Termination of Employment Convention, 1982 (No. 158) - Republic of Moldova (Ratification: 1997)

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Article 2(2) and (3) of the Convention. Adequate safeguards in case of recourse to contracts of employment for a specified period of time. In its previous comments, the Committee requested the Government to provide information on the measures taken or contemplated to prevent the inappropriate use of contracts of employment for a specified period of time, including information on the application in practice of sections 54 and 55 of the Labour Code, as amended, as well as information on the activities of the State Labour Inspectorate enforcing the application of these sections of the Code. Noting that the Government has not provided any information in this regard, the Committee reiterates its request that the Government provide the requested information, including copies of any relevant court decisions in this regard.

Article 4. Valid reasons for termination of employment. The Committee notes that, pursuant to Law No. 188 of 21 September 2017, section 86 of the Labour Code was amended to include the employee’s eligibility for an old-age pension as a valid ground for termination. The amendment provides for the possibility of employing the individual on a fixed-term contract following the termination in accordance with section 55(f). It further notes the Government’s indication that section 87(4) was amended to provide trade union bodies with ten working days to express an advisory opinion with regard to the dismissal of an employee. The Committee notes that this provision stipulates that lack of communication from the trade union in this respect is considered to constitute implied consent. The Committee notes that the Government has not provided any information on the manner in which the automatic retirement of teaching staff upon activation of their pension is applied in practice. The Committee requests the Government to provide information on the practical application of these additional grounds of termination and reiterates its request that the Government provide relevant court decisions in this regard.

Articles 5(c), 7 and 8. Invalid reasons for termination of employment. Procedure prior to termination of employment and appeals procedures. The Government indicates that, pursuant to Administrative Code No. 116/2018, any affected person is entitled to have recourse to the relevant bodies, who are required to examine the claims within 15 to 30 working days of the date of registration, depending on the complexity of the claim, and to inform the claimants of the result and content of the decision taken. The Committee further notes that, pursuant to section 1 of Law No. 85/2018, in cases of collective redundancy, an employer is obliged to inform the relevant trade unions in writing at least three months before the planned date of the collective dismissal and to initiate negotiations in relation to the rights and interests of the workers concerned. In addition, the amendments to section 185 of the Labour Code provide for guarantees in cases of collective redundancies, including the employer’s obligation to provide workers’ representatives with detailed information regarding the planned dismissal and the obligation that they hold consultations with workers’ representatives. The signed notice to employees regarding the collective redundancies must be made at least two months before the dismissal, observing the dismissal procedures established in section 88 of the Labour Code. The Committee notes that the Government has not provided the information requested in the Committee’s previous comments on the number and type of violations identified by the labour inspection authorities. The Committee therefore reiterates its request that the Government provide information on the number and type of violations identified by the labour inspection authorities. The Government is also requested to provide copies of relevant court decisions giving effect to Articles 7 and 8 of the Convention.

Article 11. Reasonable period of notice. The Committee notes that, pursuant to section 184(3) of the Labour Code, an employer is not obliged to give notice to a worker if the termination is a result of a breach of conduct by an employee. The Committee reiterates its request that the Government provide further information on the reasons for setting a notice period of three days for workers with employment contracts of less than two months, the reasons for expressing this notice period in calendar days rather than in working days, as well as information on the manner in which it is ensured that workers receive reasonable notice in cases of termination based on the capacity or conduct of the worker.

Article 12. Severance allowances and other income protection. The Government indicates that Law No. 102-XV of 13 March 2003 on employment and social protection of persons seeking employment and Law No. 105/2018 on the Promotion of Employment and Unemployment Insurance contain provisions related to unemployment benefits and allowances for professional integration. The Committee notes that the amount of the unemployment benefit to which an unemployed worker is entitled is determined in accordance with section 45 of Law No. 105. The Committee further notes that the Government has not provided any further information on the role of collective agreements in making provision for adequate severance allowances. The Committee once again refers to its previous comments and requests the Government to provide information on the role of collective agreements in ensuring provision for severance allowances, as well as information on other types of income protection that may be afforded to workers.

