particularly:

-  the compulsory arbitration procedure which could, in certain cases be set in motion at the sole initiative of the Minister of Labour (the procedure is modified by section 41(2) and the related provisions of the new Act, under which mediation and arbitration in disputes of interest are henceforth compulsory only where the parties so decide by consensus);

-  the power conferred upon the Supreme Court to suspend, under certain circumstances, the start or continuation of a strike for a period of 90 days (this provision is repealed by section 91 of Act No. 168);

-  the heavy penalties, financial responsibility and ineligibility for trade union office to which persons are liable who have called a strike without observing certain conditions, which are in themselves contrary to the Convention, but which were set out in the law (these provisions are repealed by section 91 of Act No. 168);

-  the excessive period of employment at the workplace as a prerequisite for eligibility to trade union office (no provision of this type in Act No. 168).

The Committee also notes with interest that the new Act clarifies the distinction between disputes of rights and disputes of interest, introduces new provisions on sympathy strikes (sections 43-45) and the maintenance of essential services in the event of a strike (section 66). However, it wishes to make the following comments on certain provisions of Acts Nos. 54 and 168.

Article 3 of the Convention. Right of workers’ organizations to elect their representatives in full freedom.  Section 9 of Act No. 54 provides that, to be elected to executive office in a trade union, a person must be a citizen of Romania, a member of the trade union, employed at the workplace and not have been convicted. The Committee emphasizes that these conditions of eligibility are not in conformity with the Convention:

-  with regard to the requirement of Romanian nationality, the Committee recalls that provisions on nationality which are too strict could deprive workers of the right to elect their representatives in full freedom and that the legislation should allow foreign workers to take up trade union office, at least after a reasonable period of residence in the host country (1994 General Survey on freedom of association and collective bargaining, paragraph 118);

-  with regard to the requirements of membership of the trade union and employment at the workplace, the Committee recalls that provisions requiring all candidates for trade union office to be from the same workplace, or those requiring them to be members of the trade union, are liable to infringe the organization’s right to elect representatives in full freedom when they are unable to provide enough qualified persons from among their own ranks (see General Survey, op. cit., paragraph 117);

-  with regard to previous convictions, the Committee recalls that conviction for an act the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the performance of trade union duties should not constitute grounds for disqualification from trade union office (see General Survey, op. cit., paragraph 120).

Article 2. Right of workers to join organizations of their own choosing.  Section 2 of Act No. 54 provides that the same person may only belong to a single trade union. In the Committee’s opinion, it would be desirable for workers exercising more than one occupational activity in different occupations or sectors to have the possibility of joining the corresponding trade unions.

Article 3 (right of workers’ organizations to organize their administration and activities and to formulate their programmes freely).  (i) Section 55 of Act No. 168 provides that the management of a production unit may demand the suspension of a strike, for a maximum period of 30 days, if it endangers the life or health of individuals, and that an irrevocable decision may be taken in this respect by the Court of Appeal under the terms of section 56. The Committee requests the Government to specify the criteria relating to "the life or health of individuals" by providing, where possible, practical examples of court decisions applying this provision. (ii) Section 62(1) of Act No. 168 provides that the management of a production unit may submit a dispute to an arbitration commission where a strike has lasted for 20 days without agreement and its continuation is such as to affect interests of a humanitarian nature. Emphasizing that it should not be up to the management of the production units to evaluate whether the continuation of a strike is such as to affect interests of a humanitarian nature, the Committee requests the Government to specify the concept "interests of a humanitarian nature" by providing, where possible, examples of the application of this provision in practice.

Furthermore, the Committee notes from the Government’s report that the new Bill respecting employers’ organizations (which are currently governed by Ordinance No. 26/2000) is under examination by the competent senatorial commission. The Committee trusts that progress will be achieved in the near future in this respect and requests the Government to provide the text of the Act once it has been adopted.

The Committee requests the Government to take the appropriate measures to bring its legislation into full conformity with the Convention, to keep it informed of the measures which have been taken or are envisaged in this respect and to provide information in future reports on the application of the legislation in practice.

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The Committee notes the information contained in the Government's reports and in the reports of the Committee on Freedom of Association concerning Cases Nos. 1788, 1891 and 1904 (see 297th and 306th Reports of the Committee on Freedom of Association, approved by the Governing Body at its March 1995 and March 1997 sessions respectively).

