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

Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the National Trade Union Confederation of Moldova (CNSM), received on 21 December 2017, referring to the issues dealt with by the Committee below.

Article 3 of the Convention. Right of workers’ organizations to organize their activities. The Committee had previously requested the Government to provide information on any progress made towards adopting legislative provisions expressly providing for the participation of the relevant trade unions and employers’ organizations in determining the minimum services to be ensured in the event of a strike, as well as towards amending the list of services where strikes are prohibited pursuant to section 369 of the Labour Code contained in Decision No. 656 of 11 June 2004. The Committee recalled in this respect that among services where strikes are prohibited, services such as air freight and communication system enterprises were neither essential services in the strict sense of the term nor did they involve public servants exercising authority in the name of the State, where the right to strike could be prohibited. The Committee regrets that the Government does not address these issues in its report. The Committee notes from the CNSM observations that on 7 November 2017, the Constitutional Court delivered a judgment on the constitutionality of section 369 paragraphs (2), (3) and (4) of the Labour Code, section 21 paragraphs (2) and (3) of the Code on Railway Transportation and Government Decision no. 656 of 11 June 2004 on the approval of the Nomenclature of Units, Sectors and Services whose employees cannot take part in strike. The CNMS indicates that the Court considered that within public authorities, the right to strike can be restricted only for some categories of workers, namely the persons exercising authority in the name of the State and those whose functional competencies are to ensure public order, law and state security; thus the rights to strike of other categories of public employees should not be limited. . The Committee understands that in order to implement the 2017 judgment of the Constitutional Court, the Government adopted Decision No. 389 on 25 April 2018, which amended Decision No. 656. The Committee requests the Government to transmit a copy of Decision 389. It further once again requests the Government to indicate all measures taken in consultation with the social partners to adopt legislative provisions expressly providing for the participation of the relevant trade unions and employers’ organizations in determining the minimum services to be ensured in the event of a strike.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee notes the observations of the National Trade Union Confederation of Moldova (CNSM), received on 21 August 2017, referring to the issues dealt with by the Committee below. The Committee notes the Government’s reply to the previous observations on the application of the Convention submitted by the International Trade Union Confederation (ITUC).

Article 3 of the Convention. Right of workers’ organizations to organize their activities. In its previous direct request, the Committee had requested the Government to indicate concrete steps taken to adopt legislative provisions expressly providing for the participation of the relevant trade unions and employers’ organizations in determining the minimum services to be ensured in the event of a strike, and to transmit a copy of Decision No. 656 of 11 June 2004 providing for the list of categories of workers who are prohibited from striking pursuant to section 369 of the Labour Code. The Committee notes the Government’s indication that it is willing to make more flexible rules governing the right to strike by reducing the categories of workers who cannot take part in strikes and by providing for minimum services in the most important sectors for the State and society, and that these rules shall be decided upon jointly with trade unions and employers’ organizations. In this regard, the Committee notes the list of services where strikes are prohibited pursuant to Decision No. 656 communicated with the Government’s report. It notes, in particular, that services, such as air freight and communication system enterprises are included in the list which are neither essential services in the strict sense of the term nor do they involve public servants exercising authority in the name of the State, where the right to strike can be prohibited. The Committee once again requests the Government to take the necessary steps, in consultation with the social partners, to adopt legislative provisions expressly providing for the participation of the relevant trade unions and employers’ organizations in determining the minimum services to be ensured in the event of a strike, and to amend the list of services where strikes are prohibited. The Committee requests the Government to provide information on any progress made in this regard.

