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Definitive Report - Report No 382, June 2017

Case No 3129 (Romania) - Complaint date: 08-JAN-15 - Closed

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Allegations: The complainant organizations allege conclusion of an addendum (not signed by the complainant Federatia Sindicatelor Libere Independente (FSLI) ENERGETICA) to the collective agreement at the company OMV Petrom SA, which changed the definition of the term “representative union”; subsequently, discrimination of members of affiliated unions of the complainant organization FSLI ENERGETICA through exclusive provision of wage increases, financial incentives and preferential shift systems to the members of affiliated unions of the most representative trade union (‘National Union Petrom–Energie’ Federation) and discrimination of the complainant FSLI ENERGETICA through denial of access to relevant documents or of participation in various committees at the enterprise level

  1. 544. The complaint is contained in communications from the Federatia Sindicatelor Libere Independente ENERGETICA (FSLI ENERGETICA) and the Block of National Trade Unions (BNS) dated 17 March 2014 and 8 January 2015.
  2. 545. The Government sent its observations in communications dated 31 August 2015 and 11 July 2016.
  3. 546. Romania has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

A. The complainants’ allegations
  1. 547. In their communications dated 17 March 2014 and 8 January 2015, the complainants, the BNS and the FSLI ENERGETICA, allege that an addendum, concluded without the signature of FSLI ENERGETICA, to the collective agreement in force at the enterprise OMV Petrom SA (hereinafter: the enterprise or the company), changed the definition of the term “representative union” and led to subsequent discrimination of members of unions affiliated to the complainant FSLI ENERGETICA. The latter complainant indicates that on 20 May 2013, it informed the National Council for Combating Discrimination (CNCD) about the issues raised in this complaint.
  2. 548. The complainants explain that, although the FSLI ENERGETICA participated in the negotiations of the addendum in line with section 135(1) of Act No. 62 of 2011 concerning social dialogue (Social Dialogue Act), it did not sign the addendum of 2 April 2013, as it considered that its paragraph 4, related to paragraph 168 of the collective agreement, was negotiated in violation of section 132 of the Social Dialogue Act, which states that collective agreements may establish rights and obligations only within the limits and conditions provided by law, and section 1 of the Social Dialogue Act, which provides that the parties cannot give other meanings to the terms and expressions set by the Act. According to the complainants, since the addendum invents terms, changes their meaning and interprets them differently than the Social Dialogue Act, it must be considered as null and void. The complainants also indicate that although they notified both the employer and the Territorial Labour Inspectorate of Bucharest about this issue, the addendum was nevertheless registered, without the signature of the complainant FSLI ENERGETICA, in the Unique Registry of Evidence. The complainants point out that the addendum specifically modifies the terms “party”, “trade union” and “representative trade union”; and that the latter term was redefined by paragraph 168 of the collective agreement as amended, as the “majority representative trade union organization within the unit”, which is understood to be the representative federation at the sectoral level, or, as the case may be, the representative trade union at the unit level, which brings together – directly or through affiliated trade unions – more than half of the total number of the employees in the unit. The complainants state that this definition contains elements contrary to the Social Dialogue Act, was invented by the employer and was built chaotically through a combination of several definitions. The complainants denounce that, under the addendum, a representative federation at the sectoral level which indirectly, through its affiliated unions, brings together more than half of the employees of the company, is considered representative at the enterprise level.
  3. 549. The complainants further indicate that, as a result of the addendum, paragraph 168 of the collective agreement violates the following fundamental principles of labour law: (i) the principle of non-discrimination because, contrary to section 5(2) of Act No. 53/2003 concerning the Labour Code (Labour Code), the 2,400 employees represented by the complainant FSLI ENERGETICA would be discriminated against for not being members of the “majority representative trade union organization with the unit”; (ii) the principle of protection of employees because, contrary to section 6(2) of the Labour Code, employees currently participating in negotiations who are represented by the complainant FSLI ENERGETICA in accordance with section 135(1) of the Social Dialogue Act, would be removed from the negotiations by the “majority representative trade union organization within the company”, which would negotiate alone with the administration on the basis of section 134 of the Social Dialogue Act, which would be illegal; and (iii) the principle of freedom of association because, contrary to section 7 of the Labour Code, the addendum constitutes an illegal attempt to attract employees in the “majority representative trade union organization within the company” as well as an indirect manoeuver to disband the unions affiliated to the complainant. Furthermore, the complainant contends that the ‘National Union Petrom–Energie’ Federation (SNPE) was fraudulently transformed from a sector-level representative federation into a trade union representative at the company level, even if this representative union does not exist legally at the level of the enterprise, and that, through this artificial construction, the employer attempts to abusively remove all trade unions affiliated to the complainant FSLI ENERGETICA, which negotiate in accordance with section 135(1)(a) of the Social Dialogue Act, and to restrict their activities.
