Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 346, Juin 2007

Cas no 2506 (Grèce) - Date de la plainte: 12-JUIL.-06 - Clos

Allegations: The complainants allege that the Government has issued a “Civil Mobilization Order” (requisition of workers’ services) of indefinite duration to put an end to a legal strike of seafarers on passenger and cargo vessels, which do not constitute essential services

1037. The complaint is contained in a communication from the International Transport Workers’ Federation (ITF) and the Pan-Hellenic Seamen’s Federation (PNO) dated 12 July 2006. In a communication dated 11 August 2006, the Greek General Confederation of Labour (GSEE) associated itself to the complaint and made additional allegations.

1. 1038. The Government replied in communications dated 14 September and 30 October 2006.
2. 1039. 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 complainants’ allegations

1. 1040. In their joint communication of 12 July 2006, the ITF and its affiliate PNO, which is the supreme Greek trade union organization for seafarers with 14 individual affiliates, indicated that the PNO Executive Board (which is the Federation’s third in order constitutional body – the first being the Congress and the second the General Council) decided at its meeting of 1 February 2006, in implementation of the decision of the PNO General Council of 16 December 2005: (i) to issue a press release which would communicate the intention of the PNO to proceed to rolling strikes on 16 February 2006 for the resolution of long-standing demands appertaining to employment and social security issues; (ii) to address a letter to the competent Ministry of Merchant Marine and its services as well as the employers’ and workers’ organizations notifying the commencement, the length and the prospect of escalation of the strike. In particular, the PNO demands were: to secure the constitutionally safeguarded right to work and ensure the immediate absorption of all unemployed seafarers; to man coastwise passenger vessels for ten-month periods; to revoke the so-called “approving acts” of ship registration; to double provident fund benefits for officers and ratings; to establish an Independent Special Unemployment Fund; to grant exemptions for Greek seafarers (officers and ratings) from income tax or at least reinstate the special taxation regime for Greek seafarers (Act No. 3323/55) and abolish Act No. 2214/94 for both active and retired seafarers; to cover from the state budget all deficits in the Seafarers’ Retirement Fund (NAT) in order to ensure payment of the main pensions granted by NAT as well as payment of provident fund benefits for officers and ratings and auxiliary pensions; to start collective bargaining negotiations with immediate effect for the conclusion of national collective agreements for 2006 in accordance with the PNO pay claims; and to immediately withdraw the draft legislation on the “upgrading and restructuring of maritime education and other provisions”.
2. 1041. Following the delivery of these demands and the expiry of the time limit, as prescribed by the relevant Greek legislation, the PNO Executive Board met on 1 February 2006 and decided by secret ballot to announce a 48-hour warning strike in all ship categories from Thursday, 16 February 2006 at 6 a.m. to Saturday, 18 February at 6 a.m., which could be escalated. On 16 February 2006, a meeting took place between the Minister of Merchant Marine and the PNO Executive Board which confirmed in principle the Ministry’s unfavourable and negative position vis-à-vis the demands of the Federation. By decision of the PNO Executive Board, the strike continued from 18 to 20 February 2006 and then from 20 to 22 February 2006. In a petition lodged on 20 February 2006 before the Piraeus Court of First Instance (Procedure of Interim Injunction Measures), the Association of Coastwise Passenger Vessels claimed that the strike was illegal and abusive and asked the court to prohibit or suspend it. The court dismissed the petition.
3. 1042. On 21 February 2006, the Prime Minister, acting on a proposal by the Minister of Merchant Marine, issued a “Civil Mobilization Order” (requisition of workers’ services) for Greek seafarers effective from 6 a.m. on 22 February 2006 and until further notice (i.e., for an indefinite period), applicable to crews on passenger, R/R passenger and R/R cargo vessels of the merchant marine. Despite the Civil Mobilization Order, the strike continued for 36 hours and the PNO Executive Board decided on Thursday, 23 February 2006 to suspend the strike from 6 p.m. on that day.