The Committee again recalls that its previous comments referred to the need to amend or repeal the following provisions of Act No. 15/1991 concerning the settlement of collective labour disputes and Act No. 54/1991 concerning trade unions, in order to bring the legislation into conformity with the Convention:

-- sections 38 and 43 of Act No. 15 establishing a compulsory arbitration procedure which may be set in motion at the sole initiative of the Minister of Labour when a strike has lasted for more than 20 days and its continuation "is likely to affect the interests of the general economy";

-- section 30 of Act No. 15 which provides that the Supreme Court of Justice may suspend the start or continuation of a strike for a period of 90 days if it deems that major interests of the economy may be affected;

-- section 47 of Act No. 15 which provides for heavy penalties (up to six months' imprisonment) if a strike is called in disregard of section 45(4) and others of the Act;

-- section 13 of Act No. 15 which prohibits persons who have declared a strike without respecting the terms laid down by the Act from being elected as trade union delegates;

-- sections 32(3) and 36(3) of Act No. 15 which establish the financial liability of strike organizers if the conditions for starting or pursuing the strike have not been met;

-- section 13(3) of Act No. 15 under which delegates of the workers can only be elected from among workers with three years' seniority in the unit, or if the unit has been in operation for less than three years, workers who have been in it since its foundation;

-- section 9 of Act No. 54 which provides that only Romanian citizens employed in the production unit may be elected to trade union office.

The Government indicates in its report that the Bill amending the Act on the settlement of collective labour disputes has been discussed with the social partners within the Committee for Social Dialogue set up by the Ministry of Labour and Social Protection and is due to be submitted to Parliament for adoption in the near future. It adds that the Bill amending the trade union Act is still under discussion.

The Government describes the changes introduced by the Bill, namely the binding arbitration provided for under sections 38 and 43 of Act No. 15 will be replaced by a conciliation, mediation and arbitration procedure which will be initiated at the request of the parties concerned; employers will be able to apply to the courts for a suspension of the strike of 30 days only (instead of 90 days) if the strike endangers the life or health of persons (section 30), rather than the national economy; and section 13(3), which stipulates the requirement of at least three years' service with an undertaking as a condition of eligibility for trade union office, and sections 32(3) and 36(3), which provide for financial liability for strike organizers who fail to comply with established procedures, have not been included in the Bill. The Government also indicates that only (a) prosecutors, judges, military personnel of the Ministries of Defence, the Interior and Justice and subordinate units, and (b) workers involved in nuclear power operations, continuous furnace facilities where stoppages would give rise to the risk of explosion, and persons acting under orders in the defence of the country, will not be allowed to exercise the right to strike. However, employees in the categories listed under (b) will be able to apply to the Social and Economic Council for mediation if conflicts of interest arise. Lastly, provided that at least one-third of the normal activities of essential services is assured, strikes will be authorized in the following services: telecommunications and broadcasting; rail transport, including railway security staff; and services responsible for public transport and hygiene in public places, and for supplying the population with gas, electricity, heating and water. The list as given in the Bill no longer includes employees in the following services: pharmaceuticals, teaching, repairs of rolling stock, supplying the population with bread, milk and meat.

The Committee notes this information with great interest and again expresses the hope that the text in question will be adopted in the near future and that the Government will take all the necessary measures without delay to bring all its legislation, that is to say, Act No. 15 and Act No. 54 of 1991, into full conformity with the Convention in the very near future. The Committee requests the Government to provide it with a copy of the legislation amending the Acts in question as soon as it is adopted.

Furthermore, the Committee notes with interest the adoption of the Bill on the conclusion, execution, suspension and termination of an individual labour contract repealing Act No. 1/1970 on labour organization and discipline in state socialist units, which has been the subject of critical comments for many years, and requests the Government to send it a copy of the provision which repeals Act No. 1/1970.

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The Committee notes the information contained in the Government's report to the effect that it is awaiting proposals from the most representative workers' and employers' organizations with a view to amending Acts Nos. 15/1994 on the settlement of collective labour disputes and 54/1991 on trade unions. The Committee has also noted the report of the Committee on Freedom of Association in relation to Case No. 1788 (see 297th Report of the Committee on Freedom of Association), approved by the Governing Body at its March-April 1995 Session.