  4. 550. The complainants also assert that, based on an abusive interpretation of paragraph 168 of the collective agreement, as amended, the employer applies a differential treatment to the union members who are not part of the “majority representative trade union organization within the unit” resulting in discrimination through exclusive provision of wage increases, financial incentives and preferential shift systems to members of affiliated unions of the SNPE, as well as discrimination of the members of the affiliates of the complainant FSLI ENERGETICA through the denial of access to information or documents relating to wages or vacancies or of participation in various committees at the enterprise level. The complainants argue that this ongoing policy of discrimination especially concerns the Free Independent Union Petrom Suplac–Marghita (SLI Petrom Suplac–Marghita), the Free Independent Union Petrosind Craiova (SLI Petrosind Craiova), Sindicatul Petrolistilor Dragasani and the Petrom Gaesti. In particular, the complainants allege that:
    • – in the Asset 1 Crisana Banat, where the trade union SLI Petrom Suplac–Marghita is active, the employer exclusively informs about and provides wage increases to members of affiliated unions of the SNPE, thus violating section 93 of the collective agreement and discriminating between members of two unions performing the same work;
    • – when the leader of SLI Petrom Suplac–Marghita requested information concerning the wages of employees of the company, the employer denied access to such information on the basis of confidentiality, contrary to paragraphs 91(3)–(4) and 149 of the collective labour agreement, section 163(2) of the Labour Code, as well as section 5(1)(b) of Act No. 467/2006 establishing a general framework for employees’ consultation, whereas such data was made available to a union affiliated to the SNPE, thus creating discrimination between this union and the complainant FSLI ENERGETICA;
    • – on the occasion of the October 2013 salary in Asset 1 Crisana Banat, an exceptional incentive of 500 Romanian lei (RON) per employee was granted to all members of the Suplac sector who are members of the “majority representative trade union organization within the unit”, while 45 staff members of the North Zone, members of SLI Petrom Suplac–Marghita, affiliated to the complainant FSLI ENERGETICA, did not receive the incentive, such discrimination being repeated every year as part of the employer’s strategy to destabilize member unions of the complainant;
    • – the employer also favours members of the “majority representative trade union organization within the unit” through preferential shift systems with all the benefits and rights for shift work, including more convenient working hours and free Saturdays and Sundays of the month in question, while employees who are members of affiliates of the complainant FSLI ENERGETICA have a normal shift programme;
    • – although the complainant FSLI ENERGETICA had requested to have representatives in the committees that interpret and implement provisions of the collective labour agreement, this request was not approved and, since the introduction of paragraph 4 of the addendum, the management only discusses with the “majority representative trade union organization within the unit”, that is the SNPE; and
    • – the employer only informs the unions within the “majority representative trade union organization within the company” about vacancies, contest dates and interview dates, thus disabling the unions affiliated to the complainant FSLI ENERGETICA, although representative through the complainant, to appoint representatives in the competition commissions or interviews, in breach of paragraph 12(2) of the collective agreement.

B. The Government’s reply

B. The Government’s reply
  1. 551. In a communication dated 31 August 2015, the Government states, first and foremost, that the nature of the allegations goes beyond the competences exercised by the public administration.
  2. 552. The Government indicates that the allegations of the complainant organizations refer to presumed violations of trade union rights, including the right to collective bargaining in relation to the conclusion and registration of the Additional Act No. 05/02.04.2013 to the collective labour agreement at the enterprise and in relation to the provisions of the clauses negotiated collectively in 2013 pursuant to Act No. 62 of 2011 concerning social dialogue (Social Dialogue Act), in the presence of the complainant FSLI ENERGETICA.
  3. 553. In this regard, the Government underlines that, in accordance with the law, any interference by public authorities, in any form or manner, in the process of negotiation, conclusion, execution, modification and termination of collective labour contracts, is prohibited (section 131(2) of the Social Dialogue Act). The challenges to the legality of negotiated clauses, and the execution, modification or termination of the collective labour agreement are resolved by the competent courts at the request of the parties (section 142 read in conjunction with section 152 of the Social Dialogue Act).
