Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 324, Mars 2001

1. 876. This complaint is contained in a communication dated 6 June 2000 from the National Trade Union Bloc (BNS) acting on behalf of its affiliate, the National Federation of Dock Workers' Unions (FNSP). The Government of Romania responded by letter of 21 August 2000.
2. 877. Romania has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers' Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (154).

A. The complainants' allegations

1. 878. In its communication of 6 June 2000, BNS, the complainant organization, alleges, on behalf of FNSP, its affiliate, that there are violations of ILO Conventions Nos. 87, 98, 135 and 154 in Romania on account of the arbitrary and biased application of the law regarding the settlement of industrial disputes by tribunals which have declared strikes unlawful in 85 per cent of cases brought before them. Although the relevant legislation has been improved, in particular following recommendations made by the Committee on Freedom of Association and the Committee of Experts, certain provisions remain problematic, especially article 54 of Act No. 168/1999 which entered into force on 1 January 2000 (to replace article 29 of Act No. 15/1991). In accordance with this legislation, whenever a strike is declared unlawful, the employer may apply administrative sanctions, including the termination of an individual contract of employment, both against the organizers of the strike (in most cases, trade union representatives) and striking workers. The complainant organization emphasizes that, in practice, the tribunals have confirmed the validity of all administrative sanctions of this kind applied by employers. The result is a climate of fear amongst workers who live under the threat of sanctions, including dismissal, if they take part in union protest action.
2. 879. According to the complainant organization, the events associated with a strike held in August 1999 in a private company, S.C. Minmetal SA, at the port of Constanta, are a good example of the situation created by such measures. The Constanta court of first instance ruled that the strike was unlawful on two grounds. Firstly, failure to observe the negotiating schedule before resorting to strike action; in this regard, the complainants allege that the tribunal committed a serious factual error in its calculation of the applicable deadline. Secondly, the tribunal considered an FNSP communication to the Constanta regional port management as an attempt to halt the activity of workers who had not joined the strike. The complainant adds that, given that Minmetal SA was not the sole, nor even the principal enterprise handling the raw materials (minerals and coal) necessary for the smooth functioning of the Sidex Galati metalworking plant, any suspension of the strike was unjustified.
3. 880. Over the same period, the management of Minmetal SA took various anti-union measures:
   • - several circulars were distributed to company employees, with announcements of the administrative measures taken against trade union leaders;
   • - the management called upon the company's various operational units to designate other union representatives with a view to conducting unit-level collective bargaining, in violation of article 14 of Act No. 130/1996 on collective bargaining and counter to judgement No. 27/03.03.1997 handed down by the court of Constanta, which acknowledged the representative status of the dockworkers' trade union;
   • - the company's Director-General declined to accept the union-appointed representatives for collective bargaining purposes; moreover, the company threatened the members of the bargaining team with administrative sanctions as compensation for the strike-incurred disruption amounting to an estimated US$100,000 (at present, this matter is sub judice before the Constanta court of first instance);
   • - the company filed criminal proceedings against Messrs. Ion Mihale, union leader, as well as Costel Petre and Gheorghe Caraiani, FNSP President and Secretary?General, respectively, accusing them of inflicting damage upon the national economy, occupational misconduct prejudicial to the public interest, publicly fomenting delinquency, fraud and false statements in official documents. However, the Constanta Public Prosecutor's Office decided not to pursue action in respect of such accusations, given that the inquiry indicated that the allegations presented by Minmetal SA were unfounded.
4. 881. All of these measures resulted in the termination of Mr. Ion Mihale's contract of employment on the grounds that he had organized a strike which the court subsequently judged to be unlawful.
5. 882. Given the subjective interpretation formulated by the tribunals and which runs counter to ILO Conventions and principles regarding the promotion and protection of trade union rights, present legislation actually encourages the anti-trade union attitude of certain managers. Romanian workers, in general, and those of Minmetal SA in particular, live in a state of latent fear. Their confidence in the effectiveness of trade union action as a means of promoting and defending their occupational interests has been seriously undermined. The complainant organization attaches to its complaint a record of the events associated with the industrial dispute in Minmetal SA.