4. 1043. According to the complainants, the Government’s Civil Mobilization Order was in clear breach of Convention No. 87 ratified by Greece, and a number of other national, EU and Council of Europe provisions which established non-obstructed exercise of freedom of association. It was also an attack on the right of personal freedom recognized in article 5 of the Greek Constitution and contrary to the ILO Maritime Labour Convention, 2006. The complainants also recalled Case No. 2212, examined by the Committee in March 2003 (330th Report), which concerned the same parties and involved similar facts. The complainants emphasized that the Committee recommended, inter alia, that “unilateral measures are not conducive to harmonious industrial relations and are contrary to Conventions Nos 87 and 98” and requested the Government “to refrain from such measures in the future”. Finally, the complainants recalled that transport does not constitute an essential service in the strict sense of the term according to the Committee, and therefore the right to strike in that sector should not be subject to a prohibition. They concluded by noting that to date, the Civil Mobilization Order was still in force.
5. 1044. In its communication of 11 August 2006, the GSEE associated itself to the complaint and added that over the last 32 years, Governments in Greece, without exhausting proportionally milder measures and procedures, had often resorted to civil mobilization that under threat of severe penalties compelled workers to terminate their strike action and return to work. The legal ground for the civil mobilization of workers on strike was Legislative Decree (LD) 17/1974 on “civil emergency planning” the validity of which was disputed by an overwhelming majority of the country’s jurists. LD 17/1974 was passed in September 1974, a few weeks after the fall of the seven-year military dictatorship in Greece (1967–74), before parliamentary elections and before the adoption of the 1975 Constitution currently in force. In a period of transition in Greece from an authoritarian dictatorial regime to democracy, LD 17/1974 aimed at regulating crucial matters of extreme emergency. Nevertheless, even this particular LD tolerated the existence of a state of emergency only in cases of “natural or other, technological or war-related events that result or threaten to result in extensive losses–damages and destruction of the human and material resources of the country or to hinder and disrupt the social and economic life of the country”. LD 17/1974 did not stipulate strike action as a cause of disruption of the social and economic life, as the Government – and previous Governments – had alleged, hence the civil mobilization imposed on striking workers, in this case maritime workers, was unjustified and unfounded. Furthermore, the issuing of LD 17/1974 was followed by the promulgation of the Greek Constitution in June 1975. The right to strike was for the first time recognized in article 23 of the Constitution. Exceptionally, the requisition of personal services was allowed in the event of war or conscription or for meeting the defence needs of the country, or in cases of social necessity resulting from natural disasters, or in situations likely to endanger public health (article 22, paragraph 4). Governments in Greece have been making use of civil mobilization in order to end “annoying” strikes ever since, invoking article 22, paragraph 4, of the Constitution even though the prerequisites do not exist and civil mobilization (requisition of personal services) of strikers cannot be acceptable. Strike action in itself cannot be interpreted as constituting a case of emergency, even if a court declared it illegal and abusive. Moreover, the particular strike by PNO was declared legal by the Piraeus Court of First Instance (ruling 1701/2006). Given that, in their overwhelming majority, strikes in Greece were declared illegal and/or abusive by courts, this constituted an exceptional ruling in the judicial history of Greece.
6. 1045. The complainants added that the Civil Mobilization Order – seafarers and crew members of all ships under Greek flag comprising passenger ships, carrier ships, ferry boats – was enacted as from 22 February 2006 and pending a new decision to address the matter, it indefinitely remained in force and was still in force at the time of the complaint, five months being by all accounts a considerably long period of time that did not justify a state of national emergency (e.g. public health hazards, particularly on the islands). The complainants acknowledged that in Greece, a country with many inhabited islands, maritime transport played an important role in ensuring the regular function of the social and economic life of the islands’ inhabitants. However, given that important works of infrastructure and alternative methods of transport (e.g. many airports on the islands) had been developed to ensure the regular provision of food supplies and the health care of their inhabitants, the prohibition of strike action and the compulsory return to work of seafarers, constituted an obviously disproportionate infringement of their fundamental rights. It was therefore evident that, under threat of penalties and by the imposition of civil conscription, seafarers were not able to effectively exercise the right to bargain collectively with their employers while their right to freedom of association was seriously violated.