Article 3 of the Convention. The Committee recalls once again that its previous comments referred to the need to amend or repeal the following provisions of Acts Nos. 15 and 54 concerning, respectively, the settlement of collective labour disputes and trade unions, in order to bring the legislation into full conformity with the Convention:

- sections 38 and 43 of Act No. 15 establishing a compulsory arbitration procedure which may be set in motion at the sole initiative of the Minister of Labour when a strike has lasted for more than 20 days and its continuation "is likely to affect the interests of the general economy";

- section 30 of Act No. 15 which provides that the Supreme Court of Justice may suspend the start or continuation of a strike for a period of 90 days if it deems that major interests of the economy may be affected;

- section 47 of Act No. 15 which provides for heavy penalties (up to six months' imprisonment) if a strike is called in disregard of section 45(4) and others of the Act;

- section 13 of Act No. 15 which prohibits persons who have declared a strike without respecting the terms laid down by the Act from being elected as trade union delegates;

- sections 32(3) and 36(3) of Act No. 15 which establish the financial liability of strike organizers if the conditions for starting or pursuing the strike have not been met;

- section 13(3) of Act No. 15 under which delegates of the workers can only be elected from among workers with three years' seniority in the unit, or if the unit has been in operation for less than three years, workers who have been in it since its foundation;

- section 9 of Act No. 54 which provides that only Romanian citizens employed in the production unit may be elected to trade union office.

The Committee once again expresses the hope that the Government will take the necessary measures, in concertation with the social partners, to bring its legislation into full conformity with the Convention. The Committee asks the Government to keep it informed of any developments in this respects and reminds it that the ILO is at its disposal for technical assistance.

Furthermore, the Committee notes with interest the adoption of the Bill on the conclusion, execution, suspension and termination of an individual labour contract repealing Act No. 1/1970 on labour organization and discipline in state socialist units which has been the subject of comments for many years and requests the Government to send it a copy of the text.

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The Committee notes the Government's report.

Article 3 of the Convention. The Committee recalls that its previous comments referred to the need to amend or repeal the following provisions of Acts Nos. 15 and 54 concerning, respectively, the settlement of collective labour disputes and trade unions, in order to bring the legislation into full conformity with the Convention:

- sections 38 to 43 of Act No. 15 establishing a compulsory arbitration procedure which may be set in motion at the sole initiative of the Minister of Labour when a strike has lasted for more than 20 days and its continuation "is likely to affect the interests of the general economy";

- section 30 of Act No. 15 which provides that the Supreme Court of Justice may suspend the start or continuation of a strike for a maximum of 90 days if major interests of the national economy are affected;

- section 45(4) of Act No. 15 which requires at least one-third of the normal activities of essential services to be maintained in services which are not essential in the strict sense of the term;

- section 3 of Act No. 15 which defines collective labour disputes restrictively;

- section 47 of Act No. 15 which provides for heavy penalties (up to six months' imprisonment) if a strike is called in disregard of section 45(4) and others of the Act;

- section 13 of Act No. 15 which prohibits persons who have declared a strike without respecting the terms laid down by the Act from being elected as trade union delegates;

- sections 32(3) and 36(3) of Act No. 15 which establish the financial liability of strike organizers if they refuse to pursue negotiations during the strike, and similar liability if the conditions for starting or pursuing the strike have not been met;

- section 13(3) of Act No. 15 under which delegates of the workers can only be elected from among workers with three years' seniority in the unit or, if the unit has been in operation for less than three years, workers who have been in it since its foundation;

- section 9 of Act No. 54 which provides that only Romanian citizens employed in the production unit may be elected to trade union office.

The Committee notes with interest the information supplied by the Government in its report to the effect that tripartite consultations are being held on the legislative amendments to be made to take account of the Committee's comments, but that they have been suspended owing to an inter-union dispute. The Committee expresses the firm hope that the Government will examine carefully the observations in previous direct requests and that it will shortly take the necessary steps to bring its legislation into full conformity with the principles of freedom of association. The Committee asks the Government to keep it informed of any developments in this respect and reminds it that the ILO is at its disposal for technical assistance.

