Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

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

In its previous observation, the Committee noted the debate which took place within the Conference Committee in June 2011 and welcomed the Government’s commitment to continue to avail itself of ILO technical assistance. The Committee had also noted the adoption of: (i) Act No. 62 of 2011 concerning Social Dialogue (Social Dialogue Act), which abrogated Act No. 130 of 1996 on collective agreements, Act No. 168 of 1999 on the settlement of labour conflicts, Act No. 356 of 2001 concerning employers’ organizations and Act No. 54 of 2003 on trade unions; and (ii) Act No. 40 of 2011, which substantially amended the Labour Code.

The Committee notes the Government’s reply to the comments submitted by: (i) the Federation of Free Trade Unions of the Chemical and Petrochemical Industries (FSLCP) in a communication dated 5 June 2012; and (ii) the International Trade Union Confederation (ITUC) in a communication dated 31 July 2012.

Articles 1, 2 and 3 of the Convention. Effective protection against acts of anti-union discrimination and interference. Sanctions prescribed for acts of anti-union discrimination. In its previous observation, noting that sections 10 of the Social Dialogue Act and 220(2) of the Labour Code prohibited acts of anti-union discrimination but that the new legislation did not seem to foresee sanctions in the case of their violation, the Committee had requested the Government to clarify this point. The Committee notes that the Government confirms that the Social Dialogue Act and the Labour Code as amended do not contain sanctions for acts of anti-union discrimination but indicates that sanctions for anti-union dismissals are provided for in the general law such as in Government Ordinance No. 137 of 2000 concerning the prevention and sanctioning of all forms of discrimination. The Committee notes that the mentioned Ordinance contains provisions prohibiting and sanctioning discrimination on the grounds of race, nationality, religion, social origin, HIV, refugee status, conviction, age, sex or sexual orientation, as regards the entry into employment, modification or termination of the employment contract, etc. Noting that union affiliation or the engagement in legitimate trade union activities does not constitute a ground for discrimination under the Ordinance, the Committee recalls that the existence of general legal provisions prohibiting acts of anti-union discrimination (such as section 10 of the Social Dialogue Act and section 220(2) of the Labour Code) is not enough if these provisions are not accompanied by effective and rapid procedures to ensure their application in practice. The Committee requests the Government to indicate the general legal provisions, which, according to the Government sanction acts of anti-union discrimination or, if need be, to take the necessary measures to guarantee full protection against acts of anti-union discrimination including by imposing sufficiently dissuasive sanctions.

Sanctions in practice for acts of anti-union discrimination or interference. Furthermore, 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, and that the complaint procedure is too complicated. The Committee notes that the Government provides statistical information on sanctions imposed by labour inspection pursuant to section 217(1)(b) of the Social Dialogue Act, which concerns the refusal to bargain collectively (whereas acts of interference are sanctioned pursuant to section 217(1)(a)). The Committee recalls that the refusal to bargain collectively does not constitute an act of anti-union discrimination or interference. The Committee once again requests the Government to provide in its next report statistical information, or at least the maximum information available, on the number of cases of anti-union discrimination and interference brought to the competent authorities, the average duration of the relevant proceedings and their outcome, as well as the sanctions and remedial measures applied in such cases.

Tripartite meeting regarding recent anti-union practices. In its previous comments, the Committee had noted from the comments of the ITUC and the BNS the occurrence in recent years of certain anti-union practices such as making employment conditional upon the worker’s agreement not to create or join a union or anti-union dismissals, and requested the Government to discuss this situation with the most representative organizations of workers and employers. The Committee welcomes the Government’s indication that, following the formation of the new Government and the modification of the composition of the National Tripartite Council for Social Dialogue, a debate on the subject will be able to be included on the agenda of the Council, according to the priorities for action and consultation established in agreement with the social partners. The Committee trusts that the meeting will be organized in the very near future and requests the Government to provide information on its outcome and any agreed follow-up measures.

