Allegations: The complainant organizations allege that a new legislative provision (section 33(3) of Law No. 4663/2020) violates the principles of freedom of association and collective bargaining and Conventions Nos 87 and 98 by assigning the regulation of the terms and conditions of employment of transport workers to the employers. The complainants also denounce the lack of consultation with trade unions prior to the adoption of the provision.
- 365. The complaint is contained in communications dated 7 and 22 July 2020 from the Greek General Confederation of Labour (GSEE) and the Greek Federation of Transports’ Trade Unions (OSME).
- 366. The Government provides its observations in a communication dated 5 March 2021. It also submits the reply of the employers’ organization concerned, the Panhellenic Federation of Intercity Motorists, dated 8 September 2020.
- 367. Greece 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
A. The complainant’s allegations- 368. In their communications dated 7 and 22 July 2020, the complainants allege that a new legislative provision – section 33(3) of Law No. 4663/2020 – was enacted without any prior consultation with trade unions and violates both the principles of freedom of association and collective bargaining and Conventions Nos 87 and 98 by assigning the regulation of the terms and conditions of employment of workers at the Common Collections’ Funds of Buses (KTELs) to the employers.
- 369. The complainants indicate that the KTELs – city and intercity transport operators – were founded in 1952 as private legal entities assigned with an exclusively public service (in the functional sense) of conducting transportation in most of the urban and intercity passenger lines of the country. In 2001, the KTELs were transformed into public limited companies with the provisions of the law on public limited companies (private law) made applicable to them. However, to ensure the quality and safety of the transport service provided, the main parameters of the terms of provision of the transportation service (the amount of the fare, the determination of station stops, ticket offices, etc.) were determined by regulatory acts of the administration. By virtue of the nature of the activity (an assigned public service), the General Regulations of the Personnel were also issued by administrative regulatory acts from 1956, with the last being the Presidential Decree No. 246/2006. The Presidential Decree determined important aspects of the terms of employment, including recruitment qualifications, workers’ general and specific duties, leave of absence, disciplinary offences, working periods, breaks, holidays, overtime, etc. The complainant puts forward that the State has always considered the prerogative of the Government to issue the General Regulations of the Personnel in the KTELs as a lawful limitation on the right to collective bargaining due to the fact that they concerned basic labour conditions of workers in private companies, but at the same time affected aspects of the provision of the transportation service, including the quality of the service and the safety of passengers. According to the complainant, this prerogative sets the limits between State intervention and collective bargaining since, in this case, public goods (safety and quality of public transportation) are at stake because they directly depend on the workers’ terms and conditions of employment.
- 370. The complainants allege, however, that the new section 33(3) of Law No. 4663/2020, enacted without any prior information or consultation with the relevant first-level trade unions or the OSME, effectively abolishes Presidential Decree No. 246/2006 and modifies section 14(3) of Law No. 2963/2001, which provided the authorization for the issuance of the aforementioned Presidential Decree, by delegating the exclusive unilateral power to regulate the fundamental terms and conditions of workers’ services to the employers. They indicate that section 33(3) stipulates: “The Internal Operating Regulation issued by the transport service providers, after approval by the General Assembly of each legal entity, determines the recruitment qualifications, the reasons and the procedure for dismissal of staff, the official status, the behaviour and the staff’s obligations, the working time and rest, disciplinary liability, disciplinary penalties, the committees and the procedure for enforcing them, as well as any other relevant regulation, in accordance with the provisions of the current labour legislation and legislation on public limited companies. The Internal Operation Regulation is submitted to the Transport and Communications Agency of the relevant Region or Regional Unit within an exclusive period of three (3) months from the publication of the present act of law. In case of non-compliance with the above deadline, by decision of the relevant Regional Governor, the operation of the Board of Directors of KTEL PLC or the KTEL is suspended, until the submission of the Internal Operation Regulation.”