  4. 554. The Government refers to the information submitted by the Territorial Labour Inspectorate of Bucharest as the body that has registered the collective labour agreement and its additional acts at the abovementioned enterprise by virtue of section 145 of the Social Dialogue Act.

    Legislative overview

  1. 555. The Government provides an overview of the relevant legal provisions. In accordance with Articles 1 and 2 of Convention No. 98, sections 2(1) and 7 of the Social Dialogue Act provide that trade unions are independent in relation to public authorities, employers’ organizations and political parties; and any interference by public authorities, employers and their organizations, which could limit or prevent the exercise of trade union rights is prohibited. Under section 3(3), no one can be forced to be or not to be a member of a union, and to withdraw or not to withdraw from a trade union. Protective measures in the exercise of trade union rights are provided for in sections 9 and 10 of the Social Dialogue Act, corroborated with the protection of trade union activities guaranteed by section 38 of the Labour Code, which stipulates that employees cannot waive their rights recognized by law.
  2. 556. Under sections 1(b)(iii) and (u) of the Social Dialogue Act, the right to collective bargaining is guaranteed to all trade union organizations in conformity with the provisions of Convention No. 98, and may be exercised by virtue of sections 127 and the following (based on representativeness) or by virtue of section 153 (based on mutual recognition). Collective bargaining (based on representativeness) with a view to concluding at enterprise-level collective labour agreements or additional acts with the force of law applicable to the private sector, is being undertaken according to sections 127–132.
  3. 557. The Government stresses that, during the collective bargaining process (based on representativeness), the Social Dialogue Act does not prohibit the cooperation between all enterprise unions with regard to participation in the negotiations, if they agree on the aspects related to representativeness. However, the legitimacy of the parties to the negotiation and conclusion of collective labour agreements/additional acts derives from the law (sections 134 and 135 of the Social Dialogue Act). The clauses agreed through collective bargaining constitute the law of the parties.
  4. 558. By virtue of section 143 of the Social Dialogue Act, the registration of collective labour agreements and additional acts concluded at the enterprise level is undertaken, at the initiative of the parties, by the territorial labour inspectorates, pursuant to the law and within the limits of their jurisdiction. Sections 143 and 145–147 stipulate the conditions for the registration of collective labour agreements and additional acts negotiated and concluded by the parties in accordance with the legal provisions.
  5. 559. Pursuant to section 142 of the Social Dialogue Act, clauses of collective labour agreements/additional acts concluded in violation of the law, are null and void. The invalidity of the clauses is pronounced by the courts, at the request of the party concerned, either by way of legal action or by way of exception. Following the finding of the nullity of certain clauses by the court, the parties may agree on a new negotiation of the said clauses. Until the renegotiation of the clauses found null and void by the court, these clauses can be replaced by provisions that are more favourable to employees, either contained in the legislation or in the collective labour agreement concluded at the higher level.
  6. 560. The initiation and registration of collective labour disputes must comply with sections 160–165 of the Social Dialogue Act, and the dispute resolution by amicable mechanisms is governed by the Social Dialogue Act (compulsory conciliation, mediation and voluntary arbitration) or by the practice of the company and/or by the clauses of the applicable collective labour agreements, which may provide for independent mediation structures at enterprise level.
  7. 561. Similarly, under section 152 of the Social Dialogue Act, the collective labour contract/additional act cannot be terminated unilaterally. Disputes over the execution, amendment or termination of the collective labour agreement are resolved by the competent courts.

    Evaluation of the allegations against the legal provisions

  1. 562. Additional Act No. 05/02/04/2013 to the collective labour agreement mentioned in the text of the complaint, was concluded following a collective bargaining process initiated by virtue of sections 127–132 of the Social Dialogue Act with the persons authorized by law (that is the employee representatives elected by the general assembly of 3 October 2012 with the participation of 69 per cent of the total number of company employees; and the SNPE which is representative at the sectoral level for the sector “energy, oil, gas and related mining activity”).
  2. 563. The complainant FSLI ENERGETICA also participated in the collective bargaining process, gathering, according to the statements, 2,000 members of a total of 20,000 members of the company. The FSLI ENERGETICA was mandated by three independent unions to participate in “the negotiations initiated with respect to the collective labour agreement and to other initiatives related to the labour relationships with its union members”.