Article 4. Promotion of collective bargaining. Bargaining level. The Committee had previously requested 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. It had also requested the Government to communicate comparative statistics for the period 2008–12 on the coverage of collective bargaining. The Committee notes the Government’s indication that: (i) the Social Dialogue Act establishes in section 128(1) the “mandatory” bargaining levels (i.e. enterprise, group of enterprises, and sector of activity as determined by the social partners), which does not prohibit collective bargaining at the national level, if the parties so decide, all the more so since the representativeness criteria at national level are already established; (ii) the national collective agreement is no longer valid due to its denunciation by the employer organization; and (iii) given that the requested comparative statistics 2008–12 would not be of relevance because 2012 is a period of transition necessary for the adaption to the new legal provisions, statistical data is provided only concerning the 2012 collective agreements at the level of sector of activity and groups of enterprises. The Committee notes the information provided by the Government but observes that the information on the sectoral collective agreements in force in 2012 was not attached to the report. The Committee notes with concern that the Government indicates, in a recent request for ILO technical assistance with regard to a draft Emergency Ordinance which substantially amends the Social Dialogue Act, that one of the consequences of the Social Dialogue Act was a drastic decrease in the number of collective agreements concluded at the enterprise level and at the level of sector of activity (due to delay in the determination of the sectors of activity by the social partners). The Committee requests the Government to provide detailed information on any developments in regard to this decrease and to communicate comparative and other statistics on the coverage of collective bargaining.

Criteria of representativeness. The Committee had previously noted the representativeness criteria at enterprise level set out in section 51 of the Social Dialogue Act (union membership of at least 50 per cent plus one of the workers of the enterprise) and, recalling that if no union secures the absolute majority, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members, it had requested the Government to amend the legislation in order to ensure respect for this principle. The Committee notes that, according to the Government, if no trade union attains the majority to be recognized as bargaining agent, the “representatives designated by the employees” become the legitimate partners, which includes the representatives of the trade unions existing at enterprise level and the representatives elected by the workers. While noting this information, the Committee observes that, according to section 135(1): (i) in enterprises without a trade union meeting the representativeness criteria, if an enterprise-level union exists and is affiliated to a federation meeting the representativeness 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; and (ii) in enterprises without a trade union meeting the representativeness criteria, if an enterprise-level union exists but is not affiliated to a federation meeting the representativeness criteria in the relevant sector of activity, the negotiation of a collective agreement will be carried out by the elected workers’ representatives. Recalling the principle enunciated above, the Committee underlines that the affiliation to a representative federation should not be required for being able to negotiate at enterprise level. It further emphasizes that direct negotiation between the undertaking and its employees, bypassing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted. The Committee requests the Government to amend the relevant legislation in order to guarantee the application of these principles.

Collective bargaining in the public sector. In its previous comments, the Committee had noted 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. It had also noted that the salary rights in the budget sector were presently established by Act No. 284/2010 on Unitary Salaries of the Staff Paid from Public Funds, which abrogated Act No. 330/2009 and continued 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 had requested the Government to take the necessary measures to bring national law and practice into conformity with the Convention to ensure that wages and pecuniary entitlements are included in the scope of collective bargaining for the public service workers covered by the Convention.

The Committee notes the information provided by the Government, in particular that Act No. 284/2010 is in line with the Government’s wage policy in the public sector, the protocol concluded with the social partners in 2008 and the provisions of the financial agreements of the country with the International Monetary Fund concerning the general budget for personnel expenses in the framework of the consolidated State budget. It further notes that the Government refers to Government Decision No. 833 of 2007 and section 138 of the Social Dialogue Act. In this context, the Committee welcomes the Government’s indication that measures are being taken towards the progressive increase of the salaries of staff paid from public funds that had been reduced by 25 per cent in 2010.

The Committee welcomes in particular section 138(4) of the Social Dialogue Act, according to which, while wages in the public sector are fixed by law within specific limits that cannot be the subject of negotiations nor modified by collective agreements, in cases where wage entitlements are established in special laws between minimum and maximum limits, the concrete wages are determined by collective bargaining, within the legal limits. Considering that this provision may be compatible with the Convention, depending on the practical application, the Committee requests the Government to indicate the categories of public servants for which the wage entitlements are established in special laws between minimum and maximum limits so that the concrete wages are determined by collective bargaining within those limits. For the remaining categories of public servants, while taking into consideration the Government’s statements concerning Act No. 284/2010, 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, so as to ensure that wages and pecuniary entitlements are included in the scope of collective bargaining for all public service workers covered by the Convention, on the understanding that upper and lower limits may be set for the wage negotiations. The Committee also requests the Government to supply a copy of Government Decision 833/2007.

Observing that the Government has recently benefited from ILO technical assistance seeking to ensure the conformity with the Convention of a draft Emergency Ordinance which substantially amends the Social Dialogue Act, the Committee trusts that, in the context of this legislative review, the Government will take due account of the technical comments made by the Office in the framework of the technical assistance provided and will soon be in a position to report progress on the issues raised by the Committee. The Committee requests the Government to supply in its next report a copy of the Social Dialogue Act as amended by the Emergency Ordinance.

Lastly, the Committee recalls that, in its conclusions, the Conference Committee had 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 trusts that the Government will submit the requested information in its next report.