7. B. The Government’s reply
8. 1046. In a communication dated 14 September 2006, the Government indicated that the principles, rights and requirements set out in Conventions Nos 87 and 98, ratified by Greece, were embodied in the Constitution of Greece which also contained a fundamental democratic principle according to which “all persons shall have the right to develop freely their personality and to participate in the social, economic and political life of the country, insofar as they do not infringe on the rights of others or violate the Constitution and moral values” (article 5, paragraph 1). These rights included the right to protection of health (article 5, paragraph 5, of the Constitution) which, like all the rights of the human being, both as an individual and as a member of society, were safeguarded by the State (article 25, paragraph 1, of the Constitution). The latter had the right to require from all citizens to perform their duty of social and national solidarity (article 25, paragraph 4, of the Constitution). As commonly acknowledged, having and exercising a right did not imply that the person was released from fundamental obligations and the Constitution of Greece disallowed the abusive exercise of a right. As explained below, the decision of the Government to proceed to the civil mobilization of seafarers had as its exclusive objective and result the protection of the public health, for which the Constitution provided for the requisition of personal services.
9. 1047. With regard to the background of the case, the Government indicated that the PNO announced by means of a document the calling of a 48-hour warning pan-Hellenic strike of seafarers in all ship categories, with the prospect of escalating it, starting at 6 a.m. on 16 February 2006 and lasting until 6 a.m. on 18 February 2006. During the said strike, the PNO, by means of successive documents, announced that the strike would continue from 18 to 20 February 2006, from 20 to 22 February 2006 and from 22 to 24 February 2006.
10. 1048. According to the Government, by Decision No. Y180/21–02–2006, taken in conformity with the law, the Prime Minister issued a Civil Mobilization Order applicable to the crews on passenger, R/R passenger and R/R cargo vessels of the merchant marine. By decision No. Y181/21–02–2006, taken in conformity with the law, the Prime Minister authorized the Minister of Merchant Marine to order a general civil mobilization of the crews on passenger, R/R passenger and R/R cargo vessels of the merchant marine and to take any other measure necessary in order to ensure the smooth functioning of the social and economic life of the State and the prevention of health risks of islanders who were isolated. By decision No. 39/21–02–2006, taken in conformity with the law, the Minister of Merchant Marine ordered a general civil mobilization of the crews on passenger, R/R passenger and R/R cargo vessels of the merchant marine; the civil mobilization took effect on 22 February 2006.
11. 1049. With regard to the reasons for taking these decisions, the Government indicated that as known, Greece had a large number of inhabited islands. The smooth and orderly life on the islands was directly, and on certain islands decisively, linked to sea transportation irrespective of season. Merchant ships were the main and, in some cases, the only means of transportation of food, water, pharmaceuticals and other supplies, such as fuel, the lack of which jeopardized the public health and caused further negative social effects. Furthermore, merchant ships substantially contributed to the transport of patients as well as medical personnel to primary and secondary units of the national health system in the islands. These transports took place both among islands and between the islands and the mainland on an almost daily basis. Prior to the adoption of the decisions in question, almost six days had passed without any sea transport with evident results and risks for the public health. The Government, before adopting and implementing its decisions, had received information about numerous cases of shortage of basic food supplies and pharmaceuticals on islands. The Government attached copies of nine letters sent by various public and local administration bodies, as well as bodies providing medical care and private associations, in which the shortage of bare life necessities and the inability to provide medical care were pointed out.
12. 1050. The Government emphasized that as soon as the PNO announced its decision to proceed to a strike: (i) the Minister of Merchant Marine met with the PNO representatives and discussed with them the demands of their federation, which had led to the calling of the strike; (ii) on 16 February 2006, the Minister of Merchant Marine sent to the General Secretary of the PNO a letter which presented in detail the position of the Ministry on the demands of the PNO and asked to inform the PNO members and seafarers’ trade unions accordingly; (iii) the Ministries of Economy and Finance and of Merchant Marine issued a press release concerning their joint examination of the economic demands of the PNO; (iv) on 21 February 2006, the Minister of Merchant Marine called the PNO representatives to discuss the seafarers’ demands. He also invited the PNO to make safety personnel available, so that ships sail with a view to meeting fundamental needs of the islanders and, in particular, of persons belonging to vulnerable social groups; the PNO did not respond positively to the Minister’s invitation. The Government attached copies of the press releases and the Minister’s letter. The Government added that the applicable national legislation provided that during a strike called by workers providing services of vital importance to meet the needs of society – the sea transport of persons being explicitly defined as a service of vital importance due to the special geographical features of Greece – the trade union organization concerned was to make the necessary safety personnel available, with a view to meeting emergency or fundamental needs of society. The Government emphasized that no safety personnel was made available.
