Report in which the committee requests to be kept informed of development - REPORT_NO324, March 2001

1. 592. In communications dated 14 December 1999 and 6 March and 19 July 2000 the Motor-Transport Workers' Federation submitted a complaint of violations of freedom of association against the Government of Lithuania.
2. 593. The Government sent its observations in communications dated 30 May, 13 September and 12 October 2000.
3. 594. Lithuania has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 595. In its communication dated 14 December 1999, the Motor-Transport Workers' Federation (MTWF) indicated that the employees of the Vilnius public passenger transportation enterprises picketed in April and May 1999 to express their disappointment over a reduction in wages and delay in their payment, but to no avail. The Trade Union Confederation of the Vilnius Public Transportation Workers started to resolve the dispute according to the procedures established under the Collective Disputes Regulations and began to prepare for the strike, coordinating its activities with the Lithuanian Workers' Union (LWU), the MTWF and the International Transport Federation (ITF). The required secret ballot for strike action was held in June and July 1999 and the majority required was easily achieved. The drivers at the bus and trolleybus depots thus had the right to go on strike. The demands included a negotiated increase in wages, their timely payment and job preservation.
2. 596. On 19 July 1999, the employers, the Vilnius Municipality and the Government were informed that warning strikes would be organized on 17, 24 and 31 August and that the buses would not be on the routes from 4 a.m. to 6 a.m. If these warning strikes were unsuccessful, all buses and trolleybuses would strike on 9 September.
3. 597. The Act on the Settlement of Collective Disputes requires that the mentioned enterprises establish a minimum service to satisfy the urgent needs of the society during the strike. The Vilnius Municipality adopted Decision No. 1443V on 12 August 1999, only five days before the first warning strike was to take place, and established a minimum service of 70 per cent. There was no agreement among the parties concerned about this decision, nor was the decision taken by an independent body. In effect, this determination of the required minimum service resulted in a prohibition of strike action.
4. 598. The strike was postponed to January 2000 because negotiations were continuing. There was a promise to pay wages on time and an action plan was adopted which would improve the economic situation. The Municipality was not keeping its promises however.
5. 599. In its communication dated 6 March 2000, the complainant indicated that wages continued to be paid late and thus a two-hour strike was organized on 18 January 2000 and a one-day strike on 27 January. The two-hour strike was held between 4 a.m. and 6 a.m. The Municipality then appealed to the court to declare this strike and the one to be held on 27 January illegal. Furthermore, the Director of the Municipality Energy and Economics Department issued Order No. 38 on 25 January, obligating the administration of the enterprises to drive away from the enterprises 38 new buses and 24 trolleybuses so as to deteriorate the working conditions and leave about 200 drivers out of work.
6. 600. On 25 January, the court decided to postpone the strike which was to be held on 27 January to 23 and 24 February. On the same day, the trade union leaders were invited to the Municipality without advance notice or explanation of the purpose of the meeting and, according to the complainant, an incorrect negotiation took place where they were informed of the above decisions and, without the opportunity to decide carefully, they signed a short-term agreement to postpone the strike to 15 March. The Municipality for its part postponed the implementation Order to drive away the buses and trolleybuses and promised to pay wages on time. On 3 February, the Municipality withdrew its appeal to the court concerning the illegality of the strike, thus for all practical purposes acknowledging the legal nature of the strike.
7. 601. While, as promised, the means of transportation were not driven away, on the other hand the wages for January were not paid on time. The trade unions thus decided to strike on 16 March. The complainant requests the Committee to indicate whether the unilateral decision to require a 70 per cent minimum service, the decision to take away the buses and trolleybuses from the employees on strike and the court decision to postpone the strike are in accordance with the principles of freedom of association.
8. 602. In its communication dated 19 July 2000, the complainant indicates that the drivers of the Vilnius municipal bus and trolleybus enterprises went on strike on 18 May. Only two trolleybuses and several buses out of 500 in total were on routes till 4 p.m. when an agreement had been reached and 101 more buses went on routes. During the strike it had been agreed that both parties would abstain from all actions that could cause conflict and that negotiations would start with the trade unions on 22 May. But the negotiations did not start on 22 May. On 26 May the mayor refused to withdraw the claims before the court requesting a declaration of the strikes as illegal. The mayor refused to negotiate the demands of the collective dispute and to raise the wages at least partially. Thus the trade unions considered that the agreement made during the strike on 18 May 2000 had been violated.
9. 603. The court procedure in the Vilnius city court on the legality of the bus and trolleybus drivers' strike was conducted on 4 July 2000 and the verdict was that the strike of the bus and trolleybus drivers was illegal because of the different interpretation of the legal procedure.

