Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 297, Mars 1995

Cas no 1788 (Roumanie) - Date de la plainte: 03-JUIN -94 - Clos

1. 316. In a communication of 3 June 1994, the National Trade Union Bloc (BNS) and the Free and Independent Trade Federation of Train Drivers of Romania (FSLIMLR) presented a complaint alleging violations of freedom of association and trade union rights against the Government of Romania. Subsequently, in a communication dated 5 July 1994, the National Trade Union Bloc provided additional information on this case. The Government furnished its observations and comments in a communication dated 2 December 1994.
2. 317. Romania has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98) and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

1. 318. The National Trade Union Bloc (BNS) states that it is presenting its complaint on behalf of its member, the Free and Independent Trade Union Federation of Train Drivers of Romania (FSLIMLR), against acts directly attributable to the Government of Romania and the National Railway Company of Romania (SNCFR), a state enterprise.
2. 319. The complaint concerns firstly certain legislative provisions. According to the complainants, Act No. 13 on collective agreements, as interpreted and applied by the SNCFR, deprives the complainant federation and its members of the right to the "voluntary negotiation of collective agreements ... as a means of regulating conditions of employment", contrary to Article 4 of Convention No. 98. The complainants explain that a dispute arose between the FSLIMLR, which represents train drivers, and the SNCFR in 1991 on the restructuring of the hierarchical classification of jobs. The unilateral decision of the SNCFR in this respect resulted in the downgrading of the occupational category of train drivers as compared with other categories. Subsequently, the train drivers fruitlessly tried to negotiate changes in the classification system. In 1992 and 1993, following negotiations between the SNCFR and the various federations representing all the railway workers, the Federation of Train Drivers refused to accept or to sign the enterprise agreements for 1992-93 and 1993-94, since the SNCFR refused to make the hierarchical changes which the complainant federation requested. Despite this refusal, the SNCFR, the Government and the courts, on the basis of sections 6 and 8 of Act No. 13, considered that the agreements were valid and that they were binding on the complainant federation since they had been signed by all the other federations representing the different categories of workers making up the majority of all SNCFR employees. An appeal lodged in 1993 was rejected by the competent court, which believed that the complainant organization had no interest at stake and that even if it had such an interest, its argument was not valid because the federation did not represent the majority of employees covered by the collective agreement.
3. 320. The complainants then refer to Act No. 15 on the settlement of labour disputes and explain that as interpreted and applied by the SNCFR, the Government and the courts, this legislation denies the complainant federation and its members the right to strike. Section 25 prohibits the use of strike action to obtain changes in the clauses of a collective agreement. The complainant federation explains that it had organized the strikes in 1993 not in an attempt to have the contents of a collective agreement amended (since it was not party to the agreement) but to make the SNCFR and the Government honour the commitments which they had undertaken separately for a study to be carried out on the classification of jobs. However, the SNCFR, the Government and the courts considered that the strikes organized by the complainant federation in 1993 were an attempt to have the contents of the collective agreement amended and that they were therefore unlawful. Thus according to the complainants, the complainant federation was bound by a collective agreement against its will and was deprived of any legal remedy of any kind or recourse to strike.
4. 321. Furthermore, section 45(4) of Act No. 15 stipulates that railway employees may go on strike "only on the condition that at least one-third of normal activity" is assured. The attempts made by the complainant federation to reach an agreement on the determination of this third with the SNCFR before and during the 1993 strikes proved fruitless, and the SNCFR argued in the courts that the strike was unlawful, in particular because the federation had infringed section 45(4) of Act No. 15. According to the complainants, this one-third requirement is furthermore much larger than would be necessary to ensure the maintenance of essential services. Section 30 of the same Act authorizes the Supreme Court of Justice to suspend a strike for a period of 90 days at the request of the employer if the strike is likely to jeopardize the predominant interests of the national economy or interests of a humanitarian kind. The Supreme Court, at the request of the SNCFR, invoked this provision on three occasions in 1993, suspending the strike launched by the complainant federation for a total of 170 days.
