Observation (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Grèce (Ratification: 1962)

Autre commentaire sur C098

Observation

Demande directe

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The Committee takes note of the detailed observations provided by the Hellenic Federation of Enterprises and Industries (SEV) and by the Greek General Confederation of Labour (GSEE), in communications received respectively on 31 August 2021. The Committee requests the Government to reply in detail to both these communications.

The Committee also takes note of the joint observations of the SEV and the International Organisation of Employers (IOE) received in 2019 and 2020, as well as of the GSEE observations received in 2019. The Committee notes the Government’s comments thereon.

Article 4 of the Convention. Promotion of collective bargaining. The Committee recalls that its previous comment followed up on the 2018 conclusions of the Conference Committee on the Application of Standards (the Conference Committee) concerning the compulsory arbitration system. The Committee notes the detailed information provided by the Government concerning the adoption of Act No. 4635/2019, which replaces the previous article concerning arbitration with article 57 permitting recourse to unilateral arbitration as a last resort and a subsidiary means of resolving collective labour disputes only in the following cases: (1) if the collective dispute concerns public interest or public utility enterprises the operation of which is vital for meeting the basic needs of society as a whole; and (2) if the collective dispute concerns collective bargaining between the parties which has definitively failed, the resolution which shall be imposed by reasons of general social or public interest related to the Greek economy. The Committee further notes that the definitive failure of collective bargaining is deemed to exist where the regulatory validity of any existing collective agreement has expired, any other means of conciliation and trade union action have been exhausted and the party seeking unilateral arbitration has participated in the mediation procedure and accepted the mediation proposal, and where the application for arbitration contains a full reasoning for the existence of conditions justifying the request. The Government reiterates the country’s longstanding respect and commitment to its international obligations and notes that it has benefited from the technical assistance of the ILO which further covered individual and collective labour dispute settlement systems.

The Committee further notes that the SEV acknowledges that this change in the application of the Convention was intended to align the current legal framework concerning compulsory arbitration with the decisions of the ILO.

However, according to the SEV, the recent law does not abolish compulsory arbitration, but only restricts its use by laying down procedural requirements. While the law refers to compulsory arbitration “as a last resort and a subsidiary means of dispute resolution”, the SEV asserts that this remains to be proved in application. The SEV adds that these changes do not restrict the scope for compulsory arbitration to enterprises “whose operation is vital to serve the basic needs of the community” but covers a wider range of sectors and extends it to a broader set of companies in the private sector. Additionally, the SEV alleges that while the new terms of the law add to previous conditions and obligations of “full and substantiated reasoning” the need for the arbitrator to take into account in particular the economic and financial aspects, the development of competitiveness and the financial situation of the weaker productive enterprises, to which the collective difference relates, the progress in reducing the competitiveness gap and the reduction in unit labour costs, these obligations have not been complied with by the arbitrators in recent years. The SEV considers that it is crucial that the applicable law is strictly observed and suggests that technical assistance and training under the auspices of the ILO may help in that regard. The SEV reiterates its position that the continuous application of unilateral recourse to compulsory arbitration highly undermines collective labour relations, distorts free collective bargaining and impedes the efficient function of the labour market. SEV has long advocated for free collective bargaining, which should be a tool for securing a growth outlook on new production and competitiveness bases. The existing system has highlighted its shortcomings and in its view has contributed decisively to the economic and social crisis. The SEV proposes the creation of an independent collective body, solely supervised and managed by the social partners. In its view, dispute resolution body must be separated from the supervision of the State and the Ministry of Labour. The social partners have kept the social dialogue active despite all the difficulties. As collective dispute resolution mechanisms are an extension of collective bargaining, it is important, in the context of enhancing social dialogue, to remain independent, impartial and objective, with administration and management that will contribute to the proper functioning of the labour market and avoid distortions and mistakes of the past.

The Committee notes the Government’s reply that it has fought to strike a balance between longstanding requests of social partners and its international obligations in line with the Committee’s previous observations. The Committee recalls once again that compulsory arbitration is only acceptable in certain specific circumstances, namely: (i) in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis (see 2012 General Survey on the fundamental Conventions, paragraph 247). The Committee takes due note of the further steps taken to restrict the use of compulsory arbitration in Act No. 4635/2019 and of the continuing concerns of the SEV both as to the insufficiency of these steps and their inadequate practical application. In particular, the Committee observes that the proposal from the SEV for an arbitration system to be managed solely by the social partners highlights its concern that such a system can only be effective if it is independent and impartial and perceived to be so by both parties. The Committee considers that it is essential that all members of bodies entrusted with mediation and arbitration functions should not only be strictly impartial, but if the confidence of both sides on which the successful outcome of compulsory arbitration depends is to be gained and maintained, they should also appear to be impartial both to the employers and workers concerned. The Committee therefore invites the Government to continue to engage with the social partners, and to consider all possible options to bring this mechanism into full compliance with the obligation to promote free and voluntary collective bargaining. The Committee requests the Government to provide detailed information on the steps taken in this regard and reminds it that it may avail itself of ILO technical assistance.