The Committee again asks the Government to provide the text repealing Act No. 1/1970 on labour organization and discipline in state socialist units.

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The Committee takes note of the Government's detailed report and its reply to the comments of the World Confederation of Labour and the Cartel Alfa National Trade Union Federation on Acts Nos. 13, 15 and 54 of 1991 concerning, respectively, collective labour agreements, the settlement of collective labour disputes and trade unions.

The Committee recalls that its previous comments concerned the following points:

1. The right of trade union organizations to organize their administration and activities and to formulate their programmes (Article 3):

- sections 38 to 43 of Act No. 15 establishing a compulsory arbitration procedure which may be set in motion at the sole initiative of the Minister of Labour when a strike has lasted for 20 days and its continuation "is likely to affect the interests of the national economy ...";

- section 30 of Act No. 15 which provides that the Supreme Court of Justice "may suspend the start or continuation of the strike for a maximum of 90 days if major interests of the national economy ... are affected";

- section 45(4) of Act No. 15 which requires one-third of the normal activities of essential services to be maintained in services which are not essential in the strict sense of the term;

- section 3 of Act No. 15 which defines collective labour disputes;

- section 47 of Act No. 15, which provides for heavy penalties of up to six months' imprisonment if a strike is called in disregard of section 45(4) and others of the Act;

- section 13(3) of Act No. 15 which prohibits persons who have declared a strike without respecting the terms laid down by the Act from being elected as trade union delegates;

- sections 32(3) and 36(3) of Act No. 15 which establish the financial liability of strike organizers if they refuse to pursue negotiations during the strike, and similar liability if the conditions for starting or pursuing the strike have not been met.

The Committee considers that the right to strike is one of the essential means available to workers' organizations to promote and defend the economic and social interests of their members, and it has always stressed that the limitation or prohibition of this right should be confined to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population, or to situations of accute national crisis. It therefore considers that any compulsory arbitration procedure or any possibility of suspending the right to strike should be limited to the cases mentioned above and accompanied by appropriate guarantees to protect workers who are thus deprived of an essential means of defending their occupational interests.

The Committee also considers that, should they so wish, workers' organizations should be able to participate in defining minimum services along with employers and public authorities and that, in the event of disagreement, the matter should be settled by an independent body.

As regards the penalties that can be imposed on persons who fail to respect the conditions for starting or pursuing a strike, the Committee emphasizes that penal sanctions should only be imposed where there are violations of strike prohibitions which are in conformity with the principles of freedom of association and that, in these cases, the sanctions should be proportionate to the offences committed; penalties of imprisonment should not be imposed in the case of peaceful strikes.

The Committee asks the Government to take the necessary measures to bring its legislation into conformity with the Convention and the principles of freedom of association as set out above.

2. The Committee also asks the Government to provide a copy of the text repealing Act No. 1/1970 respecting labour organization and discipline in State Socialist Units.

3. The right of workers to elect their representatives in full freedom (Article 3):

- section 9 of Act No. 54 which provides that only Romanian citizens employed in the production unit may be elected to trade union office;

- section 13(3) of Act No. 15 under which delegates of the workers in the conciliation process can only be elected from among workers with three years' seniority in the unit or, if the unit has been in operation for less than three years, workers who have been in it since its foundation.

The Committee recalls that, to be consistent with the Convention, the legislation should allow foreign workers to be eligible for trade union office, at least after a reasonable period of residence in the country. As regards the requirement of belonging to the enterprise in order to be eligible for trade union office, the Committee considers that it would be desirable either to admit as candidates persons who have previously been employed in the enterprise, or to exempt from the requirement of belonging to the enterprise a reasonable proportion of the officers of an organization.

It asks the Government to take the necessary steps to bring the relevant provisions of the legislation into conformity with the Convention.

4. The Committee asks the Government in its next report to indicate any measures that have been taken or are contemplated to amend the above-mentioned provisions of the legislation in order to bring it into conformity with the Convention.

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The Committee notes the texts of three basic Acts of 1991 concerning labour adopted by the Romanian Parliament: Act No. 54 respecting trade unions, Act No. 13 on collective labour agreements and Act No. 15 on the settlement of labour disputes, and the text of the new Constitution.

