Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Follow-up to the conclusions of the Committee of Experts on the Application of Standards (International Labour Conference, 100th Session, June 2011)

The Committee notes the debate which took place within the Conference Committee in June 2011 and welcomes the Government’s commitment to continue to avail itself of ILO technical assistance.

The Committee also notes the Government’s reply to the 2010 comments made by the Block of National Trade Unions (BNS) concerning the application of the Convention. The Committee also notes the comments made by the BNS and the National Trade Union Confederation (CNS CARTEL ALFA) received on 10 June 2011 and the comments of the International Trade Union Confederation (ITUC) dated 4 August 2011, as well as the Government’s observations on both communications.

In its previous comments, the Committee had noted from the Government’s report that the legal framework on labour and social dialogue was under review. In this regard, the Committee notes from the information provided by the Government to the Conference Committee that Act No. 53/2003 (Labour Code) has been substantially amended by Act No. 40/2011, and that Act No. 62 concerning social dialogue was adopted on 10 May 2011. The Committee observes that Act No. 62 of 10 May 2011 concerning social dialogue abrogates the following pieces of legislation: (i) Act 54/2003 on trade unions; (ii) Act No. 130/1996 on collective agreements (except its sections 26–39, which will be abrogated on the date of issuance of the Order to be adopted under section 177 of the Social Dialogue Act); and (iii) Act No. 168/1999 on the settlement of labour conflicts.

Articles 1, 2 and 3 of the Convention. Protection against acts of anti-union discrimination and acts of interference. The Committee had previously noted that, according to the ITUC, sanctions for anti-union activities are rarely imposed in practice due to loopholes in the Penal Code. The Committee had further noted the indications of the ITUC that the procedure for lodging a complaint appears to be too complicated and the authorities do not prioritize the trade unions’ complaints, and that the labour inspectorates do not always respect the confidentiality of the complaints. The Committee notes that the ITUC reiterates its comments as regards the non-application of sanctions in practice. The Committee once again requests the Government to provide in its next report, taking into account the new legislation, 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 the sanctions and remedial measures applied.

Furthermore, in its previous comments, the Committee had noted from the ITUC comments that in recent years, certain employers have made employment conditional upon the worker agreeing not to create or join a union. The Committee had requested the Government to discuss this situation with the most representative organizations of workers and employers. The Committee notes that the BNS also denounces that some employers require documents that are officially published and seriously obstruct the right to organize, and that the ITUC alleges that a number of anti-union dismissals have occurred in the media sector. The Committee has noted from the oral information provided by the Government to the Conference Committee the Government’s commitment to organizing a meeting with the social partners on the subject of anti-union discrimination after the Conference. The Committee notes from the Government’s report that the tripartite meeting has been postponed due to the appointment of the new Minister of Labour. The Committee welcomes the Government’s formal commitment to initiate tripartite discussions in this regard, trusts that the meeting will be organized in the very near future and requests the Government to provide information on its outcome and on any agreed follow-up measures.

Regarding the legal framework of the protection against acts of interference, the Committee notes that, in the context of sanctions for acts of anti-union discrimination, the Government refers to section 220(1) and (2) of the Labour Code (according to which union officials are protected by law against any form of constraint or limitation in the exercise of their functions and cannot be dismissed during their term of office for reasons related to their mandate) and section 218 of the Social Dialogue Act (according to which the constraint or limitation of union officials in the exercise of their functions is punished with a prison term of three months to two years or with a fine; the remaining paragraphs deal with acts of constraint in the context of strike action). The Committee further notes that section 10 of Act No. 62 of 10 May 2011 concerning social dialogue prohibits the modification or termination of employment on the ground of union membership or activity. The Committee observes that the new legislation does not seem to foresee sanctions in the case of violation of section 10 of the Social Dialogue Act and section 220(2) of the Labour Code. The Committee requests the Government to clarify this point. Should it be confirmed that the new legislation does not provide for sanctions for the violation of section 10 of the Social Dialogue Act and section 220(2) of the Labour Code, the Committee wishes to recall that the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. The Committee requests the Government to take the necessary measures to guarantee full protection against acts of anti union discrimination including by imposing sufficiently dissuasive sanctions.

