Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 356, Marzo 2010

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

1. 168. The Committee last examined this case which concerns obstacles to collective bargaining in a public administration (Court of Audit) at its November 2008 meeting [see 351st Report, approved by the Governing Body at its 303rd Session, paras 1241–1283]. On that occasion it made the following recommendations:
   • (a) The Committee requests the Government to take any necessary measures to amend section 12(1) of Act No. 130/1996 so that it no longer excludes from the scope of collective negotiations base salaries, pay increases, allowances, bonuses and other entitlements of public service employees. In any event, if the country’s laws or Constitution require that agreements concluded be subject to a budgetary decision by Parliament, the system should in practice ensure full respect for provisions that have been freely negotiated.
   • (b) Recalling that any change in legislation that could have the effect of extending the range of provisions excluded from collective negotiations on conditions of work and employment of public service employees would be contrary to the principles of developing and using collective bargaining as set out in the Conventions ratified by the Government, the Committee trusts that the Government, in any process of amendment to Act No. 130/1996, will take account of this and of the principles referred to in its conclusions. The Committee requests the Government to keep it informed of any developments in this regard.
   • (c) The Committee requests the Government to take the necessary measures to amend Act No. 188/1999 so that it does not restrict the range of matters that can be negotiated in the public administration, in particular those that normally pertain to conditions of work and employment. The Committee encourages the Government to rectify this situation by drawing up with the social partners guidelines on collective negotiations and thus to define the scope of collective bargaining, in accordance with Conventions Nos 98 and 154 which it has ratified. In any event, if legislation requires that agreements concluded be subject to a budgetary decision by Parliament, the system should in practice ensure full respect for provisions that have been negotiated freely.
   • (d) The Committee consequently requests the Government to take all the measures necessary to settle the dispute concerning the agreement negotiated between the trade union LEGIS–CCR and the management of the Court of Audit, as quickly as possible and in accordance with the established procedures; and to promote collective bargaining within the institution in question. The Committee trusts that the Government will keep it fully informed of any new developments in this respect.
2. 169. In a communication dated 29 September 2009, the trade union LEGIS–CCR indicates that the management of the Court of Audit still refuses to negotiate and sign a collective labour agreement. According to the complainant organization, on 9 June 2009, the LEGIS–CCR and the Trade Union of the Court of Audit of Romania (SCCR), another trade union operating within the Court of Audit, held a meeting with the representatives of the Court of Audit which resulted in an agreement being signed, under which the date 9 June 2009 “shall represent the start date for negotiating the collective labour agreement” and the parties each had to present a draft collective labour agreement applicable to the 1,130 employees governed by Act No. 53/2003 (issuing the Labour Code), as well as a draft collective agreement applicable to the 97 civil servants governed by Act No. 188/1999 on the status of civil servants. The complainant organization indicates that, in accordance with section 3(3) of Act No. 130/1996 which provides that “the period of collective bargaining may not exceed 60 days”, the LEGIS–CCR and SCCR presented a common draft collective labour agreement on 22 June 2009. However, the Court of Audit has never replied to their written proposals, even though it was supposed to do so within 30 days of receipt. As of 29 September 2009, more than 100 days after the protocol had been signed, no collective bargaining had taken place.
3. 170. According to the complainant organization, the committee composed of three advisers appointed by the Court of Audit preferred to send the two trade unions, on 8 September 2009, a draft protocol governing the staff of the Court of Audit, stating that this was the only document that the President of the Court of Audit would agree to sign. The
   • LEGIS–CCR indicates that, on 22 September 2009, it registered with the Court of Audit its objection to the draft protocol which does not mention the employer’s obligations and violates several laws in force, and filed a request for new talks which was ignored. The LEGIS–CCR alleges bad faith on the part of the Court of Audit with regard to the talks in so far as it postpones and organizes meetings unilaterally at the last minute and without prior warning. Finally, the complainant organization indicates that the parties held a mediation session on 16 October 2009 without success, during which the representatives of the President of the Court of Audit reiterated the refusal of the management to negotiate and sign a collective labour agreement at the institutional level.
