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

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

Articles 1 and 2 of the Convention. Sanctions against acts of anti-union discrimination and acts of interference. The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008 alleging insufficient protection against acts of anti-union discrimination and interference in trade union affairs, the issues previously raised by the Committee. It further notes Case No. 2317 pending before the Committee on Freedom of Association, which requested the Government to actively consider, in full and frank consultations with social partners, legislative provisions expressly sanctioning violations of trade union rights and providing for sufficiently dissuasive sanctions against acts of interference in trade union internal affairs (see 350th Report, paragraph 1422(b)).

The Committee recalls in this respect that it had previously noted the Government’s indication that the Parliament was discussing the draft of the new Code on Contraventions which sought the introduction of a fine for obstruction of lawful activities of trade unions and their bodies by high-level civil servants. The Committee notes with interest the Government’s indication that the new Code on Contraventions was adopted on 24 October 2008. Section 61 of the Code provides for the application of fines in the amount of 40 to 50 conventional units (one unit equals 20 MDL) for the obstruction of the workers’ right to establish and join trade unions. It further notes the Government’s indication that a working group, constituted of representatives of the Ministry of Economy and Trade, the National Confederation of Trade Unions and the Ministry of Justice, examined the possibility of setting administrative sanctions against acts of interference in trade union activities, which is currently not provided for in section 61. The Committee requests the Government to indicate any new developments in this respect and to ensure that these sanctions are applied through effective and expeditious procedures. The Committee further requests the Government to provide a copy of the relevant provisions of the Code on Contraventions.

Article 4. Compulsory arbitration. The Committee recalls that it had requested the Government to amend 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 the Government’s indication that section 360(1) is not applicable at the stage of elaboration of the initial draft collective agreement, in which case, section 32 applies. According to the latter, if within three months from the beginning of negotiations, consent has not been achieved on some of the agreement’s provisions, the parties are obliged to sign a collective agreement containing the clauses on which agreement has been reached. The disagreements that have not been settled are subject to further collective negotiations or are resolved according to the provisions of the Labour Code. As to the referral of the dispute to the judiciary, the Government indicates that this occurs when a party to the conflict feels that its rights have been violated. The Government also indicates that arbitration is a good solution for the collective conflicts which arise from the arbitrary interests under negotiation. While noting this information, the Committee refers to the clear wording of section 360(1) and once again 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 therefore once 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, or for essential services in the strict sense of the term or for public servants engaged in the administration of the State. The Committee requests the Government to indicate the progress made in this respect.