The Committee notes with interest that the new texts, in conjunction with the repeal of several provisions of the law which it commented on in earlier observations, change the general orientation of the industrial relations system, establish trade union pluralism and the independence of the trade union movement. However, it would appreciate a number of explanations and would like to draw the Government's attention to certain aspects of the legislation.

1. The Committee seeks clarifications on the meaning and scope of section 3 of Act No. 15 which reads as follows:

The following do not constitute collective labour disputes:

(a) disputes between the employees and the unit, the settlement of which is ruled by legal provisions others than those laid down in the present Act;

(b) wage claims, the settlement of which would require the adoption of a law.

The Committee asks the Government to explain the meaning of the above section giving, if any, examples of cases in which it has been applied in practice, or cases in which it would be applicable.

2. The right of workers without distinction whatsoever, to establish organisations of their own choosing (Article 2 of the Convention. Section 5 of Act No. 54 provides amongst other things that "employees who hold executive office or offices involving the exercise of public authority within parliament, the government or ministries, or any central agency of the administration of the State, a prefecture or a municipality, or who hold the office of prosecutor or judge ... may not group together in a union."

According to Article 9 of the Convention, only the armed forces and the police may be excluded from the right to organise. Persons occupying managerial positions, in both the public and private sectors, should be entitled at least to form their own organisations (see paragraph 9 of the Committee's General Survey on Freedom of Association and Collective Bargaining of 1983.

3. The right of workers to elect their representatives in full freedom (Article 3). Section 9 of Act No. 54 reserves eligibility to trade union leadership to persons with Romanian citizenship, and who are employed in the production unit and have never been the subject of penal sanctions. A similar provision is contained in section 13(3) of Act No. 15 as regards the election of the delegates of the workers in the conciliation process.

The Committee recalls that, to be consistent with the Convention, legislation should allow foreign workers to be eligible for trade union office, at least after a reasonable period of residence in the host country (General Survey, paras. 97, 159-l60); furthermore, a conviction on account of offences the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from trade union office (General Survey, para. 164); lastly, as regards the requirement of belonging to the enterprise in order to be eligible for trade union office, it would be desirable either to admit as candidates persons who have previously been employed in the enterprise, or to exempt from the requirement of belonging to the enterprise a reasonable proportion of the officers of an organiation (General Survey, paras. 157-158).

In addition, the Committee requests the Government to indicate whether there exist provisions for the choice of the delegates of the workers in the conciliation process, if none of them satisfies the conditions imposed by article 13(3) of Act No. 15 (for example, if there is no worker with three years' seniority, in an enterprise which has been in operation for more than three years) which might stop the conciliation process.

4. The right of trade union organisations to organise their administration and activities and to formulate their programmes (Article 3).

(Unless otherwise specified, the Act referred to in this section is Act No. 15.)

(a) Section 20(1) provides that the decision to call a strike shall be taken by the trade union "with the agreement of at least half of its members".

The Committee points out, on the one hand, that the above provision does not specify how the agreement in question shall be expressed and supervised and, on the other hand, that it may be difficult for a trade union with a large membership dispersed in different workplaces or locations to obtain the agreement of at least 50 per cent of the workers, which could lead to a serious restriction of the right to strike. The provision of section 20(1) in fine, which lays down that the decision shall be taken by a majority of the voters in the event of a secret ballot, is in this sense more compatible with the principles of freedom of association.

(b) Section 24(1) provides that strikes may only be called for the purpose of defending employees' occupational interests which are of an economic and social nature, and section 24(2) provides that the aims of the strike may not be political; furthermore, section 47(1) provides for heavy penalties, including the possibility of prison sentences of from three to six months, for organisers who have called a strike in violation of section 24(2).

The Committee recalls that, even if strikes that are purely political in character do not fall within the scope of the principles of freedom of association, a trade union's activities cannot be restricted solely to occupational questions; trade unions should therefore be able to express their views publicly on a government's economic and social policy (General Survey, paras. 192-198 and 216). As regards the sanctions that apply in the event of violation of section 24(2), the Committee refers the Government to its comments below (paragraph (h)).

(c) Section 24(3) prohibits any strike "... aimed at obtaining the annulment of a decision by the unit to terminate a work contract, or the recruitment or transfer of a person".

