Report in which the committee requests to be kept informed of development - Report No 401, March 2023

Case No 3426 (Hungary) - Complaint date: 23-MAR-22 - Follow-up

Allegations: The complainant organization alleges that Government Decree 27/2021 (I.29) on the declaration of an emergency situation and the entry into force of emergency measures and Government Decree 36/2022 (II.11) on certain emergency rules concerning public education institutions, restrict the right to strike in public education institutions

1. 502. The complaint is contained in communications dated 23 March 2022 and 22 April 2022, submitted by the Forum for the Cooperation of Trade Unions (SZEF), one of the largest trade union confederations in Hungary, bringing together trade unions representing workers in public education, public health and social care, public collections, cultural and art institutions, state and local public administration, the judiciary, public order and public security agencies.
2. 503. The Government of Hungary transmitted its observations on the allegations in communications dated 4 July 2022 and 3 February 2023.
3. 504. Hungary 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 complainant’s allegations

1. 505. In its communications dated 23 March and 22 April 2022, the SZEF alleges that the measures taken by the Government of Hungary pose a serious threat to the exercise of the right to strike. In particular, it alleges that Government Decree 27/2021 (I.29) on the declaration of an emergency situation and the entry into force of emergency measures and Government Decree 36/2022 (II.11) on certain emergency rules concerning public education institutions, are contrary to ILO Convention No. 87 as they restrict the right to strike.
2. 506. The complainant indicates that the joint strike committee of the Democratic Trade Union of Teachers (PDSZ) and the National Teachers’ Trade Union (PSZ) announced a strike as of 16 March 2022 for an indefinite period of time to enforce the strike demands and requested the government representative to the conciliation procedure to be appointed on the basis of article 2(2) of Act VII of 1989 on Strikes (Strike Act).
3. 507. Upon the appointment of the Deputy State Secretary of the Ministry of Education and Research, the parties began discussions on the extent and conditions of sufficient minimum services.
4. 508. The complainant alleges that before the consultations could have been concluded and before the next round of negotiations, the Government adopted Government Decree 36/2022 (II.11) on certain emergency rules concerning public education institutions on 11 February 2022, which subsequently entered it into force on 12 February 2022.
5. 509. The complainant notes that according to section 1 of Government Decree 36/2022 (II.11):
   • During the period of an emergency situation pursuant to Government Decree 27/2021 (I.29) on the declaration of an emergency situation and the entry into force of emergency measures (hereinafter referred to as “emergency situation”), in order to ensure the continuity of the education and training of children and students within the public education system and the effective implementation of the epidemiological measures, the services specified in paragraphs (2) to (9) shall be provided as sufficient (minimum) services within the meaning of article 4 (2) of Act VII of 1989 on Public Education for children and students affected by the strike and who are in a legal relationship with public education institutions (hereinafter referred to as “public education institution”) within the meaning of article 7(1) of Act CXC of 2011 on National Public Education.
6. 510. The complainant adds that since the conciliation between the parties on the issue of sufficient services did not lead to a result, the trade unions initiated a non-litigation procedure with the court to define the extent of sufficient services and also to initiate the individual constitutionality review of the norm.
7. 511. The complainant notes that by its order No. 22.Mpk.75.042/2022/6, the Metropolitan Administration and Labour Court of Budapest rejected both the request for the definition of the level of sufficient services and the request for the individual constitutionality review. In the reasoning of the order, the Court stated, inter alia, that “in view of the fact that, in the case of the industrial action referred to in the application, Government Decree 36/2022 (II.11) on certain emergency rules concerning public education institutions provides for the extent and conditions of sufficient services, the Court cannot decide on them”.

B. The Government’s reply

1. 512. In its communications of 4 July 2022 and 3 February 2023, the Government provides its observations on the complaint lodged by the SZEF.
2. 513. In its communication of 4 July 2022, the Government provides information on relevant administrative and court proceedings and their respective outcomes. The Government details the relevant sections of the Fundamental Law of Hungary that grants the right to organize and of trade unions’ activities, the right to enter into negotiations and conclude collective agreements and to act jointly in order to protect their interests, which covers the right of workers to discontinue work (Freedoms and Responsibilities article XVII, section 2). According to article XVII, section 2, of the Fundamental Law of Hungary, “Employees, employers and their organizations shall have the right, as provided for by an act, to negotiate with each other and conclude collective agreements, and to take collective action to defend their interests, including the right of workers to discontinue work”.
