Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee takes note of the report of the technical assistance mission to Romania which took place in May 2008 in the context of the follow-up to the conclusions reached by the Conference Committee on the Application of Standards in 2007. It notes from the Government’s report that pursuant to the ILO mission, the social partners that are representative at the national level in Romania, as well as representatives of the Romanian Government, signed a memorandum in which they agreed to improve the legal framework on labour and social dialogue and to request specialized ILO technical assistance on the legislative texts concerning: the right to freedom of association for trade unions and employers’ organizations (Act No. 54/2003 which according to the Government, is currently under discussion before Parliament); collective agreements (Act No. 130/1996); and settlement of industrial disputes (Act No. 168/1999). A tripartite working group has been set up in order to examine amendments to the abovementioned Acts and focuses at present on a draft bill to amend Act No. 130/1996.

The Committee takes note of the comments made by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008 referring to acts of anti-union discrimination and employer refusal to bargain, as well as the Government’s reply which focuses on the legislative framework for addressing these issues. The Committee requests the Government to indicate in its next report statistical information on the number of cases of anti-union discrimination brought to the competent authorities, the average duration of proceedings and their outcome, as well as information on the activities of the mediation and conciliation services of the Ministry of Labour, Family and Equal Opportunities.

The Committee also notes the communications by the National Education Federation (FEN) dated 12 September 2007 and 27 May 2008, as well as the Government’s reply of 4 December 2007 and 21 October and 11 November 2008 concerning collective bargaining in the public sector with regard to the wages of teachers. The Committee addresses this issue below.

Finally, the Committee notes the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2611 and 2632 submitted, inter alia, by FEN, with regard to various aspects of collective bargaining in the public sector (351st Report, paragraphs 1241–1283).

Articles 2 and 3 of the Convention. In its previous comments, the Committee requested information on the penalties against acts of interference which is prohibited under sections 221(2) and 235(3) of Act No. 53/2003 and Act No. 54/2003. The Committee notes from the Government’s report that under Act No. 54/2003, the restriction of the exercise of the activities of trade union officials or the obstruction of the exercise of the right of freedom of association are punished with imprisonment from six months to two years or a fine between 2,000 Romanian New Lei (RON) and RON5,000. Noting that these remedies are provided under Act No. 54/2003, the Committee requests the Government to clarify whether they apply also to violations of Act No. 53/2003, and if not, requests the Government to indicate in its next report the measures taken or contemplated so as to adopt dissuasive sanctions and rapid appeal procedures against acts of interference under Act No. 53/2003.

Articles 4 and 6. Collective bargaining with public servants not engaged in the administration of the State. In its previous comments, the Committee requested information on the process and scope of collective bargaining for public servants not engaged in the administration of the State under Act No.  188/1999 as amended by Act No. 251/2004. The Committee notes from the Government’s report that under section 72 of Act No. 188/1999 the public authorities and institutions have the right to conclude agreements every year with the representative trade unions of public employees (or the representative of public employees where there are no unions) on the following subjects: the constitution and functioning of funds for the improvement of working conditions; safety and health at work; the daily work programme; vocational training; other measures concerning the protection of trade union officers. The Government adds that at present, the representatives of Government, and workers’ and employers’ organizations are holding tripartite negotiations for the establishment of a set of principles which will constitute the basis of a new law on the salaries of personnel in the public budget sector.

The Committee notes from the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2611 and 2632 that in the public budget sector which covers all public employees, including those who are not engaged in the administration of the State (e.g. teachers), the following subjects are excluded from the scope of collective bargaining: base salaries, pay increases, allowances, bonuses and other staff entitlements which are fixed by law. The Committee emphasizes that all public servants who are not engaged in the administration of the State should enjoy the guarantees provided for in Article 4 of the Convention with regard to the promotion of collective bargaining. The Committee therefore requests the Government to indicate in its next report the measures taken or contemplated in the framework of the current labour law reform 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 employees who are not engaged in the administration of the State. The Committee, in recognition of the fact that the special characteristics of the public service require some flexibility in the application of the principle of the autonomy of the partners to collective bargaining, recalls that the Government could adopt legislative provisions which allow Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations or to establish an overall “budgetary package” within which the parties may negotiate monetary or standards-setting clauses (for example: reduction of working hours or other arrangements, varying wage increases according to levels of remuneration, fixing a timetable for readjustment provisions). Such measures should leave a significant role to collective bargaining and meet with the agreement of the parties concerned.

The Committee trusts that the Government will be in a position to report progress soon on the issues raised above in the framework of the law reform currently under way, and encourages the Government to continue to avail itself of the technical assistance of the Office if it so wishes.