B. The Government's reply

1. 883. In its reply dated 21 August 2000, the Government states that the strike held in August 1999 had been judged unlawful by the Constanta court of first instance on the following grounds:
   • - violation of article 22 of Act No. 15/1991 stipulating, inter alia, that strike action may not be called for as long as all possibilities of resolving the conflict by conciliation have not been exhausted; the court judged that the union representatives had not made all possible endeavours to resolve the conflict because they had not taken account of the company's financial situation (which had been explained to them at a conciliation meeting held on 29 July 1999) and, more particularly, had not put the management's offer to the workforce (a 22 per cent wage rise and the acceptance of the trade union's other claims);
   • - violation of article 26(3) of Act No. 15/1991 which prohibits strikers from taking any form of action likely to hinder the activity of workers not having joined the strike; in this respect, the court judged that a letter dated 10 August addressed by FNSP to the management of the port of Constanta was designed to paralyse Minmetal SA, whereas the 314 workers (out of a total of 702 employees) declining to join the strike action would have been capable of upholding operations;
   • - violation of article 21 of Act No. 15/1991 stipulating that the organizers of a strike shall, when it is declared, indicate its duration.
2. 884. The Government rejects the allegation that the court of first instance committed a factual error in its calculation of the time frame and emphasizes that, for this purpose, the court had referred to the record of another collective bargaining session which had been concluded on 29 July. Its judgement was thus legitimate.
3. 885. On 9 August 1999, Minmetal SA applied to the Supreme Court for suspension of the strike which had commenced that very day; its grounds were that the company was a major supplier of national steel plants and that a strike could cause major material and contractual damages, highly prejudicial to the national economy as well as to humanitarian interests. Given that the strike came to a close on 13 August, the Supreme Court considered that the company's request for a ruling no longer applied. Nevertheless, the strike did continue for two days after the Constanta court of first instance had declared it unlawful on 11 August 1999.
4. 886. The Government also mentions that Minmetal SA states that it has taken no anti-trade union measures and presents its version of the facts in respect of these allegations:
   • - the company's management simply informed the workforce on 11 August that the strike had been judged unlawful;
   • - it informed the workforce that it was prepared to grant a 22 per cent increase and maintain the entirety of the former collective agreement which had expired on 30 June 1999; as the majority of workers had agreed with these proposals, it considered that the strike was no longer justified;
   • - the company also alleges the trade union representatives' bad faith in that they did not communicate its offer to the workforce;
   • - the company neither issued threats nor did it abusively dismiss workers; judgement No. 272/24.12.1999 terminated the contract of Mr. Ion Mihale as per 1 January 2000, in accordance with articles 100 and 130(I) of the Labour Code (judgement), which relate to disciplinary dismissals. In this instance, the court judged that Mr. Mihale was responsible for having launched an unlawful strike which caused major damage; it also noted that this was not his first offence and that he had twice been sanctioned in the past in the form of a 10 per cent wage reduction.
5. 887. The company acknowledges the workers' loss of confidence in the effectiveness of trade union action as a means of promoting and defending workers' interests, but considers that it is attributable to the trade union, whose unlawful action has proved largely undesirable.
6. 888. Conscious of its obligations ensuing from the ratification of international Conventions, the Government maintains that it has constantly endeavoured to improve the legislation applicable in this field and, following consultations with the social partners, it has adopted a new law on the settlement of industrial disputes (Act No. 168/1999), taking into account the recommendations made by the ILO Committee of Experts.