5. 322. The complainant then refers to the conflict between the complainant federation and the SNCFR. It appears from the detailed documentation provided by the complainants that the dispute arose from the fact that the enterprise, contrary to the promises which it had made in a protocol agreement, has not completed a study on the classification of jobs.
6. 323. Following the failure at conciliation noted in a report dated 5 January 1993, the federation warned the SNCFR and the Government that its representatives had voted, by a large majority, in favour of a warning strike on 19 February 1993, in accordance with the Act on the settlement of labour disputes. Following an application by the SNCFR to the Supreme Court to suspend the warning strike of two hours, the Court ordered an initial suspension of the strike for 70 days, and a second suspension of 20 days. Negotiations were started and on 4 March 1993 the president of the SNCFR set up a committee on structure in which each branch of the SNCFR was to make proposals for the revised classification of jobs. This was to culminate on 30 April, a date which was subsequently deferred to 19 May, in a revision of the classification of jobs, approved by the board of directors of the SNCFR. Finally, none of the studies ordered by the president of the SNCFR has been completed, with one exception.
7. 324. In these circumstances, the complainant federation thus informed the SNCFR of its intention to reopen the labour dispute and begin a strike for an unlimited period of time on 14 June 1993. The complainant federation informed the SNCFR that it wanted to hold consultations on the minimum service and to negotiate on the substance of the dispute. On 16 June the SNCFR and the federation reached an agreement on ending the strike, through the mediation of senior officials of the Ministry of Transport and the Government. Under this agreement, the SNCFR undertook to begin an examination of the classification of jobs on 21 June 1993. In an annex to this agreement, the Secretary-General of the Government, officials of the Ministry of Transport and the president of the SNCFR agreed not to take proceedings against the workers who had participated in the strike between 14 and 16 June 1993 and not to take any measures against the organizers of the strike. Despite this agreement, the SNCFR and the Government dismissed the officials of the federation and took proceedings against them in the courts for their peaceful activities related to the strike.
8. 325. However, as in the past, the SNCFR did not honour its commitments concerning the classification of jobs and did not begin negotiations on 21 June 1993. The complainant federation says that it waited until 7 July 1993 before warning the authorities and the SNCFR that it was going to resume the strike. Negotiations on the content of the collective agreement of 1993-94 finally began on 14 June 1993 and continued until 30 July 1993. However, the question of the classification of jobs was not included in the negotiations, despite the promises made by the SNCFR. Consequently, the complainant federation once again refused to accept and sign the agreement.
9. 326. At the same time, in May 1993, the SNCFR lodged an appeal with the Bucharest First Sector Court requesting that the warning strike and the subsequent strike be declared illegal, which the court did. The court stated that the federation could not take strike action as a means of obtaining changes in the classification of jobs. According to the court, since the collective agreement of 1992-93 had been signed by all the other federations, it was binding on the complainant federation, even if the latter had refused to sign it. Consequently, the court refused the complainant federation and its members the right to obtain the changes which they sought because of the existence of a collective agreement to which they were bound despite their wishes and without their agreement.
10. 327. The complainant federation lodged an appeal against this decision with the Court of Bucharest. On 8 July 1993, the court rejected the appeal, apparently for reasons of form.
11. 328. The strike began again on 11 August 1993; the following day, the federation announced in an open letter to the President of Romania that it requested his assistance in finding a solution to the dispute.
12. 329. Although the Supreme Court had already used the 90 day maximum period to suspend the first strike in 1993, the SNCFR once again applied to the Supreme Court for a second suspension, under section 13 of Act No. 15 on the settlement of labour disputes. The Supreme Court granted this request on 13 August 1993, accepting the conclusions of the lower court whereby the decision of 9 June meant that the strikes of February and June were unlawful. It also considered that the one-third minimum services had not been maintained and decided to suspend once again the strike for 80 days. Thus acting for the third time in application of section 30 of Act No. 15 on the settlement of labour disputes, the Supreme Court of Romania suspended, for a total of 170 days, any recourse to strike although the law clearly limits this possibility of suspension to 90 days.
