Informe definitivo - Informe núm. 356, Marzo 2010

1. 289. The complaint is contained in a communication from Education International (EI), the Trade Union of Bulgarian Teachers (SEB) and the Trade Union of Teachers Podkrepa dated 15 February 2009.
2. 290. The Government forwarded its response to the allegations in a communication received on 15 July 2009.
3. 291. Bulgaria has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 292. In a communication dated 15 February 2009, the complainant organizations EI, SEB and the Trade Union of Teachers Podkrepa denounce an attempt to undermine the right to industrial action of teachers in the public sector, through litigation for alleged discrimination as a result of a lawful strike. They allege the use by Bulgarian authorities of anti-discrimination laws to restrict union rights and to deny to officials in the education sector the right to collective industrial action.
2. 293. The complainants state that, in September–October 2007, the SEB and the Union of Teachers Podkrepa organized a large-scale strike involving 80 per cent of the staff of the public education sector (more than 110,000 teachers and educational staff). According to the complainant organizations, the strike was launched in a responsible manner, after numerous negotiation attempts to resolve the problem of low salaries for Bulgarian teachers. The complainants point out that, in 2004, when adopting the law on public servants, teachers had refused the status, which would have involved certain benefits, precisely because it would have denied them the right to strike. In their view, the teachers’ strike was in strict compliance with the Bulgarian legislation on the right to strike. The issue of the legality of the strike had never been raised, since all the conditions for the use of the right to strike had been scrupulously observed by the teachers’ unions. The complainants add that the strike ended after 42 days, as soon as the unions estimated that a sufficient portion of their demands were met.
3. 294. The complainant organizations indicate that, in March 2008, more than four months after the ending of the teachers’ strike, an association composed of six parents, lodged a complaint with the Commission for Protection against Discrimination in Bulgaria against the leaders of the two teachers’ unions that had organized the strike, namely Yanka Takeva, President of the SEB, and Kroum Kroumov, President of the Union of Podkrepa. The argument put forward by the plaintiffs amounted to saying that, due to the strike, pupils in public education had been discriminated against compared to pupils in private education. During the hearings on 4 April and 14 May 2008 before the Commission, the two union leaders argued that the procedure of legal strike could not come within the scope of the Protection against Discrimination Act, and that no tangible proof could be given to demonstrate the existence of the alleged discrimination because the complaint did not name an individual who had suffered discrimination. The unions also protested against the fact that the complaint was directed against two union leaders who could not be held liable for actions committed by others. The Commission accepted the claim notwithstanding the trade unions’ arguments.
4. 295. The complainants denounce an intimidation attempt against teachers and a misuse of the powers of national institutions. In their view, this case being brought before the Supreme Administrative Court or eventually the Supreme Court, demonstrates that the Government attempts to hinder the freedom of workers to exercise the constitutionally recognized right to strike in order to defend their interests. The complainant organizations also refer to several legal texts regulating the procedure and scope of that right, in particular the Settlement of Collective Labour Disputes Act. They allege that the Government seeks to exploit the discontent caused by disruptions due to the strike, although strikes are by nature disruptive and costly, and ignores that strike action also calls for an important sacrifice by the Bulgarian teachers.
5. 296. According to the complainants, the teachers’ strike in Bulgaria showed that it often takes several weeks of costly and disruptive conflict before a government recognizes the failure of its policy and finally accepts, as in this case, to seek a solution through negotiation. They highlight that the complaint against two union leaders occurs in a new climate of discontent among teachers who, despite the perceived wage rises, continue to deplore the weakness of their salaries. In their view, if the authorities wanted to deter unions from new mobilization, they could not find a better way to go about it.
6. 297. The complainant organizations recall that, during the discussions of the case of Bulgaria before the Committee on the Application of Standards at the International Labour Conference in 2008, the Government representative had reaffirmed the Government’s commitment to the search for appropriate solutions via tripartite dialogue. They feel, however, that no such willingness seems to be reflected in the proceedings against the two union representatives before the Commission for Protection against Discrimination in Bulgaria.
7. 298. The complainants finally indicate that, upon appeal, the Supreme Administrative Court, at its recent session, considered that the rights of children in public schools had been violated and that, given its importance in the country, the public education sector should have a minimum service in schools and kindergartens and nurseries in case of strike. The ongoing litigation had also led to a broad discussion in society of the right to strike of workers in public education and the conditions to be met. The complainant organizations believe that the notion of essential services and minimum service must not have the purpose or effect of weakening the most powerful means of pressure available to workers.