3. 514. In connection with the Fundamental Law of Hungary, the Government also provides information on the relevant sections of Act CLXXV of 2011 on Freedom of Association, on Non profit Status, and the Operation and Support of Civil Organizations regulating the right to organize (section 3), the Labour Code (Act I of 2012) regulating the rights of negotiating and collective agreements (sections 270–272) and Act VII of 1989 on Strikes (Strike Act) regulating the right to strike, its prohibition and limitation.
4. 515. With respect to the right to strike, the Government notes that section 4 of the Strike Act provides that:
   • (1) During the time of the strike, the opposing parties continue further conciliation for the settlement of the debated question, and are obliged to ensure the protection of persons and of property. (2) In the case of employers who perform activities of fundamental public concern – such as, in particular, in the field of mass transportation on public roads and telecommunications, as well as at suppliers of electricity, water, gas and other energy – the right to strike may be exercised in a way so as not to impede the performance of services maintained at a level deemed sufficient. (3) The level of service deemed sufficient and the related requirements may be defined by an act of Parliament. If not governed by an act of Parliament the level of service deemed sufficient and the related requirements shall be agreed upon previously, during the pre-strike negotiations; in this case the strike may be carried out if the parties concluded the agreement, or failing this, if the level of service deemed sufficient and the related requirements had been determined by final decision of the court hearing labour disputes, acting on the request of either of the parties.
5. 516. Concerning the facts of the events, the Government explains that on 1 October 2021, the PDSZ and the PSZ formed a joint strike committee and sent their demands concerning a pay rise for teachers and pedagogical assistants, the decrease of teachers’ contact hours and the revision of regulations on the mandatory COVID-19 vaccination policy. In line with section 2(2) of the Strike Act, the Deputy State Secretary responsible for public education was appointed to conduct the negotiations with the strike committee. Negotiations were held on the following dates: 13 October 2021, 3 and 18 November 2021, 1 and 15 December 2021, 12 and 24 January 2022, and 2 March 2022. The Government notes that the strike committee announced a two hour warning strike for 31 January 2022 and declared a strike from 16 March 2022 in the event of unsuccessful strike negotiation.
6. 517. The Government also notes that on 8 February 2021, a state of emergency was declared in Hungary (Government Decree 27/2021 (I.29), which lasted until 31 May 2022, and Government Decree 181/2022 (V.24) on the lifting of the state of emergency). The Government points out that given the existence of a state of emergency, the declaration of the strike by the strike committee was announced under special legal order.
7. 518. The Government explains that since during the negotiations no agreement was reached on substantive demands of the strike committee, the focus was turned towards the issue of the level of service deemed sufficient. According to section 4 of the Strike Act: “In the case of employers who perform activities of fundamental public concern, the right to strike may be exercised in a way so as not to impede the performance of services maintained at a level deemed sufficient”. The Government notes that as the strike committee did not argue that the level of service deemed sufficient in the field of public education should be defined, it was only the extent of these services that needed to be agreed upon. The Government indicates that since the trade unions did not consider education and teaching as part of public education as of fundamental public concern, they did not intend to perform educational and teaching activities during the time of the strike, providing only childcare in certain appointed institutions. The Government’s position was that just as the right to strike is a right granted to the unions by the Fundamental Law of Hungary, so is the children’s right to development, culture and education. Therefore, education is a service of fundamental public concern and thus, a defined number of classes are necessary to be held beyond providing childcare. The Government adds that the above situation was compounded by the aforementioned state of emergency caused by the COVID-19 pandemic necessitating to ensure that the isolation and health protection measures previously imposed in the public education sector were maintained during the strike. The Government notes that there was no agreement reached on the level of service deemed sufficient.
