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. 151. The Committee examined the substance of this case at its March 2001 meeting, when it invited the Government, after consultation with the concerned parties regarding the appropriate practical details, to take the required measures to secure the prompt reinstatement of trade union leader Mr. Ion Mihale in his duties and to keep it informed of developments in this situation [324th Report, para. 896].
2. 152. In its communication dated 12 September 2001, the Government states on the basis of the information obtained from the management of the Minmetal SA enterprise that Mr. Mihale was dismissed not because the strike was declared illegal by the court, but because of his disciplinary record and the circumstances of the case. According to the Government, Mr. Mihale was accused of several breaches of discipline at the time the strike (in which 314 out of 702 workers did not want to participate) was declared, and in particular of having forged the signatures of 19 workers. In line with the spirit of the Committee’s recommendations, in August 2001, the Minmetal SA management had carried out a survey among the 345 workers (out of 524) who were present at work on the subject of reinstating Mr. Mihale; 94 per cent of those questioned responded negatively and 79 per cent of them felt that such a decision would be detrimental to the harmony and constructive spirit of the labour relations climate now prevailing in the enterprise. The management therefore considers that the prompt reinstatement of Mr. Mihale, disregarding both the decision of the competent court and the results of the survey carried out at the workplace, could have unforeseeable consequences for the working atmosphere in the enterprise.
3. 153. While it is aware of its obligations ensuing from the ratification of international labour Conventions and is open to the recommendations made by the Committee, as evidenced by the amendment of the legislation respecting the settlement of labour disputes (Act No. 168/1999), the Government remains convinced that it must, first and foremost, ensure compliance with the law.
4. 154. The Committee notes all of this information. As regards the reasons for Mr. Mihale’s dismissal, the Committee recalls that its examination of the case was based both on the documents and arguments put forward by the complainant and on those submitted by the Government concerning the courts’ characterization of the dismissal. As regards the reasons for judgement of the court (Judgement No. 12712, Court of Constanta, of 11 August 1999, upheld by Judgement No. 2251, civil chamber of the Court of Constanta, of 15 September 1999), which do not mention the alleged forgery of signatures or Mr. Mihale’s disciplinary record, the Committee concluded, inter alia, that: “the decisive factor in any analysis rests on whether the strike is lawful or not. Without taking a position as to whether the interpretation of these provisions as rendered by the court is founded in light of the particular circumstances, the Committee emphasizes that, whereas the right to strike is not an absolute right and must be exercised in observance of national legislation, the legal provisions must also conform to the principles of freedom of association” [324th Report, para. 891]. The Committee agrees with the Government that it is important to ensure compliance with the law, but must once again emphasize that the law must itself conform to the principles of freedom of association. The Committee recalls in addition that no one should be penalized for carrying out or attempting to carry out a legitimate strike [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 590].While taking account of the actual situation in the Minmetal SA enterprise, the Committee trusts that a solution can be found that is satisfactory for the company and for the person mainly concerned, Mr. Mihale. The Committee requests the Government and the complainant to keep it informed of the measures taken to follow up on its recommendations, and of developments in the situation.