Rapport définitif - Rapport No. 344, Mars 2007

1216. The complaint is contained in a communication dated 30 July 2006 from the International Transport Workers’ Federation (ITF) and the Free Trade Union of Metro and Aviation Workers (USLM).

1. 1217. The Government forwarded its observations in a communication dated 3 November 2006.
2. 1218. Romania 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. 1219. In their communication dated 30 July 2006, the ITF and its affiliate, the USLM, representing 5,200 metro workers, allege that while the right to strike is recognized in Romania, unreasonable restrictions are placed on this right. In the event of a strike, employees in the transport sector must provide a minimum service of one-third of the normal activity. Strikes may be held only if all means of conciliation have failed. The employer must be given 48 hours’ warning. Strikes can only be held to defend the economic interests of the workers and must not be used for political reasons. Strikes are illegal if a collective agreement is in existence, even if the dispute concerns an emerging problem not covered by the existing agreement and the employer refuses to negotiate the new issue with the union. If the strike is declared illegal, the trade union leader can be fired, even if the strike is ended immediately after being declared illegal. The complainants also state that the Committee of Experts on the Application of Conventions and Recommendations had been requesting the Government to amend the provisions of Law No. 168/1999 on Settlement of Labour Disputes restricting the right to strike.
2. 1220. To illustrate their point, the complainants refer to the industrial dispute with SC METROREX SA, which took place at the end of 2005. According to the complainants, in 2005, before the expiration of the existing collective agreement, the USLM approached the management of SC METROREX SA with a request to proceed to negotiation of a new collective agreement for 2005–06. On 3 October 2005, the negotiation began. The union’s claims concerned several points, including a 23 per cent wage increase from 1 November 2005; improvement of working conditions; provision of the necessary equipment to ensure public safety; recruitment of additional personnel; and participation of the union in the reorganization of SC METROREX SA, in accordance with the provisions of the collective agreement and the Labour Code.
3. 1221. SC METROREX SA answered that due to lack of funds, it was not in a position to offer any wage increase. As for the other demands, they were conditional to legislation in force and future budgetary constraints. The management proposed to extend the collective agreement in force for 2004–05, to the following year, with negotiations to be held in January 2006, without assuring that wages would be increased.
4. 1222. The USLM leaders declared that they remained open to consider other options in order to resolve the deadlock situation. The union was prepared to give up the 13th month’s salary and other bonuses, and proposed that the savings thus created be transposed into a wage increase. However, several rounds of negotiation were fruitless.
5. 1223. On 1 November 2005, both parties gave notice of expiry of the collective agreement. On 2 November, Case No. 6729/02.11.2005 was registered with the Directorate of Labour, Social Solidarity and Family in Bucharest. The conciliation procedure began, in accordance with the provisions of sections 17 and 18 of Law No. 168/1999 on Settlement of Labour Disputes.
6. 1224. Once all possibilities for the settlement of the labour dispute under the procedures provided by the legislation had been exhausted, the USLM council decided to call a warning strike on 7 November 2005 between 4 p.m. and 6 p.m., in conformity with the collective agreement and sections 42(1) and 44 of Law No. 168/1999, concerning the procedure of declaration of strikes.
7. 1225. On the same day, at 6 p.m., the USLM representatives were invited by the Government’s Councillor of State for Social Issues to provide the information on the labour dispute. On 8 November 2005, the Secretary of State for Social Dialogue requested the union to submit all documents relating to the dispute. The union submitted these papers, but did not receive any further response. On 9 November 2005, the trade union representatives and the SC METROREX SA representatives met the Minister of Transport for five minutes, but no progress was made. On 11 November 2005, trade union leaders met the Romanian Prime Minister and the Minister of Transport, but the talks failed. Between 11 and 17 November 2005, a dialogue between the union, the company and government representatives took place via media. Some government representatives made statements opposing the upcoming strike and declared that the strike was illegal and politically motivated.
8. 1226. In accordance with the decision made by trade union members, the General Council of the union decided to begin an indefinite strike on 16 November 2005. The strike was to take place daily between 4 a.m. and 4 p.m., providing one-third of the normal metro system service, in conformity with section 66(1) of Law No. 168/1999 on minimum services and the collective agreement.
