Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Republic of Moldova (Ratification: 1996)

The Committee notes the Government’s report as well as the Government’s reply to the comments made by the Confederation of Trade Unions of the Republic of Moldova (CRSM).

Articles 1 and 2 of the Convention. Sanctions against acts of anti-union discrimination and acts of interference. The Committee notes that the Government points to article 20 of the Constitution and to article 38 of the Law on Trade Unions according to which a trade union organization claiming violations of its legal rights can submit an application to the juridical instance which will express itself on the causes of the dispute by a motivated decision. The violation of trade union rights is sanctioned under article 41 of the Code on Administrative Contraventions (CAC) which provides for application of fines in the amount up to 250 units, which equals 5,000 MDL (section 26 of the CAC).

The Committee notes that the Government refers to the comments of the CRSM according to which section 41 of the CAC does not describe in sufficiently specific terms the illegal actions that constitute obstructions of trade union activities. The Government points out that the Ministry of the Economy and Trade elaborated a draft law which sought the introduction of a new contravention into the CAC providing for the application of a fine in the amount from 75 to 200 conventional units for obstruction of lawful activities of trade unions and their bodies by high-level civil servants. The Government reports that it was, ultimately, decided to stop promoting the draft law in question, and suggested to Parliament to incorporate its content into the draft of the new Code on Contraventions which is currently being discussed in Parliament.

The Committee hopes that specific legislative provisions providing for effective and sufficiently dissuasive sanctions (civil, administrative or penal) in cases of anti-union discrimination and acts of interference will be adopted in the near future and requests the Government to keep it informed of new developments in this respect and to ensure that these sanctions are applied through effective and expeditious procedures.

Article 4. Compulsory arbitration. The Committee recalls that its previous comments concerned section 360(1) of the Labour Code according to which, if the parties to the collective labour dispute have not reached an agreement or disagree with the decision of the reconciliation commission, either party has the right to submit an application to settle the conflict in the judicial tribunals.

The Committee notes that the Government refers to an amendment under consideration which would exclude the obligation to examine collective labour conflicts within the conciliation commission before addressing the judicial instance. The Committee considers, however, that this amendment maintains the possibility of one of the parties submitting the dispute to the judicial instances.

The Committee recalls that arbitration imposed by the authorities at the request of one party is generally contrary to the principle of the voluntary negotiation of collective agreements established in the Convention and thus the autonomy of the bargaining partners. Recourse to compulsory arbitration in cases where the parties do not reach an agreement through collective bargaining should be permissible only in the context of essential services in the strict sense of the term (i.e. services, the interruption of which, would endanger the life, safety or health of the whole or part of the population) or for public servants engaged in the administration of the State. The Committee again requests the Government to take the necessary measures to amend the legislation so as to ensure that referral of the dispute to the judicial tribunals is possible only upon request by both parties to the dispute, in the context of essential services in the strict sense of the term and for public servants engaged in the administration of the State.