Article 7. Acquisition of legal personality. In its previous direct request, the Committee had requested the Government to provide information on the amendment process of section 10(5) of the Trade Unions Law, according to which primary trade union organizations may acquire the status of legal entity only if they are members of a national branch or national inter-sectorial trade union structure, so as to guarantee the right of workers to establish and join organizations of their own choosing, including those outside the existing national trade union structure. The Committee notes with interest the Government’s and the CNSM’s indication that section 10(5) of the Trade Unions Law has been amended in 2016 by Law No. 188 repealing the requirement of affiliation to a higher trade union structure and enabling primary trade union organizations to acquire the status of legal entity as soon as they are registered with the Ministry of Justice.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee notes the 2011 observations on the application of the Convention submitted by the International Trade Union Confederation (ITUC) in addition to those received on 1 September 2014. The Committee requests the Government to provide its comments thereon. The Committee also notes the observations submitted by the International Organisation of Employers (IOE) received on 1 September 2014.

Article 3 of the Convention. Right of workers’ organizations to organize their activities. The Committee had previously requested the Government to consider, in consultation with the social partners, the adoption of legislative provisions expressly providing for the participation of the relevant trade unions and employers’ organizations in determining the minimum services to be ensured in the event of a strike. The Committee notes the Government’s indication that this issue is still under examination. The Committee once again expresses the hope that the necessary legislative provisions will be soon adopted and requests the Government to indicate concrete steps taken in this regard. The Committee also once again requests the Government to transmit a copy of Decision No. 656 of 11 June 2004 providing for the list of categories of workers who are prohibited from striking pursuant to section 369 of the Labour Code.

Article 7. Acquisition of legal personality. The Committee had previously requested the Government to amend section 10(5) of the Law on trade unions, according to which primary trade union organizations may acquire the status of legal entity only if they are members of a national branch or national inter-sectoral trade union structure, so as to guarantee the right of workers to establish and join organizations of their own choosing, including those outside the existing national trade union structure. The Committee notes the Government’s indication that the Ministry of Labour, in accordance with its activity plan for 2014, is set to initiate the amendment of this provision in the third quarter of 2014. The Committee expresses the hope that section 10(5) of the Law on trade unions will be soon amended. The Committee requests the Government to provide information on the progress made in this regard.

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

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 which refer to the matters raised by the Committee below and by the Committee on Freedom of Association in Case No. 2317.

Article 2 of the Convention. Right of employers and workers to establish and join organizations of their own choosing. The Committee recalls that it had previously requested the Government to amend section 6 of the Law on Employers’ Organizations, which required at least ten employers to create an employers’ organization. The Committee notes with interest the Government’s indication that Law No. 121-XVIII of 23 December 2009 amended the Law on Employers’ Organizations as to provide that an employers’ association can be created at the initiative of three employers. The Committee requests the Government to provide a copy of the relevant legislative text with its next report.

The Committee had previously requested the Government to amend section 10(5) of the Law on Trade Unions, according to which primary trade union organizations may acquire the status of legal entity only if they are members of a national branch or national inter-sectoral trade union, 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. The Committee notes the Government’s statement that the National Confederation of Trade Unions has indicated that it could support some reasonable proposals for the improvement of the rule contained in section 10(5) of the Law and that the process to amend this provision will begin in the near future. The Committee requests the Government to provide information in its next report on any developments in this regard.

Article 3. Right of workers’ organizations to organize their activities. The Committee had previously requested the Government to consider, in consultation with the social partners, the adoption of legislative provisions expressly providing for the participation of the relevant trade unions and employers’ organizations in determining the minimum services to be ensured in the event of a strike. The Committee notes the Government’s indication that this issue requires further additional examination in consultation with the social partners. The Committee expresses the hope that the necessary legislative provisions will be soon adopted and requests the Government to indicate concrete steps taken or envisaged in this regard. The Committee further once again 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 pursuant to section 369 of the Labour Code.