Application of the Convention in practice. Noting that the Government has not provided any information in this regard, the Committee reiterates its request that the Government provide information on the manner in which the Convention is applied in practice, including, for example, copies of court rulings concerning questions of principles relating to the application of the Convention or summaries of the important court rulings and available statistics on the activities of the bodies of appeal (such as the number of appeals, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided upon) and on the number of terminations for economic or similar reasons in the country.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Article 2(2) and (3) of the Convention. Adequate safeguards in case of recourse to contracts of employment for a specified period of time. The Government indicates that section 54 of the Labour Code was amended, by Law No. 205 of 20 November 2015, which prohibits the use of fixed-term employment contracts unless there are specific reasons justifying restricting the duration of an individual employment contract. Section 54(4) of the Labour Code now prohibits the use of individual fixed-term employment contracts for the purpose of avoiding the rights and guarantees afforded to workers on employment contracts for an indefinite period of time. Section 54(5) provides that individual fixed-term employment contracts made for reasons other than the legal grounds verified by the State Labour Inspectorate will be deemed to have been made for an indefinite period of time. Moreover, section 55 of the Labour Code, which establishes the grounds for concluding individual employment contracts for a specified fixed period, was amended to include three additional grounds: (1) implementing an investment project or programme for the provision of technical and financial assistance; (2) carrying out work related to a higher volume of production or rendering services of a temporary character (up to one year); and (3) employment at units established to act for a definite period of time. The Government indicates that the amendments to the Labour Code seek to strike an acceptable balance between the interests of employers and those of workers. It adds that the amendments were developed and introduced within the framework of a tripartite working group consisting of representatives of the Government, the National Confederation of Trade Unions and the National Confederation of Employers of the Republic of Moldova. The Committee requests the Government to continue to provide information on the measures taken or contemplated to prevent use of contracts of employment for a specified period of time, including information on the application in practice of sections 54 and 55 of the Labour Code, as amended, as well as information on the activities of the State Labour Inspectorate enforcing the application of these sections of the Code. Please also provide copies of any relevant court decisions in this regard.

Article 4. Valid reasons for termination of employment. The Committee notes that the 2012 amendments to the Labour Code introduced an additional ground for termination of individual employment contracts of teaching staff: retirement upon activation of pension. The Government indicates that this additional ground was added due to the need to optimize the use of the labour force in the field of education, where many teaching positions are occupied by pensioners, while graduates remain unemployed due to the lack of vacant teaching positions. According to section 301 of the Labour Code, termination of an individual employment contract on this ground is an option and not an obligation of the employer. The Committee requests the Government to provide information on the manner in which these additional grounds of termination are applied in practice. It also requests the Government to provide copies of relevant court decisions in this regard.

Articles 5(c), 7 and 8. Invalid reasons for termination of employment. Procedure prior to termination of employment and procedure of appeal. In reply to the Committee’s previous comments, the Government indicates that filing a complaint, participating in proceedings against an employer involving alleged violations of laws or regulations, or recourse to a competent administrative authority do not constitute valid reasons for termination. With respect to the procedure prior to termination of employment and appeals procedures, the Committee recalls that cases of unlawful dismissal were reported by the labour inspection, including violations of workers’ rights to be informed of the specific grounds for their dismissal as well as of their right to be informed of the authority to which they may appeal against the application of disciplinary sanctions. The Committee requests the Government to provide updated information on the number and type of violations identified by the labour inspection authorities. Please also provide copies of relevant court decisions giving effect to Articles 7 and 8 of the Convention.

Article 11. Reasonable period of notice. The Government indicates that the general terms of notice for termination of individual employment contracts are set out in the Labour Code, which applies to public and private entities. According to section 184 of the Labour Code, an employer is required to notify a worker of its intention to terminate the individual employment contract, regardless of whether the contract is for an indefinite or specified period. The length of the period of notice may not be less than one month, with a two-month notice period required in certain cases, such as in the event of liquidation of a business unit or cessation of the employer’s activities. Moreover, section 184 of the Labour Code sets out the notice period in the event of termination of employment based on the operational requirements of the undertaking, establishment or services and in cases related to the capacity of the worker concerned due to the worker’s state of health (Article 4 of the Convention). The Committee notes that for employees with individual employment contracts of less than two months, the employer is required to provide at least three calendar days’ notice of termination. The Committee requests the Government to explain in detail the reasons for fixing the notice period for workers with employment contracts of less than two months at the short period of only three days, as well as the reasons for expressing this notice period in calendar days. The Committee also requests the Government to provide further information on the application of the notice period requirements in cases of termination based on the capacity or conduct of the worker, indicating the manner in which it is ensured that workers receive reasonable notice in such cases.