8. 519. The Government further notes, that on the basis of paragraph (3) of section 4 of the Strike Act, on 22 December 2021, the strike committee filed a motion to the Court to rule on the level of services deemed sufficient in connection with the two-hour warning strike planned to take place on 31 January 2022. The Government submits that the Court closed the case on 13 January 2022 while at the same time rejecting the motion. On 17 January 2022, the strike committee launched a new procedure to which the Government’s side submitted a counterclaim. In this case, on 28 January 2022 in the first instance order, the Court ruled that the proposed strike was legal and accepted the strike committee’s standpoint as for the level of services deemed sufficient. The Government, based on paragraph (2) of section 5, appealed the ruling in spite of the call of the strike committee on 28 January 2022 to waive their right to appeal. The Government indicates that on 31 January 2022 the strike committee carried out the planned two-hour warning strike in spite of there not being a court ruling on the level of services deemed sufficient. The appellate court, on 10 February 2022, states that the warning strike of 31 January was illegal due to the lack of previous agreement of the parties and/or court ruling on the level of services deemed sufficient.
9. 520. The Government notes that on 11 February 2022, Government Decree 36/2022 (II.11) on regulations in the state of emergency concerning public education was adopted. The Decree determined the conditions which had to be provided in the public education sector in case of a strike during the period of the effect of Government Decree 27/2021 (I.29) as for the level of services deemed sufficient. These are enumerated as follows: childcare in line with the rules of separation/social distancing, provisions of meals, and participation in prescheduled medical screenings; holding up to 50 per cent of students’ classes; holding up to 100 per cent of classes in the relevant subjects for senior students preparing for school-leaving exams; taking care of children with special educational needs and the ones staying in dormitories; and providing childcare in kindergartens.
10. 521. The Government also notes that on 18 February 2022, the strike committee submitted another motion to the Court requesting the determination of the level of services deemed sufficient for the strike to be started on 16 March 2022 in a way that the Court disregard Government Decree 36/2022 (II.11) and accept their proposals on the issue. At the same time, they also asked the Court to initiate a procedure for declaring the above decree unconstitutional at the Constitutional Court. The Government indicates, that on 26 February 2022, Government Decree 36/2022 (II.11) came into effect. On 24 February 2022, the Court rejected the request of the strike committee in the first instance, on 8 March 2022 in the second instance. On 4 March 2022, the strike committee turned straight to the Constitutional Court asking them to declare the decree unconstitutional. To this day there is no decision from the Constitutional Court in this case.
11. 522. The Government also adds, that on 16 March 2022, the strike was carried out, with the stipulations determined by Government Decree 36/2022 (II.11). In some cases, the requirements for the level of services deemed sufficient were not met by the strikers, these incidents were later referred to as “civil disobedience”. The Government explains that the term “civil disobedience” is not recognized by the Hungarian legal system. Disregarding the regulations concerning the level of services deemed sufficient and going on strike without any lawful cause is an offence against duties determined by laws concerning employment and appointment to public services.
12. 523. Finally, the Government explains, that on 1 April 2022 – with regard to the upcoming parliamentary elections of 3 April 2022 – the strike committee suspended the strike until Hungary’s new government is formed. On 31 May 2022 the state of danger declared in Government Decree 27/2021 (I.29) came to an end, thus all relevant decrees adopted during the period of the state of danger became void, including the impugned Government Decree 36/2022 (II.11).
13. 524. With respect to the complaint submitted by the SZEF, the Government notes that its position is primarily based on the fact that the complaint had become redundant because the impugned Decree had since then been repealed. According to section 4(2) of Government Decree 36/2022 (III.11), the Decree is to be repealed at the same time as Act I of 2021 on the protection against the COVID-19 pandemic. Section 5/A declares that the very law will be repealed on 1 June 2022. The Government, nonetheless, adds that section 14 of Act V of 2022 on issues regarding the termination of the state of emergency – now in line with paragraph (3) of section 4 of the Law on Strike – re-regulates the issues of the level of services deemed sufficient in the public educational sector, but the SZEF’s complaint had not been directed against this piece of legal regulation. In its communication submitted on 3 February 2023, the Government clarifies that Act V of 2022 entered into force on 1 June 2022 and that its content is identical in its essence to that of Government Decree 36/2022 (III.11) and notes that its position as expressed in its communication dated 4 July 2022 and detailed below – in view of the concordance of the content between Act V of 2022 and Government Decree 36/2022 (III.11) – remain unchanged.
14. 525. The Government in its response describes the relevant ILO Conventions that Hungary ratified (Convention Nos 87 and 98, the Labour Relations (Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention, 1981 (No. 154)). It notes that due to the fact that none of these Conventions include the ensuring of the right to strike, the Government, similarly to the SZEF will rely exclusively on the ILO’s case law in respect of interpreting the right to strike. To do so, the Government recalls the following paragraphs of the Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 837, 827–830, 836, 840, 842, 845–846.
