Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Romania (Ratification: 1958)

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee notes from the International Trade Union Confederation’s (ITUC) comments of 24 August 2010, that in recent years, certain employers have made employment conditional upon the worker agreeing not to create or join a union. In this regard, the Committee notes that the Government indicates in its reply dated 19 October 2010 that it does not have any information concerning this issue. The Committee requests the Government to discuss this situation with the most representative organizations of workers and employers and to keep it informed of any developments in this regard.

The Committee also notes that according to ITUC although anti-union activities are prohibited, the sanctions for restricting trade union activities are rarely applied in practice, the procedure for lodging a complaint appears to be too complicated and the authorities do not prioritize the trade unions’ complaints. ITUC states that the labour inspectorates do not always respect the confidentiality of the complaints and that certain employers prefer facing penalties rather than complying with the labour laws in place. The Committee finally notes that according to the ITUC, while the law provides for sanctions for obstructing union activities, those sanctions cannot be applied in practice due to loopholes in the Penal Code. The Committee also notes the comments made by the Block of National Trade Unions (BNS) in a communication dated 1 September 2010. The Committee requests the Government to provide its observations thereon.

Moreover, in its previous observation, the Committee had requested the Government to provide statistical information regarding the protection against acts of anti-union discrimination. The Committee takes note from the Government’s report that the Ministry of Labour, Family and Social Protection does not have statistical data concerning discrimination against trade unions. The Committee once again requests the Government to indicate in its next report, statistical information, or at least the maximum information available, on the number of cases of anti-union discrimination brought to the competent authorities, the average duration of proceedings and their outcome, as well as  information concerning the nature and the outcome of the registered labour disputes that are currently being conciliated before the services of mediation and council of the Ministry of Labour, Family and Social Protection.

Articles 2 and 3. Protection against acts of interference. In its previous comments, the Committee requested information on the penalties against acts of interference which are prohibited under sections 221(2) and 235(3) of Act No. 53/2003 and Act No. 54/2003. The Committee had noted from the Government’s report that under Act No. 54/2003, the restriction of the exercise of the activities of trade union officials or the obstruction of the exercise of the right of freedom of association are punished with imprisonment from six months to two years or a fine between 2,000 Romanian new lei (RON) and RON5,000 (approximately US$600–1,600). The Committee considers that these fines might, in some cases, not be sufficiently dissuasive. The Committee requests the Government to take the necessary measures to increase the amount of the existing sanctions so that they constitute a sufficient deterrent against all acts of anti-union discrimination.

Articles 4 and 6. Collective bargaining with public servants not engaged in the administration of the State. In its previous comments, the Committee had noted from the conclusions and recommendations reached by the Committee on Freedom of Association in Cases Nos 2611 and 2632 that in the public budget sector which covers all public employees, including those who are not engaged in the administration of the State (e.g. teachers), the following subjects are excluded from the scope of collective bargaining: base salaries, pay increases, allowances, bonuses and other staff entitlements which are fixed by law. The Committee notes from the Government’s report that the salary rights in the budget sector were settled by Law No. 330/2009 on Unitary Salaries of the Staff Paid from Public Funds which stipulates that the fixation of salaries is exclusively by law and that it cannot be negotiated.

The Committee recalls that all public servants who are not engaged in the administration of the State should enjoy guarantees provided for in Article 4 of the Convention with regard to the promotion of collective bargaining. The Committee further recalls that if, as part of its stabilization policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers’ living standards. Therefore, the Committee requests the Government to indicate in its next report if Law No. 330/2009 on Unitary Salaries of the Staff Paid from Public Funds is considered as an exceptional measure within the context of an economic stabilization policy, if adequate safeguards were established in order to protect workers’ living standards and if it provides for a limited length of application.

Draft labour legislations. In its previous comments, the Committee had noted that pursuant to the ILO mission, the social partners that are representative at the national level, as well as representatives of the Government, signed a memorandum in which they agreed to improve the legal framework on labour and social dialogue and in this regard, the Committee notes that the Government indicates that: (i) the elaboration of Act No. 168/1999 on the settlement of labour conflicts is part of the 2010 legislative schedule; (ii) Act No. 130/1996 on collective agreements and Act 54/2003 on trade unions will be debated within the Social Dialogue Commissions from the Ministry of Labour, Family and Social Protection at the latest in December 2010; and (iii) the modification of Act No. 188/1999 on the status of civil servants (with its amendments in Law No. 864/2006) was modified by Act No. 140/2010 adopted by the Parliament on 8 July 2010, but is currently under review.

The Committee has not yet received any update concerning the possible amendments of these legislative texts. It trusts that the Government will be in a position to report progress soon on the issues raised above in the framework of the law reform currently underway and transmit a copy of the relevant legislation once adopted. The Committee encourages the Government to continue to avail itself of the technical assistance of the Office if it so wishes.