In its previous comments, the Committee had requested the Government to amend sections 357(1) and 358(1) of the Criminal Code providing for disproportionate penal sanctions (including imprisonment for up to three years) for organizing or conducting an illegal strike. The Committee notes the Government’s indication that section 357(1) of the Code has been amended by Law No. 277-XVI of 18 December 2008 (in force since 24 May 2009) as to provide that “organizing or conducting an illegal strike, as well as preventing/hindering of an organization’s, institution’s or enterprise’s activity, under the state of emergency, siege or war is punishable by a fine of up to the amount of 500 conventional units, or by unpaid community service for the period from 100 to 240 hours”. The Committee also notes with satisfaction that section 358 of the Code was repealed by the same legislative Act.

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

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.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

The Committee notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in its communication dated 10 August 2006 and the comments transmitted by the Confederation of Trade Unions of the Republic of Moldova (CSRM) by communications dated 14 and 23 August 2006. The Committee further notes the reply provided by the Government to the comments submitted by the ICFTU in its communication dated 31 August 2005. The Committee notes that the previous ICFTU comments and the Government’s reply thereon, as well as new comments of both organizations concern issues previously raised by the Committee or allegations examined by the Committee on Freedom of Association in Case No. 2317, which is still pending.

The Committee regrets that the Government’s report does not contain a reply to the questions raised by the Committee in its direct request of 2004. It must therefore repeat its comments, which read as follows:

Article 2 of the Convention. Right of employers and workers to form and join organizations of their own choosing. The Committee had previously noted that under section 10(1) and (5) of the Law on Trade Unions, trade unions acquire legal personality at the national, sectoral and intersectoral levels from the time of their registration. As for the primary trade unions, the territorial, sectoral and intersectoral trade unions, those organizations acquire their legal personality in accordance with the charters of the registered national, sectoral and intersectoral trade unions. The Committee once again requests the Government to indicate whether trade unions (primary trade unions and the territorial, sectoral and intersectoral trade unions) which are not affiliated to national, sectoral and intersectoral trade unions may be granted legal personality and hence engage fully in the activities of defending and promoting the interests of their members.

In its previous comments, the Committee recalled that a requirement of a membership of at least ten employers to create an employers’ organization was too high and likely to be an obstacle to the free creation of employers’ organizations. The Committee once again requests the Government to keep it informed of the developments regarding a draft bill amending the law on employers’ organizations, referred to in the Government’s earlier report and in particular, its section 6.

Article 3. Right of workers’ organizations to organize their activities. The Committee had 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”. The Committee recalls in this respect that the authorities could establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. However, such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 160-161). The Committee requests the Government to indicate the manner in which the workers under section 363(3) are determined.

The Committee had further 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 are prohibited from participating in strike actions. The Committee recalls that, as an exception to the general principle of the right to strike, the essential services in which this principle may be entirely or partly waived should be defined restrictively: the Committee therefore considers that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or a part of the population (General Survey, op. cit., paragraph 159). The Committee considers that, while telecommunication services could be considered essential, other workers employed in communication services should be able to enjoy the right to strike. The Committee requests the Government to clarify the workers concerned by the prohibition in section 369(2)(c) and (h) and to specify the “continuously working enterprises” in which the right to strike is prohibited.

In its previous comments, the Committee had noted the Government’s indication that the Criminal Code of 1961 was repealed and replaced with the Criminal Code of 2002. It had further noted that according to section 357(1), the unlawful strike is 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 the period of up to three years. According to section 358(1), the organization of or active participation in group actions, breaking violently public order, related to […] the obstruction of the normal functioning of the 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 up to three years. The Committee recalls that restrictions on the right to strike can only be imposed in essential services and with respect to public servants exercising authority in the name of the State and that sanctions should be possible only where the prohibitions in question are in conformity with the provisions of the Convention. Furthermore, since the application of disproportionate penal sanctions does not favour the developments of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey, op. cit., paragraph 177). The Committee requests the Government to indicate the measures taken or envisaged to amend section 358 in order to ensure that penal sanctions for strike action may only be imposed where the prohibition of the strike is in conformity with the Convention and that, even in these cases, the sanctions imposed are not disproportionate to the seriousness of the violation.