15. 526. Based on the above paragraphs of the Compilation, the Government concludes that regulations having been impugned in the SZEF’s complaint are in line with ILO’s case law. The Government indicates that according to the ILO’s case law, the level of service deemed sufficient should fulfil citizens’ needs while preserving the sufficient level of exerting pressure – a principle the regulations in Hungary guarantee. The Government explains that although public education is not considered an essential service – with the exception of provision of meals to school children and the cleaning of schools (paras 840 and 842) – the combined implication of providing childcare for schoolchildren and the state of emergency during the COVID-19 pandemic are such factors that can establish that the right to strike may be restricted or prohibited [see Compilation, paras 830(2) and 836] given such factors can constitute unequivocal and direct danger to the life, personal safety or health of part of the population (i.e. children and students). The Government notes that it can be readily accepted that minors between the ages of 14–18 with limited capacities, and those between the ages of 0–14 with no capacities, must be provided with childcare for the sake of their own security.
16. 527. The Government also adds that the purpose of educational facilities is not only to pass on knowledge but to ensure their attendees’ safety. According to section 1 of article XVI of the Fundamental Law, “every child shall have the right to the protection and care necessary for his or her proper physical, mental and moral development”. In this respect the Government also refers to articles 3(1)–(2), 24(1) and 28 of the United Nations Convention on the Rights of the Child. In line with the above, the Government reports that Government Decree 36/2022 (III.11) provided for the following:
    • Article 1(2): In those educational facilities that are participating in the strike, the care of children and pupils must be provided as follows: (a) On every workday of the strike from 7 a.m. until 4 p.m., in the case of elementary schools until 5 p.m., in kindergartens until 6 p.m.; (b) In that educational facility where the child/student receiving an education due to his/her legal relationship; (c) With regard to the pandemic environment in a way that every child/student should be grouped together in the same classroom with the ones that they were originally grouped with before the strike and in compliance with the various state of danger regulations, the mixing of children belonging to different classes preferably should be avoided and care should be provided in the same room where they stayed before the strike; (d) In every group or class there should be at least one qualified kindergarten teacher, teacher, special needs teacher, tutor, special education teacher and/or assistant present; (e) During the provision of care the children/pupils should spend at least 1 hour in the morning and 1 hour in the afternoon outside – weather permitting – with regards to the rules on social distancing; and (3) In institutions affected by the strike, the provision of meals should be ensured complying with regulations referring to public catering, health and other professional regulations at the same premises and in the manner prior to the strike.
17. According to the Government applying these regulations, the right to strike is granted in the field of public education and can serve as a means to apply pressure.
18. 528. The Government also argues that while the ILO’s case law does not consider teachers as public servants exercising authority in the name of the State [see Compilation, paras 827–829 and 845], it nonetheless provides for limiting the right to strike on grounds that public education is a sector the suspension of which for a longer than the defined period of time might become of essential importance [see Compilation, para. 837]. As a consequence of a strike that affects the institutional system of public education, socialization, learning and spiritual growth may become more difficult, in case of a prolonged period even impossible, and this might have a negative impact on the growing-up generation. These long-term impacts – beyond the points listed above – do not only affect childcare, but the whole educational-teaching process. The Government notes that while, according to the ILO’s case law (para. 846), such long-term impacts do not justify the prohibition of strikes in public education, a contrario, the limitation of the right to strike to a certain extent is not forbidden in public education either. Government Decree 36/2022 (III.11) did not prohibit the right to strike, only set limitations by defining the level of service deemed sufficient.
19. 529. Referring to Article 1(3) of Convention No. 154, the Government notes that the legally regulated definition of the level of services deemed sufficient by the Hungarian legislation was intended to ensure the fulfilment of the said Article of Convention No. 154. The Government adds that in view of section 4(3) of the Strike Act, since there was no previous agreement between the parties either concerning the substantive demands or the level of services deemed sufficient during the strike situation and that the Court’s legally binding ruling had not arrived by the proposed day of the strike, the organizers entered into the 31 January 2022 warning strike knowing their actions may be unlawful. Setting the level of services deemed sufficient in a form of a decree created a clear situation and facilitated conducting collective bargaining, thus providing a context for concentrating on substantive issues.