13. 330. The railway workers and the local leaders of the train drivers immediately responded to this flagrant violation of the law by a total and spontaneous strike in the railways throughout the country (although in fact some essential trains continued to operate). This was no longer a decision taken by the federation, but the result of a clear wish expressed by 30,000 strikers. The Government threatened to take legal proceedings, including criminal proceedings, against the officials of the complainant federation. Trade union activists were questioned by prosecutors and telephone communications in some trade union sections were cut.
14. 331. On 16 August 1993, a delegation of representatives of the federation, led by its leader Ioan Vlad, met the President of the Republic in Bucharest as well as high officials of the Government and the SNCFR management. As a result, Mr. Vlad agreed to ask the train drivers to end their strike and to return to the negotiating table, after the Government had promised to place new legislation on the railways before Parliament which would contain, inter alia, provisions on the hierarchical classification of jobs.
15. 332. The striking railway workers responded to these negotiations by refusing to end their strike. From 16 and 17 October 1993, they began hundreds of hunger strikes, which were of short duration.
16. 333. On 17 August 1993 the Government ordered all train drivers to return to work from 8 p.m. of the same day, i.e. 17 August. Those train drivers who did not resume their work would be dismissed. Penal proceedings would be taken against those who were dismissed for having "undermined the national economy". On the morning of 18 August, all strike activity had ceased. The return-to-work order of 17 August was accompanied by a statement that the Government would draw up new legislation on the railways in which the question of job hierarchy in the railways would be examined by Parliament as a matter of urgency. The Government also stated that negotiations on the new collective agreement based on the new legislation would begin on 25 October 1993.
17. 334. However, the Government did not prepare the bill as it had promised. No negotiations were started. On the contrary, the SNCFR took proceedings against the complainant federation in application of Act No. 15 to have the strike declared unlawful and to obtain compensation. The SNCFR management subsequently withdrew its application for compensation (which according to the SNCFR amounted to 2 million lei), reserving on this point the right to take legal action against officials of the federation at a later date. The court effectively declared that the strike was unlawful.
18. 335. One week after the end of the strike, the SNCFR began to terminate the employment of several members of the federation. Sixty-four persons were dismissed; all except six were subsequently reinstated in their employment. The six persons not reinstated by the SNCFR are all officials of the complainant organization, namely Messrs. Ioan Vlad, Dorel But (subsequently deceased), Francisc Ungureanu, Nicolae Vlad, Ovidiu Gheorghian and Romeo Aldea. Their dismissal was based on a regulation dating back to the communist period, Decree No. 360 of 1976, which prohibited the "organization of operations which might lead to interruptions in transport, damage to means of transport, material damage and accidents" (section 30). Appeals were lodged with the courts for their reinstatement. To date, the persons concerned have not achieved their objective.
19. 336. Furthermore, the complainant organization points out that section 2(1) of Trade Union Act No. 54 stipulates that "employees have the right, without any restriction or prior authorization, to organize into trade unions" and section 9 stipulates that "any Romanian citizen who is a member of a trade union, who has legal personality, who is employed in the respective unit and against whom no sanction has been applied under penal legislation may be elected to a management body of a trade union". On the basis of this section, the SNCFR continues to refuse discussions with Mr. Vlad and the other duly elected officials of the federation who were dismissed in violation of Article 3(1) of Convention No. 87.
20. 337. Finally, according to the complainants, proceedings are still pending against the five dismissed trade union officials. Three sorts of charges have been made against them: (1) "undermining the national economy", under sections 164 and 166 of the Penal Code; (2) "offenses against the safe operation of railway transportation means", under sections 275 and 276 of the Penal Code; (3) damage to equipment (however, this last charge has been withdrawn). According to the complainants the accusations are only based on peaceful strike activities. They fear that the leaders in question risk life imprisonment.