Article 12. Severance allowance and other income protection. The Government indicates that workers whose employment is terminated at the initiative of the employer are guaranteed compensation payments in view of dismissal. The Government adds that the notice period and payment of severance and unemployment allowances are not alternative measures, but are intended to be complementary. Thus, workers who may benefit from a period of notice of two months, according to section 184 of the Labour Code, may also receive a severance allowance as provided for in section 186 of the Labour Code. Following the dismissal, and if they meet the conditions provided in the Labour Code, workers may also receive unemployment allowances. The Committee requests the Government to provide further information on the severance allowances and other forms of income protection afforded to workers terminated for reasons related to their capacity or conduct. The Committee also refers to its previous comments and requests the Government to provide information on the role of collective agreements in ensuring provision for severance allowances and other types of income protection that may be afforded to the workers concerned.

Application of the Convention in practice. The Committee notes that the Government has appended extracts from court decisions to its report. The Committee requests the Government to continue to provide information on the manner in which the Convention is applied in practice, including, for example, copies of court rulings concerning questions of principles relating to the application of the Convention or summaries of the important court rulings and available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided upon) and on the number of terminations for economic or similar reasons in the country.

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

Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s report received in October 2011 which includes information in response to its 2008 direct request. The report also included data from the Ministry of Justice on the examination by the courts of individual labour disputes for the 2009–10 period and statistics on the number of both disposed and pending court cases, notably concerning the reinstatement of dismissed workers. The Committee further notes that several amendments were made to the legal framework regulating termination of employment pursuant to the entry into force in 2009 of the Civil Service Law No. 158 of July 2008 and that the labour inspection reported 98 cases of illegal dismissals based upon the fact that employees had reached the age of retirement. The Committee would appreciate receiving information on the manner in which the Convention is applied in practice, including up-to-date statistics on the activities of the courts (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons (including examples of information provided by the employers to the workers’ representatives concerned in cases of collective dismissals, as required under Article 13(1) of the Convention).

Article 2(2) and (3) of the Convention. Adequate safeguards in case of recourse to contracts of employment for a specified period. The Government indicates that more than 3,600 cases of violations of the protection guaranteed by the Convention to workers on fixed-term contracts were reported in 2011. According to the Labour Inspection, more than 800 employees were not duly informed as to the termination date of their contract, while 1,250 employees did not receive any compensation following dismissal. Additionally, almost 1,800 seasonal workers were illegally entrusted with additional tasks and duties that had not been initially mentioned in their contract. The Committee invites the Government to provide in its next report up-to-date information on the manner in which the Convention is being enforced concerning the protection of the workers on fixed-term contracts. Please also provide copies of the court decisions by which tribunals have dealt with this issue.

Article 5(c). Invalid reasons for termination of employment. The Committee refers to its 2008 direct request and again asks the Government to specify how it ensures that the filing of a complaint or the participation in proceedings against an employer involving alleged violations of laws or regulations or the recourse to a competent administrative authority does not constitute a valid reason for termination.

Articles 7 and 8. Procedure prior to termination of employment and procedure of appeal. The Committee notes that 241 cases of unlawful dismissal were reported by the labour inspection, including violation of the right for workers to be provided with the grounds of their dismissal as well as to be informed about the authority entitled to hear appeals against disciplinary sanctions. The Committee invites the Government to provide copies of courts decisions giving effect to the provisions of both Articles 7 and 8 of the Convention.

Article 11. Period of notice. The Committee notes that sections 63 and 64 of the Civil Service Law No. 158 provide for different periods of notice. With reference to its previous comments, the Committee requests the Government to clarify how it is ensured that persons who work in the private sector are entitled to receive a reasonable period of notice or compensation in lieu thereof, as required by the Convention.

Article 12. Severance allowance and other income protection. The Government indicates that section 12 of the Civil Service Law No. 158 provides that, in case of early retirement or termination of employment, civil servants are entitled to compensation of 50 per cent of their salary for each full year of work in the public service. The Government further indicates that the number of beneficiaries of unemployment benefits has increased significantly since 2009 with 11,000 beneficiaries in 2010, 40 per cent of whom were dismissed workers and 35 per cent of whom had resigned. The Government recalls that, according to Law No. 102-XV of 13 March 2003, dismissed workers are entitled to severance pay, with the exception of employees that have ceased work following: (1) enterprise liquidation; (2) reduction of the number of workers or staff; or (3) resignation. Law No. 102-XV of 13 March 2003 was amended to reassess the calculation of unemployment benefits and ensure a better equity between beneficiaries. The Committee invites the Government to report on the role of collective agreements in the provision of severance pay, so as to allow the Committee to better assess whether all persons covered by the Convention are entitled to severance payment, benefits from unemployment insurance, or a combination of the two. Please also provide copies of any court decisions which address this matter.