- 371. According to the complainants, by adopting this provision, the legislator chose not to retain the capacity to issue general regulations of the KTELs’ personnel but instead of assigning this exercise to trade unions through collective autonomy, the legislator statutorily delegated this competence to the employer. The complainants allege that the law stipulates that, during the unilateral determination of operational regulations, the enterprises do not need to deliberate with or inform trade unions, thus ignoring the fact that these enterprises are assigned to exercise a public service and diverging from the longstanding practice of ensuring that the KTELs’ working conditions guarantee basic safety and quality of transportation. Internal regulations constitute the sum of all rules that form the internal order of the enterprise and regulate the relations that arise during recruitment, employment and termination of employment. The complainants put forward that assigning the regulatory jurisdiction for all aspects of employment terms directly to the unilateral regulating power of the employer is contrary to article 22 of the Greek Constitution, which gives collective bargaining the status of the main institutional means of regulating the terms of employment, besides the minimum level of protection established by national legislation. They also assert that, under Greek laws, the only instances in which the unilateral issuance of the personnel’s regulations by the employer is acceptable are when there is no trade union capable of bargaining collectively nor a workers’ council, or when it is not possible to reach a collective bargaining agreement in an enterprise with less than 50 workers, or if trade union representatives are completely inactive (Law No. 1767/1988 and Law No. 1876/1990). Importantly, this provision violates the basic right of KTELs’ employees and their trade unions to negotiate collectively and determine through collective bargaining agreements the basic framework to govern their employment relations, thus violating Article 4 of Convention No. 98 and Article 11 of Convention No. 87. In addition, the limitation on the right to collectively bargain the fundamental terms of employment is not implemented for reasons of transport security or another public service but is assigned to employers to adjust the terms of employment to their benefit. The complainants conclude by asserting that when the legislator chose to renounce its competence to issue the regulations of KTELs’ personnel, thus declaring the matters not related to public interest, the relevant regulating power should have been returned automatically to collective bargaining and not assigned to the employers.
B. The Government’s reply
B. The Government’s reply- 372. In its communication dated 5 March 2021, the Government indicates that intercity passenger transport services are provided by bus operators – the KTELs – or individual motorists in some cases and that this institutional framework is governed by Law No. 2963/2001 and its regulatory instruments. According to its provisions, the majority of the KTELs were converted into public limited companies, they are privately owned and have exclusive transport rights within the geographical limits of their region. The Ministry of Infrastructure and Transport was responsible for establishing the legal internal rules and the regions supervised the operation of the road passenger transport services. In this context, Presidential Decree No. 246/2006 was issued, containing the staff rules of the KTELs and specifying the qualifications for hiring, the grounds and procedures for dismissal, status of staff members, conduct and responsibilities, working time and rest periods, disciplinary liabilities and penalties and other matters. The Government states that by virtue of the new Law No. 4663/2020, which had been put out for consultation for two weeks in December 2019, Presidential Decree No. 246/2006 was repealed and section 14 of Law No. 2963/2001 was amended, establishing an obligation for each KTEL to issue its internal rules, the content of which should be equivalent to that of the 2006 Presidential Decree and must be in compliance with the provisions of the labour law and Law No. 2190/1920 on public limited companies. According to the Government, the regulatory framework for the KTELs is thus treated as equivalent to other transport enterprises, where the State does not regulate issues in the internal rules, except those already governed by the general and specific provisions of labour law.
- 373. The Government further contends that while section 33(3) of Law No. 4663/2020 stipulates that KTEL enterprises are obliged to set and apply internal staff regulations, it does not define the manner in which such regulations should be drawn up, which is a matter governed by general labour law. The Government provides details in this regard, indicating in particular that: (i) according to Legislative Decree No. 3789/1957, enterprises, undertakings or activities in general, irrespective of their legal form or of the natural person or legal entity owned by them, employing more than 70 workers must draw up internal rules to regulate the relations developed during work performance between them and all their personnel bound by a working relationship under private law; (ii) the explanatory memorandum to Legislative Decree No. 3789/1957 stipulates that internal rules are regulations of an enterprise or undertaking adapted to its specific operational conditions, which apply in addition to the current legislation, in order to ensure fair terms, uniformity, fair disciplinary authority and equal treatment for workers; therefore internal rules include provisions governing the relations between the enterprise and its workers, including issues relating to work performance, staff evolution, organization of the enterprise and the relationship between workers; (iii) Law No. 1876/1990 stipulates that matters concerning the drawing up of internal rules of enterprises, without prejudice to the powers vested in works councils, can be content of a collective labour agreement; and (iv) Law No. 1767/88, as amended by Law No. 2224/1994, provides that internal rules are to be decided jointly by the employer and the works council, if there is no trade union at the enterprise and if these issues are not regulated by a collective labour agreement, thus giving priority to trade union organizations to regulate internal rules. Accordingly, the Government puts forward that the drawing up of internal rules is the employer’s obligation, which is generally exercised by: (i) the conclusion of a collective labour agreement if a trade union exists and operates in the enterprise; (ii) a joint decision of the employer and the works council, if there is no union at the enterprise and the matters are not dealt with in an enterprise-level collective agreement; or (iii) unilaterally by the employer if the union does not seek to regulate the content of the rules by a collective agreement and if a works council has not been elected in the enterprise. Therefore, where there is an enterprise-level trade union, it has the right to draw up internal rules along with the employer by concluding an enterprise-level collective agreement. The Government asserts that general labour law applicable to the drawing-up of internal regulations, including for the KTELs, thus fully safeguards trade union rights, since internal staff regulations are the outcome of collective bargaining.