The Committee further requests the Government to keep it informed of any use of section 357 of the Criminal Law in practice.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future and provide the requested information in its next report.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

It also notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2350 where it invited the Government to take the necessary measures to review the Fiscal Code in full consultation with the social partners concerned, with the aim of finding a mutually agreeable solution to the issue of fiscal treatment of membership fees paid by employers to their organizations, including considering the introduction of a tax regulation that would enable the deductibility of membership fees paid by employers to their organizations should there indeed be discrimination in fiscal treatment found (see 338th Report, paragraph 1085(b)). The Committee notes with satisfaction that, by Law No. 268-XVI of 28 July 2006, the Fiscal Code was amended so as to allow tax deductibility of membership fees.

In its previous comments, the Committee had noted section 6 of the Law on Employers’ Organizations, which required at least ten employers to create an employers’ organization, and recalled that such a requirement for membership was too high and likely to be an obstacle to the free creation of employers’ organizations. The Committee once again requests the Government to keep it informed of the developments regarding a draft bill amending the law on employers’ organizations, referred to in the Government’s earlier report and in particular, its section 6.

The Committee notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in its communication dated 10 August 2006 and the comments transmitted by the Confederation of Trade Unions of the Republic of Moldova (CSRM) in communications dated 14 and 23 August 2006. The Committee further notes the reply provided by the Government to the comments submitted by the ICFTU in its communication dated 31 August 2005. The Committee notes that the allegations submitted by the ICFTU concern issues of interference by the Government in internal affairs of the CSRM and its affiliates. In this respect, it notes the interim conclusions and recommendations of the Committee on Freedom of Association in Case No. 2317 and, in particular, its recommendation to conduct independent inquiries into all alleged instances of pressure exercised upon the trade unions affiliated to the Union of Education and Science, the AGROINSIND, the Federation of Unions of Chemical Industry and Energy Workers, the “Moldsindcoopcomet” Federation, the “Raut” Trade Union, the Trade Union of Workers of Cadastre, Geodesy and Geology “SindGeoCad” and the Trade Union of Culture Workers (see 342nd Report, paragraph 878(h)). The Committee requests the Government to keep it informed in this respect.

The Committee is raising certain other points in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the comments submitted by the International Confederation of Free Trade Unions (ICFTU). The Committee requests that the Government communicate its observations on these comments in its next report.

The Committee will examine these matters, as well as all other outstanding issues raised in respect of the application of the Convention (see 2004 direct request, 75th Session) during the regular reporting cycle in 2006.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report as well as the adoption of the Labour Code (Law No. 154-XV of 28 March 2003).

Article 2 of the Convention. Right of employers and workers to form and join organizations of their own choosing. The Committee had previously noted that under section 10(1) and (5) of the Law on Trade Unions, trade unions acquire legal personality at the national, sectoral and intersectoral levels from the time of their registration. As for the primary trade unions, the territorial, sectoral and intersectoral trade unions, those organizations acquire their legal personality in accordance with the charters of the registered national, sectoral and intersectoral trade unions. The Committee once again requests the Government to indicate whether trade unions (primary trade unions and the territorial, sectoral and intersectoral trade unions) which are not affiliated to national, sectoral and intersectoral trade unions may be granted legal personality and hence engage fully in the activities of defending and promoting the interests of their members.

In its previous comments, the Committee recalled that a requirement of a membership of at least ten employers to create an employers’ organization was too high and likely to be an obstacle to the free creation of employers’ organizations. The Committee once again requests the Government to keep it informed of the developments regarding a draft bill amending the law on employers’ organizations, referred to in the Government’s earlier report and in particular, its section 6.

Article 3. Right of workers’ organizations to organize their activities. The Committee notes the Government’s indication that the procedure of the organization of a strike is now regulated by the Labour Code of 2003 and that following the enactment of the Code, the law on settlement of collective labour disputes was repealed.