B. The Government’s reply

1. 299. In a communication received on 15 July 2009, the Government refers to the appeal by the trade unions of Decision No. 205 of 2 October 2008 of the Commission on Protection against Discrimination before the Supreme Administrative Court. The decision had determined an unfavourable treatment of pupils in state and municipal schools compared with those in private schools and a direct causal connection between the effective teachers’ strike (24 September–5 November 2007) and the abovementioned unfavourable treatment. In addition, the decision had recommended that the Council of Ministers of Bulgaria put forward a draft law for amending section 14(1) of the Settlement of Collective Labour Disputes Act, to the effect that education services in the primary and high school education in state and municipal educational establishments are included in the category “socially important” services, which have to be provided during a strike.
2. 300. The Government notes that the appeal of the Commission’s decision was made in implementation of the law. According to section 68(1) of the Protection against Discrimination Act, the decisions of the Commission are subject to appeal before the Supreme Administrative Court pursuant to the procedure of the Administrative Procedure Code within 14 days from their announcement to the interested persons. The Government refutes as unfounded the allegation of the complainants, that in the presence of a complaint lodged before the Supreme Administrative Court, the Government will try to restrict the right to strike and the freedom of workers to protest for protecting their interests – a right which is guaranteed by the Constitution of Bulgaria.
3. 301. The Government further indicates that, by Ruling No. 4991 of 14 April 2009, the Supreme Administrative Court left the complaint without examination and terminated the procedure due to the lack of legal interest of the complainants for the requested legal protection. The Ruling entered into force on 12 June 2009. Until the entry into force of the decision of the Commission on the Protection against Discrimination, the Government could not undertake any measures for implementing the Commission’s recommendation.
4. 302. The Government assures that, if it undertakes the necessary measures for drafting the amendments of the Settlement of Collective Labour Disputes Act, these amendments will be discussed with the social partners. Consultations with the representative employers’ and workers’ organizations are required by national legislation and regular practice in Bulgaria. The Government finally underlines that the issue of including the education services in the category “socially important” services to be provided at minimum level during a strike, is subject to a legislative decision, which under no circumstances could lead to a breach or a restriction of trade union rights, and especially the right to strike of employees in education.

