Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

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suspend, under certain circumstances, the start or continuation of a strike for a period of 90 days (this provision is repealed by section 91 of Act No. 168);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conditions, which are in themselves contrary to the Convention, but which were set out in the law (these provisions are repealed by section 91 of Act No. 168);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.