Report in which the committee requests to be kept informed of development - REPORT_NO396, October 2021

Allegations: The complainant organizations alleges that Act C on the Health Service Legal Relationship adopted in October 2020 and its implementing decrees issued in November 2020, in the absence of effective social dialogue, are in violation of healthcare workers’ collective bargaining rights and their right to strike

C. The Committee’s conclusions

1. 408. The Committee notes that, in the present case, the complainants allege that Act C of 2020 on the Health Service Legal Relationship adopted in October 2020 and its implementing decrees issued in November 2020 are in violation of public healthcare workers’ right to collective bargaining and their right to strike. The complainants also allege that the Act and its implementing decrees were adopted without effective social dialogue and consultation with the relevant workers’ organizations.
2. 409. The Committee notes from the allegations that effective from 1 March 2021, Act C of 2020 terminated the previous public servant status of healthcare workers and subsequently required healthcare workers to sign a new contract establishing a new legal status called ‘health service status’. After 1 March 2021, signing a new work contract under the new legal status is a condition to work in the public healthcare system.
3. 410. The Committee also notes the complainants’ allegations that: (a) according to Article 15(10) of Act C of 2020, public healthcare workers at state-maintained healthcare providers cannot conclude collective agreements; (b) according to Article 6 of Government Decree 530/2020 implementing Act C 2020, collective agreements concluded with state healthcare workers shall expire on 1 January 2021; and (c) according to Article 15(11) of Act C of 2020, public healthcare workers at the state-maintained healthcare providers can only organize and go on strike in accordance with specific rules laid down in an agreement concluded between the Government and workers’ organizations concerned.
4. 411. The Committee notes the Government’s indication that the Fundamental Law of Hungary grants freedom of organization under Article VIII(2) and (5) and, under Article XVII, the right to collective bargaining and strike. The Committee further notes the Government’s statement that Conventions Nos 87 and 98 were regarded as a priority during the process of drafting Act C of 2020. The Committee also notes from the Government that the aim of the Act was to create a transparent and homogeneous system for healthcare workers employed in state and municipal health institutions through the establishment of a health service legal relationship. Moreover, it notes that according to the Government, Act C of 2020 forms an integral part of the measures taken to alleviate the serious situation caused by the COVID-19 pandemic.
5. 412. As regards the allegation concerning the right to collective bargaining of workers in a health service legal relationship, the Committee notes the Government’s reply that: (i) according to Article 1(1) of Act C of 2020, the personal scope of the Act covers public and municipal health providers, their maintainers, as well as the legal status of persons in a health service legal relationship with said public and municipal healthcare providers; and (ii) according to Article 15(1) of Act C of 2020, in order to reconcile the interests of persons in a health service legal relationship, settle disputes with negotiation and establish appropriate agreements, a Health Service Conciliation Forum was established. The Committee also notes that the Conciliation Forum operates with the participation of the Government, the national sectoral representative organizations and the negotiating groups of national employee representative organizations of individuals in a health service legal relationship. As for persons who are not in a health service legal relationship, the Government indicates that different regulations apply, that are not prohibitive or restrictive.
6. 413. The Committee acknowledges the exceptional circumstances posed by the COVID-19 pandemic, particularly in relation to healthcare workers, and the necessity to adopt measures to mitigate the effects of the resulting crisis. The Committee, however, understands both from the Government and the complainants’ indication that Act C of 2020 was adopted as part of an overall reform to create transparent and homogeneous system for healthcare workers employed in state and municipal health institutions and that measures under Act C of 2020 were not adopted with a temporary nature, but as the standing regulation of the rights and obligations of persons in health service legal relationship working at public and municipal healthcare providers.
7. 414. The Committee recalls that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1241]. In this regard, it recalls that the encouragement and promotion of collective bargaining applies both to the private sector and to nationalized undertakings and public bodies. It further recalls that a distinction must be drawn between, on the one hand public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies), as well as officials acting as supporting elements in these activities who may be excluded from collective bargaining and, on the other hand, persons employed by the government, by public undertakings or by autonomous pubic institutions who may not. In that regard, the Committee has considered that health service employees cannot be considered to be public servants engaged in the administration of the State whose right to negotiate may be subject to restrictions and that persons employed in public hospitals should enjoy the right to collective bargaining [see Compilation, paras 1270 and 1269].
8. 415. As regards the establishment of the Health Service Conciliation Forum, the Committee notes that according to Articles 15(2) and 15(6) of Act C of 2020, the Government shall consult through the Conciliation Forum with the representatives of national trade union federations and national representative bodies of municipalities regarding matters falling within its competence, that is matters relating to the living and working conditions, as well as the employment conditions of persons in a health service legal relationship. Article 15(7) of Act C of 2020 further notes that the Conciliation Forum shall be consulted on matters falling within its competence as detailed under paragraph 2, namely those relating to human resources management and the management of personal remunerations and benefits. At the same time, Article 15(10) of Act C of 2020 explicitly states that “collective agreement may not be concluded with a healthcare provider falling within the scope of this Act”. The Committee recalls in this regard that only armed forces, the police and public servants in the administration of the State may be excluded from collective bargaining [see Compilation, para. 1239].
9. 416. Regarding the Government’s note that Act C of 2020 was adopted with the aim to create a transparent and homogeneous system for health workers employed in state and municipal health institutions and that the Act incorporates the elements of the sectoral collective agreement affecting most hospitals ensuring that healthcare workers benefit from guarantees in a uniform manner rather than from the rules varying between institutions, the Committee recalls that according to the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and, consequently, the level of negotiation should not be imposed by law, by decision of the administrative authority or by the case law of the administrative labour authority [see Compilation, para. 1404].