21. 338. In conclusion, the complainants state that they are requesting that Acts Nos. 13, 15 and 54 be amended, that the dismissed trade union officials be reinstated in their employment and compensated, that the survivors of the trade union leader Dorel But also be compensated, that the judicial proceedings taken against the said officials be dropped and finally that the SNCFR recognize Mr. Ioan Vlad and all the other duly elected officials as the representatives of the train drivers vis-à-vis SNCFR as long as they are the freely elected representatives of the members of the complainant organization and its local trade unions.

B. The Government's reply

1. 339. In its reply the Government regrets that the Ministry of Labour and Social Protection was not informed by the National Trade Union Bloc or the complainant federation of their intentions to make a complaint to the ILO on this matter.
2. 340. However, the Government points out that it organized over the last two and three months comprehensive consultations with all the trade union organizations and employers at the national level on the revision of legislation respecting the legal basis of employment relationships, and in particular on collective agreements, labour disputes and the establishment of a tripartite mechanism for social dialogue. As a result of these consultations, the Government states that it will place before Parliament, before 15 December 1994, a bill on collective agreements which will, in particular, include the establishment of a social and economic council, a tripartite advisory body.
3. 341. More specifically, the Government points out in connection with the request by the complainant organizations for the amendment of provisions of Acts No. 13 on collective labour agreements, No. 15 on the settlement of labour disputes and No. 54 on freedom of association that under article 58 of the Constitution of Romania, only Parliament is authorized to legislate. Under the provisions of article 73 of the Constitution, the Government has only the power to initiate legislation.
4. 342. The legislative demands made by the complainants are not well founded. As regards the complaint that the SNCFR, the Government and the judicial authorities deprived the federation and its members of the right to the free bargaining of their conditions of work by collective agreements, the Government states that contrary to the claim made by the complainants, sections 1 and 2 of Act No. 13 apply the provisions of Convention No. 98. They stipulate the following: "Section 1. A collective labour agreement is an agreement concluded between employers and employees which establishes, within the limits prescribed by the law, clauses respecting conditions of work, wages and the other rights and obligations resulting from the employment relationship". "Article 2. The parties to the collective agreement are equal and free in the negotiation of these clauses".
5. 343. According to the Government, the job classification question mentioned by the complainants to justify the carrying out of strikes was resolved during the negotiation of the collective agreement of 1993-94, including with the agreement of the complainant trade union as recorded in the minutes of the session of 28 July 1993 (the text of this agreement was not appended to the reply from the Government).
6. 344. As regards Act No. 15 of 1991 on the settlement of labour disputes, the Government states that there at least two possible interpretations of the content of section 30 which reads: "At the request of the directors of units in which a labour dispute has arisen, the Supreme Court of Justice may suspend the holding or continuation of a strike for a maximum period of 90 days if the predominant interests of the national economy or interests of a humanitarian kind are at stake", namely:
   • - a strictly literal interpretation, whereby the suspension of the strike may not exceed 90 days, i.e. a suspension for a maximum period of 90 days, and, in the event of several suspensions of the same strike, not exceeding an accumulated total of 90 days;
   • - a rational-systematic interpretation, whereby a strike may be suspended each time the required conditions are met (provided that the predominant interests of the national economy or interests of a humanitarian kind may be jeopardized by the strike) without a single suspension exceeding 90 days, but with it being possible for several suspensions, taken together, to exceed the period of 90 days.
7. 345. Given the exceptional nature of the circumstances in which the suspension of the strike to prevent prejudice being caused to predominant economic interests or human life was issued, the decision of the Supreme Court of Justice to opt for the second interpretation of the text was, according to the Government, well-founded.