Under this provision, a strike would be illegal, for example, if it were called by employees in order to protest against the dismissal or transfer of a trade union representative because of his trade union activities.

The Committee recalls that protest actions are not limited to pursuing collective demands of an occupational nature but also include seeking solutions which are of direct concern to the workers (General Survey, paras. 199-200).

(d) Section 25 prohibits the calling of "strikes aimed at obtaining the modification of the clauses of a final decision of an arbitration committee, under which the dispute has been settled".

The Committee recalls that the principle of the voluntary negotiation of collective agreements, and therefore the autonomy of the parties to the negotiations, constitutes a fundamental aspect of the Convention. This provision could therefore create difficulties if compulsory arbitration is imposed unilaterally by the authorities or at the request of only one of the parties; such a situation could arise in the cases referred to in sections 33 to 36 and 38 to 43 of Act No. 15.

(e) Section 30 provides that the Supreme Court of Justice "may suspend the start or continuation of the strike for a maximum of 90 days if major interests of the national economy or interests of a humanitarian nature are affected".

The Committee recalls that the suspension of the right to strike constitutes a major restriction of one of the essential means available to workers for defending their interests, and cannot therefore be justified except in a situation of acute national crisis and only for a limited period; furthermore, a mere declaration of a state of emergency is not sufficient justification for suspending strikes.

(f) Section 32(3) provides that the organisers of the strike shall be responsible for expenses incurred if they refuse to pursue negotiations during the strike, and section 36(3) provides for a similar responsibility if the conditions for starting or pursuing the strike have not been met.

The Committee points out that such a responsibility can be very onerous and out of proportion to the acts or omissions involved, particularly if the acts are compatible with the principles of freedom of association.

(g) Sections 38-43 establish a compulsory arbitration procedure (disputes to be settled by decision of a three-member committee) which may be set in motion at the sole initiative of the Minister of Labour, when a strike has lasted for 20 days and its continuation is likely to affect the interests of the national economy or interests of a humanitarian nature".

The Committee considers that the criteria likely to be invoked confer very broad powers of appraisal on the Minister and enable him to impose arbitration unilaterally. The Committee refers the Government to the comments above (paragraph (d)).

(h) Section 45(1) prohibits strikes by, amongst other persons, employees "performing special duties within the Parliament, the Government ...", and section 45(2) provides only that claims shall be settled "by direct conciliation".

Furthermore, section 45(4) provides that if one-third of the normal activities of essential services is assured, strikes are authorised in the following services: health, pharmaceuticals, teaching, telecommunications, broadcasting, rail transport, including repairs of rolling stock, river transport and civil aviation units; state units responsible for public transport, hygiene in public places, and for supplying the population with bread, meat, gas, electricity, heating and water.

Section 47 provides for heavy penalties for violations of these provisions (imprisonment of from three to six months, or a fine of from 2,000 to 7,000 lei, or a harsher penal sanction).

In this connection, the Committee wishes to recall the principles established by the supervisory bodies:

- the right to strike is one of the essential means available to workers and their organisations for the promotion of their economic and social interests; - restrictions or prohibitions should be limited to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population;

- if strikes are restricted or prohibited in the public service or essential services, guarantees must be afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. Restrictions should be offset, for example, by adequate impartial and speedy concilation and arbitration procedures, in which the parties concerned can take part at every stage. Arbitration awards should be binding on both parties and, once rendered, should be rapidly and fully implemented;

- if a minimum service mechanism is adopted, it should be restricted to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population; moreover, the workers' organisations should be able to participate in defining the minimum service;

- lastly, penal sanctions should only be imposed where there are violations of strike prohibitions which are in conformity with the principles of freedom of association; in these cases, the sanctions should be proportionate to the offences committed, and penalties of imprisonment should not be imposed in the case of peaceful strikes (General Survey, paragraphs 214, 215 and 223).

Acquisition of legal personality (Article 7). Section 16(1)(b) of Act No. 54 provides that the jurisdiction to which application is made for the registration of a trade union must, amongst other things, check whether the record of the constitution of the union and the union statutes are in conformity with the "legal provisions in force". Such registration is also a requirement for the acquisition of legal personality.