- 374. The Government also provides the observations made by the concerned employers’ organization – the Panhellenic Federation of Intercity Motorists. The Federation puts forward that the complaint is based on the wrong assumption that the KTELs are identified as public enterprises, whereas pursuant to Law No. 2963/2001 and the country’s High Court of Cassation, the companies are private entities, predominantly public limited companies, providing profit for their shareholders. The State’s involvement in the running of the KTELs is limited to issues regulated by sections 8, 10 and 16 of Law No. 2963/2001, including the approval of routes, fare amounts and general supervision of the road passenger transport service, whereas all other issues are governed by private law. The Federation therefore submits that since both the legislator and national case-law designate the KTELs as private enterprises, which do not come under the broader public sector, the adoption of Law No. 4663/2020 and the repealing of Presidential Decree No. 246/2006, which had established the KTELs’ internal staff regulations, was required as it was incompatible with Law No. 2190/1920 and Law No. 4548/2018 governing public limited companies and with the general labour law regulating industrial relations in all types of enterprises.
- 375. The Federation further contends that the safeguards for public safety and workers’ protection, referred to by the complainants, are already ensured by the legislator, since the contested section 33(3) of Law No. 4663/2020 stipulates that internal staff regulations shall be issued in accordance with the current labour law and the law on public limited companies, and the explanatory memorandum adds that the content of the regulations shall be equivalent to that of the repealed Presidential Decree. Therefore, by making explicit reference to these laws and regulations, which also include all collective agreements and arbitral awards, several of which apply specifically to the KTELs, and by keeping internal staff regulations within the limits set by them, the legislator did not leave the regulation of KTELs’ personnel’s industrial relations at the mercy of the employers, but instead provided for workers’ protection and brought these safeguards into line with the requirements of free market and competition.
C. The Committee’s conclusions
C. The Committee’s conclusions- 376. The Committee recalls that the present case concerns allegations that by virtue of a new legislative provision – section 33(3) of Law No. 4663/2020 – enacted without any prior consultation with the unions, the legislator assigned the regulation of the terms and conditions of employment of KTELs’ workers to the employer, thus restricting collective bargaining rights of the concerned trade unions and violating the principles of freedom of association and collective bargaining, as well as Conventions Nos 87 and 98.
- 377. With regard to the allegations that the 2020 law restricts collective bargaining rights, the Committee firstly notes that many aspects of the case are not disputed by the parties. Accordingly, the Committee notes from the information submitted that the KTELs are legal entities, mostly public limited companies, governed by private law and providing urban and intercity passenger transportation services in the country, which the complainants consider as public service. It observes that there is no dispute between the complainants and the Government as to the legal nature of these companies or the pre-2020 determination of the KTELs’ internal regulations and basic terms and conditions of employment by administrative acts, which was, in the complainants’ view, justified by the public service nature of the activity conducted and constituted a lawful limitation on the right to collective bargaining. The Committee further notes that the fact that, through the adoption of section 33(3) of Law No. 4663/2020, the legislator chose not to retain the regulatory capacity to issue the KTELs’ internal regulations and delegated this prerogative to the employer is also undisputed. Similarly, neither the Government nor the employers’ federation concerned put into question the right of KTELs’ workers to bargain collectively. The Committee will therefore not elaborate in detail on these uncontested matters.