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

1. Application of the Convention in practice. The Committee takes note of the information provided in the Government’s report received in August 2008, including the information responding to its 2007 direct request. The Committee notes the statistical information compiled by the Supreme Court of Justice on the number of individual labour disputes concerning the reinstatement of dismissed workers to the labour market which were examined between 2006 and the first semester of 2008. The Committee would appreciate if the Government would continue to provide information on the manner in which the Convention is applied in practice, including available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons (including examples of information provided by the employers to the workers’ representatives concerned in cases of collective dismissals, as envisaged under Article 13, paragraph 1, of the Convention).

2. Article 2, paragraphs 2 and 3. Adequate safeguards in case of recourse to contracts of employment for a specified period. In its 2007 direct request, the Committee noted that the Labour Code permitted fixed-term contracts of up to five years, and requested information on whether there were adequate safeguards in respect of these workers. The Government replies that workers on fixed-term contracts have the same rights as other employees, except that their contracts terminate when the term of contract expires and that, although severance pay is not paid, they are entitled to unemployment benefits. It further states that it does not have information on the number of workers affected by fixed-term contracts. The Committee reiterates its interest in receiving practical information on how the protection of the Convention applies to workers on fixed-term contracts. Please also provide copies of court decisions by which tribunals have dealt with this issue.

3. Article 4. Valid reason for termination. The Committee notes from the Government’s reply that an employee has the right to challenge the validity of a dismissal in the courts. Although the Government supplied the statistics of the cases of “illegal dismissal”, it did not supply leading court judgements as requested. The Committee reiterates its interest in receiving information on how the courts are addressing cases of “illegal dismissal” for the purposes of assessing compliance with Article 4 of the Convention.

4. Article 5. Invalid reasons for termination. The Government indicates that section 82(i) of the Labour Code, as amended by Law No. 8-XVI of 9 February 2006, provides for termination of employment where the heads of state units, or heads of the units in which the State is a majority shareholder, reach the age of 65. The Government states that this provision was not intended to discriminate against persons who reach the age of retirement. Section 82(i) of the Labour Code does not deprive persons with appropriate qualifications and capacity, who have reached the age of retirement, from the right to work. Accordingly, such persons can conclude labour contracts for periods of up to two years for positions other than that of the head of unit, which may subsequently be prolonged for a period that does not exceed five years. The Committee welcomes the information provided and requests that the Government continue to provide practical information on the application of the Convention to workers who have reached the age of retirement.

5. Article 5(c) of the Convention. Invalid reason for termination of employment. The Committee refers to its 2007 direct request and again asks the Government to specify how it ensures that the filing of a complaint or the participation in proceedings against an employer involving alleged violations of laws or regulations or the recourse to a competent administrative authority does not constitute a valid reason for termination.

6. Article 7. Procedure prior to termination. The Committee notes that section 206 of the Labour Code provides for the disciplinary sanctions that may be taken by an employer, which includes the possibility of dismissing an employee in respect of the grounds set out under section 86(1)(g), (k), (m), (o) and (r) of the Labour Code. It notes that section 208 provides for a disciplinary procedure in respect of disciplining sanctions, including dismissals. The Committee requests the Government to provide information on the manner in which these provisions of the Labour Code are applied in practice to ensure that a worker whose termination is envisaged for reasons of conduct or performance is provided an opportunity to defend himself against the allegations made. In particular, please provide copies of court decisions applying these provisions of the Labour Code.

7. Article 11. Period of notice. In response to the Committee’s 2007 direct request, the Government reports that, where termination of the labour contract is based on section 86, paragraph (1)(a), (f), (l), (n) and (s)–(z) of the Labour Code, the provision of notice is only mandatory if it is foreseen in the applicable collective agreements. The Committee requests the Government to clarify how it is ensured that persons who are not covered by applicable collective agreements are entitled to receive a reasonable period of notice or compensation in lieu thereof, as required under the Convention.