The Committee recalls in this connection the principles set out in paragraphs 110-119 of its General Survey, and asks the Government to indicate whether the "legal provisions" in question are only those laid down by Act No. 54, or whether the term refers to other laws or regulations and, if so, to inform the Committee of this in its next report.

6. Section 36(1) of the Act refers to "the Act respecting the settlement of individual labour disputes". The Committee requests the Government to provide a copy of the above Act.

7. The Committee asks the Government to indicate whether Act No. 14 under which a collective dispute could be referred to compulsory arbitration in the event of failure of wage negotiations during 1991, expired on 31 December 1991 as anticipated, or whether a similar provision has been extended to 1992.

8. The Committee asks the Government to provide information in its future reports on the application and practical operation of the industrial relations system, supplying in particular copies of administrative or judicial decisions handed down in pursuance of the new laws.

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The Committee takes note of the texts of the three basic Acts respecting labour adopted by the Romanian Parliament: Act No. 54 respecting trade unions of 1 August 1991, Act No. 13 on collective labour agreements of 8 February 1991, and Act No. 15 of 11 February 1991 on the settlement of collective labour disputes, as well as the text of the new Constitution of 8 December 1991.

It also notes the comments made by the World Confederation of Labour and the Cartel Alpha National Trade Union Federation, and asks the Government to reply to them.

The Committee notes with interest that the new texts referred to above, in conjunction with the repeal of several legislative provisions on which the Committee commented earlier, change the general orientation of the industrial relations system, establish trade union pluralism and the independence of the trade union movement, and recognise the principle of the workers' right to strike.

However, the Committee wishes to draw the Government's attention in a direct request to certain important aspects of the legislation including:

- the exclusion of certain categories of workers from the right to organise;

- the free election of union representatives, including for the conciliation process;

- the voting requirements for, and the objectives of, strikes;

- binding arbitration;

- financial liability of the organisers of a strike;

- restrictions and prohibitions of the right to strike, essential services and compensatory bargaining mechanisms; and

- provisions concerning the acquisition of legal personality.

Furthermore, the Committee would like to know whether legislation concerning the rights and obligations of employers and their organisations has been adopted or is being prepared.

The Committee also asks the Government to indicate whether the Act respecting the organisation of labour and labour discipline in State socialist units (Act No. 1/1970) has been repealed and, if so, to provide a copy of the text repealing it. If not, it asks the Government to take steps to repeal it.

Since the Government has not yet had time to reply to the comments of the World Confederation of Labour and the Cartel Alpha National Trade Union Confederation, the Committee will address these specific questions at its next meeting once it has examined the Government's observations.

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The Committee notes the Government's report and the definitive conclusions adopted in Case No. 1492 by the Committee on Freedom of Association, based on the report of the ILO mission which visited Romania in April 1990 (272nd Report, May-June 1990). It also notes that an ILO technical advisory mission took place in August 1990.

With reference to its previous observations the Committee notes with satisfaction that: (1) the Legislative Decree of 28 December 1989 abolished the leading role of the Communist Party with regard to mass organisations, including trade unions; (2) that Legislative Decree No. 8 of 31 December 1989, by repealing several provisions of Act No. 52 of 1945 respecting occupational trade unions, and Legislative Decree No. 147 of 11 May 1990, by amending section 164 of the Labour Code and repealing sections 165 to 170 of the Code, introduced the possibility of trade union pluralism. This new legal context has permitted the emergence of eight central trade union organisations and many federations and first-level trade unions.

The Committee also notes that several Bills have been formulated - on trade unions, the settlement of labour disputes and collective bargaining - and that they were commented upon by the representatives of the Director-General during their missions to Romania.

While the Committee was in session the legislative texts on the settlement of labour disputes and collective bargaining were received by the Office. The Committee proposes examining them at its next session. The Committee would be grateful if the Government would supply a copy of the Bill on trade unions so that it can be examined before it is adopted.

The Committee recalls that the ILO is at the disposal of the Government to supply any assistance that is needed for the current revision of the legislation.

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The Committee notes the Government's report and the information that it supplied to the Conference Committee in June 1987 and the subsequent discussions.