The Committee notes 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". The Committee recalls in this respect that the authorities could establish a system of minimum service in services which are of public utility in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes. However, such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 160-161). The Committee requests the Government to indicate the manner in which the workers under section 363(3) are determined.

The Committee further notes 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 are prohibited from participating in strike actions. The Committee recalls that, as an exception to the general principle of the right to strike, the essential services in which this principle may be entirely or partly waived should be defined restrictively: the Committee therefore considers that essential services are only those the interruption of which would endanger the life, personal safety or health of the whole or a part of the population (General Survey, op. cit., paragraph 159). The Committee considers that, while telecommunication services could be considered essential, other workers employed in communication services should be able to enjoy the right to strike. The Committee requests the Government to clarify the workers concerned by the prohibition in section 369(2)(c) and (h) and to specify the "continuously working enterprises" in which the right to strike is prohibited.

The Committee notes the Government’s indication that the Criminal Code of 1961 was repealed and replaced with the Criminal Code of 2002. The Government further indicates that the new Code provides for criminal responsibility for the organization of an unlawful strike (section 357) as well as for the organization of or the participation in group-actions and breaking public order (section 358). The Committee notes that according to section 357(1), the unlawful strike is 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 the period of up to three years. According to section 358(1), the organization of or active participation in group actions, breaking violently public order, related to […] the obstruction of the normal functioning of the 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 up to three years. The Committee recalls that restrictions on the right to strike can only be imposed in essential services and with respect to public servants exercising authority in the name of the State and that sanctions should be possible only where the prohibitions in question are in conformity with the provisions of the Convention. Furthermore, since the application of disproportionate penal sanctions does not favour the developments of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey, op. cit., paragraph 177). The Committee requests the Government to indicate the measures taken or envisaged to amend section 358 in order to ensure that penal sanctions for strike action may only be imposed where the prohibition of the strike is in conformity with the Convention and that, even in these cases, the sanctions imposed are not disproportionate to the seriousness of the violation.

The Committee further requests the Government to keep it informed of any use of section 357 of the Criminal Law in practice.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the Government’s report.

Article 2 of the Convention. Right of employers’ and workers’ organizations to form and join organizations of their own choosing. The Committee had previously asked the Government to indicate whether section 7(1) of the Law on Trade Unions, under which workers have the right to establish and join trade unions of their own choosing without previous authorization by the public authorities, repeals section 238 of the Labour Code which appeared to maintain a system of trade union monopoly at the level of the enterprise, institution or organization. The Committee notes the Government’s indication that the new Labour Code, currently being drafted by the working group created by the Parliament, will repeal section 238. The Committee requests the Government to provide a copy of this legislation as soon as it is adopted so that the Committee can examine its conformity with the provisions of the Convention.

The Committee had previously noted that under section 10(1) and (5) of the Law on Trade Unions, trade unions acquired legal personality at the national, sectoral and intersectoral levels from the time of their registration. As for the primary trade unions, the territorial, sectoral and intersectoral trade unions, those organizations acquired their legal personality in accordance with the charters of the registered national, sectoral and intersectoral trade unions. The Committee once more requests the Government to indicate whether trade unions (primary trade unions and the territorial, sectoral and intersectoral trade unions) which are not affiliated to national, sectoral and intersectoral trade unions may be granted legal personality and hence engage fully in the activities of defending and promoting the interests of their members.

With respect to section 6 of the Law on Employers’ Organizations, which establishes a minimum membership of ten employers in order to form an association, the Committee notes the Government’s statement that it is considering examining, together with the National Confederation of Employers of the Republic of Moldova, the possibility of reducing this minimum and if necessary, it will draft a bill amending the Law on Employers’ Organizations. The Committee requests the Government to keep it informed in this respect.