13. 1051. The Government summed up the above by saying that it sought all kinds of dialogue with the PNO which totally rejected the Government’s initiatives; for this reason, the Government took the decision to tackle the serious disturbance of the social life of the country and to face the direct threat to the islanders’ health due to the shortage of food supplies, fuel, medicines and the bare necessities of life caused by the interruption of transport between the islands and continental Greece, as a result of the seafarers’ strike action.
14. 1052. The Government considered that the relevant decisions were entirely lawful and within the scope of the Constitution, and could in no circumstances be characterized as contrary to the obligations undertaken by the country as a result of the ratification of Conventions Nos 87 and 98. The undue exercise of the right to strike by workers in sea transport (taking into account its harmful effect on a large category of the population living on the Greek islands including men, women, old people, children and a large number of workers) led to a serious disturbance of the social life of the country, jeopardizing the safety and health of Greek islanders including persons working in other fields of economic activity in local societies.
15. 1053. With regard to the recommendations made by the Committee in Case No. 2212 which the complainants partially quoted, the Government emphasized that in its recommendation the Committee also pointed out that “the establishment of a requirement to ensure a minimum service in the particular circumstances of this case would not be contrary to freedom of association principles”. Thus, taking into account the geographical situation of Greece and, especially, the fact that Greece comprised a large number of islands, and the increased dependence of islanders on the smooth operation of sea transport, it was clear that in this case the Government, by safeguarding the provision of minimum sea transport services, did not violate the principles of freedom of association. The Government also noted that according to the fifth preambular paragraph of the International Covenant on Civil and Political Rights, “the individual having duties to other individuals and to the community to which he belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the present Covenant”. Concerning the reference made by the complainant to the ILO Maritime Labour Convention, 2006, the Government stressed that it actively participated in the preparation and adoption of the Convention and its positive contribution was recognized, among others, by 37 foreign seafarers’ organizations including the European Transport Workers’ Federation and the International Confederation of Free Trade Unions.
16. 1054. The Government noted that according to the Committee of Experts on the Application of Conventions and Recommendations, the right to peaceful strike action must be recognized in general for trade unions, federations and confederations in the public and private sectors. This right may only be prohibited or subjected to important restrictions for the following categories of workers or in the following situations: members of the armed forces and the police; public servants exercising authority in the name of the State; workers in essential services in the strict sense of the term (those the interruption of which would endanger the life, personal safety or health of the whole or part of the population); and in the event of an acute national crisis. For Greece, like any other country with a large number of inhabited islands, the security, health and survival of islanders were directly and decisively linked to sea transport which connected islands between them and with continental Greece. Therefore, it was understood that persons employed in such transport offered essential services, the interruption of which constituted a direct risk to life, personal security and health of a major section of the islanders.
17. 1055. In light of the above, it was clear that Decisions Nos Y180/21–02–06 and Y181/21–02–06 of the Prime Minister and Decision No. 39/21–02–06 of the Minister of Merchant Marine were only adopted when the Greek Government, having exhausted all other means, faced a situation which amounted to an acute national crisis. The implementation of these decisions resulted in the restoration and maintenance of the conditions necessary for preventing public health risks; it was therefore, directly and substantially linked to reasons of general interest, without infringing seafarers’ labour or association rights. The Government acted within the framework of its international obligations taking into account the totality of the Committee’s recommendations in Case No. 2212.
18. 1056. In a communication dated 30 October 2006, the Government replied to the allegations made by the GSEE. The Government acknowledged that strikes were not considered to be a state of emergency. However, the consequences of the long duration of a strike in maritime cabotage in a country with a large number of inhabited islands inevitably created a state of emergency and obliged the State to fulfil its obligation to protect the rights of individual citizens, in particular, the right to health. The great majority of the islands was connected with the mainland exclusively by ships, while very few islands were connected by airplanes. For this reason, it was obvious that the prolonged strike resulted not only in the isolation of the inhabitants of the islands, but also in the interruption of their economic activities. This happened because the transportation of goods to and from the islands was discontinued and most of the goods were damaged or spoilt. Thus, the local products of the islands could not be supplied to the mainland and it was absolutely impossible to cover even a very small part of the important needs of the thousands of inhabitants of the islands for food, fuel, medical and pharmaceutical material for the medical care units and other bare necessities of life; this affected adversely both public health and the economy not only of the islands, but also of the entire country.
