Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 335, Noviembre 2004

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

1. 31. The Committee last examined this case at its meeting in June 2004 when it requested the Government to keep it informed of developments concerning the procedure of determining representativeness of workers’ and employers’ organizations, provided for in Ordinance No. 64/18, adopted on 11 July 2003 and which entered into force on 21 October 2003 [see 334th Report, paras. 22-24].
2. 32. In a communication dated 14 July 2004, the World Confederation of Labour (WCL) and its affiliate, the Association of Democratic Trade Unions (ADS), submitted additional information. Generally, the complainants indicate that during the first years of the political transition, proper conditions were set up for building a trade union environment respectful of trade union pluralism. Nevertheless, over the last years, there have been growing signs and acts against such pluralism. Official policies, practices and decisions, often implemented in total disrespect of sentences coming from the national courts, continue to pave the way for the total marginalization of most of the trade unions, including the ADS and the National Trade Union (NTU, previously known as PROMYANA). Single representativity of the workers’ voice in the hands of few (two) trade unions continues to be promoted. The complainants then explain more specifically the manner in which other trade unions have effectively been barred from exercising basic trade union rights. They refer to: (1) the fact that representation of trade unions in the National Tripartite Council (NTC) was based on the procedure set out in Decree No. 41 of 1998 relating to the procedure for determining the representative organizations of workers and of employers, despite matters raised by the Committee in this respect and a High Court judgement abrogating the decree; (2) the eternal nature of collective bargaining agreements that had been mostly signed by the former communist trade unions and were not renewed until 2001, at which time the new trade unions were still excluded from concluding new agreements; (3) the unfair distribution of trade union assets and property after the Communist era; (4) the exclusion of the new trade unions from social dialogue since 2000. According to ADS, the total membership of the five new trade unions reaches 2.8 million people, that is, 70 per cent of the working population; yet they are still not recognized.
3. 33. The complainants state that until 31 January 2003 only the Confederation of Independent Trade Unions in Bulgaria (CITUB) and the Confederation of Labour “Podkrepa” were recognized as representative on a national level; the decision of the Council of Ministers from 18 January 1999 having excluded the other trade unions from participation in the social dialogue. Thus, the Government had not heeded the judgement of the Supreme Administrative Court which had declared illegitimate the additional standards developed for counting trade union membership and upon which that Council of Ministers’ decision was based. The complainants add that the periodical verification of representativeness of trade unions (every three years) was not observed either.
4. 34. As regards the recently adopted Ordinance No. 64/18 which sets out representativeness criteria for workers’ and employers’ organizations, the complainants point out that its terms provide that only organizations acknowledged as representative should submit the documents necessary for the certification of their representativeness. The ADS and NTU thus wrote to the Ministry of Labour and Social Policy for clarification as to whether they might submit for certification. The complainants attached the reply from the Vice-Minister of Labour and Social Policy dated 17 September 2003 informing them that, while ADS had been recognized by decision of the Council of Ministers in 1997, that decision was subsequently revoked by the Council in 1999 in respect of ADS and of other workers’ organizations. Thus, ADS is not recognized as representative at the national level and the Ordinance does not apply to them or to other workers’ organizations whose representativeness had been repealed by the Council of Ministers. In this way, these workers’ organizations have been barred from submitting for determination of their representative status on the basis of an earlier decision that had illegally denied them that status. This also explains the reason why ADS and NTU did not submit their documents to the authorities as the Government indicated earlier in its communication of 11 July 2003.
5. 35. The complainants emphasize that, as a result of the approach taken by the Government, only the CITUB and “Podkrepa” are allowed to participate on the supervisory bodies of the National Insurance Institute and the National Health Insurance Fund. In addition, while there was larger trade union representation on the National Council for the European Social Charter, this Council was recently replaced by the Economic and Social Council, which considerably limits the representation of trade unions and upon which ADS is not included.
6. 36. Taking into account all of the above considerations, the complainants express their desire for: (1) the acceleration of the preparation of the law on trade unions, with equal participation for all trade union confederations, so that the issue of representativeness criteria may be settled in conformity with regional legislation and international principles; (2) the fair distribution of state assets to all existing trade unions; (3) the promotion of the right to sign collective agreement to all trade unions; and (4) the participation and effective consultation of all trade unions in social dialogue, in particular, in the Economic and Social Council.
7. 37. In its communication dated 16 August 2004, the Government provides information on the results of the trade union poll carried out at the end of 2003 on the basis of the Ordinance adopted by the Council of Ministers Decree No. 152 of 2003 (promulgated as Ordinance No. 64 and subsequently amended by a Supreme Administrative Court Judgement No. 9121 of 2003). As a result of this poll, a new employers’ organization, Employers Association of Bulgaria, was acknowledged as representative at national level.