  3. 564. Under the legal provisions (section 142 of the Social Dialogue Act), the interested parties were free at any moment to challenge the legality of the negotiated clauses in court, the only body empowered to declare the invalidity of negotiated clauses, or to intervene in the modification of the negotiated clauses in order to return to the initial situation. The public authorities have no right to intervene in the negotiation, conclusion or modification of collective agreements (section 131).
  4. 565. Moreover, according to information from the Territorial Labour Inspectorate of Bucharest, Collective Labour Agreement No. 2458/29.05.2009 was in force at the enterprise at the time of the negotiation of the Additional Act of 2013, and the conditions to trigger and register a collective labour dispute have not been fulfilled (sections 161 and 164 of the Social Dialogue Act). Since the authorized parties concluded the Additional Act in accordance with the legal provisions, the registration of the Additional Act was requested by virtue of section 143. The Territorial Labour Inspectorate of Bucharest registered the Additional Act to the enterprise-level Collective Labour Agreement under number 05/02.04.2013, pursuant to section 145, after verification of the fulfilment of the relevant legal requirements and within the limits of its competences. The Labour Inspectorate has powers of monitoring and enforcement of the legislation/clauses of existing contracts, but has no authority to rule on their legality or to intervene in the cancellation or modification of the clauses for the restoration of rights (section 131). From the perspective of the applicable legal standards, the judicial authority is the authority empowered to resolve disputes over rights relating to the legality, implementation or amendment of clauses of collective agreements and thus to reinstate workers in their rights.
  5. 566. Lastly, the Government indicates that, in 2014, a new collective labour agreement was negotiated, concluded and registered at the company, in accordance with the provisions of the Social Dialogue Act. The collective labour agreement was concluded with the National Union Petrom, a representative union at the level of the enterprise, in accordance with ruling No. 3290/03.10.2014, and registered with the Territorial Labour Inspectorate of Bucharest under No. 161/29.04.2014.
  6. 567. In its communication dated 11 July 2016, the Government forwards the information provided by the company. The enterprise indicates that the Additional Act 2013 sought to modify and complete some clauses of the collective labour agreement, which was concluded in 2009 between the company and the employees represented by the Federation of Independent Free Trade Unions Petrom (FSLI PETROM) – currently the SNPE, which was at that time representative at enterprise level according to legislation in force. The collective agreement was registered at the Directorate for Labour and Social Protection Bucharest under No. 2458/2009 with a validity period of five years from the date of registration (2009–14), and was also modified before 2013, by additional acts concluded in 2010 and 2012.
  7. 568. The company adds that, on 13 May 2011, Act No. 62/2011 entered into force, which abrogated the previous regulations governing the collective agreement as well as the Additional Act 2010. According to Act No. 62/2011, at enterprise level, it is the representative trade unions who have the right to participate in negotiations and represent the interests of the employees, or, in their absence, the representatives of the employees elected according to the Labour Code, together with the representative trade union federation based on the mandate entrusted by the trade unions of the enterprise, non-representative and affiliated to that federation. As concerns the representativity of trade union organizations at the level of employer, according to section 51(1)(C) of Act No. 62/2011, an entity is representative at enterprise level if: (a) it has the status of trade union; (b) it has an organizational and patrimonial independence; and (c) the number of members of that trade union represents at least half plus one of the total number of employees. The fulfilment of these criteria is established by judicial decision. Pursuant to section 134, if there is a representative trade union at enterprise level, the negotiation is carried out with this trade union.
  8. 569. According to the company, the Additional Act 2012 was concluded and signed between the enterprise and employees, represented by the representatives of the employees and SNPE, which is representative for the sector “energy, oil, gas and related mining activity”, based on civil sentence No. 1166/13.02.2012.
  9. 570. The company further indicates that, on 16 October 2012, a negotiation meeting took place for a new additional act, the Additional Act 2013. At this negotiation, the employees were represented as follows: the elected representatives of the employees, as stipulated in section 221 and following of the Labour Code, the SNPE – trade union federation representative at the level of enterprise and the FSLI ENERGETICA, also a representative trade union federation at the level of enterprise. On 1 April 2013, a record concerning the finalization of negotiation was signed, registering the achievement of a common will between the company and the employees represented by the elected representatives and the SNPE regarding the conclusion of the Additional Act to the collective agreement. FSLI ENERGETICA refused to sign because it did not agree with its content. On 2 April 2013, the Additional Act was registered by the Territorial Labour Inspectorate of Bucharest under No. 05/02.04.2013, the competent authorities recognizing its legality as stipulated in section 146(2) of Act No. 62/2011.