19. 1057. The Government added that the decisions of the Prime Minister and the Minister of Merchant Marine did not in any case restrict the rights of the PNO to negotiate collectively with the shipowners or its right to freedom of association. In this respect, the Government attached six documents whereby the PNO and the relevant shipowners’ associations submitted collective agreements to the Ministry of Merchant Marine in respect of various categories of vessels. In addition, it forwarded a recent decision of the Minister of Merchant Marine for the formation of a committee to which PNO was invited to participate along with the shipowners’ unions.
20. 1058. The Government finally indicated that the Ministry of National Defence was elaborating a draft law with a view to partly or wholly abrogating Legislative Decree No. 17/74.
21. 1059. In a communication dated 7 March 2007, the Government adds that the civil mobilization order of the crews of merchant marine vessels was suspended by Ministerial Decision No. 209/01.02.2007 (Official Gazette B’ 120). This Ministerial Decision, followed the decision of the State Legal Council according to which the phrase “civil mobilization takes effect until further decision” found in the text of the Order, was interpreted to mean that the Minister of Merchant Marine who issued the Order reserved the right to examine whether the suspension of the civil mobilization even before the end of the strike was justified, but not that this Order continued to apply without a time limit after the expiration of the time period for which the strike had been called. Thus, the Ministerial Decision which was formally repealed on 1 February 2007 in fact stopped having legal effect as of 6 p.m. on 23 February 2006 when the strike ended.
22. 1060. The Government further adds that the Act concerning “Special Regulations of Migration Policy Issues and other issues under the competence of the Ministry of the Interior, Public Administration and Decentralization”, which is awaiting publication in the Official Gazette, and especially its section 41 concerning “regulations on facing emergencies in times of peace” (attached to the reply) regulates issues of requisition of personal services and goods to face an emergency in times of peace. Thus, from now on, the provisions of Legislative Decree No. 17/1974 will apply only at times of war. According to paragraph 2 of section 41 of the new law, “an emergency in times of peace, which demands the requisition of personal services, is every sudden situation requiring the taking of immediate measures to face the Country’s defensive needs or a social emergency against any type of imminent natural disaster or emergency that might endanger the public health”. Thus, the institution of civil mobilization in times of peace is reformed and modernized, with a view to further protecting the constitutionally safeguarded human rights. Moreover, by virtue of the same section, from now on, civil mobilization is ordered by the Prime Minister on proposal by the Minister who has competence to deal with the cause that resulted in the emergency. Until now, civil mobilization was to be ordered on proposal by the Minister of National Defence in both times of peace and war. The said provision is based on the principle of proportionality, according to which this stringent measure, applied by means of an administrative act, must be proportional to the public or private interest under protection.

C. The Committee’s conclusions

1. 1061. The Committee notes that the present case concerns allegations that the Government has issued a “Civil Mobilization Order” (requisition of workers’ services) of indefinite duration to put an end to a legal strike of seafarers on passenger and cargo vessels, which do not constitute essential services.
2. 1062. The Committee notes that according to the complainants, on 1 February 2006, the PNO announced its intention to stage rolling strikes as of 16 February 2006 in all ship categories for the resolution of long-standing demands pertaining to employment and social security issues. The Committee understands that these demands were addressed to the Government as they concerned, inter alia, the promotion of seafarers’ employment (including the establishment of an Independent Special Unemployment Fund for seafarers), social security issues (including the coverage of any deficits in the Seafarers’ Retirement Fund from the state budget) and terms and conditions of employment which are in the hands of the Government (pay claims). After an inconclusive meeting with the Minister of Merchant Marine and the PNO which took place on 16 February, the strike continued from 18 to 20 February 2006 and then from 20 to 22 February 2006. A petition lodged on 20 February 2006 by the Association of Coastwise Passenger Vessels (i.e., apparently a shipowners’ organization) to the effect that the strike was illegal and abusive, was rejected by the Piraeus Court of First Instance. On 21 February 2006, the Prime Minister, acting on a proposal by the Minister of Merchant Marine, issued a Civil Mobilization Order for all seafarers (crews on passenger, R/R passenger and R/R cargo vessels of the merchant marine) as of 6 a.m. on 22 February 2006 and until further notice, i.e., for an indefinite period. Despite the Civil Mobilization Order, the strike continued for another 36 hours and was finally suspended on 23 February 2006 at 6 p.m.