C. The Committee's conclusions

1. 889. The Committee notes that this complaint concerns: (a) allegations of anti?trade union interference and disciplinary sanctions against a trade union leader in connection with a strike called during the collective bargaining process; and (b) allegations relating to the non-conformity of Romanian legislation with the Conventions and principles of freedom of association, in the light of their application in practice by the courts.
2. 890. With regard to the events that took place at Minmetal SA during the negotiations to renew the collective agreement, the Committee observes that, in general, any collective bargaining naturally gives rise to the emergence of positions on both sides, which are dictated by the respective bargaining strategies and which, as in this case, sometimes lead to mutual accusations of bargaining in bad faith or of anti-trade union attitudes. In this respect, the Committee recalls that the issue of whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 817], and that the prime concern is the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations [see Digest, op. cit., para. 814].
3. 891. However, the Committee notes with concern that the principal reason for the dismissal of Mr. Ion Mihale was the fact that the court judged the strike unlawful, by concluding that there had been a breach of articles 21, 22 and 26(3) of Act No. 15/1991. Hence, in this instance the decisive factor in any analysis rests on whether the strike is lawful or not. Without taking a position as to whether the interpretation of these provisions as rendered by the court is founded in light of the particular circumstances, the Committee emphasizes that, whereas the right to strike is not an absolute right and must be exercised in observance of national legislation, the legal provisions must also conform to the principles of freedom of association. Regarding the obligation which, according to the Government and the relevant jurisprudence, ensues from article 21 (that trade union leaders shall give indication of the duration of a strike at the time it is called), the Committee considers that such a general and unspecific restriction is not compatible with the right of workers and their organizations freely to determine their action programme and exercise their right to strike. With regard to the arguments based upon a violation of article 22 (alleged refusal by trade unionists to settle the dispute in good faith before resorting to strike action), the Committee does not consider the decision issued by the court to be compatible with the provisions of Convention No. 98. Finally, in respect of the argument based upon an alleged violation of article 26(3) (attempt to hinder the activity of workers not having joined the strike), the Committee is in no position, on the basis of the details supplied, to draw any informed conclusions. In any event, the Committee deems it appropriate to place this conflict in its context, i.e. a short strike in support of wage claims, in an enterprise which is neither the sole nor the largest operator in a sector which is not an essential one.
4. 892. Furthermore, the Committee emphasizes that trade union leaders and shop stewards, by the very nature of their functions, are particularly vulnerable to reprisals in labour disputes, and it recalls some relevant principles:
   • - adequate protection against dismissal or other prejudicial measures is particularly desirable in the case of trade union officials for them to be able to perform their trade union duties in full independence, such protection being also necessary in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 724];
   • - although the holder of trade union office does not, by virtue of his position, have the right to transgress legal provisions in force, these provisions should not infringe the basic guarantees of freedom of association, nor should they sanction activities which, in accordance with the principles of freedom of association, should be considered as legitimate trade union activities [see Digest, op. cit., para. 726 ];
   • - with regard to the reasons for dismissal, the activities of trade union officials should be considered in the context of particular situations which may be especially strained and difficult in cases of labour disputes and strike action [see Digest, op. cit., para. 731].
5. 893. Finally, the Committee recalls the Workers' Representatives Convention (No. 135), ratified by Romania, and the accompanying Recommendation (No. 143), which specifically states that workers' representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as a workers' representative or on union membership or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements (Article 1 of Convention No. 135) [see Digest, op. cit., para. 732].
6. 894. Given all of the circumstances, the Committee considers that, in this instance, the dismissal of Mr. Ion Mihale is a breach of the provisions of Conventions Nos. 87 and 98 and, if it is upheld, would not be conducive to constructive and harmonious industrial relations in this enterprise in the future. Hence, the Committee invites the Government, after consultation with the concerned parties regarding the appropriate practical conditions, to take the required measures to secure the prompt reinstatement of Mr. Ion Mihale in his duties, and to keep it informed of developments in this situation.
7. 895. With regard to the more general allegation presented by the complainant organization, i.e. that Romanian legislation does not conform to the Conventions and principles of freedom of association, in the light of its practical application by the courts, the Committee notes that the relevant events occurred in 1999 and were thus still governed by Act No. 15/1991 which had been commented upon both by this Committee and the Committee of Experts. At its December 2000 session, the latter did examine the new legislation regarding the settlement of industrial disputes (Act No. 168/1999), which entered into force on 1 January 2000, and noted with satisfaction that the new legislation introduced provisions which respond to several of the concerns previously expressed. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case, particularly as regards the issue of sanctions for illegal strikes.