B. The Government's reply

1. 604. In a communication dated 30 May 2000, the Government referred to the 1991 Law on Collective Agreements and Collective Labour Agreements, the 1991 Law on Trade Unions and the 1992 Act on the Settlement of Collective Disputes. The Act on the Settlement of Collective Disputes provides the procedure which must be followed prior to declaring a strike. The assessment of the legitimacy of a strike falls under the competence of the court which may, if it determines that the strike is illegal, either enjoin the action or immediately terminate it. Furthermore, the court has the right to postpone a strike action for up to 30 days due to especially important reasons. Pursuant to article 109 of the Constitution, justice is administered by courts only, therefore, according to article 14 of the Code of Civil Procedure the effective court decision, ruling or resolution shall be binding for all state authorities and officials, all natural persons, enterprises, institutions and organizations and it shall be obeyed in the whole territory.
2. 605. The Government indicates that section 12 of the Act on the Settlement of Collective Disputes provides that strikes held in public transportation enterprises must guarantee minimum services for meeting the vital demands of the society which shall be determined by the Government or the executive body of the Municipality. Pursuant to article 4 of the Code of Road Transportation, the state administration of road transportation is performed by the Ministry of Transport and Communications and by municipalities. Municipalities manage and organize the transportation of passengers by local transportation routes and by taxis and issue acts of law binding for carriers. Therefore, only the Municipality may establish the minimum services of public transportation required during the strike in the given territory.
3. 606. In reaction to the trade union resolution to carry out a warning strike in August 1999 and a one-day strike in September, the administration of the Municipality of Vilnius adopted Decision No. 1433V "on provision of fixed-route passenger transportation services during strikes" on 12 August. In conformity with section 12 of the Act on the Settlement of Collective Disputes, this resolution was based on the data of passenger-route analysis carried out by a technical university and by the Municipality.
4. 607. Furthermore, the Government argues that, while one of the reasons for calling the strike was the reduction of drivers' wages in 1999, in reality, tariff wages of the drivers did not decrease. Overtime work, however, was reduced or completely abolished due to the worsened financial situation and the drivers thus started to earn less. According to the Government, in spite of the reduced overtime work, the average monthly remuneration in 1999 of employees at the Vilnius bus and trolleybus depots was the highest in comparison with the average remuneration for the public transportation drivers of other cities of Lithuania.
5. 608. The Government admits that, for valid reasons, on several occasions the payment of wages to the drivers was delayed by several days, but adds that the duration of the delay is decreasing. Furthermore, an action plan was developed and coordinated with the Ministry of Transport and Communications, the Ministry of Finance, the Ministry of Social Security and Labour and the Ministry of Public Administration Reform and Local Authorities in August 1999, with the participation of trade union representatives. This plan is being implemented by the Municipality. In any event, the late payment of wages is not exceptional as the payment of wages in certain enterprises was delayed by one to two months due to difficult financial situations.
6. 609. In order to avoid the consequences of the declared strike, the administration of the Vilnius bus depot appealed to the district court to declare the warning strike of 18 January 2000 and the one-day strike of 27 January illegal. The court decided to postpone the strike planned for 27 January to 24 February in order to "satisfy the request regarding the application of measures for the assurance of claim".
7. 610. As concerns the removal of buses and trolleybuses from the enterprises, the Government stated that, in accordance with the 1994 Company Law, these buses and trolleybuses were not owned by the Vilnius Bus and Trolleybus Depots, Ltd. (the enterprise); rather they were included in the balance sheet of the Management Department of Vilnius for the Municipality to use at its own discretion. In any event, they were not removed and are still used in location transportation routes and, on 18 May, it was resolved to transfer the buses to the balance sheet of Vilnius Bus Depot, Ltd. within two months.
8. 611. Considering the existing economic situation the Government and the Municipality of Vilnius deal with issues related to public transportation of passengers and are ready to solve the most important issues related to labour remuneration, social guarantees and other issues by means of negotiation and consulting with trade unions. Based on the aforementioned, the Government considers that Decision No. 1443V is in compliance with the laws of the Republic and affirms that the bus and trolleybus depot companies and the Municipality of Vilnius are ready to settle disputes by means of negotiation.
9. 612. Finally, the Government adds that a one-day strike was carried out by the Motor-Transport Workers' Federation (MTWF) on 18 May 2000, despite a ruling of the district court on 17 May to postpone the strike until 17 June. The same day, the Deputy Mayor of Vilnius met with the representatives of the MTWF and it was decided to terminate the strike and to transfer the buses to the bus depot company balance sheet within two months. It was further undertaken not to take any actions that may provoke conflicts and to start negotiations on the highest level between the trade unions and the Mayor of Vilnius on 22 May.
10. 613. In its communication dated 13 September 2000, the Government confirms that the Vilnius District Court had declared the strike of 18 May 2000 to be illegal and that the trade union of the Vilnius trolleybus enterprise had appealed this judgement. In its communication dated 12 October 2000, the Government indicates however that, on 20 September, the Court of Appeals annulled the Vilnius District Court judgements of July 2000.
11. 614. According to the Government, collective bargaining is now going on at the bus and trolleybus enterprises and there is still disagreement around the issue of wages. Two draft collective agreements are under consideration by the Vilnius trolleybus enterprise. The Government states that it will keep the Committee informed of any developments in this regard.