  10. 571. The company states that one of the aspects contested by the FSLI ENERGETICA was the modification of the content of paragraph 168 of the collective agreement resulting from paragraph 4 of the Additional Act 2013. The Additional Act 2012 uses the notion “representative trade union”. In the Additional Act 2013, that notion was replaced by “representative trade union organization with majority within the enterprise”, meaning “the representative federation at the level of enterprise or, where appropriate, the representative trade union at the level of enterprise, reuniting directly or by means of affiliated trade unions, more than a half of the total number of employees within the enterprise”.
  11. 572. According to the company, the FSLI ENERGETICA requested the CNCD through petition No. 3441/20.05.2013 to investigate the alleged existence of discrimination suffered by members and representatives of the member trade union organizations of the FSLI ENERGETICA, following the inclusion in the Additional Act 2013 of the notion “representative trade union organization with majority within the enterprise”. The company states that the CNCD rejected the petition by Decision No. 575/02.10.2013 (attached to the communication) on the following grounds: (i) the company summoned the FSLI ENERGETICA to participate in collective bargaining, according to legal provisions; (ii) the FSLI ENERGETICA has representatives in social dialogue bodies at local level, thus being able to carry out trade union activity in accordance with the law; and (iii) the provisions of the Additional Act 2013 introducing the notion “representative trade union organization with majority within the enterprise” are not discriminatory; only if the company had applied different ways of treatment based on criteria of appreciation without an objective motivation, and leading to a possible restriction of the trade union activity, could the enterprise have been found guilty of discrimination. The company explains that, as such facts were not identified, the CNCD established that the notion in the above text is not discriminatory.
  12. 573. The company adds that, on 18 April 2013, the FSLI ENERGETICA introduced an action in the Bucharest County Court, requesting the certification of the nullity of the Additional Act 2013 concerning the provisions related to the notion “representative trade union organization with majority within the enterprise”. At the trial date on 3 July 2014, the plaintiff FSLI ENERGETICA modified the action, giving up its initial request of nullity of the text related to the notion “representative trade union organization with majority within the enterprise”, requesting in exchange a certification of the nullity of the new collective agreement concluded at enterprise level for the period 2014–15, registered by the Territorial Labour Inspectorate of Bucharest under No. 161/29.04.2014. The company underlines that the FSLI ENERGETICA did not participate in the negotiation of the new collective agreement because, pursuant to civil sentence No. 3290/10.03.2014 of the Court of Ploiesti, there existed a representative trade union at enterprise level in accordance with the law, namely the National Trade Union Petrom (SNP). By civil sentence No. 9574/16.10.2014 (attached to the communication), the Court rejected the modified action of the FSLI ENERGETICA, as formulated by a person being subpoenaed. The sentence of the court of first instance was maintained by the Court of Appeal of Bucharest by its Decision No. 1728/15.05.2015 (attached to the communication).
  13. 574. The company also reports that the trade unions affiliated to the FSLI ENERGETICA attacked the additional acts concluded prior to 2013, regarding the conventional definitions found in paragraph 168 of the 2009 collective agreement. On 22 October 2012 the Independent Free Trade Union of Oil Workers in Dragasani, a trade union affiliated to the FSLI ENERGETICA, brought proceedings in the Valcea County Court, requesting, among others, the certification of nullity of paragraph 168 of the collective agreement, concerning the notion “representative trade union organization” (a notion subsequently replaced during the negotiations of the Additional Act 2013 with “representative trade union organization with majority within the enterprise”). At the same time, it requested a certification of the nullity of all clauses related to the notion under debate. The court dismissed as unfounded the court proceedings, through civil sentence No. 1508/26.11.2013 (attached to the communication), which sentence is definitive due to the failure of the trade union to file an appeal.
  14. 575. In conclusion, the company points out that it fully respects national and European legislation, respects and motivates its employees and respects the social partners, while carrying out a well-balanced and constructive social dialogue.

C. The Committee’s conclusions

C. The Committee’s conclusions
  1. 576. The Committee notes that, in the present case, the complainant organizations allege the conclusion of an addendum (not signed by the complainant FSLI ENERGETICA) to the collective agreement in force at the company, which changed the definition of the term “representative union”; subsequently, discrimination of members of affiliated unions of the complainant organization FSLI ENERGETICA through exclusive provision of wage increases, financial incentives and preferential shift systems to the members of affiliated unions of the most representative trade union – National Union Petrom–Energie Federation (SNPE) – and discrimination of the complainant FSLI ENERGETICA through denial of access to relevant documents or of participation in various committees at the enterprise-level.