Article 3. Right of workers’ organizations to organize their activities. The Committee had noted in its previous comment that the Law on Trade Unions does not address the issues repeatedly raised by the Committee, in particular those regarding: broad powers of the minister to impose arbitration; nature of the services on which strikes may be restricted or prohibited subject to certain conditions; and risks arising from the application of provisions making strike organizers liable for material damage. The Committee notes the Government’s indication that a draft Labour Code will include the provisions from the previously drafted Bill on the Settlement of Collective Labour Disputes. The Committee expresses its hope that the new Labour Code will take into account the concerns previously expressed in this regard and will ensure the right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities.

With reference to its previous comments, the Committee notes the Government’s indication that section 203/4 of the Criminal Code provides for criminal responsibility for participation in collective action, which disrupts transport, or public and social establishments, enforceable by imprisonment of up to three years. The Committee recalls that restrictions on the right to strike can only be imposed in essential services and with respect to public servants exercising authority in the name of the State and that sanctions should be possible only where the prohibitions in question are in conformity with the provisions of the Convention. Furthermore, since the application of disproportionate penal sanctions does not favour the developments of harmonious and stable industrial relations, if measures of imprisonment are to be imposed at all, they should be justified by the seriousness of the offences committed (see General Survey on freedom of association and collective bargaining, 1994, paragraph 177). The Committee once again requests the Government to take the necessary steps to repeal this provision and to indicate, in its next report, the measures taken in this regard.

Direct Request (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes the Government’s report. It notes that the Law on Employers’ Organizations (No. 976-XIV) and the Law on Trade Unions (No. 1129-XIV) were adopted respectively in May and July 2000.

Article 2 of the Convention. Right of employers’ and workers’ organizations to form and join organizations of their own choosing. The Committee notes with interest that under section 7(1) of the new Law on Trade Unions, workers have the right to establishand join trade unions of their own choosing without previous authorization by the public authorities. The Committee asks the Government to indicate whether this provision repeals section 238 of the Labour Code which appeared to maintain a system of trade union monopoly at the level of the enterprise, institution or organization.

The Committee notes that under section 10(1) of the Law, the trade union has legal personality at the national sectoral and inter-sectoral levels, and that primary trade union organizations and territorial sectoral and inter-sectoral trade union centres enjoy the rights and bear the responsibilities of a legal person in accordance with the charters of the registered national sectoral and inter-sectoral trade union centres (section 10(5)). The Committee asks the Government to indicate the scope of these provisions and to state whether trade unions which are not affiliated to national federations may be granted legal personality and hence engage fully in the activities of defending and promoting the interests of their members.

The Committee also notes that, according to section 6(1) of the Law on Employers’ Organizations, associations are created on the basis of a membership of at least ten employers. The Committee considers that this number is too high a minimum and is likely to be an obstacle to the free creation of employers’ organizations. It therefore asks the Government to envisage reducing this minimum and to inform it of any steps taken to that end.

Article 3. Right of workers’ organizations to organize their activities. With regard to the right of workers’ organizations to organize their activities and formulate their programmes without interference by the public authorities, the Committee noted in its previous comment that the Ministry of Labour was drafting a new bill on the settlement of collective labour disputes and that the bill had been submitted to the ministries concerned for their opinion. The Committee notes that the Government does not refer to the bill in its report. Consequently, it refers the Government again to its previous comments on several provisions of the current law, in particular those regarding: the need for unions to be able to resort to strike as a means of supporting their position in the search for solutions to problems raised by social and economic policies; broad powers of the minister to impose arbitration; nature of the services in which strikes may be restricted or prohibited subject to certain conditions; risks arising from the application of provisions making strike organizers liable for material damage. The Committee requests that the Government send the text of the Law on the Settlement of Collective Labour Disputes as soon as it has been adopted.

The Committee again asks the Government to indicate whether a provision similar to section 190(3) of the Criminal Code of the former USSR, restricting the rights of workers to participate in collective action to disrupt transport or public and social establishments, enforceable by imprisonment of up to three years, is still in force and, if so, to take steps to repeal it.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee takes note with satisfaction of the law on trade unions dated 7 July 2000 which contains no references to an imposed trade union monopoly, in accordance with recent requests from the Committee to ensure the right of workers to establish organizations of their own choosing under Article 2 of the Convention.