3. 1063. The Committee also notes that according to the complainants, over the last 32 years, successive Governments have often resorted to civil mobilization measures, without exhausting proportionally milder measures. Civil mobilization compelled workers to terminate their strike and return to work under threat of severe penalties. The legal ground for the civil mobilization was Legislative Decree No. 17/1974 on “civil emergency planning” which was passed during a period of transition from an authoritarian dictatorial regime to democracy and aimed at regulating crucial matters of extreme emergency. Even this particular Legislative Decree tolerated the existence of a state of emergency only in cases of “natural or other, technological or war-related events that result or threaten to result in extensive losses–damages and destruction of the human and material resources of the country or to hinder and disrupt the social and economic life of the country”. The Legislative Decree did not stipulate strike action as a cause of disruption in the social and economic life, as the Government (and previous Governments) maintained. Thus, according to the complainants, the civil mobilization imposed on striking workers, in this case, maritime workers, was unjustified and unfounded. Furthermore, the Legislative Decree was followed by the promulgation of the Greek Constitution which recognized the right to strike in its article 23. Exceptionally, the Constitution allowed for the requisition of personal services in the event of war or conscription or for meeting the defence needs of the country, or in cases of social necessity resulting from natural disasters, or in situations likely to endanger public health (article 22, paragraph 4). Governments had been making use ever since of civil mobilization in order to end “annoying” strikes on the basis of article 22, paragraph 4, of the Constitution notwithstanding that strike action in itself could not be interpreted as constituting a case of emergency, even if a court declared it illegal and abusive. The complainants emphasize that given that in their overwhelming majority, strikes in Greece were declared illegal and/or abusive by the courts, the fact that the Piraeus Court of First Instance found the particular strike in question to be legal was of great importance.
4. 1064. Finally, the Committee notes that according to the complainants, the Civil Mobilization Order has remained in force indefinitely since 22 February 2006, pending a new decision to address the matter. According to the complainants, this long period over which seafarers cannot exercise their right to strike is not justified by a state of national emergency although the complainants acknowledged that in Greece, which has many islands, maritime transport plays an important role in ensuring a regular social and economic life. Nevertheless, important works of infrastructure and alternative methods of transport (e.g. many airports on the islands) have been developed to ensure the regular provision of food supplies and the health care of the inhabitants. Thus, the prohibition of strike action constitutes an obviously disproportionate measure which infringes seafarers’ fundamental rights. Moreover, under these conditions, seafarers are not able to effectively exercise the right to bargain collectively with their employers while their right to freedom of association is seriously violated.
5. 1065. The Committee notes that according to the Government, the decision to proceed to the civil mobilization of seafarers had as its exclusive objective and result the protection of the public health for which the Constitution allowed the requisition of personal services. The Government adds that the PNO announced in successive documents its intention to stage strikes from 16 to 18 February 2006 and then from 18 to 20 February, from 20 to 22 February and from 22 to 24 February 2006. On 21 February 2006, the Prime Minister, by Decisions Nos Y180/21–02–2006 and Y181/21–02–2006 issued a Civil Mobilization Order of the crews on passenger, R/R passenger and R/R cargo vessels of the merchant marine and authorized the Minister of Merchant Marine to order the civil mobilization and take any other measure deemed necessary in order to ensure the smooth social and economic life of the State and the prevention of health risks of islanders who were isolated. By Decision No. 39/21–02–2006, the Minister of Merchant Marine ordered a general civil mobilization which took effect on 22 February 2006. Prior to this, according to the Government, the Minister of Merchant Marine had sought dialogue with the PNO by meeting with PNO representatives, exchanging letters with them clarifying the Ministry’s position, issuing press releases jointly with the Ministries of Economy and Finance concerning the joint examination of the economic demands of the PNO and calling on PNO representatives to discuss their demands (letters and press releases attached to the Government’s response). However, according to the Government, the PNO totally rejected the Government’s initiatives.