8. 346. As regards section 45(4) of the Act which stipulates: in the health care, pharmaceutical, teaching, telecommunications, radio-television and railway transport sectors, including units for the repair of rolling stock, river transport, civil aviation and state units responsible for public transport, industrial hygiene as well as the supply of bread, milk, meat, gas, electrical energy, heating and water, strikes are authorized on the condition that the organizers maintain essential services up to at least one-third of normal activity, the Government believes that the demand of the complainants for the elimination of the provision requiring the maintenance of one-third of normal activity is not founded if account is taken of a series of situations resulting in disruptions in the essential services.
9. 347. On the other hand, as regards the request by the complainants for a precise definition by unit of which essential services are to be maintained, and a clarification of what constitutes one-third of normal activity, the Government believes that these claims are well-founded. Thus, under Decision No. 446 of 13 May 1992, the SNCFR informed the trade union which organized the strike of the necessary essential services to be provided to ensure normal activity and the economic and humanitarian considerations which justified this decision. The organizers of the strike did not ensure the maintenance of the essential minimum services prescribed by section 45.
10. 348. As regards the complaints requesting the amendment of section 9 of Trade Union Act No. 54 of 1991, which stipulates that any Romanian citizen who is employed in the respective unit and against whom no sanction has been applied under penal legislation may be elected to the management body of a trade union, the Government believes that such an amendment would be contrary to article 9 of the Constitution of Romania, which states that trade unions are established and exercise their activities under the terms of their statutes in the conditions prescribed by the law. They contribute to the protection of employees' rights and the promotion of their occupational, economic and social interests. Thus, the Government believes that these provisions of the Act conform to the Constitution.
11. 349. The Government goes on to state that the termination of the contracts of employment of some of the organizers of the illegal strikes was the result of final court decisions, and based on particularly serious offences committed by the persons concerned, which caused considerable prejudice and disrupted social life. According to the Government, the justification and legality of the decisions to terminate the contracts of employment on disciplinary grounds were confirmed in five of the six cases in question by the Disciplinary Council of the Department of Rail Transport of the Ministry of Transport.
12. 350. As regards the complainants' request for the reinstatement of Messrs. Ioan Vlad, Francisc Ungureanu, Nicolae Vlad, Ovidiu Gheorghian and Romio Aldea to the posts which they held before their dismissal, and the compensation in respect of their wages and other benefits and the granting of financial compensation to the survivors of Mr. Dorel But, these matters fall exclusively within the competence of the judicial authorities. Any intervention by the Government in the settlement of these disputes would be a serious violation of the principle of the separation of powers in a State based on the rule of law, a principle enshrined in the Constitution of Romania.
13. 351. The Government adds, furthermore, that the SNCFR has indicated that two of the six persons in question have already been reinstated in their employment, and that in three other cases the matter is now before the competent judicial bodies. As regards the granting of special compensation to the survivors of the former trade union official Dorel But, it is for the courts to issue a final decision and it is the responsibility of the deceased's survivors to initiate such proceedings.
14. 352. As regards the request by the complainants for all penal proceedings against the members of the federation and its officials related to the labour dispute to be dropped, the Government emphasizes that under the provisions of the Constitution and the Code of Penal Procedure it is not the Government but the judicial authorities which are competent in matters of penal proceedings. Consequently any intervention by the Government as requested by the trade unions would also be a serious violation of the principle of the separation of powers in a State based on the rule of law. The Government points out, however, that the penal proceedings were started following a complaint by the SNCFR to the competent authorities of the government Prosecutor's Office against the organizers of the unlawful strikes who had allegedly committed offences. It will be for the Prosecutor's Office or the judicial authorities, as the case may be, to settle the matter.
15. 353. As regards the last request by the complainants for the Government to obtain acceptance from the SNCFR of the confirmation of the representative status of Mr. Ioan Vlad and all the trade union officials legally elected or appointed by the SNCFR trade unions for the duration of their mandate, the Government is not competent in this respect, and any eventual solution must be sought through an application to the SNCFR or the competent judicial authorities, in accordance with section 111 of the Code of Civil Procedure.