The Committee is addressing a request concerning certain other points directly to the Government.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the Government’s report and the comments of the National Confederation of Employers of the Republic of Moldova (NCERM).

It recalls that it requested clarifications on certain points in its previous comments, and in particular on Article 2 of the Convention (right of workers to establish organizations of their own choosing), Articles 5 and 6 (right of workers’ and employers’ organizations to establish federations and confederations) and Articles 3 and 10 (right of workers’ trade unions to organize their programmes and activities for the defence of their members’ interests without interference from the public authorities).

With regard to the first two points, the Committee notes that a Bill on trade unions, adopted by Parliament at its first reading, guarantees workers the right to establish organizations of their own choosing and to join existing organizations, and that a Bill on employers’ organizations, which has already been adopted by Parliament, will soon be submitted to the President for approval. These laws guarantee the right of organizations of workers and employers to establish federations and confederations of their own choosing at the highest level. The Committee requests the Government to transmit the text of the Act respecting employers’ organizations as soon as possible, and the text of the Act respecting trade unions when it has been adopted.

With regard to the right of workers’ organizations to organize their programmes and activities without interference by the public authorities, the Committee notes that the Ministry of Labour is currently preparing a new Bill on the settlement of collective labour disputes, that the draft text has been submitted to the ministries concerned for their opinion and that account was taken in the preparation of the Bill of the suggestions made by the standards specialist in the ILO multidisciplinary advisory team and of the opinions of the General Federation of Trade Unions and the National Employers’ Confederation. The Committee refers to its previous comments on several provisions of the current Act, particularly with reference to: the possibility which must be given to trade unions to use strike action as a means of supporting their position in relation to the problems posed by social and economic policies; the excessive restrictions on the exercise of the right to strike; the broad powers of the Minister to impose compulsory arbitration; the nature of the services in which strikes may be restricted, or prohibited, subject to certain conditions; and the risks arising out of the application of provisions respecting the material responsibility of the organizers of a strike. The Committee requests the Government to transmit the text of the Act on the settlement of collective labour disputes when it has been adopted, and to indicate the measures taken or envisaged to amend section 238 of the Labour Code.

The Committee once again requests the Government to indicate whether a similar provision to section 190(3) of the Criminal Code of the former USSR, which contains restrictions on the rights of workers to take part in collective action aimed at disrupting transport or public and social establishments, accompanied by terms of imprisonment of up to three years, is still in force and, if so, to repeal this provision.

The Committee requests the Government to provide information in its next report on the application of the Convention in practice, and reminds it that it can call upon the technical assistance of the Office for the various legislative texts that are currently in the process of being prepared or adopted.

In addition, the Committee requests the Government to provide its comments on the observations of the NCERM concerning the Bill on employers’ organizations.

[The Government is asked to report in detail in 2001.]

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee has taken note of the information contained in the Government's first report. It would be grateful for clarification on certain points.

Article 2 of the Convention. Right of workers to establish organizations of their own choosing. The Committee notes that several legislative provisions, and particularly section 238 of the Labour Code, which deal with the rights of the trade union committee of the enterprise, institution or organization and its relations with the administration, seem to maintain a single trade union system at the level of the enterprise, institution or organization. The Committee has always considered a single trade union system imposed directly or indirectly by legislation as incompatible with the right of workers to establish organizations of their own choosing under Article 2 of the Convention. It requests the Government to indicate in its next report the measures taken to guarantee workers the right to join a trade union of their choosing, including, if they so wish, one outside the existing trade union structure.

Articles 5 and 6. The right of workers' and employers' organizations to establish federations and confederations. The Committee notes from the Government's report that the Federation of Trade Unions and the Confederation of Employers are being re-registered. It requests the Government to indicate whether these organizations have been re-registered and to state whether the federations of trade unions and of employers' organizations may constitute several confederations at the highest level if they so wish.

