Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

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

The Committee notes the texts of three basic Acts of 1991 concerning labour adopted by the Romanian Parliament: Act No. 54 respecting trade unions, Act No. 13 on collective labour agreements and Act No. 15 on the settlement of labour disputes, and the text of the new Constitution.

The Committee notes with interest that the new texts, in conjunction with the repeal of several provisions of the law which it commented on in earlier observations, change the general orientation of the industrial relations system, establish trade union pluralism and the independence of the trade union movement. However, it would appreciate a number of explanations and would like to draw the Government's attention to certain aspects of the legislation.

1. The Committee seeks clarifications on the meaning and scope of section 3 of Act No. 15 which reads as follows:

The following do not constitute collective labour disputes:

(a) disputes between the employees and the unit, the settlement of which is ruled by legal provisions others than those laid down in the present Act;

(b) wage claims, the settlement of which would require the adoption of a law.

The Committee asks the Government to explain the meaning of the above section giving, if any, examples of cases in which it has been applied in practice, or cases in which it would be applicable.

2. The right of workers without distinction whatsoever, to establish organisations of their own choosing (Article 2 of the Convention. Section 5 of Act No. 54 provides amongst other things that "employees who hold executive office or offices involving the exercise of public authority within parliament, the government or ministries, or any central agency of the administration of the State, a prefecture or a municipality, or who hold the office of prosecutor or judge ... may not group together in a union."

According to Article 9 of the Convention, only the armed forces and the police may be excluded from the right to organise. Persons occupying managerial positions, in both the public and private sectors, should be entitled at least to form their own organisations (see paragraph 9 of the Committee's General Survey on Freedom of Association and Collective Bargaining of 1983.

3. The right of workers to elect their representatives in full freedom (Article 3). Section 9 of Act No. 54 reserves eligibility to trade union leadership to persons with Romanian citizenship, and who are employed in the production unit and have never been the subject of penal sanctions. A similar provision is contained in section 13(3) of Act No. 15 as regards the election of the delegates of the workers in the conciliation process.

The Committee recalls that, to be consistent with the Convention, legislation should allow foreign workers to be eligible for trade union office, at least after a reasonable period of residence in the host country (General Survey, paras. 97, 159-l60); furthermore, a conviction on account of offences the nature of which is not such as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions, should not constitute grounds for disqualification from trade union office (General Survey, para. 164); lastly, as regards the requirement of belonging to the enterprise in order to be eligible for trade union office, it would be desirable either to admit as candidates persons who have previously been employed in the enterprise, or to exempt from the requirement of belonging to the enterprise a reasonable proportion of the officers of an organiation (General Survey, paras. 157-158).

In addition, the Committee requests the Government to indicate whether there exist provisions for the choice of the delegates of the workers in the conciliation process, if none of them satisfies the conditions imposed by article 13(3) of Act No. 15 (for example, if there is no worker with three years' seniority, in an enterprise which has been in operation for more than three years) which might stop the conciliation process.

4. The right of trade union organisations to organise their administration and activities and to formulate their programmes (Article 3).

(Unless otherwise specified, the Act referred to in this section is Act No. 15.)

(a) Section 20(1) provides that the decision to call a strike shall be taken by the trade union "with the agreement of at least half of its members".

The Committee points out, on the one hand, that the above provision does not specify how the agreement in question shall be expressed and supervised and, on the other hand, that it may be difficult for a trade union with a large membership dispersed in different workplaces or locations to obtain the agreement of at least 50 per cent of the workers, which could lead to a serious restriction of the right to strike. The provision of section 20(1) in fine, which lays down that the decision shall be taken by a majority of the voters in the event of a secret ballot, is in this sense more compatible with the principles of freedom of association.

(b) Section 24(1) provides that strikes may only be called for the purpose of defending employees' occupational interests which are of an economic and social nature, and section 24(2) provides that the aims of the strike may not be political; furthermore, section 47(1) provides for heavy penalties, including the possibility of prison sentences of from three to six months, for organisers who have called a strike in violation of section 24(2).

The Committee recalls that, even if strikes that are purely political in character do not fall within the scope of the principles of freedom of association, a trade union's activities cannot be restricted solely to occupational questions; trade unions should therefore be able to express their views publicly on a government's economic and social policy (General Survey, paras. 192-198 and 216). As regards the sanctions that apply in the event of violation of section 24(2), the Committee refers the Government to its comments below (paragraph (h)).

(c) Section 24(3) prohibits any strike "... aimed at obtaining the annulment of a decision by the unit to terminate a work contract, or the recruitment or transfer of a person".

Under this provision, a strike would be illegal, for example, if it were called by employees in order to protest against the dismissal or transfer of a trade union representative because of his trade union activities.

The Committee recalls that protest actions are not limited to pursuing collective demands of an occupational nature but also include seeking solutions which are of direct concern to the workers (General Survey, paras. 199-200).