4. 171. In a communication dated 10 September 2009, the Government sent the observations of the Court of Audit concerning the follow-up to the Committee’s recommendations. The Government indicates that, although the Court of Audit does not reject the idea of collaboration with the trade unions operating within the Court, the LEGIS–CCR and SCCR, it considers that the scope for concluding a collective labour agreement is extremely limited for the following reasons:
   • – According to section 12(1) of Act No. 130/1996, the conclusion of a collective agreement is based exclusively on the mutual agreement of the parties and the parties may not negotiate clauses, the regulation of which is within the remit of the legislative authority.
   • – Section 72 of Act No. 188/1999 on the status of civil servants contains a restrictive list of the matters which may be the subject of a collective agreement which does not include clauses concerning the salary entitlements of civil servants.
   • – Section 157(2) of the Labour Code provides that the rights of public institution and public authority employees relating to their salaries are established by law and may not therefore be the subject of negotiations which would result in the inclusion of clauses in a collective labour agreement.
5. 172. The Government further indicates that, following the negotiations held with the trade unions, the Court of Audit created a committee with the aim of concluding a protocol between the parties. The protocol provides for collaboration with a view to: (i) establishing collective and individual planning relating to rest periods for employees and occupational health and safety measures; (ii) drawing up and implementing the vocational training plan for employees; (iii) assessing the employment situation, structure and likely developments within the Court of Audit (as well as a number of possible forward planning measures, particularly in situations where jobs are under threat); and (iv) decisions resulting in major changes to the organization of the work, as well as to contractual or labour relations.
6. 173. In a communication dated 5 November 2009, the Government indicates that the Ministry of Labour attempted to resolve the dispute by means of a conciliation session held on 16 October 2009 at the headquarters of the Labour and Social Welfare Directorate in Bucharest, but to no avail. The Government indicates that the Court of Audit argues that section 12 of Act No. 130/1996 on collective labour agreements does not require the conclusion of a collective agreement if the plenary of the Court considers that the provisions of other laws and regulations on budgetary rights are respected. Moreover, the Court allegedly unanimously rejected the conclusion of a collective agreement, opting instead for a draft protocol presented to the trade unions by the management on 8 September 2009.
7. 174. With regard to its previous recommendations concerning the promotion of collective bargaining within the Court of Audit, the Committee notes that, according to the complainant organization, the LEGIS–CCR and SCCR negotiated an agreement with the representatives of the Court of Audit, under which the parties each undertook to bargain collectively and to present a draft collective labour agreement; that they presented a common draft collective labour agreement which was ignored by the Court of Audit; that, to date, no collective bargaining has taken place; and that the committee set up by the Court of Audit sent the two trade unions a draft protocol, stating that this was the only document that the President of the Court of Audit was willing to sign. It also notes that, according to the Government, although the Court of Audit does not reject the idea of collaboration with the LEGIS–CCR and SCCR, it considers that the scope for concluding a collective labour agreement is extremely limited since section 12(1) of Act No. 130/1996, section 72 of Act No. 188/1999 and section 157(2) of the Labour Code restrict the scope of negotiation. The Committee therefore notes, according to the information provided by both the complainant organization and the Government, that no collective bargaining has taken place to date at the Court of Audit concerning the conditions of employment of the staff of the institution. The Committee recalls that it has always recognized that the voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association. However, measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee would like to reiterate that Convention No. 98, in particular Article 4 concerning the encouragement and promotion of collective bargaining, applies both to the private sector and to nationalized undertakings and public bodies [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 925, 880 and 885]. Consequently, while noting the conciliation session held on 16 October 2009 at the headquarters of the Labour and Social Welfare Directorate in Bucharest, which did not produce results, the Committee once again urges the Government to take all the steps necessary to settle the dispute between the trade union LEGIS–CCR and the management of the Court of Audit as quickly as possible and in accordance with the established procedures and to promote collective bargaining within this institution. The Committee trusts that the Government will keep it fully informed of any progress made in this regard.