20. 530. Finally, the Government indicates that the complainant’s statement according to which the Government Decrees make the right to strike impossible, is factually contradicted by the statements of the leaders of the unions organizing the strike. The Government notes that the president of the PSZ stated that 27,000 teachers took part in the strike on 31 January 2022, and approximately 20,000 people took part in the strike beginning on 16 March 2022. Therefore, the Government Decree, as acknowledged by the complainants, did not make it impossible to organize and carry out the strike.
21. 531. Considering the above, the Government asks the Committee to reject the complaint of the SZEF.

C. The Committee’s conclusions

1. 532. The Committee notes that, in the present case, the complainant alleges that with the adoption of Government Decree 27/2021 (I.29.) on the declaration of an emergency situation and the entry into force of emergency measures and Government Decree 36/2022 (II.11) on certain emergency rules concerning public education institutions, the right to strike in public education institutions has been restricted and as such, the above Government Decrees are contrary to freedom of association and ILO Convention No. 87.
2. 533. The Committee notes from the allegations and the information provided by the Government that on 1 October 2021, the PDSZ and the PSZ formed a joint strike committee and sent their demands concerning: (i) a pay rise for teachers and pedagogical assistants; (ii) the decrease of teachers’ contact hours; and (iii) the revision of regulations on the mandatory COVID-19 vaccination policy. The Committee further notes the series of negotiations held between the parties (13 October 2021, 3 and 18 November 2021, 1 and 15 December 2021, 12 and 24 January 2022, and 2 March 2022). Given that the negotiations did not yield results, the strike committee announced a two-hour warning strike for 31 January 2022 and a strike for indefinite period of time from 16 March 2022 in the event of unsuccessful strike negotiation.
3. 534. The Committee observes that according to the Government, while the parties agreed on the need to establish a minimum service for a strike in public education, they did not reach an agreement on the extent of the minimum service. The Committee notes the Government’s position according to which childcare and catering is considered to be an essential service under ILO practice where the right to strike may be excluded or limited; while public education is an activity, the interruption of which for a certain period of time may make it an essential service. The Committee also notes that according to the Government, public education is a service of fundamental public concern and that the socialization, learning and psychological development, which may become more difficult or even impossible for a longer period of time due to a strike, may have a long-term detrimental effect on the generations growing up. As such a defined number of classes are necessary to be held beyond providing childcare and the regulation of the right to strike in the field of public education is justified.
4. 535. The Committee observes from the Government’s report that on 8 February 2021, a state of emergency was declared in Hungary (Government Decree 27/2021 (I.29)) due to the COVID 19 pandemic. The Committee notes the Government’s position that the establishment of a minimum service in public education was, therefore, compounded by the state of emergency necessitating to ensure that the isolation and health protection measures previously imposed in the public education sector would be maintained during the strike.
5. 536. The Committee observes that in line with section 4(3) of the Strike Act, the parties initiated the procedure for the establishment of the level of sufficient service. According to section 4(3) of the Strike Act, the level of service deemed sufficient may be defined by an act of Parliament or, if not governed by an act of Parliament, then it shall be agreed upon previously, during the pre-strike negotiations. Should the parties fail to agree on the level of service deemed sufficient, it should be determined by the Court, acting on the request of either of the parties.
6. 537. The Committee notes that the strike committee filed a motion with the Court to rule on the level of minimum service in connection with the two-hour warning strike planned on 31 January 2022. The Committee observes that while the court of first instance decided in favour of the strike committee, the Government, despite the strike committee’s call to waive its right, appealed the decision. The Committee observes that the strike committee went ahead with the two-hour warning strike on 31 January 2022 which, according to the Government, was subsequently deemed illegal by the Court given the lack of agreement and/or court ruling on the level of minimum services.