Extension of collective agreements. The Committee notes that section 56 of Act No. 4635/2019 sets out the requirements for an application for extension of a collective agreement to include the applications emanating from a party bound to the agreement and documentation regarding the effect of the extension on competitiveness and employment. In making its decision, the Supreme Labour Council must deliver a reasoned opinion taking these elements into account and may exempt enterprises facing serious financial problems or in a process of restructuring.

The Committee further notes the SEV’s observations that the revival of the ministerial right to extend the coverage of sectoral agreements during the period 2018-2021 has given rise to a number of violations in practice, including: a violation of the existing legal framework concerning the procedure followed by the Government in order to check and certify the actual coverage of the employees concerned by a collective labour agreement and, therefore, its sufficient representativeness for extension; a lack of sufficient transparency on the representativeness check; in most cases none of the employers’ associations concerned submitted a request for extension; none of the employers concerned, to whom the agreement was applicable, were given the opportunity to submit their observations; and only recently have the signatories been asked to consult about the extension and provide their views about the possible extension of the collective agreement. The SEV asserts that this new approach should be established and become a standard practice. Lastly, the SEV considers that new legal provision of section 56 of Act No. 4635/2019 backtracks from the previous ministerial circular, that had been based on a mutual agreement of the national social partners with the Ministry of Labour, which restricted the extension to sectoral collective agreements and excluded arbitral awards and redefines the terms and conditions for the extension of collective agreements.

The Committee recalls Paragraph 5(2) of the Collective Agreements Recommendation, 1951 (No. 91), which provides that: national laws or regulations may make the extension of a collective agreement subject to the following, among other, conditions: (a) that the collective agreement already covers a number of the employers and workers concerned which is, in the opinion of the competent authority, sufficiently representative; (b) that, as a general rule, the request for extension of the agreement shall be made by one or more organizations of workers or employers who are parties to the agreement; and (c) that, prior to the extension of the agreement, the employers and workers to whom the agreement would be made applicable by its extension should be given an opportunity to submit their observations. The Committee requests the Government to reply to the detailed allegations made by the SEV in respect of the procedure established by Act No. 4635/2019 and its practical application.

Conflict of collective agreements. The Committee notes the additional information provided by the Government in relation to section 55 of Act No. 4635/2019 concerning the concurrence of collective agreements which provides that enterprise-level collective agreements shall prevail over sectoral agreements exceptionally in the case of enterprises facing serious financial problems or in the process of restructuring. The Committee requests the Government to provide information on the manner in which this provision is applied in practice, along with any opinions issued by the Supreme Labour Council in this regard and any statistics as to its use. The Committee further requests the Government to reply to the GSEE allegations that Act No. 4808/2021 sets out a new restriction of the right to free collective bargaining and the conclusion of collective agreements by introducing new criteria of representativeness, competence, existence, legal nature or status of workers’ and employers’ organizations, and the prohibition of the exercise of collective rights until the issuance of a final court ruling and the abolition of the determination of pay terms and conditions by the National General Collective Agreement.

Enterprise-level collective agreements and associations of persons. The Committee recalls its previous comments concerning Act No. 4024/2011 which provided that, where there is no trade union in the company, an association of persons is competent to conclude a company-level collective agreement and its request to the Government to indicate the steps taken to promote collective bargaining with trade unions at all levels. The Committee notes the statistical information provided by the Government which, it states, demonstrates a downward trend in the collective labour agreements concluded with associations of persons (from 137 in 2018 to 25 in 2020 and 20 in the first half of 2021) and an increasing number of agreements with enterprise-level unions (165 concluded in 2018, 134 in 2020 and 74 in the first half of 2021). The Committee observes however that the GSEE continues to raise concerns of the ongoing endorsement of associations of persons and their competence to exercise fundamental collective rights. While appreciating the statistical information provided, the Committee is bound once again to recall the importance of promoting collective bargaining with workers’ organizations, and requests the Government once again to indicate the steps taken to promote collective bargaining with trade unions at all levels, including by considering, in consultation with the social partners, the possibility of trade union sections being formed in small enterprises.

Digital platform workers. While duly noting the GSEE’s concern that the legislation tends towards a presumption of non-dependent employment relationship for digital platform workers, the Committee notes with interest that, as regards freedom of association, the law provides trade union rights also for those with independent contractor status, including the right to organize, bargain collectively and strike. The Committee requests the Government to provide information on the application in practice of the collective rights granted to digital platform workers.

Articles 1 and 3. Adequate protection against anti-union dismissal. The Committee notes the statistical information provided by the Government, in reply to its previous request, indicating that there was a total of 187 complaints of anti-union discrimination submitted to the Regional Directorates of the Labour Inspectorate for the period 1 January 2018 to 31 May 2021, 76 of which concerned complaints of impediment to trade union activity and 111 concerned protection of trade unionists (for example, cases of trade unionist dismissal). Sixty-five complaints have been resolved following recommendations from the labour inspectors, criminal complaints were drawn up in 32 cases and no solution was reached for 76 cases which have been referred to the civil courts. The Government adds that ten fines were imposed totalling €66,300. The Committee notes the comments of the GSEE that there has been a diminishing level of protection for trade union members and officers, and requests the Government to reply to these allegations and continue to provide information and statistics relating to complaints of anti-union discrimination and any remedial action taken.