C. The Committee's conclusions

1. 615. The Committee notes that the allegations in this case concern government interference in the right to strike through the imposition of a unilaterally determined minimum service for a strike at the bus and trolleybus depots, as well as court judgements postponing the strike action. It further notes that the complainants contest the decision to take away the buses and trolleybuses from the enterprises concerned, thus leaving about 200 drivers without work.
2. 616. First, as concerns the imposition of a minimum service, the Committee has considered that the transportation of passengers and commercial goods is not an essential service in the strict sense of the term; however, this is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified. [See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 566.] In the case at hand, the Committee notes that section 12 of the Act on the Settlement of Collective Disputes indeed provides that, in city public transport enterprises, among others, the body leading the strike shall ensure the minimum services necessary to satisfy the vital needs of society. It further notes however from the legislation and the Government's reply that this decision shall be established by the Government or by the executive body of the local government and, as concerns city public transport, solely by the Municipality.
3. 617. The Committee must therefore recall that the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers' and workers' organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services. [See, Digest, para. 560.] The Committee therefore regrets that the 70 per cent minimum service established by Decision No. 1443V was taken without any consultation with the social partners concerned. Furthermore, the Committee finds itself obliged to conclude that, in this case, the requirement to ensure 70 per cent of the services provided cannot be considered to be a truly minimum service and that the likely result of such an imposition would be to render the exercise of the right to strike ineffective in practice. Noting that the legislation provides for a unilateral determination by the government authorities of the minimum services required, the Committee requests the Government to take the necessary measures to amend the legislation so as to ensure that the workers' and employers' organizations concerned may participate in the determination of the minimum service to be provided and, in the event that no agreement is reached, to ensure that the matter is settled by an independent body. In the meantime, the Committee requests the Government to take the necessary measures to ensure that Decision No. 1443V is revoked and that any further requirement of minimum services in the event of a strike is determined in consultation with the workers' and employers' organizations concerned.
4. 618. As concerns the court decisions of 25 January and 17 May to postpone for 30 days the strike actions declared at the Vilnius bus and trolleybus depots, the Committee notes from section 13 of the Act on the Settlement of Collective Disputes and from the Government's reply that the court has the right to postpone strikes due to "especially important reasons"; there is no further clarification in the legislation however as to what might constitute "especially important reasons". The Committee further notes that the local government had appealed to the courts to have the bus and trolleybus depots' strikes declared illegal both when the strike action was declared in January and then again in May. On each occasion the court had enjoined the action for 30 days. The Vilnius District Court had declared the strike action illegal in July 2000, but this judgement was overturned by the Court of Appeals
5. 619. Noting that the Act on the Settlement of Collective Disputes requires preliminary procedures before calling a strike, including the consideration of the dispute by a reconciliation commission and a 21-day warning notice for strikes in city public transport, among others, the Committee considers that any systematic use of section 13 in order to postpone legitimate strike action would be contrary to the principles of freedom of association. Given that the unclear drafting of section 13 could give rise to such abuse, the Committee requests the Government to consider amending this provision so as to ensure that it is not used to restrict the right to strike in practice beyond what is permissible under accepted principles of freedom of association.
6. 620. Finally, as concerns the removal of buses and trolleybuses from the Vilnius Bus and Trolleybus Depot, Ltd., the Committee notes the Government's indication that these were not actually owned by the enterprise in question but were still on the balance sheet for the Municipality to use at its own discretion. It further notes that the buses were never removed and that during a meeting between the Mayor of Vilnius and the Motor-Transport Workers' Federation on 18 May 2000, it was resolved to transfer the buses to the balance sheet of the bus depot enterprise. Noting from the Government that negotiations are currently under way at the Vilnius bus and trolleybus enterprises, the Committee requests the Government to keep it informed of any developments in this respect.
7. 621. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.