7. 538. In the chronology of events, the Committee also notes that on 2 February 2022, the strike committee, in an electronic letter, initiated a negotiation with respect to the establishment of the minimum services for the strike announced from 16 March 2022. The Committee notes the complainant’s allegation that before the consultations could have been concluded and before the next round of negotiations, the Government, on 11 February 2022, adopted Government Decree 36/2022 (II.11) on certain emergency rules concerning public education institutions defining the services that shall be provided as sufficient services. The Committee understands that, as a result, on 18 February 2022, the strike committee submitted a motion to the Court to (a) define the extent of sufficient services for the strike to be started on 16 March 2022, and (b) initiate a procedure for declaring the Government Decree unconstitutional in the context of an individual constitutionality review of the norm. The Committee notes, however, that on 24 February 2022, the Court of first instance rejected both the request for the definition of the level of sufficient services and the request for the individual constitutionality review of the norm and on 26 February 2022, Government Decree 36/2022 (II.11) came into effect. The Committee notes the complainant’s allegations that the Court in its reasoning stated, inter alia, that “in view of the fact that, in the case of the industrial action referred to in the application, Government Decree 36/2022 (II.11) on certain emergency rules concerning public education institutions provides for the extent and conditions of sufficient services, the court cannot decide on them”. The Committee further notes that on 8 March 2022, the appeal was rejected in the second instance court and on 4 March 2022, the strike committee submitted its request to the Constitutional Court to declare the decree unconstitutional – with no decision yet rendered.
8. 539. The Committee finally notes that while on 16 March 2022, the strike was carried out with the stipulations determined by Government Decree 36/2022 (II.11), on 1 April 2022, in view of the upcoming parliamentary elections – the strike committee suspended the strike until Hungary’s new government was formed. On 31 May 2022, the state of emergency declared by Government Decree 27/2021 (I.29) came to an end and Government Decree 36/2022 (II.11) was also repealed.
9. 540. The Committee notes the arguments put forward by the Government that: (i) the complaint, directed against Government Decree 36/2022 (II.11), has become redundant given the said Decree was repealed on 1 June 2022; (ii) Government Decree 36/2022 (II.11) with its regulation of the level of service deemed sufficient in the public education sector ensured the citizens’ needs with respect to childcare, catering and public education especially in the context of the COVID-19 pandemic and in line with the United Nations Convention on the Rights of the Child (articles 3 (1)-(2), 24 (1) and 28), while at the same time it preserved the sufficient level of exerting pressure for workers through strike, and, in line with relevant ILO principles of application, did not prohibit, but regulated the strike in Hungary in public education by defining the level of sufficient service; (iii) setting the level of sufficient service in a form of a decree created a clear situation and facilitated conducting collective bargaining in public education and the right to strike by avoiding the need for prior consultation and recourse to the courts in the absence of agreement; and (iv) the complainant’s allegations with respect to the extent of limitation on the right to strike of teachers in public education are contradicted by the statements of the leaders of the unions organizing the strike and that, according to the Government’s communication submitted on 3 February 2023, it has never before been so easy to organize a strike in Hungary.
10. 541. As regards the Government’s argument that Government Decree 36/2022 (II.11) was repealed with the end of the state of emergency, the Committee notes that section 14 of Act V of 2022 on issues regarding the termination of the state of emergency, in line with section 4(3) of the Strike Act, re regulates the issue of minimum service in the public educational sector with a content identical in its essence to that of Decree 36/2022 (II.11). The Committee duly notes the Government’s argument that the complaint does not concern the said law, nonetheless, and in view that section 14 of Act V of 2022 in essence replicates the provisions of Government Decree 36/2022 (II.11) against which the complaint was submitted, the Committee will proceed with the examination of Act V of 2022. Moreover, the Committee observes that, unlike the Government Decree which had a limited period of application, the provisions under section 14 of Act V of 2022 are applicable for an indefinite period of time and are independent of the state of emergency set forth in Government Decrees 180/2022 and 424/2022 (proclaimed on 25 May and 28 October 2022) on the declaration of a state of emergency and on certain emergency rules in view of the armed conflict and humanitarian disaster in Ukraine and in order to avert the consequences thereof in Hungary.
11. 542. As regards the level of minimum service, the Committee recalls that measures should be taken to guarantee that the minimum services avoid danger to public health and safety [see Compilation, para. 870]. The Committee notes that the provisions included under Government Decree 36/2022 (II.11) and subsequently section 14 of Act V of 2022, among others, require educational facilities participating in the strike to provide care of the children from 7 a.m. until 4 p.m., or 5 p.m. in case of elementary school and 6 p.m. in case of kindergartens in the educational facility where the child/student is receiving an education; ensure at least one qualified kindergarten teacher, teacher, special needs teacher, tutor, special education teacher and/or assistant is present in every group; guarantee time spent outside with at least one hour in the morning and one hour in the afternoon; ensure prescheduled medical screenings and provisions of meals at the same premises and in the manner prior to the strike. The regulation also requires participating facilities to hold up to 50 per cent of student classes and up to 100 per cent of classes in the relevant subjects for senior students preparing for school-leaving exams.