Concerning protection against acts of interference, the Committee had requested, in its previous comments, information on the penalties against acts of interference which were 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, such acts were punished with imprisonment from six months to two years or a fine between RON2,000 and RON5,000 (approximately US$600 to US$1,600). Considering that these fines might, in some cases, not be sufficiently dissuasive, the Committee had requested 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. The Committee notes with satisfaction that acts of interference are now prohibited by section 218 of Act No. 53/2003 (Labour Code) as amended and section 7(2) of Act No. 62 of 10 May 2011 concerning social dialogue, and that under section 217(1)(a) of the Social Dialogue Act, acts of interference by public authorities or employers and employers’ organizations are punished with a fine between RON15,000 and RON20,000 (approximately US$4,700–$6,300).

Article 4. Right to collective bargaining. Bargaining level. The Committee notes that the BNS and the CNS CARTEL ALFA deplore that the labour law reform has caused the national-level collective agreement and the branch-level collective agreement to disappear and allege that section 128(1) of the new Social Dialogue Act, according to which collective agreements may be negotiated at enterprise level, at the level of a group of enterprises and at the level of sector of activity (an entity to be determined by the Government according to section 1(r)), is contrary to the Convention. The Committee notes from the Government’s reply that, the bargaining levels have been laid down by law, taking into consideration the legitimacy of the bargaining parties as conferred by the criteria of representativity, in the absence of other practical arrangements and due to fears expressed by the social partners as regards the negative impact of a lack of regulation in the field; and that, following discussions with the social partners, it was decided that the sectors of activity will be determined exclusively by the social partners. The Committee requests the Government to indicate whether the new legal provisions allow the parties, if they so wish, to negotiate and conclude, in addition to sectoral agreements, collective agreements at the national level. The Committee also requests the Government to communicate comparative statistics for the period 2008–12 on the coverage of collective bargaining.

Criteria of representativity. The Committee notes that the BNS criticizes that the criteria for being deemed representative set forth in section 51 of the new Social Dialogue Act are arbitrary and in breach of the free will of the parties, highlighting the representativity criteria at national level (cumulating membership of at least 5 per cent of the labour force and territorial structures in more than half of the national municipalities) and at enterprise level (membership of at least 50 per cent plus one of the workers of the enterprise). The Committee notes from the Government’s reply that the representativity criteria at national and sectoral levels have not been revised but have remained the same. It also notes the Government’s indication that the representativity criteria at enterprise level have been amended (the Committee understands that previously the membership requirement was of at least one third of the workers of the enterprise) in order to: (i) comply with the principle of application erga omnes of the clauses of the collective agreement; (ii) ensure the legitimacy of the trade union to negotiate and represent the interests of all the workers of the enterprise; and (iii) to avoid the frequent conflicts arising under the old legislation among unions contesting the representativity established by the tribunal – the resolution of these conflicts, of which one had been previously reported by the BNS, had in some cases exceeded the competence and level of training of the local authorities. Recalling that, under a system where the law stipulates that a trade union must receive the support of 50 per cent of the members of a bargaining unit to be recognized as a bargaining agent, if no union secures this absolute majority, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members, the Committee requests the Government to amend the legislation in order to guarantee the application of this principle.

Moreover, the Committee notes that, according to section 135(1)(i), in enterprises without a trade union meeting the representativity criteria, if an enterprise-level union exists and is affiliated to a federation meeting the representativity criteria in the relevant sector of activity, the negotiation of a collective agreement will be carried out by the representatives of that federation together with the elected workers’ representatives. The Committee considers that this provision could infringe upon the principle of the free and voluntary collective negotiation and therefore the autonomy of the bargaining partners. It requests the Government to provide information on the application of section 135 in practice.

