Effect given to the recommendations of the committee and the Governing Body - Report No 326, November 2001

Effect given to the recommendations of the Committee and the Governing Body

1. 27. The Committee last examined this case at its meeting in November 2000 when it requested the Government to keep it informed of the outcome of the counting of the membership of PROMYANA and ADS (the Association of Democratic Syndicates). The Committee also requested the Government to indicate whether the proposed amendment to the Labour Code concerning the maximum duration of a collective agreement reflected tripartite agreement [see 323rd Report, paras. 42-44].
2. 28. In a communication dated 15 January 2001, ADS indicated that amendments have been adopted to the Labour Code (annexed to their communication) which it considers further supports the monopoly and discrimination exercised by the Confederation of Independent Trade Unions of Bulgaria (CITUB) and CL “Podkrepa” at the national level, to the exclusion of ADS from the social dialogue and collective agreements. While having no problem with the article of the Labour Code which sets forth that only representative trade unions can participate in the National Tripartite Council (NTC), ADS considers that using the same representativeness criteria for participation on branch, field and municipality tripartite councils is discriminatory. Thus, only representative organizations can take part in collective bargaining at the branch or field level and, as such agreements can be extended to all enterprises in the given branch or field by the Minister of Labour, it effectively restricts the rights of other organizations to negotiate collective agreements at the enterprise level. The complainant also states that its exclusion from the NTC was unlawful and contrary to the Supreme Administrative Court judgements that had determined that the previous criteria for representativeness were unconstitutional. Finally, the complainant adds that a poll of trade union membership has never been conducted in Bulgaria, nor is there any law to provide for trade union elections for representativeness.
3. 29. In a communication dated 28 August 2001, the Government states that the complainant’s allegations are groundless and founded on misleading interpretations of the recent amendments to the Labour Code which came into force on 31 March 2001. The Government recalls that the objective and pre-established criteria set forth in the Labour Code are aimed at recognizing the representativeness of each workers’ organization and reiterates its readiness to conduct a poll to determine whether PROMYANA and ADS meet the necessary requirements for participation in the NTC. The Government adds that the mechanism for conducting a union poll fully meets the requirements of European standards and states that an order is being elaborated under section 36 of the Labour Code concerning the availability of criteria for representation. The Government states that ADS participated in the discussions of the proposed amendments and adds that all trade unions have full and unlimited rights to participate in negotiations at enterprise level. As for the possibility of extending collective agreements to all enterprises in a given branch, the Government clarifies that an extension can only be considered when it has been generally requested by the representative workers’ and employers’ organizations. Finally, the Government challenges the criticism that the amendments endorse discrimination and a monopolistic structure, since the Labour Code provides for verification of the representative status every three years.
4. 30. The Committee takes due note of the information provided by the complainant and by the Government. The Committee considers that the amendments to the Labour Code, which provide that only representative organizations may participate in tripartite councils at national, branch, field or municipal level, are not contrary to the principles of freedom of association, given that the criteria for establishing representative status under section 3(3) of the Labour Code has already been considered by the Committee to be in conformity with these principles. The Committee also considers that the extension of branch or field-level collective agreements upon the joint request of the parties involved is consistent with freedom of association principles. The Committee urges the Government, however, to take the necessary measures rapidly in order to conduct a poll to determine whether PROMYANA and ADS meet the necessary requirements to establish representativeness for participation in the NTC and to keep it informed of the progress made in this respect.