6. 1066. With regard to the reasons which led to the decision to impose a civil mobilization, the Committee notes that according to the Government, the smooth and orderly life on the numerous inhabited Greek islands is directly and in certain cases decisively, linked to sea transport. The great majority of the islands is connected with the mainland exclusively by ships, while very few islands are connected by airplanes. Merchant ships are the main and, in some cases, the only means of transportation of food, water, pharmaceuticals and other supplies such as fuel. The lack of such items jeopardizes public health and has further negative social effects. Furthermore, merchant ships substantially contribute to the transport of patients as well as medical personnel to primary and secondary units of the national health system both among islands and between the islands and the mainland on an almost daily basis. Prior to the adoption of the decisions in question, almost six days had passed without any sea transport with evident results and risks for public health. The Government, before adopting its decision, had received information about numerous cases of shortage of basic food supplies and pharmaceuticals on islands. The Government attaches copies of nine letters sent by pubic and local administration bodies, as well as bodies providing medical care and private associations (a local trade union), in which the shortage of bare life necessities and the inability to provide medical care are pointed out.
7. 1067. The Committee notes that the Government emphasizes that the decisions of the Prime Minister and the Minister of Merchant Marine were taken only after all other means had been exhausted, and in the face of a situation which amounted to an acute national crisis. The long duration of the strike inevitably created a state of emergency obliging the State to fulfil its obligation to protect the rights of individual citizens, in particular, the right to health, which is protected by the Constitution. The implementation of the decisions resulted in the restoration of the conditions necessary for preventing public health risks and did not infringe seafarers’ labour or association rights. In particular, the PNO continued to negotiate collectively with shipowners’ associations (the Government attached six documents by which collective agreements were submitted to the Ministry of Merchant Marine in respect of various categories of vessels).
8. 1068. Alternatively, the Government also submits that in a country with a large number of inhabited islands, the security, health and survival of islanders is directly and decisively linked to sea transport which constitutes under the circumstances an essential service, given that its interruption may lead to risks for the life, personal security and health of a major section of the islanders.
9. 1069. Finally, the Committee notes that following a decision by the State Legal Council, the Civil Mobilization Order was formally suspended on 1 February 2007 by Ministerial Decision No. 209, and is considered as retroactively having no legal effect after 23 February 2006, when the seafarer’s strike ended.
10. 1070. The Committee recalls the conclusions and recommendations it had reached in Case No. 2212 which involved the same parties and similar facts [330th Report approved by the Governing Body at its 286th Session, March 2003, paras 721–755]. On that occasion, the Committee, taking note of the fact that the Civil Mobilization Order had already been lifted, emphasized that unilateral measures are not conducive to harmonious industrial relations and are contrary to Conventions Nos 87 and 98 and requested the Government to refrain from such measures in the future. It also noted that the establishment of a requirement to ensure a minimum service in the particular circumstances of this case would not be contrary to freedom of association principles.
11. 1071. With regard to the Government’s view that sea transport might be considered as an essential service in the specific circumstances of this case (Greece having a large number of inhabited islands), the Committee recalls that the ferry service is not an essential service. However, in view of the difficulties and inconveniences that the population living on islands along the coast could be subject to following a stoppage in ferry services, an agreement may be concluded on minimum services to be maintained in the event of a strike. Similarly, the transportation of passengers and commercial goods is not an essential service in the strict sense of the term. However, this is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 615 and 621]. In general, the establishment of minimum services in the case of strike action could be possible in services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population [Digest, op. cit., para. 606].
12. 1072. The Committee notes in this respect from the Government’s reply as well as the letters and press communiqués transmitted therein, that on 21 February 2006, the Government requested the PNO to make “safety personnel” available so that a minimum service could be ensured and ships could sail to the inhabited islands with a view to meeting fundamental needs of the islanders; however, no safety personnel was made available. The Committee also notes that according to the applicable national legislation, during a strike in services of vital importance – sea transport of persons being explicitly defined as a service of vital importance due to the special geographical features of Greece – the trade union concerned should make the necessary safety personnel available with a view to meeting emergency or fundamental needs of society. The Committee recalls that similar facts had been communicated by the Government in Case No. 2212. However, the Committee had noted at the time that there seemed to be no negotiated definition of what constituted “safety personnel” (e.g. how many crossings per day/week, the necessary personnel for manning the ships, etc.) [330th Report, para. 750].