9. 1227. On 17 November 2005, a few hours before a ruling by the tribunal on the strike was due, the Prime Minister and the Minister of Transport issued a statement via the media to the effect that the metro strike was illegal. The union believes that this statement had decisively influenced the decision of the tribunal to declare the strike illegal.
10. 1228. Despite the letters sent by the ITF, the European Transport Workers’ Federation and the USLM to the Romanian President, the Romanian Government and Ministry of Transport urging a fair settlement of the labour dispute, no results were forthcoming.
11. 1229. On 16 and 17 November 2005, the general strike took place. On 17 November, the tribunal declared the metro strike illegal, despite the fact that all legal preliminary requirements were fulfilled. The case was decided in a way that the union believes to be tendentious. Documentation consisting of over 3,500 pages was examined and the ruling was reached in only 30 minutes. The complainants consider that such a short period did not allow for a proper examination of all documents and information. Indeed, it appeared from its reasoning that the tribunal considered that the trade union should have offered alternative solutions in order to settle its claims. Due to lack of such proposals, the strike was declared illegal. Moreover, the tribunal considered that the trade union had not respected legal provisions relating to the essential requirements of local communities. The warning strike was scheduled to take place between 4 a.m. and 4 p.m., with one-third of the normal activity after 4 p.m. However, the tribunal concluded that such an interruption had a negative impact on metro passengers, creating a disturbance of the entire metro system, which, in turn, entailed damages to the employer, employees and the functioning of the local community.
12. 1230. Finally, the complainants state that while SC METROREX SA and the Ministry of Transport withdrew their claims regarding the legitimacy of the strike, the organizers of the strike remain vulnerable to sanctions as a result of being involved in a strike that has been declared illegal even if the strike was ended immediately after being declared illegal.
13. B. The Government’s reply
14. 1231. In its communication dated 3 November 2006, the Government states that while the fundamental right to strike is guaranteed by article 43 of the Romanian Constitution, this right can be restricted in order to prevent its excessive use. In certain cases, strikes may be restricted by the national legislation. Considering that the interruption of public services such as transport, postal services, services responsible for maintaining public order and health institutions, leads to great difficulties for the consumers, strikes in these services are regulated under a special legal framework.
15. 1232. According to section 66(1) of Law No. 168/1999 on Settlement of Labour Disputes:
16. … in the sanitary and social assistance units, telecommunications, radio and public television units, in the railway transport units, including the units for railway guards, in the units ensuring the common means of conveyance and the sanitation of localities, as well as the supply of the population with gas, electrical power, heat and water, the strike shall be allowed provided that the organizers of the strike ensure the essential services, no less than one-third of the normal activity, satisfying the minimum life requirements of the local communities.
17. According to sections 58, 59 and 60 of the same Law:
18. If the unit considers that the strike has been declared or is continued in breach of the law, it may address the tribunal […] with a request to end the strike. The tribunal shall establish a time limit for the settlement of the application for the cessation of the strike, which cannot be longer than three days from the date of its registration […]. The tribunal shall examine the application […] and deliver immediately a judgement by which, as the case may be: (a) it rejects the application of the unit; (b) it admits the application of the unit and orders the cessation of unlawful strike. The judgements delivered by the tribunal shall be final.
19. The tribunal decision can be appealed before the Court of Appeal.
20. 1233. The Government further states its understanding that the right to strike is not an absolute right and refers in this regard to Article 8 of the International Covenant on Economic, Social and Cultural Rights and to the decisions of the Committee on Freedom of Association, which considered that the right to strike can be restricted and even prohibited in the public service or in essential services in so far as a strike could cause serious hardship to the national community and provided that the limitations are accompanied by certain compensatory guarantees.