  2. 577. The Committee notes the complainants’ allegations that: (i) while the complainant FSLI ENERGETICA participated in the negotiations of the addendum in line with section 135(1) of the Social Dialogue Act, it did not sign the addendum of 2 April 2013, as it considered that its paragraph 4 was negotiated in violation of section 132 of the Act, which provides that collective agreements may establish rights and obligations only within the limits and conditions provided by law; (ii) although it notified both the employer and the Territorial Labour Inspectorate of Bucharest about this issue, the addendum was nevertheless registered without the signature of FSLI ENERGETICA; (iii) the addendum specifically modifies the term “representative trade union” which was redefined by paragraph 168 of the collective agreement as amended, to read the “majority representative trade union organization within the unit”, which is understood to be the representative federation at the sectoral level, or, as the case may be, the representative trade union at the unit level, which brings together – directly or through affiliated trade unions – more than half of the total number of the employees in the unit – a definition the complainant alleges to be contrary to the Social Dialogue Act; (iv) under the addendum, a representative federation at the sectoral level which indirectly, through its affiliated unions, brings together more than half of the employees of the company, is considered representative at the enterprise level; (v) the addendum constitutes an illegal attempt to attract employees in the “majority representative trade union organization within the company” through an artificial construction, and an indirect manoeuvre to disband the unions affiliated to the complainant FSLI ENERGETICA, which usually negotiated in accordance with section 135(1)(a) of the Social Dialogue Act, by restricting their activities; and (vi) based on an abusive interpretation of paragraph 168 of the collective agreement as amended, the employer applies a different treatment to the union members who are not part of the “majority representative trade union organization within the unit” resulting in discrimination through exclusive provision of wage increases, financial incentives and preferential shift systems to members of affiliated unions of the SNPE, as well as discrimination of the affiliates of the complainant FSLI ENERGETICA through denial of access to information or documents relating to wages or vacancies or denial of participation in various committees at the enterprise level.
  3. 578. The Committee notes that the Government indicates that: (i) the nature of the allegations goes beyond the competences exercised by the public administration, since any interference by public authorities, in any form or manner, in the process of negotiation, conclusion, execution, modification and termination of collective labour contracts, is prohibited (section 131(2) of the Social Dialogue Act); (ii) during the collective bargaining process (based on representativeness), the Social Dialogue Act does not prohibit the cooperation between all enterprise unions with regard to participation in the negotiations, if they agree on the aspects related to representativeness, but the legitimacy of the parties to the negotiation and conclusion of collective labour agreements or additional acts derives from the law (sections 134 and 135); (iii) by virtue of section 143, the registration of collective agreements and additional acts concluded at the enterprise level is undertaken, at the initiative of the parties, by the territorial labour inspectorates, pursuant to the law and within the limits of their jurisdiction; (iv) sections 143 and 145–147 stipulate the conditions for the registration of collective agreements and additional acts negotiated and concluded by the parties in accordance with the legal provisions; (v) clauses of collective agreements or additional acts concluded in violation of the law are null and void, and challenges to the legality of negotiated clauses, and the execution, modification or termination of the collective agreement are resolved by the competent courts at the request of the parties (sections 142 and 152); (vi) Additional Act No. 05/02.04.2013 to the collective labour agreement was concluded following a collective bargaining process initiated by virtue of sections 127–132 with the persons authorized by law (that is, the employee representatives elected by the general assembly of 3 October 2012 with the participation of 69 per cent of the total number of company employees; and the SNPE which is representative at the sectoral level for the sector “energy, oil, gas and related mining activity”); (vii) the complainant FSLI ENERGETICA was mandated by three independent unions to participate in “the negotiations initiated with respect to the collective labour agreement and to other initiatives related to the labour relationships with its union members” and indeed participated in the collective bargaining process, representing 2,000 members of a total of 20,000 members of the company; (viii) registration was requested by virtue of section 143, and the Territorial Labour Inspectorate of Bucharest registered the Additional Act to the enterprise-level Collective Labour Agreement under number 05/02.04.2013 pursuant to section 145, after verification of the fulfilment of the relevant legal requirements within the limits of its competences (powers of monitoring and enforcement of the legislation and clauses of existing contracts, but no authority to rule on their legality); and (ix) in accordance with the provisions of the Social Dialogue Act, in 2014, a new collective labour agreement was negotiated and concluded at the company with the National Union Petrom, a representative union at the level of the enterprise, in accordance with ruling No. 3290/10.03.2014, and was registered with the Territorial Labour Inspectorate of Bucharest under No. 161/29.04.2014.