C. The Committee's conclusions

1. 354. This case concerns measures of anti-union reprisals against trade union activists and leaders for having participated in several strikes in the railway sector in 1993 in support of their occupational demands. The complainants criticized that a suspension of the right to strike had been imposed for 170 days and that a minimum service had been arbitrarily imposed involving 30 per cent of the workforce during the strike. They denounce in particular what amounted to the dismissal of six duly appointed trade union officials (one of whom had subsequently died) as a consequence of the strike, resulting in the loss of their status as trade union officials and their possible imprisonment for having exercised peaceful strike activities.
2. 355. According to the complainants, there were three strike movements: an initial warning strike of two hours on 19 February, a second strike from 14-16 June and a third strike from 11-17 August 1993 which ended with a back-to-work order. The complainants explain that they made an effort to negotiate with the directorate the establishment of a minimum service for the duration of the strike. However, the directorate refused and imposed the establishment of a minimum service involving 30 per cent of the workers.
3. 356. The complainants believe that these violations of freedom of association are the result of the restrictive nature of 1991 legislation on the settlement of labour disputes, collective agreements and freedom of association. They believe that Acts Nos. 13, on collective agreements, and 15, on the settlement of labour disputes, infringe the right of a certain category of workers in a given bargaining unit to make claims concerning its own conditions of employment. They argue that the Act imposes a form of majority rule obliging the representative organization of this category of workers to accept the content of a collective agreement, even if it has not signed it, if a majority of the other representative organizations of the workers of the unit have accepted it. Furthermore, the representative organization of this category of workers in such a situation is deprived of the right of recourse to strike. Act No. 15 also authorizes the employer to obtain from the Supreme Court suspensions of a strike for 90 days, which according to the interpretation of the Supreme Court may be accumulated.
4. 357. The Committee has noted the information provided by the Government on this matter and the decisions by the Supreme Court. It notes that the Supreme Court suspended the strike on three occasions for periods of 70 days, 20 days, then 80 days, i.e. a total of 170 days, since the strike threatened to cause serious prejudice to national economic and humanitarian interests by undermining the social and economic activity of the country. Without providing any supporting documents, the Government refers to the acceptance, on 28 July 1993, by the complainant federation, of the collective agreement of 1993-94. On the other hand, the complainants believe that they are not bound by the agreement since they reject the majority rule which the Court wishes to impose on them and because they believe that the question of the classification of jobs has not been settled.
5. 358. Noting therefore that important restrictions on the right to strike were imposed, the Committee must recall that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests (see Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 363). The Committee has, however, acknowledged that the right to strike can be restricted or even prohibited in essential services in so far as a strike there could cause serious hardship to the national community, and provided that the limitations are accompanied by certain compensatory guarantees (Digest, op. cit., para. 393). Thus, in the opinion of the Committee, the right to strike may be restricted, or even prohibited, in essential services in the strict sense of the term, i.e. services, the interruption of which would endanger the life, personal safety or health of the whole or part of the population (Digest, op. cit., para. 394). In earlier cases, the Committee has, however, considered that transport does not generally fall within the category of essential services (Digest, op. cit., para. 407). Although it is recognized that a stoppage in services or undertakings such as transport companies, railways, might disturb the normal life of the community, it can hardly be admitted that the stoppage of such services could cause a state of acute national emergency. The Committee has, therefore, considered that measures taken to mobilize workers at the time of disputes in services of this kind are such as to restrict the workers' right to strike as a means of defending their occupational and economic interests (Digest, op. cit., para. 426).
6. 359. In this case, the Committee believes that the restrictions imposed, namely the suspension of the strike for 170 days and the general prohibition on strike action by railway workers during this period to promote their occupational interests, went beyond the acceptable restrictions and thus violated the principles of freedom of association. Noting that the violations of the principles of freedom of association in this case can be traced back to section 30 of Act No. 15, which stipulates that the Supreme Court may suspend the holding or continuation of a strike for 90 days, the Committee requests the Government to take steps to repeal this provision.