21. 1234. With regard to the complainants’ claim that the tribunal decision was tendentious, the Government indicates that by virtue of section 2(3) of Law No. 303/2004 on the Status of Judges and Prosecutors and section 124 of the Constitution, judges are independent and impartial and are subject only to the law. According to the above Law, judges shall ensure equal application of the legislation, respect rights and freedoms of persons and ensure non-discriminatory treatment of all parties in the judicial proceedings. Moreover, interested parties can appeal judicial decisions in accordance with the legislation in force. With regard to the settlement of labour disputes, Law No. 168/1999 provides for the following. Section 4 provides for the definition of “conflicts of interests”: they are industrial conflicts in respect of working conditions concerning professional, social or economic interests of the employees, emerged during negotiation of a collective agreement. According to section 12 of this Law:
22. The conflicts of interests may start in the following situations: (a) the unit refuses to start the negotiation of a collective agreement, provided that it does not have a collective agreement concluded or the previous collective agreement was expired; (b) the unit does not accept the claims formulated by the employees; (c) the unit refuses without reasons to sign the collective agreement, although the negotiations have been finalized; (d) the unit does not fulfil the obligations provided by law to begin the annual obligatory negotiations regarding wages, working time and conditions of work.
23. 1235. The Government states that on 2 November 2005, the Ministry of Labour, Social Solidarity and Family (MTSSF) registered the dispute of interest (No. 6729/02) at SC METROREX SA. On 4 November 2005, in accordance with sections 17 and 18 of Law No. 168/1999, the conciliation procedure registered by the USLM with the Directorate of Labour, Social Solidarity and Family in Bucharest had begun. This procedure, carried out by the representative of the MTSSF did not settle the dispute and was followed by a strike. The declaration of the strike as illegal ceased the conflict of interest.
24. 1236. The Government solicited information from the enterprise, which confirmed the events as presented by the complainant and further stated that according to the minute No. M.01/475 of 17 January 2006, a collective agreement for 2006–07 was concluded by the parties, the parties agreed to cease the labour conflict and to renounce any existing action or pending cases in relation to the November 2005 and January 2006 strikes declared by the USLM.

C. The Committee’s conclusions

1. 1237. The Committee notes that this case concerns allegations referring to the legislative restriction of the right to strike of transport workers. The basis of this complaint is the declaration on 17 November 2005 of the strike of 16 November 2005 by the USLM to be illegal despite the fact that it was called after all avenues of negotiation had been exhausted and in compliance with all the conditions stipulated by the legislation, including the provision of minimum services. According to the complainants, the tribunal considered this case inadequately as it considered urban transport an essential service and based its decision on the consideration of whether the union had provided alternative solutions to the conflict. In addition, the tribunal decision appears to have been influenced by statements made by the Government. The complainants further state that while the employer is no longer pursuing the illegality of the union’s claims, the organizers of the strike remain vulnerable to sanctions as a result of being involved in a strike that had been declared illegal.
2. 1238. The complainant further alleges that the legislation violates the principles of freedom of association by restricting strikes to cases where the economic interests of the workers are being defended and prohibiting strikes for political reasons. They further contest the provisions that make strikes illegal if a collective agreement is in existence, even if the dispute concerns an emerging problem not covered by the existing agreement and the employer refuses to negotiate the new issue with the union, as well as the restrictions concerning strike notice.
3. 1239. The Committee notes the Government’s statement that while the right to strike is guaranteed under the Constitution, it can be restricted in certain services, including public services, such as transport. Workers of transport services can exercise their right to strike provided that the minimum services are ensured. According to section 66(1) of Law No. 168/1999 on Settlement of Labour Disputes, the organizers of the strike shall ensure that essential services, which represent not less than one-third of the normal activity of the service and which satisfy the minimum life requirements of the local communities, continue to be provided. The Government further indicates that the body responsible for declaring a strike illegal is a tribunal which issues its ruling within three days. While acknowledging that in this particular case, the tribunal had declared the strike illegal, the Government disagrees with the complainants’ allegation that the decision of the tribunal was tendentious and refers to numerous legislative provisions, which ensure the independence and impartiality of the judiciary in Romania.
4. 1240. The Committee further notes that the Government had solicited information from the enterprise, which confirmed the events as presented by the complainants and further stated that according to minute No. M.01/475 of 17 January 2006, a collective agreement for 2006–07 was concluded by the parties, the parties agreed to cease the labour conflict and to renounce any existing action or pending cases in relation to the November 2005 and January 2006 strikes declared by the USLM.
