Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Bulgaria (Ratification: 1959)

Other comments on C098

Observation

Direct Request

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The Committee notes the observations of the Confederation of Independent Trade Unions in Bulgaria (KNSB/CITUB) submitted with the Government’s report, and requests the Government to provide its comments on the information concerning the practical application of the Convention.

The Committee notes the observations received on 1 September 2014 from the International Trade Union Confederation (ITUC), as well as the Government’s comments on the legislative matters raised by the ITUC in 2013 and 2014. The Committee requests the Government to provide its comments on the 2013 and 2014 ITUC observations concerning the practical application of the Convention.

Article 1 of the Convention. Protection against acts of anti-union discrimination. In its previous observation, the Committee had invited the Government to compile data on the average duration in practice of court proceedings related to discrimination on the grounds of trade union activities, including appeals procedures, and also on the average compensation paid and sanctions imposed, and to communicate this information in its next report. The Committee notes from the Government’s report that: (i) the equal treatment provisions of the Labour Code are supplemented by the provisions of the Protection against Discrimination Act with its own specialized anti discrimination proceedings before the Commission for Protection against Discrimination; (ii) as a preventive measure, section 333(3) of the Labour Code protects certain trade union officials against dismissal by requiring the prior consent of the trade union throughout the period of office and six months after it; (iii) in terms of compensation, section 225(1) of the Labour Code provides in all cases of unlawful dismissal for a compensation amounting to the worker’s gross remuneration for the period of unemployment but not more than six months; and section 71(1)(No. 3) of the Protection against Discrimination Act provides in cases of discrimination for a compensation with no upper limit for both material and non-material damages; (iv) section 71(1)(No. 2) of the Protection against Discrimination Act provides for the possibility to establish an obligation to cease violation, restore the situation before the violation and refrain from further discriminatory action; and (v) in terms of sanctions, section 78(1)(No. 2) of the Protection against Discrimination Act imposes a fine of BGN250 to BGN2,000 (€125 to €1,000) on the established perpetrator of discrimination (amount doubles in case of repeated offences). The Committee also notes the detailed information provided by the Government in relation to examples of application of the Protection against Discrimination Act in cases of discrimination due to trade union membership or activities.

The Committee considers that the applicable compensation for unlawful dismissal under section 225(1) of the Labour Code (up to six months’ wages) may be a deterrent for a certain number of small and medium-sized enterprises, but that this is unlikely so for large enterprises or high productivity or profitability enterprises; and that, similarly, the fine imposed under section 78(1)(No. 2) of the Protection against Discrimination Act lacks a deterrent effect. Taking note of the acts of anti-union discrimination alleged by the KNSB/CITUB and the ITUC, and recalling the importance, in cases of anti-union discrimination, of imposing deterrent fines and paying adequate compensation which would represent a sufficiently dissuasive sanction, so as to ensure the application of Article 1 of the Convention in practice, the Committee invites the Government to take the necessary steps to strengthen these sanctions and remedy measures in consultation with the most representative employers’ and workers’ organizations. In view of the case examples provided, the Committee further requests the Government to indicate: (i) the maximum and the average amounts of compensation ordered in recent years under section 71(1)(No. 3) of the Protection against Discrimination Act; (ii) whether, and in what circumstances, reinstatement under section 71(1)(No. 2) of the Protection against Discrimination Act may be and has already been ordered; and (iii) the average duration in practice of court proceedings (including appeal procedures) related to anti-union discrimination, as well as of proceedings before the Commission for Protection against Discrimination. The Committee requests the Government to clarify concrete cases in which the following provisions would be applicable: (a) section 225(1) of the Labour Code, and (b) sections 71 and 78 of the Protection against Discrimination Act.

Article 2. Protection against acts of interference. The Committee had previously noted that national legislation does not provide adequate protection of workers’ organizations against acts of interference by employers or employers’ organizations and had requested the Government to indicate the legislative measures taken or envisaged in this respect. The Committee notes the Government’s indication that no relevant legislative amendments were adopted during the reference period. The Committee recalls that national legislation should explicitly prohibit all acts of interference mentioned in the Convention and make express provision for rapid appeal procedures, coupled with dissuasive sanctions, in order to ensure the application in practice of Article 2 of the Convention. The Committee again requests the Government to take the necessary measures in order to modify the national legislation accordingly and to provide information on any developments in this regard.

Articles 4 and 6. Collective bargaining in the public sector. The Committee recalls that for a number of years it has been requesting the Government to amend the Civil Service Act so that the right to collective bargaining of all public service workers, other than those engaged in the administration of the State, is duly recognized in national legislation. Observing the Government’s statement that an interdepartmental working group was set up to develop proposals to the Civil Service Act, the Committee expressed the firm hope that the Civil Servant Act would soon be brought into accordance with the requirements of the Convention. The Committee notes the Government’s indication that the interagency expert working group drafted a bill amending the Civil Servant Act at the end of 2012, which proposed the regulation of collective agreements in the public service. The bill was submitted for consideration to the Council for Administrative Reform (CAR), was refused and submitted to the CAR for re-examination at the end of 2013; following a positive decision of the CAR, the bill was discussed in the framework of the Labour Legislation Commission at the National Council for Tripartite Cooperation, but no approval was granted by the representatives of the social partners. Furthermore, the Committee notes that the Government indicates that the Ministry of Labour and Social Policy reported on the instances of non-conformity between the national legislation and international ratified instruments and submitted them for consideration to the National Coordination Mechanism on Human Rights, which has the power to propose that the relevant state bodies and institutions initiate amendments to national legislation on human rights; and that, on 30 May 2014, at the proposal of the Foreign Affairs Minister, a decision was adopted to create an inter-institutional working group, which will propose a mechanism and concrete measures to overcome the instances of non-conformity as soon as possible. The Committee trusts that due account will be taken of its long-standing comments during the works of the inter-institutional working group to be created in the framework of the National Coordination Mechanism on Human Rights. The Committee requests the Government to provide information on any developments in this respect, in particular on the measures proposed by the above inter-institutional working group and the outcome of the deliberations within the National Coordination Mechanism on Human Rights itself.