10. 417. In view of the above, and noting that the Government indicates that it has already considered some recommendations from the representative organizations in the sector, the Committee requests the Government to revise Act C of 2020, in consultation with the representative workers’ and employers’ organizations concerned, so that persons in a health service legal relationship have the right to engage in collective bargaining on their terms and conditions of employment.
11. 418. Regarding the allegation that under Article 6 of Government Decree 530/2020 implementing Act C 2020, collective agreements concluded with state healthcare workers shall expire on 1 January 2021, the Committee notes the Government’s indication that already existing collective agreements will remain in force for individuals who do not fall within the scope of the Act but does not otherwise contest the allegation that these agreements have been annulled with respect to those covered by the Act. The Committee, therefore, is obliged to recall that the interruption by law of provisions in already concluded collective agreements is not in conformity with the principle of freedom of association and the effective recognition of collective bargaining and that a legal provision which modifies unilaterally the content of signed collective agreements, or requires that they be renegotiated, is contrary to the principle of freedom of association and the effective recognition of collective bargaining, as well as to the principle of acquired rights of the parties. In view of the new legal status of persons in a health service legal relationship, the Committee requests the Government to engage with the representative workers’ and employers’ organizations concerned so that the terms and conditions of employment can be jointly agreed and, if not possible, to ensure that any pending matters may be reviewed by an arbitration body that has the confidence of the parties concerned.
12. 419. Regarding the allegation that under Article 15(11) of Act C of 2020, public healthcare workers at the state-maintained healthcare providers can only organize and go on strike in accordance with specific rules laid down in an agreement concluded between the Government and workers’ organizations concerned, the Committee notes the Government’s response that the regulation does not prohibit the right to strike, but merely restricts it and is not a disproportionate restriction of fundamental rights. In that regard the Committee notes the information provided by the Government according to which: (i) under Section 3(3) of Act VII of 1989 on Strikes, there is no legal possibility for strike if it would directly and seriously endanger human life, health, corporal integrity or the environment, or would impede prevention of the effect of natural disasters; and (ii) under Section 4(2) of Act VII of 1989 on Strikes, in the case of employers who perform activities of fundamental public concern – such as, in particular, in the field of mass transportation on public roads and telecommunications, as well as at suppliers of electivity, water, gas and other energy – the right to strike may be exercised in a way so as not to impede the performance of services maintained at a level deemed sufficient. The Government adds that healthcare may be included in the list given and that the list provided in the law is not exclusive. The Committee also notes the Government’s indication, that the regulation under Act C 2020 requesting the conclusion of an agreement between the parties is not unprecedented in Hungarian law and that an agreement between the Government and trade unions has been in force since 1994.
13. 420. The Committee notes that according to the complainants, legal restrictions on the right to strike for healthcare workers are already set out in Act VII of 1989 on Strikes and further restrictive provision of the new law is unjustified and disproportionate. The Committee also notes the complainants’ indication that: (i) the requirement that an agreement on the exercise of the right to strike has to be concluded with the Government, which already plays a legislative authority and maintaining role, raises the issue of official intervention; and (ii) if no agreement is reached the right to strike cannot be exercised.
14. 421. The Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Compilation, para. 830].
15. 422. The Committee welcomes the Government’s indication that Section 15(11) of Act C of 2020 does not prohibit the right to strike of healthcare providers and notes the Government’s indication that healthcare may be included among cases where minimum services could be applied and refers in that regard to Section 4(2) of Act VII of 1989 on Strikes. The Committee observes that the Strike Act, as amended, states that the degree and condition of the minimum level of service may be established by law, and that, in the absence of such regulation, they shall be agreed upon by the parties during the pre-strike negotiations or, failing such agreement, they shall be determined by final decision of the court.
16. 423. However, the Committee observes that the obligation to have an agreement on the conditions under which the right to strike can be exercised means that some healthcare workers with health service status that are not considered essential will not be able to exercise this right as long as such an agreement is not concluded. In these circumstances, the Committee recalls that the workers’ and employers’ organizations concerned must be able to participate in determining the minimum services which should be ensured, and in the event of disagreement, legislation should provide that the matter be resolved by an independent body and not be the administrative authority [see Compilation, para. 882]. Moreover, as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Compilation, para. 856].
17. 424. In view of the above considerations, the Committee requests the Government to keep it informed of any agreements made on the right to strike of persons in a health service legal relationship and, upon consultation with the representative workers’ and employers’ organizations concerned, review Section 15(1) of Act C of 2020 so as to ensure that for those who may not be considered to be essential services in the strict sense of the term, an independent body may determine the minimum service for industrial action should no agreement be reached between the parties. For persons who may be considered to be in essential services in the strict sense of the term, the Committee requests the Government to ensure that adequate, impartial and speedy conciliation and arbitration proceedings are available in the event that they are not able to have recourse to industrial action.
18. 425. With regard to the allegation that Act C of 2020 and Government Decree 530/2020 implementing Act C of 2020 were unilaterally initiated by the Hungarian Government and adopted without sufficient consultation with the relevant organizations, the Committee notes that the Government has not provided any response. The Committee has emphasized the value of consulting organizations of employers and workers during the preparation and application of legislation which affects their interests [see Compilation, para. 1536]. The Committee recalls that in any case, any limitation on collective bargaining on the part of the authorities should be preceded by consultations with the workers’ and employers’ organizations in an effort to obtain their agreement [see Compilation, para. 1421]. Moreover, in line with the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), the Committee underlines the importance of social dialogue in general and collective bargaining in particular in responding to crisis situations by encouraging the active participation of employers’ and workers’ organizations in planning, implementing and monitoring measures for recovery and resilience. The Committee trusts that the Government will review the measures taken affecting healthcare workers, in consultation with the representative workers’ organizations concerned, and fully ensure respect for this principle on any further measures considered.