12. 543. The Committee notes that according to the Government, there is no dispute between the parties whether public education sector should be considered a service where minimum services may be established, but that the disagreement arose with respect to the level of sufficient service. The Committee also notes that according to the Government, Government Decree 36/2022 (II.11) and the subsequent Act V of 2022 do not prohibit or restrict strikes but define the level of sufficient service and by doing so, facilitate the exercise of the right to strike by avoiding the need for prior consultation and recourse to the courts in the absence of agreement.
13. 544. In this respect the Committee first wishes to recall that although the education sector does not constitute an essential service in the strict sense of the term and the possible long-term consequences of strikes in the teaching sector do not justify their prohibition, minimum services may be established in the education sector, in full consultation with the social partners, in cases of strikes of long duration and establishing a minimum service in the education sector is not contrary to the principles of freedom of association. [see Compilation, paras 842, 846, 898 and 899]. The Committee further recalls 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. This not only allows a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipating possible impressions in the trade union organizations that a strike has come to nothing because of overgenerous and unilaterally fixed minimum services [see Compilation, para. 881]. In that regard, the Committee observes that the unilateral determination by one of the parties of a minimum service, in this case the Government, if negotiation has failed, is not in conformity with the principles of freedom of association. Any disagreement in this respect should be settled by an independent body having the confidence of the parties concerned [see Compilation, para. 883].
14. 545. While the complainant and the Government have varying views as to the actual impact of the provisions setting a minimum service on the exercise of the right to strike in the education sector, the Committee recalls that the minimum service should be restricted to the operations which are necessary to satisfy the basic needs of the population or the minimum requirements of the service, while ensuring that the scope of the minimum service does not render the strike ineffective [see Compilation, para. 874]. While, as stated by the Government, the Committee has considered that the provision of food to pupils of school age and the cleaning of schools may be considered an essential service in which strike action may be restricted or prohibited [see Compilation, para. 840], the Committee considers that the requirement of holding 50 per cent of the classes and up to 100 per cent of classes in the relevant subjects for senior students preparing for school-leaving exams would appear to go beyond the notion of a minimum service limited to the operations which are strictly necessary to meet the basic needs of the population and may considerably restrict the right to strike of those in the public education sector.
15. 546. The Committee notes from the Government’s response that in cases where the requirements for the level of services deemed sufficient were not met by the strikes, the incidents were later referred to as “civil disobedience” and could be considered to be an offence against legal duties concerning employment and appointment to public services. The Committee notes that section 15 of Act V of 2022 allows the employer, within eight days from the breach of duty, to apply detrimental legal consequences pursuant to section 56 of Act I of 2012 on the Labour Code against a public employee or employee employed in a public education institution covered by the National Public Education Act who does not fulfil his/her obligation to work, including possible fines or dismissal. In this regard, the Committee recalls that no one should be penalized for carrying out or attempting to carry out a legitimate strike [see Compilation, para. 953].
16. 547. Noting with concern the complainant’s allegation that Government Decree 36/2022 (II.11) was adopted before the ongoing consultations could have been concluded and before the next round of negotiations could have started; and given that Act V of 2022 replicates the restrictions on the minimum service in the same way as Government Decree 36/2022, the Committee requests the Government to fully consult the workers’ and employers’ organizations concerned with a view to determining the definition of a minimum service that may be required in the education sector and, if agreement is not possible, for the matter to be brought before an independent body for determination, the results of which to be reflected in Act V of 2022 or other appropriate legislation..

The Committee’s recommendation

1. 548. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Noting with concern the complainant’s allegation that Government Decree 36/2022 (II.11) was adopted before the ongoing consultations could have been concluded and before the next round of negotiations could have started; and given that Act V of 2022 replicates the restrictions on the minimum service in the same way as Government Decree 36/2022, the Committee requests the Government to fully consult the workers’ and employers’ organizations concerned with a view to determining the definition of a minimum service that may be required in the education sector and, if agreement is not possible, for the matter to be brought before an independent body for determination, the results of which to be reflected in Act V of 2022 or other appropriate legislation.