C. The Committee’s conclusions

1. 303. The Committee notes that, in the present case, the complainants denounce the litigation brought following a strike, which aims to undermine the right to strike of teachers, and allege the use by Bulgarian authorities of the discrimination laws to restrict union rights and to deny to officials in the education sector the right to collective industrial action.
2. 304. The Committee notes the Government’s reply and Decision No. 205 of 2 October 2008 of the Commission on Protection against Discrimination in Bulgaria. Under section 47(1) of the Protection against Discrimination Act, the Commission has the power to, inter alia: ascertain violations of legislation concerning equal treatment, the perpetrator of the violation and the aggrieved person (No. 1); order prevention or termination of the violation and restore the original situation (No. 2); impose the sanctions envisaged and implement administrative enforcement measures (No. 3); issue mandatory directions for compliance with legislation concerning equal treatment (No. 4); issue opinions on the conformity of draft legislation with anti-discrimination legislation, and make recommendations for the adoption, repeal, amendment, or supplementation of legislation (No. 8). The Committee understands that the Commission’s decision solely reviews the issue from the angle of disadvantageous treatment, and does neither make a determination as to the legality of the teachers’ strike of 2007, nor engage the liability or give rise to any direct sanction in relation to the exercise of this right by the two teachers’ unions. In effect, the only addressee of the decision is the Council of Ministers, to which the Commission recommends, according to section 47(1) No. 8, to introduce a draft for the amendment of section 14(1) of the Settlement of Collective Labour Disputes Act, “via which the list of the socially significant services that must be ensured during a strike is to be expanded to include the educational services in the primary and secondary school education in state and municipal educational institutions” (Supreme Administrative Court citing the Commission’s decision). The Committee also takes note of the Government’s assurance that, if it takes the necessary measures for drafting the amendments to the Settlement of Collective Labour Disputes Act, these amendments will be discussed with the representative employers’ and workers’ organizations, and that any legislative decision concerning the issue of including the education services in the category of “socially important” services to be provided at minimum level during a strike, will not lead to a breach or restriction of trade union rights, and especially the right to strike of employees in education.
3. 305. As regards the Government’s role in the litigation, the Committee notes that, according to section 40(1) of the Protection against Discrimination Act, the Commission for Protection against Discrimination in Bulgaria is an independent specialized state body for prevention of and protection against discrimination. Whereas, according to section 50(1), proceedings before the Commission could, inter alia, be instituted on tip-offs from state and municipal authorities, the complainants themselves indicate that the complaint filed with the Commission has been lodged by a parents’ association. Moreover, the Committee notes that, under section 68(1) of the Protection against Discrimination Act, the Commission’s decisions are appealable to the Supreme Administrative Court under the conditions and procedure of the Administrative Procedure Code, and that the appeal of the decision by the trade unions (Ruling No. 4991 of 14.04.2009) was held procedurally inadmissible. In the light of this information, the Committee is not in a position to conclude that the litigation was initiated by or could be attributed to the Government.
4. 306. As regards Decision No. 205 of 2 October 2008 of the Commission on Protection against Discrimination in Bulgaria, the Committee is concerned by the interference created by this decision in a long-established right granted to teachers on the basis of an implied violation of equal rights between the public and private sectors. The Committee is bound to reiterate that it has always held the right to strike to be one of the essential means through which workers and their organizations may promote and defend their economic and social interests. Moreover, it has always recognized the right to strike by workers and their organizations as a legitimate means of defending their economic and social interests (see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 521 and 522). The Committee observes that the discrimination being referred to by the Commission on Protection against Discrimination was not the result of a difference in legislative framework – the right to strike is guaranteed for teachers in both the public and private sectors – but rather of the impact of the recourse had to that fundamental right on a specific occasion. As regards the actual impact of the strike on public school students and their families, the Committee observes, as indicated by the complainants, that strikes are by nature disruptive and costly and that strike action also calls for a significant sacrifice from those workers who choose to exercise it.
5. 307. While noting that Decision No. 205 of 2 October 2008 was issued by an independent national body, the Committee wishes to stress that the determinations made by that body cannot dispense the Government of its international obligations. As regards the substance of the recommendation by the Commission, the Committee understands from the Government’s reply that it will proceed to review the manner in which it shall give effect to the recommendation that the Council of Ministers introduce an amendment to
   • section 14(1) of the Settlement of Collective Labour Disputes Act, to the effect that “educational services as public services should be included in the group of the socially significant services whose provision should be ensured to a maximum degree during a strike” (Supreme Administrative Court citing the Commission’s decision). The Committee observes that section 14(1), as currently drafted, provides that a written agreement must be concluded between workers and employers prior to a strike, ensuring the conditions for the realization of the activities, the non-fulfilment or stoppage of which during the strike may create risks for certain enumerated goods and services.
6. 308. In this regard, the Committee feels obliged to recall that education is not an essential service in the strict sense of the term. It points out, however, that minimum services may be established in certain sectors in accordance with the following principles: A minimum service may be set up in the event of a strike, the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering life or normal living conditions of the whole or part of the population; in addition, workers’ organizations should be able to participate in defining such a service in the same way as employers and the public authorities. The Committee has stated, for example, that minimum services may be established in the education sector, in full consultation with the social partners, in cases of strikes of long duration [see Digest, op. cit., paras 610 and 625].
7. 309. In light of the general wording of the recommendation and the use of terms such as “maximum degree”, the Committee wishes to recall that the determination of minimum services and the minimum number of workers providing them should involve not only the public authorities, but also the relevant employers’ and workers’ organizations. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of over-generous and unilaterally fixed minimum services [see Digest, op. cit., para. 612]. The Committee emphasizes that such a service must genuinely be a minimum service, i.e. restricted to the operations which are necessary to satisfy the basic needs of the population or the minimum requirements of the service, while ensuring that the scope of the minimum service does not render the strike ineffective.
8. 310. The Committee expects that any eventual amendment of the Settlement of Collective Labour Disputes Act that bears on issues relating to freedom of association and collective bargaining will be in full conformity with the Convention and the abovementioned principles, and that the relevant employers’ and workers’ organizations will be fully consulted in this regard.
9. 311. The Committee draws the legislative aspects of the present case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.