Articles 4 and 6. Right to collective bargaining. 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 had noted from the Government’s report that the salary rights in the budget sector were settled by Act 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 previously recalled that all public servants who are not engaged in the administration of the State should enjoy the guarantees provided for in Article 4 of the Convention with regard to the promotion of collective bargaining. The Committee had further recalled 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 had requested the Government to indicate in its next report if Act 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.

The Committee notes from the information provided by the Government the adoption of Act No. 284/2010 on Unitary Salaries of the Staff Paid from Public Funds, which abrogated Act No. 330/2009 and entered into force on 1 January 2011. The Committee notes that Act No. 284/2010 continues to stipulate that the fixation of salaries in the public budget sector is exclusively by law (section 3(b)) and that no salaries or other pecuniary entitlements exceeding the provisions of this law can be negotiated through collective agreements (section 37(1)). The Committee notes that the Government highlights section 32 of Act No. 284/2010, which provides that the level of hierarchy coefficients for the categories of wages provided in this law will be revised periodically depending on the evolution of the wages existing in the Romanian labour market, so that public sector wages can be set at a competitive level, within the limits of financial sustainability. The Committee further notes the Government’s indications that the conditions of work and employment in the public budget sector have never been excluded from the scope of collective bargaining; that the system of unitary salaries for staff paid from public funds was established in common accord with the trade unions in order to correct the serious budgetary imbalance and deficit that irresponsible collective negotiations of salaries at the level of each public institution had generated; and that no constitutional, European or international requirements could oblige governments to pay to staff paid from public funds salaries – whether negotiated or not – that exceed the financial sustainability of the state budget.

The Committee observes with concern that Act No. 284/2010, which replaces Act No. 330/2009, continues to globally preclude collective bargaining on salary rights and pecuniary entitlements in the public budget sector. While taking into consideration the Government’s statement on the need to ensure the financial sustainability of the state budget, the Committee underlines that the Convention does not impose an obligation on the Government to regularly achieve results as regards the negotiation of salary and economic clauses of collective agreements in the public sector. The Committee is therefore bound to reiterate that, while Article 6 of the Convention allows public servants engaged in the administration of the State to be excluded from its scope, all other categories of public servants should enjoy the guarantees of the Convention and therefore be able to negotiate collectively their conditions of employment, including wages and pecuniary entitlements. The Committee takes full account of the serious financial and budgetary difficulties facing governments, particularly during periods of prolonged and widespread economic stagnation. However, it considers that the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants; where the circumstances rule this out, measures of this kind should be limited in time and protect the standard of living of the workers who are the most affected. In other words, a fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the parties to bargaining, on the one hand, and measures which must be taken by governments to overcome their budgetary difficulties, on the other. The Committee draws the Government’s attention to the fact that legislative provisions which allow Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations or to establish an overall “budgetary package” within which the parties may negotiate monetary or standard-setting clauses or those which give the financial authorities the right to participate in collective bargaining alongside the direct employer would be compatible with the Convention, provided they leave a significant role to collective bargaining (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 264). The Committee requests the Government to take the necessary measures in full consultation with the social partners and, if necessary, with technical assistance from the Office, to bring national law and practice into conformity with Article 4 of the Convention and the abovementioned principles, so as to ensure that wages and pecuniary entitlements are included in the scope of collective bargaining for the public service workers covered by the Convention, and recalls that this collective bargaining of salaries in the public service could take place prior to the discussion of the budget legislation and could be global and not necessarily at the level of each public institution.

Information on the impact of the new legislation. In its conclusions, the Conference Committee requested the Government to provide detailed information and statistics relating to the impact of the recent legislative changes on the application of the Convention. The Committee notes that the Government states that this evaluation will only be possible at the end of 2012 so that the Government could only report on the impact of the new legislation in its report due in 2013. The Committee trusts that the Government will submit the requested information in its next report.