8. Article 12. Severance allowance and other income protection. In response to the Committee’s 2007 direct request, the Government reports that unemployment benefit is additional to severance pay. The Committee notes from the Government’s report that section 30 of Law No. 102-XV of 13 March 2003, persons who satisfy the following conditions: (i) they are registered at the National Employment Agency, belonging to the territorial area the office is charged with; (ii) they have worked and have a contribution period in the state social insurance system of at least six months of the last 24 calendar months prior to the date of registration; and (iii) they do not obtain taxable incomes according to the law, and have had their employment terminated on one of a series of grounds enumerated, shall be entitled to receive unemployment benefits. The Government further indicates that severance pay is not paid in cases of dismissal due to disciplinary reasons, unless it is otherwise foreseen by relevant collective agreements. The Committee asks the Government to supply it with a copy of Law No. 102-XV of 13 March 2003 and to provide more information on the way section 30 of that law is applied in practice. It also asks for information on the role of collective agreements in the provision of severance pay, so as to allow the Committee to better assess whether all persons covered by the Convention are entitled to severance payment, benefits from unemployment insurance, or a combination of the two. Please also provide copies of any court decisions which address this matter.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

1. Part V of the report form. Application of the Convention in practice. The Committee notes the Government’s report received in November 2006 and the adoption of Law No. 154-XV of 28 March 2003 issuing the Labour Code of the Republic of Moldova. It notes, in particular, that, according to the statistics in the Government’s report, 320 individual labour disputes concerning cases of dismissal were submitted to the judicial authorities in 2005 and 249 cases were examined. During the first three months of 2006, 79 cases were submitted to the judicial authorities, 42 of which were resolved. The Committee asks the Government to continue providing information on the manner in which the Convention is applied in practice, in particular on the activities of the courts or the competent labour administration authorities.

2. Article 2, paragraphs 2 and 3, of the Convention. Safeguards in the event of recourse to fixed-term contracts. The Committee notes sections 54(2), and 55 of the Labour Code, which provide that, in certain cases, the employer may resort to a fixed-term contract for a maximum duration of five years. The Committee asks the Government to provide detailed information on the manner in which the protection afforded by the Convention is ensured for all workers engaged under a fixed-term contract in pursuance of these sections, and to indicate the number of workers affected by these measures.

3. Article 4. Valid reason for termination. The Committee notes section 86(1), of the Labour Code, which lists the various valid reasons for termination. It asks the Government to indicate the manner in which it is ensured in practice that the employment of a worker is not terminated without a valid reason, as referred to under Article 4 of the Convention, and to provide copies of any relevant court decisions.

4. Article 5. Invalid reasons for termination. The Committee notes the new section 82(i) of the Labour Code, inserted by Law No. 8-XVI of 9 February 2006. In its observations received in July 2006 on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Confederation of Trade Unions of the Republic of Moldova (CSRM) stated that this new provision allows for the termination of an employment contract in cases where the employee has reached retirement age and that it discriminates on the basis of age and will lead to the unjust dismissal of older workers. In this respect, the Committee recalls that the Termination of Employment Recommendation, 1982 (No. 166) in its Paragraph 5(a) indicates that “age, subject to national law and practice regarding retirement” should not constitute valid reasons for termination. It refers to its 2006 observation on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and asks the Government to provide any available information on the implementation of section 82(i) of the Labour Code. The Government is also asked to specify the manner in which it is ensured that the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations, or recourse to competent authorities, does not constitute a valid reason for termination.

5. Article 7. Procedure prior to termination. In its report, the Government states that, in cases where dismissal is based on the disciplinary reasons set forth in section 86(1)(g), (k), (m), (o) and (r), the employer must ask the worker whose termination of employment is contemplated to provide a written explanation of the offence committed (sections 208 and 209 of the Labour Code). The Committee notes that for dismissals based on the other reasons set forth in section 86(1), the worker does not seem to be provided with any opportunity to defend himself against the allegations made. In this respect, it reminds the Government that the purpose of this Article of the Convention is to ensure that any decision to terminate employment is preceded by dialogue and reflection between the parties (General Survey on the protection against unfair dismissal, 1995, paragraph 148). The Committee asks the Government to indicate the manner in which it is ensured that a worker whose termination of employment is contemplated for a reason set forth in section 86(1), other than those mentioned under points (g), (k), (m), (o) and (r), is not dismissed before being provided with an opportunity to defend himself against the allegations made.