8. 175. The Committee notes the allegations made by the complainant organization that the Court of Audit showed bad faith in its conduct of the negotiations by postponing or arranging meetings unilaterally at the last minute and without prior warning. In this regard, the Committee considers that such practices, if they occurred without good reason, are harmful to the development of normal and healthy labour relations. It recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations. It is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties [see Digest, op. cit., paras 934 and 935].
9. 176. With regard to the draft protocol sent by the Court of Audit to the LEGIS–CCR and SCCR, stating that this was the only document that the President of the Court of Audit was willing to sign, the Committee reiterates that such practices show a lack of good faith in negotiation. With regard to the complainant organization’s allegations that the draft protocol does not mention the employer’s obligations and violates several laws in force as well as the principles of freedom of association, the Committee considers that it is not for the Committee and, given the circumstances, to decide on the content of the text. The Committee trusts that the Government will be in a position soon to provide information indicating that genuine collective bargaining has taken place and has led to a concerted text.
10. 177. With regard to its recommendations concerning the need to amend section 12 of Act No. 130/1996, the Committee notes that the Government merely reiterates that, in accordance with section 12 of Act No. 130/1996, the parties may not negotiate clauses the regulation of which is within the remit of the legislative authority. The Committee once again recalls that, in general, limitations on the scope of negotiation of collective labour agreements in the public service are contrary to the principles of the collective bargaining Conventions ratified by the Government, in particular Convention No. 154, which encourage and promote the development and use of collective bargaining machinery on terms and conditions of employment [see 351st Report, approved by the Governing Body at its 303rd Session, paras 1241–1283]. The Committee notes that no steps have been taken by the Government despite its previous recommendations concerning the amendment of Act No. 130/1996. The Committee is therefore bound to request the Government once again to take all the steps necessary to amend section 12(1) of Act No. 130/1996, so that it no longer excludes from the scope of collective bargaining base salaries, pay increases, allowances, bonuses and other entitlements of public service employees. In any event, if the legislation or Constitution requires that agreements concluded be subject to a budgetary decision by Parliament, the system should in practice ensure full respect for provisions that have been freely negotiated. Recalling that any change in legislation that could have the effect of extending the scope of provisions excluded from collective bargaining on conditions of work and employment of public service employees would be contrary to the principles of developing and using collective bargaining as set out in the Conventions ratified by the Government, the Committee trusts that the Government will take this into account during any process to amend Act No. 130/1996. The Committee requests the Government to keep it informed of any developments in this regard.
11. 178. With regard to its recommendations concerning the need to amend Act No. 188/1999, so that it does not limit the scope of negotiation of collective agreements in the public service, the Committee notes that the Government merely repeats the reasoning of the Court of Audit that section 72 of Act No. 188/1999, on the status of civil servants, contains a restrictive list of the matters which may be the subject of a collective agreement which does not include clauses concerning the salary entitlements of civil servants. Noting that the Government has not taken any steps to amend Act No. 188/1999 despite its previous recommendations, the Committee once again requests the Government to take the necessary steps to amend Act No. 188/1999, so that it does not restrict the range of matters that may be negotiated in the public administration, in particular those that normally pertain to conditions of work and employment. The Committee once again encourages the Government to draw up guidelines on collective bargaining with the social partners concerned and to define the scope of collective bargaining, in accordance with Conventions Nos 98 and 154 which it has ratified. In any event, if the legislation or Constitution requires that agreements concluded be subject to a budgetary decision by Parliament, the system should in practice ensure full respect for provisions that have been negotiated freely. The Committee requests the Government to keep it informed of any progress made in this regard.
12. 179. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.