5. 1241. The Committee notes that the situation which gave rise to the initial conflict, i.e. negotiation of a new collective agreement, seems to be resolved as a collective agreement has been signed for 2006–07.
6. 1242. With regard to the restrictions on the right to strike of transport workers, the Committee recalls its conclusions concerning Case No. 2057 against the Government of Romania presented by the National Trade Union Bloc and the USLM [see 320th Report,
7. paras 747–783]. This case also concerned similar allegations of infringement of the right to strike and arose within the context of a strike at SC METROREX SA. In this case, the Committee had noted with interest Law No. 168/1999 on Settlement of Labour Disputes, which entered into force on 1 January 2000 drawn up on the basis of tripartite consultations and taking into account the recommendations of the Committee of Experts. Concerning the provision regarding the obligation to guarantee one-third of the unit’s normal activity during a strike, contained in section 66(1) of Law No. 168/1999, which stipulates that this obligation must be guaranteed in units of public transport to meet the minimum requirements of local communities, the Committee acknowledged that the maintenance of minimum services in the case of strike action may be imposed in public services of fundamental importance [see Digest of decisions and principles of the Freedom of Association Committee, fourth edition, 1996, para. 556]. It further specified that in relation to strike action taken by workers in the underground transport enterprise, the establishment of minimum services and the absence of agreement between the parties should be handled by an independent body [see Digest, op. cit., para. 565]. The Committee therefore concluded that respect of the obligation to maintain a minimum service of the underground railway’s activities to meet the minimal needs of the local communities was not an infringement of principles of freedom of association. It further requested the Government, however, to amend the legislation so as to guarantee the establishment of minimum services by an independent body in the absence of agreement between the parties on the issue [see 320th Report, paras 779–781].
8. 1243. The Committee recalls that 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 of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 612]. In view of the fact that no legislative amendments seem to have been adopted in this respect, the Committee requests the Government to amend its legislation so as to ensure that the minimum services to be maintained in the transport sector are negotiated by the social partners concerned rather than set by the legislation and that in the absence of agreement between the parties, minimum services are determined by an independent body.
9. 1244. With regard to the complainants’ allegation that the organizers of the strike remain vulnerable to sanctions as a result of being involved in a strike that has been declared illegal, even if it was ended immediately after being declared illegal, the Committee considers that the dismissal of workers in such cases entails a risk of abuse and can constitute a violation of freedom of association. Given that an agreement was reached between the union and SC METROREX SA shortly following the interruption of the strike, the Committee trusts that the trade unionists who had organized the strike have suffered no negative consequences in their employment.
10. 1245. As concerns the complainants’ allegation that strikes are illegal if a collective agreement is in existence, even if the dispute concerns an emerging problem not covered by the existing agreement and the employer refuses to negotiate the new issue with the union, the Committee recalls that if strikes are prohibited while a collective agreement is in force, this restriction must be compensated for by the right to have recourse to impartial and rapid mechanisms, within which individual or collective complaints about the interpretation or application of collective agreements can be examined; this type of mechanism not only allows the inevitable difficulties which may occur regarding the interpretation or application of collective agreements to be resolved while the agreements are in force, but also has the advantage of preparing the ground for future rounds of negotiations, given that it allows problems which have arisen during the period of validity of the collective agreement in question to be identified [see Digest, op. cit., para. 533]. Although strikes of a purely political nature do not fall within the scope of the principles of freedom of association, the Committee considers that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests [see Digest, op. cit., paras 528 and 531].
11. 1246. With regard to the complainants’ allegation concerning the obligation to provide an employer with a 48-hour strike notice, the Committee recalls that the obligation to give prior notice to the employer before calling a strike may be considered acceptable [see Digest, op. cit., para. 552] and considers that 48 hours is a reasonable term.
12. 1247. With regard to the complainants’ allegation concerning the legislative restriction that strikes can only be held to defend the economic interests of the workers and must not be used for political reasons, the Committee recalls that while purely political strikes do not fall within the scope of the principles of freedom of association, trade unions should be able to have recourse to protest strikes, in particular where aimed at criticizing a government’s economic and social policies [see Digest, op. cit., para. 529]. The Committee requests the Government to ensure the application of this principle and draws the attention of the Committee of Experts to the legislative aspects of this case.