6. Article 9, paragraph 3. Examination by the labour courts in the case of termination for reasons based on the operational requirements of the undertaking, establishment or service. The Government is requested to indicate whether the labour courts are empowered, in the case of appeal, to determine whether the termination was for reasons relating to the operational requirements of the undertaking, establishment or service, and to state the extent to which they are empowered to decide whether these reasons are sufficient to justify the termination.

7. Article 11. Period of notice. The Committee notes section 184 of the Labour Code which sets a period of notice of one to two months for dismissals based on certain reasons set out in section 86(1), of the Labour Code. The Committee asks the Government to indicate whether a period of notice must be respected in the case of dismissal based on the reasons set forth in section 86(1)(a), (f), (l), (n) and (s)–(z) of the Labour Code, and to specify the applicable legislative provisions.

8. Article 12. Severance allowance and other income protection. The Committee notes section 186 of the Labour Code which provides for the payment of a severance allowance in the case of dismissal based on certain reasons set forth in section 86(1), of the Labour Code. The Committee asks the Government to indicate whether workers dismissed for reasons set forth in section 86(1)(a), (f)–(s), (u)–(x) and (z) of the Labour Code are entitled to a severance allowance, benefits from unemployment insurance or a combination of both, in accordance with Article 12 of the Convention. The Government is also requested to specify whether provision is made for the loss of entitlement to severance allowance in the event of dismissal for serious misconduct and, if so, to indicate how serious misconduct is defined by legislation and practice, while providing copies of relevant court decisions.

9. Article 13, paragraph 1. Informing and consulting workers’ organizations. In its report, the Government states that section 88(1)(i), provides that an employer has the right to dismiss workers for reasons relating to the liquidation of the undertaking or in order to reduce the number of workers or staff, providing that he informs the trade unions of the respective undertaking or branch and engages in negotiations with them on the observance of workers’ rights and interests. The Committee asks the Government to indicate the procedures followed in these negotiations and the information that the employer must provide for the workers’ representatives concerned on such occasions. It also asks the Government to indicate the purpose of these consultations and to specify what is covered in practice by “workers’ rights and interests”.

[The Government is asked to reply in detail to the present comments in 2008.]

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

The Committee notes the information contained in the Government’s detailed report for the period ending August 2001, including information provided in response to previous comments concerning Articles 7, 9, 10, 11, 12 and 13(2) of the Convention. It would appreciate receiving further information on the following points.

Article 2, paragraphs 2(a) and 3, of the Convention. With reference to previous comments, the Government states that section 26 of the Collective Agreement for 2001 allows for fixed-term contracts only when the work is of a temporary nature, or is a limited task, or is seasonal, or is work in the public service, or at the request of the worker, or in other cases permitted by law. section 16 of the Labour Code also permits the conclusion of special limited-term contracts in certain conditions. The Committee requests further information on any of the other cases permitted by law which are not listed above as well as on the safeguards which exist to prevent abuse of fixed-term contracts, and the percentage of the workforce covered by fixed-term contracts.

Articles 4 and 5. The Committee notes the list of valid reasons for dismissal provided by the Government in response to previous comments. It requests further information on whether section 263 of the Labour Code, which permits the establishment of other reasons, has been utilized.

Article 13, paragraph 1(b). The Committee notes the information provided by the Government on section 45(2) of the Labour Code and the collective agreements for 2001. It again requests information on whether employers are obliged to provide workers’ representatives with the opportunity to consult on measures to be taken to avert or to minimize the terminations, and measures to mitigate the adverse effects of any terminations on the workers concerned.

Part V of the report form. The Committee notes that there were 627 cases filed concerning unjustified dismissal and in 442 cases the workers were subsequently reinstated. The Committee would appreciate continuing to receive information on the manner in which the Convention is applied in practice.

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

The Committee notes the information contained in the Government’s detailed first report. It would appreciate receiving a copy of the National Collective Agreement mentioned in the Government’s report, as well as further information on the following points.