8. 38. In a communication dated 19 October 2004, the Government replies to the additional observations made by the complainants. Firstly, the Government recalls the provisions of Ordinance No. 64 relative to the situations in which criteria for representativeness shall be identified. The Government states that section 1 of the Transitional Provisions of the Council of Ministers Decree No. 152 promulgating the Ordinance provides that the workers’ and employers’ organizations which have been recognized as representative at national level by a Council of Ministers Decision shall submit to the Council of Ministers the necessary documents for identifying the presence of criteria for representation up to 15 October 2003. The Council of Ministers keeps the representatives of those organizations which, by that time, have been recognized as representative for a period of three months after the expiration of the term in which the necessary documents for identifying the presence of criteria for representation should be presented. The Government states that the NTU appealed this provision before the Supreme Administrative Court.
9. 39. According to the Government, the Supreme Administrative Court agreed that section 1 of the Transitional Provisions initiated a procedure on section 36(a), paragraph 2, of the Labour Code for verification of the pre-existing nationally representative trade unions and employers’ organizations. Thus, the complainant did not have the capacity of a representative trade union at national level and could not take part in the National Council for Tripartite Cooperation, nor could it be a party to collective bargaining at sectoral, branch or municipal level. On the other hand, the complainant can make a request before the Council of Ministers on the grounds of section 36, paragraph 2, of the Labour Code to be recognized as a representative organization at national level, after the submission of necessary documents for identifying the presence of the relevant criteria. The Court concludes that by the adoption of this Ordinance through Decree, the Council of Ministers exercised its competence on section 36, paragraph 1, of the Labour Code to determine the procedures for identifying the presence of criteria for representation and in this sense the aim of the law has been achieved.
10. 40. The Supreme Administrative Court also ruled that, according to section 36(a), paragraph 1, the trade union and employers’ organizations recognized as representative shall identify their representation within a three-year period after their recognition under section 36, paragraph 2. For those trade unions that were acknowledged as representative before the adoption of the new sections 36 and 36(a), the three-year period commences from the date of entry into force of these provisions, that is 31 March 2001.
11. 41. In reply to the complainants’ allegations that the Labour Code contains certain provisions favouring certain trade union organizations, the Government asserts that these allegations are unwarranted and recalls that social dialogue at the enterprise level may be implemented with all workers’ organizations, regardless of whether they are recognized as representative at national level. In conclusion, the Government affirms that social dialogue is applied both in the development of labour standards and in the process of their implementation and is thus one of the essential principles of the operative labour law and labour relations in Bulgaria.
12. 42. As regards the complainants’ request that the preparation of the law on trade unions should be accelerated so as to address the issue of representativeness criteria, the Government considers that the draft law should be elaborated by the trade unions themselves, without state intervention. In addition, the Labour Code determines the criteria for representation. The NTU and ADS have had the possibility to apply before the Council of Ministers for recognition of representativeness at national level under section 36, paragraph 2. In August 2004, two organizations – the Association of Industrial Capital in Bulgaria and the Association of Trade Unions in Promyana Alliance – applied to be recognized under the established procedure.
13. 43. The Committee takes due note of the information provided by the complainants and by the Government. The Committee recalls that, during its first examination of this case in March 2000, the Government, having acknowledged that the representativeness criteria in question at the time (set forth in Decree No. 41) had been repealed by the High Court, expressed its willingness to conduct a poll to determine whether ADS and PROMYANA satisfied the long-established criteria set forth in the Labour Code. The Committee thus requested the Government to undertake a poll of these two unions and to keep it informed of developments in this respect.[see 320th Report, paras. 359 and 360]. The Government indicated in reply that it had filed an official proposal for counting to PROMYANA and ADS, but ADS subsequently informed the Committee that a poll of trade union membership had never been conducted in Bulgaria, nor was there any law providing for trade union elections to determine representativeness. Noting the Government’s continued willingness to conduct such a poll, the Committee urged it to take the necessary measures in this respect rapidly [see 326th Report, paras. 27-30]. Subsequently, the Government referred to amendments being prepared to the Labour Code that would regulate the establishment of criteria for representativeness of workers’ and employers’ organizations and stated that an invitation would be addressed to the parties in order to conduct a poll once these amendments had been adopted [see 329th Report, paras. 25-27 and 330th Report, paras. 21-23].
14. 44. The Committee thus notes with concern that since the time of filing of this complaint in 1999, the Government has still not taken the necessary measures to conduct a poll to determine the representativeness of ADS and PROMYANA (now the NTU). While the Government asserts that these organizations have had the possibility to apply to be recognized as representative at national level under section 36, paragraph 2, the information provided by both the Government and the complainants, as well as the letter from the Deputy Minister of Labour to ADS stating that section 2, paragraph 1, of the Decree does not refer to ADS or to other workers’ organizations whose representativeness at national level has been repealed by the Council of Ministers and the fact that this letter does not indicate the avenues which should be taken to ascertain such status, demonstrate that the access to established mechanisms for determining representativeness are far from evident.
15. 45. In these circumstances, the Committee urges the Government to initiate the necessary measures immediately so that ADS and the NTU may establish whether they meet the requirements for obtaining representative status at national level. It further requests the Government to indicate whether the two organizations that applied for recognition at the national level in August 2004 have been granted this status and to keep it informed of developments in respect of any requests for recognition. In addition, the Committee wishes to recall that ILO technical assistance is available to the Government in respect of matters relating to the determination of representative workers’ and employers’ organizations and other matters raised in this case, should it so desire.