Articles 3 and 10. Right of workers' trade unions to organize their action programmes and activities for the defence of the members' interests without interference from the public authorities. The Committee wishes to draw the Government's attention to certain aspects concerning the right to strike, set out in the Act on the resolution of collective labour disputes, N.1298-XII of 24 February 1993:

1. Section 14(1) and (2) provides that a strike may be declared only to defend workers' occupational interests of an economic and social nature and must not be initiated for political ends. The Committee has always considered that strikes of a purely political nature do not fall within the scope of the field protected by the Convention but recalls that trade unions responsible for defending workers' socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends (see General Survey on freedom of association and collective bargaining, 1994, paragraph 165). It requests the Government to supply it with information on the application in practice of the prohibition set out in section 14(2).

2. Section 20(1) provides that, at the request of the management of an enterprise, the Supreme Court may suspend for 90 days the beginning or continuation of the strike if the latter may cause prejudice to the national economy. The Committee wishes to recall that suspension of the right to strike constitutes an important restriction on an essential means for workers in the defence of their interests and can be justified only in the event of acute national crisis and for a limited period.

3. Sections 24-27 provide for compulsory arbitration on the sole initiative of the Ministry of Labour and Social Welfare if the duration of a strike exceeds 15 days and if it may cause harm to the national economy. The Committee considers that this criterion grants wide powers to the minister to impose compulsory arbitration.

4. Section 28(d) prohibits strikes in several sectors, particularly in public urban and rail transport, public aviation, communications and the energy sector. The Committee is of the view that restrictions or prohibitions on the right to strike should be restricted to essential services in the strict sense of the term, namely services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see General Survey, op. cit., paragraph 159). The Committee considers that the prohibition of strikes in the public urban and rail transport sectors and civil aviation is not compatible with the principles of freedom of association and should be repealed. Furthermore, with regard to the communication and energy sectors, the Committee recalls that if strikes are prohibited in these sectors, legislation should provide a compensatory mechanism for the settlement of labour disputes. In view of the absence of a compensatory mechanism for settling disputes in section 28, the Committee requests the Government to indicate in its next report the measures taken or envisaged to allow workers in these sectors, deprived of an essential means in the defence of their economic and occupational interests, to have their collective claims heard and to bring the legislative provisions into conformity with the principle set out above.

5. Sections 21(3) and 23(5) provide for the material responsibility of the organizers of a strike initiated or continued illegally. In the Committee's view, this responsibility may prove costly and disproportionate if the acts involved constitute recourse to a strike for the defence of workers' interests pursuant to the principles of freedom of association.

6. The Committee also requests the Government to indicate whether a similar provision to section 190(3) of the Criminal Code of the former USSR, which contains restrictions on the rights of workers to take part in collective action aimed at disrupting transport or public and social establishments, accompanied by terms of imprisonment of up to three years is still in force and, if so, to envisage the repeal of this provision.

The Committee requests the Government to inform it of the measures envisaged to amend section 238 of the Labour Code and sections 14(2), 20(1), 21(3), 23(5), 24 and 28(d) of the Act on the settlement of collective labour disputes, N.1298-XII, in order to bring its legislation into greater conformity with the Convention and requests it to supply information in its next report on the practical application of the Convention. It also requests the Government to send it a copy of the Bills concerning trade unions and employers' organizations which it mentions in its first report, as well as a copy of the Penal Code currently in force.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes with satisfaction the provisions of the 1994 Constitution and the Labour Code as amended as at 1998 which provide for the right of workers to establish and join trade unions (article 42 of the Constitution; section 2(5) of the Labour Code), which lays down the right of workers to establish organizations of their own choice without prior authorization (section 232 of the Labour Code) and the right to strike (article 45 of the Constitution).

The Committee is raising a number of points in a request addressed directly to the Government.