  4. 579. The Committee also notes the company’s indications that: (i) the 2009 collective agreement was concluded with the employees represented by the Federation of Independent Free Trade Unions Petrom (FSLI PETROM) – currently the SNPE, which was at that time representative at enterprise level according to legislation in force; (ii) the collective agreement had previously been modified by the Additional Act 2012, which was concluded to adjust to the new 2011 Social Dialogue Act and signed between the enterprise and employees, represented by the representatives of the employees and the SNPE, federation representative for the relevant sector; (iii) the negotiations for the Additional Act 2013 took place between the company and the elected representatives of the employees, the SNPE and the FSLI ENERGETICA – two representative trade union federations at the level of enterprise; but the FSLI ENERGETICA refused to sign because it did not agree with the newly used notion “representative trade union organization with majority within the enterprise” replacing the term “representative trade union”; (iv) on 20 May 2013, the FSLI ENERGETICA brought a petition to the National Council for Combating Discrimination (CNCD) alleging discrimination suffered by members and representatives of its affiliated unions following the inclusion of the new notion in the Additional Act 2013, and CNCD rejected the petition; (v) on 18 April 2013, FSLI ENERGETICA introduced an action in the Bucharest County Court, requesting the certification of the nullity of the Additional Act 2013 concerning the provisions related to the new notion, but at the trial date on 3 July 2014, the FSLI ENERGETICA modified the action requesting instead certification of the nullity of the newly registered collective agreement for the period 2014–15 concluded, without the participation of the FSLI ENERGETICA, between the company and the existing representative trade union at enterprise level, the National Trade Union Petrom (SNP); and the Court rejected the modified action through Decision No. 9574/16.10.2014, which was upheld by the Court of Appeal of Bucharest (Decision No. 1728/15.05.2015); and, additionally, (vi) on 22 October 2012, the Independent Free Trade Union of Oil Workers in Dragasani, affiliated to the FSLI ENERGETICA, had brought an action to the Valcea County Court, requesting the certification of nullity of the Additional Act 2012 regarding the notion “representative trade union organization”, which the court had dismissed as unfounded.
  5. 580. Firstly, as regards the allegedly illegal and discriminatory nature of Additional Act No. 05/02.04.2013 to the collective labour agreement, the Committee observes that, as a result of its paragraph 4 substituting the term “majority representative trade union organization within the unit” for “representative trade union”, a representative federation at the sectoral level which indirectly, through its affiliated unions, brings together more than half of the employees of the company, may be considered the majority union at the enterprise level. The Committee further observes that, according to the complainants, whereas FSLI ENERGETICA was previously entitled, on an equal footing with the SNPE, to represent employees within the negotiation process of the collective agreement and in other bodies at the unit level (upon request and based on the mandate given by its affiliated enterprise unions, together with the elected worker representatives, as provided in section 135(1)(a) of the Social Dialogue Act for undertakings where there are no most representative workers’ organizations), the modification in paragraph 4 of the Additional Act, which they allege is contrary to the Social Dialogue Act, has limited the right of FSLI ENERGETICA to bargain collectively, as also illustrated by a document enclosed to the complaint informing on the outcome of negotiations between SNPE and the company. The Committee considers that, since the clauses of the modified collective agreement per se cannot be viewed as incompatible with the principles of freedom of association, it is not the Committee’s role to express a view on the conformity of collective agreement clauses with the relevant national law, since this competence lies within the remit of national jurisprudence. In this regard, with respect to the petition submitted by the FSLI ENERGETICA to the CNCD alleging that the modified term in paragraph 4 of the Additional Act 2013 amounts to discrimination, the Committee observes that the company affirmed that the participation at negotiations is done according to legal provisions by representation under the conditions of the law through trade unions, trade union federations or employees’ representatives; and that, on 2 October 2013, the CNCD dismissed the petition holding that, to the extent that the provisions of the Additional Act 2013 introducing the notion “representative trade union organization with majority within the enterprise” do not generate a differentiated treatment, they shall not be discriminatory.