(d) Section 25 prohibits the calling of "strikes aimed at obtaining the modification of the clauses of a final decision of an arbitration committee, under which the dispute has been settled".

The Committee recalls that the principle of the voluntary negotiation of collective agreements, and therefore the autonomy of the parties to the negotiations, constitutes a fundamental aspect of the Convention. This provision could therefore create difficulties if compulsory arbitration is imposed unilaterally by the authorities or at the request of only one of the parties; such a situation could arise in the cases referred to in sections 33 to 36 and 38 to 43 of Act No. 15.

(e) Section 30 provides that the Supreme Court of Justice "may suspend the start or continuation of the strike for a maximum of 90 days if major interests of the national economy or interests of a humanitarian nature are affected".

The Committee recalls that the suspension of the right to strike constitutes a major restriction of one of the essential means available to workers for defending their interests, and cannot therefore be justified except in a situation of acute national crisis and only for a limited period; furthermore, a mere declaration of a state of emergency is not sufficient justification for suspending strikes.

(f) Section 32(3) provides that the organisers of the strike shall be responsible for expenses incurred if they refuse to pursue negotiations during the strike, and section 36(3) provides for a similar responsibility if the conditions for starting or pursuing the strike have not been met.

The Committee points out that such a responsibility can be very onerous and out of proportion to the acts or omissions involved, particularly if the acts are compatible with the principles of freedom of association.

(g) Sections 38-43 establish a compulsory arbitration procedure (disputes to be settled by decision of a three-member committee) which may be set in motion at the sole initiative of the Minister of Labour, when a strike has lasted for 20 days and its continuation is likely to affect the interests of the national economy or interests of a humanitarian nature".

The Committee considers that the criteria likely to be invoked confer very broad powers of appraisal on the Minister and enable him to impose arbitration unilaterally. The Committee refers the Government to the comments above (paragraph (d)).

(h) Section 45(1) prohibits strikes by, amongst other persons, employees "performing special duties within the Parliament, the Government ...", and section 45(2) provides only that claims shall be settled "by direct conciliation".

Furthermore, section 45(4) provides that if one-third of the normal activities of essential services is assured, strikes are authorised in the following services: health, pharmaceuticals, teaching, telecommunications, broadcasting, rail transport, including repairs of rolling stock, river transport and civil aviation units; state units responsible for public transport, hygiene in public places, and for supplying the population with bread, meat, gas, electricity, heating and water.

Section 47 provides for heavy penalties for violations of these provisions (imprisonment of from three to six months, or a fine of from 2,000 to 7,000 lei, or a harsher penal sanction).

In this connection, the Committee wishes to recall the principles established by the supervisory bodies:

- the right to strike is one of the essential means available to workers and their organisations for the promotion of their economic and social interests; - restrictions or prohibitions should be limited to public servants acting in their capacity as agents of the public authority or to services whose interruption would endanger the life, personal safety or health of the whole or part of the population;

- if strikes are restricted or prohibited in the public service or essential services, guarantees must be afforded to protect workers who are thus denied one of the essential means of defending their occupational interests. Restrictions should be offset, for example, by adequate impartial and speedy concilation and arbitration procedures, in which the parties concerned can take part at every stage. Arbitration awards should be binding on both parties and, once rendered, should be rapidly and fully implemented;

- if a minimum service mechanism is adopted, it should be restricted to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population; moreover, the workers' organisations should be able to participate in defining the minimum service;

- lastly, penal sanctions should only be imposed where there are violations of strike prohibitions which are in conformity with the principles of freedom of association; in these cases, the sanctions should be proportionate to the offences committed, and penalties of imprisonment should not be imposed in the case of peaceful strikes (General Survey, paragraphs 214, 215 and 223).

Acquisition of legal personality (Article 7). Section 16(1)(b) of Act No. 54 provides that the jurisdiction to which application is made for the registration of a trade union must, amongst other things, check whether the record of the constitution of the union and the union statutes are in conformity with the "legal provisions in force". Such registration is also a requirement for the acquisition of legal personality.

The Committee recalls in this connection the principles set out in paragraphs 110-119 of its General Survey, and asks the Government to indicate whether the "legal provisions" in question are only those laid down by Act No. 54, or whether the term refers to other laws or regulations and, if so, to inform the Committee of this in its next report.

6. Section 36(1) of the Act refers to "the Act respecting the settlement of individual labour disputes". The Committee requests the Government to provide a copy of the above Act.

7. The Committee asks the Government to indicate whether Act No. 14 under which a collective dispute could be referred to compulsory arbitration in the event of failure of wage negotiations during 1991, expired on 31 December 1991 as anticipated, or whether a similar provision has been extended to 1992.

8. The Committee asks the Government to provide information in its future reports on the application and practical operation of the industrial relations system, supplying in particular copies of administrative or judicial decisions handed down in pursuance of the new laws.