The Committee recalls that its previous comments, of which a number had been raised for several years, concerned the following points:

- section 164 of the Labour Code, which provides that trade unions are occupational organisations set up by virtue of the right of association laid down in the Constitution and which operate on the basis of the by-laws of the General Confederation of Trade Unions, of the unions set up for each branch of activity and of the trade union organisations in enterprises;

- section 26 of the Constitution, which provides that the Romanian Communist Party guides the activities of mass organisations;

- section 165 of the Labour Code, which lays down that trade unions shall mobilise the masses in order to carry out the programme of the Romanian Communist Party; and

- sections 113(2), 116, 119, 122 and 153 of the Labour Code, which entrusts a trade union organisation which is expressly named in the legislation, that is the General Confederation of Trade Unions, with the exclusive duty to represent the workers before the higher State bodies (the Council of Ministers, Ministries of Labour and Health, etc.).

The Committee noted that a single trade union system, imposed by law, whether directly or indirectly, is in contradiction with the principles of the Convention and it requested the Government to take measures to ensure that all workers who wish to do so have the right to establish trade union organisations of their own choosing in full freedom outside the existing trade union structure and without interference by the public authorities, in accordance with Articles 2 and 3 of the Convention.

In its report, the Government once again supplies the information that it provided in its previous reports, namely that sections 2 and 17 of Act No. 52 respecting occupational trade unions recognise the right of all individuals, working in the same occupation or in similar occupations, to freely establish occupational unions without prior authorisation. It explains once again that section 164 of the Labour Code means that the trade union of a specific unit (whether it be an enterprise, establishment or institution) operates on the basis of its own by-laws and not on the by-laws of a branch union or of the General Confederation of Trade Unions. Similarly, each central branch union organisation operates on the basis of its own by-laws and not on the by-laws of the General Confederation of Trade Unions. It states that Romanian legislation does not require a trade union in a specific unit or a central branch union organisation to join a higher trade union organisation, or that any trade union organisation should establish the by-laws of another trade union.

With regard to the links between the Party and the trade unions, the Government considers that Article 3(2) of the Convention concerns the public authorities and not political parties. It explains that, in its country, the public authorities are the Grand National Assembly, the State Council and the Council of Ministers. In the Government's opinion, the references by the Committee to sections 26 of the Constitution and 165 of the Labour Code, which concerned the role of the Party as the leading political force, went beyond the legal aspects of the question and dealt with problems which are not covered by the Convention. In the Government's view, the leading role of the Party, which is enshrined in the Constitution, consists of determining the fundamental aims and orientation of social development. The relationship between the Party and social organisations, including trade unions, are able to amplify the role of the latter in directing the social, political and economic life of the country. The Government concludes, however, by indicating that the Committee's observations will be taken into consideration in future proposals for the amendment of the labour legislation.

The Committee notes all these explanations. It nevertheless considers it necessary to point out once again that section 164 of the Labour Code, in its current form, would not appear to permit a trade union to formulate its own by-laws in complete independence from the General Confederation of Trade Unions. As formulated, this provision would appear to oblige first-level trade unions and branch-level trade unions to establish their by-laws on the basis of the by-laws of the General Confederation of Trade Unions. In this connection, the Committee recalls that it has been requesting the Government to amend its legislation so as clearly to recognise the right of workers and their organisations freely to formulate their by-laws and their programmes in accordance with Article 3 of the Convention.

With regard to the links between the Party and the trade unions, the Committee points out that relations between trade unions and political parties must stem from freely-taken decisions and not be imposed by law. The Government's argument, which consists of emphasising that the Convention does not deal with relations between trade unions and political parties, would not appear to be tenable, as any relation in this field that is laid down by law would be contrary to the Convention since, in such a case, the State, as legislator, would be restricting the right of trade union organisations to organise their activities and formulate their programmes, while Articles 3 and 8(2) of the Convention expressly lay down that it shall refrain from doing so.

Since 1979, the Committee has been pointing out to the Government that these provisions would appear to make it legally impossible to establish organisations that are independent of the Party. It once again requests the Government to clarify the legislation by eliminating the provisions which formally place the organisations in a situation of dependence on the Party.

The Committee trusts that the Government will re-examine its legislation in the light of the above comments and requests it to supply information on any development in the situation as regards the preparation of the new trade union legislation referred to in its previous reports. [The Government is asked to supply full particulars to the Conference at its 76th Session.]