Article 2, paragraph 2(a), in conjunction with Article 2, paragraph 3, of the Convention.  The Committee notes that under section 18 of the Labour Code there are two possible types of contracts - contracts for an indeterminate period and fixed-term contracts. Fixed-term contracts may last for up to five years, but are to be used only when the work relationship cannot be established for an indeterminate period, taking into account the nature of future work or the interests of the workers. The Committee recalls that fixed-term contracts may be excluded under the Convention, but are intended only to allow firms to hire workers for defined tasks for a relatively short period of time. It also points out that the uncertain future needs of the enterprise are taken into account in Article 4, which allows firms to terminate employment for reasons related to the operational needs of the enterprise. It would appreciate receiving further information on the percentage of the workforce engaged on fixed-term contracts and what safeguards exist to protect workers against abuse of fixed-term contracts.

Articles 4 and 5.  The Committee notes that under section 143(1) of the Labour Code a worker cannot be dismissed except by a decision of the administration that hired him or her, and only for the reasons listed in legislation. It notes, however, that under section 263, other laws may be enacted concerning valid bases for dismissal for certain categories of workers, and under section 33 other valid bases may be determined by agreement. It would appreciate receiving further information in regard to the bases which have been established by law or by agreement for dismissal of a worker.

The Committee also notes that section 42 of the Labour Code permits the dismissal of a worker on the request of the administrative court, if he or she has violated or does not respect the law, although the worker may appeal. Please forward information on how often, and under what circumstances, section 42 is used.

Article 7.  The Committee notes that under section 40 of the Labour Code in case of individual dismissal for reasons related to the worker, the employer must first consult the union. If the worker to be dismissed is not a member of a union, the employer must consult the "superior hierarchical organization". Please indicate whether the union or superior hierarchical organization would examine the allegations before agreeing to the termination.

Article 9, paragraph 2(a).  The Committee notes that there is no indication in the Government’s report or the Labour Code as to who has to discharge the burden of proof in an appeal against dismissal. The Committee recalls that under paragraph 2 of Article 9, the burden must be either shared or carried by the employer, but should not be borne alone by the worker. Please provide further information on the legislative or other provisions in regard to the burden of proof in an appeal against dismissal.

Article 10.  The Committee notes that neither the Government’s report nor the Labour Code specifies the remedies to be awarded in case of unjustified dismissal. Please provide information on what remedies are available.

Article 11.  Section 45/2 of the Labour Code states that a worker is entitled to a minimum of two months’ notice in case of lay-off. In case of mass redundancies, the employer is required to notify the union three months in advance. However, there is no indication of the right to notice in the case of termination related to an individual. The Committee recalls that under this Article of the Convention a reasonable period of notice is required in all cases of termination, including ones related to the capacity or conduct of the individual worker. The only exception is in cases of serious misconduct, the nature of which would make it unreasonable to require an employer to continue the employment relation during the period of notice. Please provide further information on the period of notice generally required in cases of termination of employment related to the capacity or conduct of the individual worker.

Article 12.  The Committee notes that section 45/3 of the Labour Code specifies the indemnities due to a worker in case of termination related to the needs of the enterprise, and section 41 specifies the indemnities due to a worker in case of termination on account of military service, or another worker returning to fill the post, or inability to transfer the worker to another post. Furthermore, under section 45/4 all unemployed persons, defined as those capable of and willing to work, are entitled to unemployment assistance or government-sponsored work, provided they are unemployed "for reasons independent of themselves", and have no position or income. Please clarify whether persons who are dismissed for reasons related to their capacity or conduct also qualify for unemployment assistance.

Article 13, paragraph 1(b).  Section 45/2 of the Labour Code states that in case of mass redundancies, the employer must give the union a minimum of three months’ notice. However, it does not require the employer to provide an opportunity for consultation on the measures to be taken to avert or minimize the number of terminations. The Committee recalls that under Article 13, paragraph 1(b), the employer shall, in accordance with national law and practice, give the workers’ representatives concerned, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimize the terminations and to mitigate the adverse effects of any terminations on the workers concerned. Please provide further information on how this provision is given effect.

Article 13, paragraph 2.  Section 45/2 of the Labour Code states that the requisite procedures apply in case of mass redundancies. Please specify what is regarded as mass redundancy for the purpose of paragraph 1 of Article 13, in particular the minimum number or percentage of the workforce affected for redundancy to be considered a mass redundancy.

Part V of the report form.  Please provide further information on the manner in which the Convention is applied in practice, including statistics on the number of appeals against termination, the outcome of such appeals, and any remedies awarded.