7. 360. The Committee notes furthermore that section 45(4) of Act No. 15 imposes the maintenance of a minimum service of one-third of normal activity. The Committee has always considered legitimate that a minimum service be maintained in the event of a strike the extent and duration of which might be such as to result in an acute national crisis endangering the normal living conditions of the population. Such a minimum service should be confined to operations that are strictly necessary to avoid endangering the life, personal safety or health of the whole or part of the population; in addition, workers' organizations should be able to participate in defining such a service in the same way as employers and the public authorities (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, para. 415). Therefore the Committee requests the Government to modify its legislation accordingly.
8. 361. As regards the sanctions applied against the officials of the complainant federation, the Committee recalls that no one should be subject to discrimination in employment because of trade union membership or legitimate trade union activities. Furthermore, one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom (Digest, op. cit., para. 556).
9. 362. Noting, furthermore, that the dismissal of the officials of the federation resulted in the loss of their status as trade union representatives, the Committee believes it useful to refer to observations made by the Committee of Experts in its General Survey on Freedom of Association and Collective Bargaining on provisions of this kind. The Committee considers that provisions which require all candidates for trade union office to belong to the respective occupation or enterprise in which they represent workers pose a real risk of interference by the employer through the dismissal of trade union officers, which deprives them of their trade union office. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see Freedom of Association and Collective Bargaining, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 81st Session, 1994, para. 117).
10. 363. The Committee therefore requests the Government to lift any measures taken against trade union officials because of their participation in strikes or negotiations during this dispute, and in particular to obtain the reinstatement in their workplaces of all the dismissed trade union officials and to obtain the compensation of such officials and of their heirs, the dropping of criminal proceedings and the re-establishment of their status as representatives of the train drivers vis-à-vis the SNCFR. It requests the Government to keep it informed of developments in this respect.
11. 364. In the light of these elements, the Committee also requests the Government to amend the provisions of legislation which may result in excessive sanctions against the exercise of the right to strike. This is the case in particular with section 47 of Act No. 15, which establishes heavy sanctions of up to six months imprisonment for the holding of strikes which do not respect the conditions concerning minimum service, section 13(3) of Act. No. 15 which prohibits persons who have launched a strike which fails to meet the conditions prescribed by law from election to trade union office, and section 9 of Act No. 54 which restricts trade union office to only the employees of the respective unit.
12. 365. Finally, the Committee notes that the Government states in its reply that it has organized full consultations on the revision of the Acts in question and that it has taken the initiative of drawing up a new Act on collective agreements and a Bill on the establishment of a social and economic council, a tripartite advisory body. In these circumstances, the Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

The Committee's recommendations

1. 366. In the light of the foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee recommends the Government to take steps to have legislation on labour disputes and freedom of association amended as indicated in its conclusions, in particular, the restrictive provisions on the right to strike, namely as regards the minimum service and the power of the Supreme Court to suspend the exercise of the right to strike for an excessive duration, the serious penalties that can be imposed on workers on strike and the requirements to belong to the respective occupations to be eligible as trade union leader, and to bring it into conformity with the principles of freedom of association. It requests the Government to keep it informed of any developments in this respect and to provide a copy of the Bills on collective agreements and on the resolution of collective conflict. The Committee recalls to the Government that the technical assistance of the ILO is at its disposal in this respect.
   • (b) The Committee recommends the Government to try and obtain the lifting of all the measures taken against the trade unions officials following their participation in strikes and negotiations during the labour dispute in 1993 in the railway sector, and in particular the reinstatement in their posts of all the trade union officials dismissed and their compensation, as well as the dropping of criminal proceedings and the re-establishment of their status as representatives of train drivers vis-à-vis the SNCFR. It requests the Government to keep it informed of any developments in this respect.
   • (c) The Committee draws the attention of the Committee of Experts to the legislative aspects of this case as regards Conventions Nos. 87 and 98.