Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Republic of Moldova (Ratification: 1996)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008 alleging obstacles to registration of trade union organizations, threats against a trade union leader and an attack of his home, and referring to the matters raised by the Committee and by the Committee on Freedom of Association in Case No. 2317 (interference by the Government in trade union internal affairs). In respect of the allegation of the Government’s interference, the Committee notes that the ITUC alleges that the merger of the ITUC-affiliated Confederation of Trade Unions of the Republic of Moldova (CSRM) and the trade union confederation Solidaritate was a result of pressure exerted by the Government. In this respect, the Committee notes that in Case No. 2317, the Committee on Freedom of Association took note of the merger agreement and while it deeply regretted that the Government failed to take steps to investigate the alleged acts of interference in the internal affairs of the CSRM and its affiliate organizations, it also regretted that none of the complainant organizations provided information on the merger and its impact on the CSRM and its affiliates. The Committee on Freedom of Association firmly requested the Government once again to instigate the necessary inquiries on all of the previous allegations (see 350th Report, paragraph 1418). The Committee on Freedom of Association will continue examining this matter in the framework of the follow-up of this case. The Committee requests the Government to send its observations on the ITUC comments.

Article 2 of the Convention. Right of employers and workers to form and join organizations of their own choosing. The Committee recalls that it had previously requested the Government to keep it informed of developments regarding the draft bill amending the Law on Employers’ Organizations, and in particular, its section 6, which required at least ten employers to create an employers’ organization. The Committee notes the Government’s indication that the draft amendment to section 6 of the Law, which would reduce the minimum membership requirement, was presented for coordination to the relevant bodies and social partners and will soon be submitted to the Government for approval. Considering that the requirement provided for in section 6 is too high and is likely to be an obstacle to the free establishment of employers’ organizations, the Committee trusts that this section will soon be amended and requests the Government to indicate any progress made in this respect.

The Committee had previously requested the Government to indicate whether primary trade unions and territorial sectoral and intersectoral trade unions, which are not affiliated to national sectoral and intersectoral trade unions, could be granted legal personality. The Committee notes the Government’s indication that pursuant to section 10 of the Law on Trade Unions, primary trade union organizations may acquire the status of legal entity only if they are members of a national branch or national intersectoral trade union. The Committee therefore understands that all trade union organizations should belong to national trade union organizations. In the light of the recent controversial merger of the two national trade union centres into one, the Committee expresses its concern at the situation of factual monopoly where trade unions formed outside of the national structure would not be able to engage fully in the activities of defending and promoting the interests of their members. The Committee therefore requests the Government to amend section 10(5) of the Law on Trade Unions so as to guarantee the right of workers to establish and join organizations of their own choosing, including those outside of the existing national trade union structure and to indicate the measures taken or envisaged in this respect.

Article 3. Right of workers’ organizations to organize their activities. The Committee had previously noted that according to section 363(3) of the Labour Code, strikers are obliged “to provide uninterrupted functioning of the equipment and installations which, if stopped, could endanger the life and health of people or cause irreparable damage to the enterprise” and requested the Government to indicate the manner in which the workers under this section were determined. The Committee notes that according to the Government, the national legislation does not regulate the appointment of employees to provide the minimum service to ensure the continuous operation of equipment and facilities which, if stopped, could endanger the human life and health or could cause irrecoverable damage to the entity. The Committee points out that it is important that the provisions regarding the minimum services to be maintained in the event of a strike are established clearly, that they must be genuinely and exclusively minimum services and that the 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. The Committee therefore requests the Government to consider, in consultation with the social partners, the adoption of legislative provisions expressly providing for the participation of the relevant trade union and employers’ organizations in determining the minimum services to be ensured in the event of a strike and to indicate the measures taken or envisaged in this respect.

The Committee had previously noted that according to section 369 of the Labour Code, workers employed in communication services, employees of continuously working enterprises and workers of enterprises manufacturing products for the defensive needs of the country were prohibited from participating in strikes and had requested the Government to specify the workers concerned by the prohibition in section 369(2)(c) and (h) and to detail the “continuously working enterprises” in which the right to strike is prohibited. The Committee notes the Government’s indication that the categories of employees who may not participate in a strike are exhaustively listed in the nomenclature approved by the Government’s Decision No. 656 of 11 June 2004, the draft version of which was coordinated with all social partners and organizations at the national level. At the same time, the Government states its readiness to discuss this issue in order to find out the opinion of the social partners and to eventually submit proposals for the amendment of the Labour Code. The Committee requests the Government to transmit with its next report Decision No. 656 of 11 June 2004 providing for the list of categories of workers who are prohibited from striking, and to indicate any developments concerning discussions on this subject with the social partners.

In its previous comments, the Committee had noted that according to section 357(1) of the 2002 Criminal Code, an unlawful strike was punishable by a fine in the amount of 500 conventional units, or by unpaid labour for public benefit for the period from 100 to 240 hours, or by imprisonment for a period of up to three years, and that according to section 358(1), the organization of, or active participation in collective actions, breaking violently public order, related to the obstruction of the normal functioning of transport, enterprises, institutions and organizations shall be punished by the imposition of a fine in the amount of 500 conventional units, or by imprisonment for a period of up to three years. On that occasion, the Committee recalled that restrictions on the right to strike can only be imposed in essential services in the strict sense of the term and with respect to public servants exercising authority in the name of the State and that disciplinary sanctions should be possible only where the prohibitions in question are in conformity with the principles of freedom of association. Furthermore, the Committee recalled that since the application of disproportionate penal sanctions did not favour the development of harmonious and stable industrial relations, if measures of imprisonment were to be imposed where violence against persons or property has been committed, they should be justified by the seriousness of the offences committed. In this respect, the Committee had requested the Government to indicate the measures taken or envisaged to amend the abovementioned sections of the Criminal Code in accordance with the principle above. The Committee notes the Government’s indication that over the last years, the courts have not heard cases of liability for organizing illegal strikes. In these circumstances, the Committee reiterates its previous request to take the necessary measures to amend sections 357(1) and 358(1) of the Criminal Code according to the abovementioned principles and requests the Government to indicate the measures taken or envisaged in this respect.