  6. 581. Secondly, as regards the alleged subsequent discrimination in practice based on the Additional Act 2013, through denial to the FSLI ENERGETICA of access to relevant documents or of participation in various committees at the enterprise level as opposed to the “majority representative trade union organization within the unit”, the Committee observes that the evidence provided by the complainants is limited to letters sent to management by FSLI ENERGETICA affirming its right to take part in various enterprise-level commissions and nominating its participants. Moreover, the Committee observes that, in its decision dated 2 October 2013, the CNCD found that the company proved that the FSLI ENERGETICA was convoked and participated in negotiations according to the law and that it has representatives in the parity commissions, thus being able to carry out its trade union activities in accordance with the law. As to the right to information, the Committee notes the decision of the CNCD dated 9 March 2016, in which: (i) the CNCD observes that the respondent showed that the information requested could not be disclosed due to data protection laws and that no such requests for information had been registered from the purportedly favoured union SNPE; and (ii) the CNCD concludes that there is no evidence proving the alleged act of discrimination. The Committee further notes that the documentation provided by the complainants consists of correspondence addressed to the company, requesting information (concerning the list of employees including their function, the wages paid to its union members, the beneficiaries and criteria for the wage increases, etc.) in relation to measures taken by management so as to assess their purportedly discriminatory character. Considering that the right to information for trade unions in an enterprise should be appropriately assured to enable them to further and defend the interests of their members, the Committee invites the Government, for the sake of harmonious labour relations, to facilitate talks between the company on the one side and the complainant FSLI ENERGETICA and its affiliated organizations on the other side so as to review the various requests for information and agree on mutually satisfactory arrangements, in conformity with the data protection legislation in force, regarding the information that needs to be provided for the effective exercise of their representation activities.
  7. 582. Thirdly, as regards the alleged discrimination in practice based on the Additional Act 2013 through the exclusive provision of wage increases, exceptional financial incentives and preferential shift systems to members of the “majority representative trade union organization within the unit”, the Committee observes that these allegedly discriminatory practices occurred subsequently to the CNCD’s rendering of its decision dated 2 October 2013, and were examined by the CNCD in its decision dated 9 March 2016. The Committee duly notes the erga omnes nature of the collective agreement as modified, which thus applies to all employees of the company. The Committee observes the documentation supplied by the complainants, namely: (i) correspondence addressed to management, complaining about wage increases of various amounts (100–200 Romanian lei (RON)) granted on 1 January 2014 to about 100 employees (nominal list) following secret negotiations with SNPE, leading to discrepancies between members in similar positions and with the same duties of the two unions from the Suplac zone of Asset 1 Crisana Banat; (ii) correspondence addressed to management, complaining about exceptional incentives of RON500 granted in October 2013 to the whole of the employees of the Suplac sector and 85 per cent of the employees of the Marghita zone (nominal list of employees not benefiting from the incentive); and (iii) examples of schedules of January 2014 illustrating more favourable shift systems for three SNPE members versus six FSLI ENERGETICA members. Regretting that neither the Government nor the company made any reference to these allegations, the Committee observes that the CNCD, in its decision dated 9 March 2016: (i) concerning the alleged discrimination with regard to wage increases, notes that the petitioner did not submit the announced evidence, and that the respondent claimed that the wage increases as of 1 January 2014 were granted exclusively as a result of the direct managers’ observations relating to the professional activity of the relevant employees (trade union membership not being a criterion) and that there were also members of the affiliates of the complainant organization who benefited of those wage increases; (ii) concerning the alleged discrimination with regard to exceptional financial incentives, notes that the respondent specified that such incentives were not granted according to trade union membership but rather in order to reward those employees who were engaged in the extra effort to stop the decline of crude oil (those who have not received the incentive were employees working in gas extraction who have not made such extra effort); (iii) concerning the alleged discrimination with regard to shift systems, notes that the petitioner did not submit the announced evidence, and that the respondent specified that, as shown by the number of night hours worked by shift workers in the Suplac zone between January and May 2014, employees work a similar number of hours during the night shift, regardless of trade union membership; and (iv) concludes that there is no evidence proving the alleged acts of discrimination. The Committee also notes that, in the meantime, a new collective labour agreement between the company and the enterprise union National Union Petrom was registered on 29 April 2014, and that the complaint lodged by the FSLI ENERGETICA contesting the representativity of the latter union was dismissed. In light of the above, and in the absence of any further evidence or information provided by the complainants, although they have been requested to do so, the Committee will no longer pursue the examination of these allegations.

The Committee’s recommendation

The Committee’s recommendation
  1. 583. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
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