Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Romania (Ratification: 1957)

The Committee notes the Government's report and the information that it supplied to the Conference Committee in June 1987 and the subsequent discussions.

The Committee recalls that its previous comments, of which a number had been raised for several years, concerned the following points:

- section 164 of the Labour Code, which provides that trade unions are occupational organisations set up by virtue of the right of association laid down in the Constitution and which operate on the basis of the by-laws of the General Confederation of Trade Unions, of the unions set up for each branch of activity and of the trade union organisations in enterprises;

- section 26 of the Constitution, which provides that the Romanian Communist Party guides the activities of mass organisations;

- section 165 of the Labour Code, which lays down that trade unions shall mobilise the masses in order to carry out the programme of the Romanian Communist Party; and

- sections 113(2), 116, 119, 122 and 153 of the Labour Code, which entrusts a trade union organisation which is expressly named in the legislation, that is the General Confederation of Trade Unions, with the exclusive duty to represent the workers before the higher State bodies (the Council of Ministers, Ministries of Labour and Health, etc.).

The Committee noted that a single trade union system, imposed by law, whether directly or indirectly, is in contradiction with the principles of the Convention and it requested the Government to take measures to ensure that all workers who wish to do so have the right to establish trade union organisations of their own choosing in full freedom outside the existing trade union structure and without interference by the public authorities, in accordance with Articles 2 and 3 of the Convention.

In its report, the Government once again supplies the information that it provided in its previous reports, namely that sections 2 and 17 of Act No. 52 respecting occupational trade unions recognise the right of all individuals, working in the same occupation or in similar occupations, to freely establish occupational unions without prior authorisation. It explains once again that section 164 of the Labour Code means that the trade union of a specific unit (whether it be an enterprise, establishment or institution) operates on the basis of its own by-laws and not on the by-laws of a branch union or of the General Confederation of Trade Unions. Similarly, each central branch union organisation operates on the basis of its own by-laws and not on the by-laws of the General Confederation of Trade Unions. It states that Romanian legislation does not require a trade union in a specific unit or a central branch union organisation to join a higher trade union organisation, or that any trade union organisation should establish the by-laws of another trade union.

With regard to the links between the Party and the trade unions, the Government considers that Article 3(2) of the Convention concerns the public authorities and not political parties. It explains that, in its country, the public authorities are the Grand National Assembly, the State Council and the Council of Ministers. In the Government's opinion, the references by the Committee to sections 26 of the Constitution and 165 of the Labour Code, which concerned the role of the Party as the leading political force, went beyond the legal aspects of the question and dealt with problems which are not covered by the Convention. In the Government's view, the leading role of the Party, which is enshrined in the Constitution, consists of determining the fundamental aims and orientation of social development. The relationship between the Party and social organisations, including trade unions, are able to amplify the role of the latter in directing the social, political and economic life of the country. The Government concludes, however, by indicating that the Committee's observations will be taken into consideration in future proposals for the amendment of the labour legislation.

The Committee notes all these explanations. It nevertheless considers it necessary to point out once again that section 164 of the Labour Code, in its current form, would not appear to permit a trade union to formulate its own by-laws in complete independence from the General Confederation of Trade Unions. As formulated, this provision would appear to oblige first-level trade unions and branch-level trade unions to establish their by-laws on the basis of the by-laws of the General Confederation of Trade Unions. In this connection, the Committee recalls that it has been requesting the Government to amend its legislation so as clearly to recognise the right of workers and their organisations freely to formulate their by-laws and their programmes in accordance with Article 3 of the Convention.

With regard to the links between the Party and the trade unions, the Committee points out that relations between trade unions and political parties must stem from freely-taken decisions and not be imposed by law. The Government's argument, which consists of emphasising that the Convention does not deal with relations between trade unions and political parties, would not appear to be tenable, as any relation in this field that is laid down by law would be contrary to the Convention since, in such a case, the State, as legislator, would be restricting the right of trade union organisations to organise their activities and formulate their programmes, while Articles 3 and 8(2) of the Convention expressly lay down that it shall refrain from doing so.

Since 1979, the Committee has been pointing out to the Government that these provisions would appear to make it legally impossible to establish organisations that are independent of the Party. It once again requests the Government to clarify the legislation by eliminating the provisions which formally place the organisations in a situation of dependence on the Party.

The Committee trusts that the Government will re-examine its legislation in the light of the above comments and requests it to supply information on any development in the situation as regards the preparation of the new trade union legislation referred to in its previous reports. [The Government is asked to supply full particulars to the Conference at its 76th Session.]