- 378. The Committee observes, however, that the complainants and the Government disagree on the effect of the 2020 law on the actual mechanisms used to determine the KTELs’ internal regulations and thereby the basic terms and conditions of employment. On the one hand, the complainants allege that since the legislator declined to determine the KTELs’ internal regulations, this exercise should have been assigned to trade unions through collective bargaining and not statutorily delegated to the employer. In their view, the law now allows employers to regulate the fundamental terms and conditions of employment unilaterally, without consultation with the unions, and therefore violates the basic right of KTELs’ employees and their trade unions to negotiate collectively and to determine their employment relations through collective bargaining agreements. On the other hand, the Government considers that by virtue of the 2020 law, the regulatory framework for the KTELs is now treated as equivalent to other transport enterprises, where the State does not regulate internal rules, and asserts that while the law stipulates that KTEL enterprises are obliged to set and apply internal regulations, it does not define the manner in which such regulations should be drawn up, which is governed by general labour legislation, fully safeguarding trade union rights, since internal regulations are generally the outcome of collective bargaining. The Committee observes that the Government points to the relevant provisions on the matter and indicates that the drawing up of internal rules is the employer’s obligation, exercised through: (i) the conclusion of a collective labour agreement if a trade union exists and operates in the enterprise; (ii) a joint decision of the employer and the works council if there is no union at the enterprise and the matters are not dealt with in an enterprise-level collective agreement; or (iii) unilaterally by the employer if the union does not seek to regulate the content of the rules by a collective agreement and if a works council has not been elected in the enterprise. The Committee notes that the employers’ federation concerned also maintains that the workers’ protection is guaranteed, since the contested provision and its explanatory memorandum stipulate that internal staff regulations shall be issued in accordance with the current labour law and the law on public limited companies and that their content shall be equivalent to that of the repealed Presidential Decree.
- 379. The Committee understands from the above that the dispute at hand ultimately revolves around the question of whether section 33(3) of Law No. 4663/2020 allows employers to unilaterally establish the KTELs’ internal regulations and, if by doing so, the law restricts the complainants’ right to determine, through collective bargaining, the terms and conditions of employment of their members. In this respect, the Committee wishes to recall from the outset that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1231]. The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof.
- 380. While further observing in this regard that section 33(3) of Law No. 4663/2020 indeed assigns the adoption of the KTELs’ internal rules to the employer and does not explicitly provide for unions’ participation in their determination, as denounced by the complainants, the Committee understands, from the information submitted by the Government, that the general labour legislation to which the provision refers provides for the involvement of workers’ organizations in this exercise. In particular, the Committee understands that internal rules are generally adopted through collective bargaining between the employer and the enterprise-level trade union, or jointly by the employer and a works council, and instances in which internal regulations are determined unilaterally by the employer are limited to situations where the union does not seek to regulate the content of the rules by a collective agreement and a works council has not been elected in the enterprise. Therefore, section 33(3) of Law No. 4663/2020 would not appear to contravene the principles of freedom of association and collective bargaining in that, through explicit reference to general labour legislation, it enables trade unions to participate in the determination of the KTELs’ internal regulations and thereby negotiate and determine, through collective bargaining, the fundamental terms and conditions of work and employment. In view of the above, recalling the importance it attaches to collective bargaining as an essential means to establish the terms and conditions of work and employment, and given the Government’s assertion that internal regulations of private enterprises in the country are generally established through collective bargaining agreements, the Committee trusts that trade unions representing KTELs’ workers will be able to participate, together with the employer, in the determination of the terms and conditions of work and employment of their members through collective bargaining. The Committee trusts that the parties will engage in this exercise in good faith, thus contributing to industrial harmony in the transport sector.
- 381. Concerning the alleged lack of consultation in the elaboration of the 2020 law, the Committee notes that, while the complainants denounce the lack of any prior information or consultation with the relevant first-level trade unions or the OSME on the elaboration of Law No. 4663/2020, the Government maintains that the draft had been put out for consultation for two weeks in December 2019. Recognizing that a public consultation is not the equivalent of prior information and consultation with the parties directly concerned, the Committee has emphasized the importance of consulting organizations of employers and workers during the preparation and application of legislation which affects their interests.
- 382. In view of the above, the Committee considers that this case does not call for further examination and is closed.
The Committee’s recommendation
The Committee’s recommendation- 383. In the light of its foregoing conclusions, the Committee invites the Governing Body to consider that this case does not call for further examination.