13. 1073. The Committee emphasizes 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 over-generous and unilaterally fixed minimum services [Digest, op. cit., para. 612]. The Committee considers that negotiations over this issue should be ideally held prior to a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. Any disagreement should be settled by an independent body, like for instance, the judicial authorities, and not by the ministry concerned. The Committee therefore invites the Government and the PNO to engage in negotiations as soon as possible over the determination of the minimum service to be made available in case of strikes in the maritime sector, in conformity with national legislation on security personnel and freedom of association principles. The Committee requests to be kept informed in this respect.
14. 1074. With regard to the Civil Mobilization Order in particular, the Committee takes note of nine letters communicated by the Government in which various public and private bodies describe the impact of the strike on local communities on the islands. In particular, the letters make reference to shortages in oxygen in 14 hospitals (one having oxygen for one and a half days, seven others for two to five days, three others for six days, one for ten days and another for less than 20 days). The letters also indicate problems on islands without airports with regard to the transport of patients, primary necessity items, fuel, medicine and food and problems even on islands with an airport, as the airplane’s capacity did not suffice to cover the needs of the island. Two letters from the Prefectures of Lasithion and Heraklion in Crete requested that the prefectures be placed in a state of emergency.
15. 1075. The Committee notes that whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association [Digest, op. cit., para. 634]. Given the information provided by the Government, the Committee considers that a back-to-work order was justified in relation to the protection of public health, but should have been restricted only to the number of seafarers actually needed to provide for such a minimum service.
16. 1076. Nevertheless, the Committee observes that the Civil Mobilization Order remained in force almost one year after its issuance while the issue was pending before the courts even though it was subsequently considered retroactively as having no legal effect as from the end of the strike. The Committee considers, as apparently confirmed by the State Legal Council decision, that this prolonged duration was out of proportion to the objective of the Civil Mobilization Order (protection of public health) and amounts to a denial of the right to strike of seafarers contrary to Convention No. 87 ratified by Greece. The Committee emphasizes in this respect that the right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87 and that organizations responsible for defending workers’ socio-economic and occupational interests should be able to use strike action to support their position in the search for solutions to problems posed by major social and economic policy trends which have a direct impact on their members and on workers in general, in particular as regards employment, social protection and standards of living [Digest, op. cit., paras 523 and 527]. Observing with regret that the issuance of a Civil Mobilization Order in this case had the effect of preventing seafarers from exercising the right to strike for over a year, while the issue was pending before the Courts, the Committee expects that the Government will ensure that any restrictions placed on the right to strike are in conformity with freedom of association principles and Convention
17. No. 87, ratified by Greece.
18. 1077. Furthermore, the Committee notes that there is no information on the outcome of the negotiations over the list of demands presented by the PNO to the Government. The Committee observes from the information available to it, that the list of the PNO demands was apparently discussed with the Government in face-to-face negotiations only on two occasions: on 16 February, i.e., the day the strike began, and on 21 February, i.e., the day on which the Civil Mobilization Order was issued. The Committee observes that under these circumstances, it is not very clear whether genuine negotiations took place between the parties prior to or during the strike. The Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations. It is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties; satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence [Digest, op. cit., paras 934–936]. The Committee therefore requests the Government to take all necessary measures to ensure that negotiations with the PNO recommence as soon as possible and are conducted in line with collective bargaining agreements and processes with a view to ending the dispute and reaching an agreement over the demands presented by the trade union. The Committee requests to be kept informed of developments in this respect.
19. 1078. Finally, the Committee takes note of the complainants’ allegation that over the last 32 years, successive Governments have often resorted to civil mobilization measures to end strikes in various sectors on the basis of Legislative Decree No. 17/1974. In this regard, the Committee notes with interest that according to the Government, pursuant to recent legislative amendments, Legislative Decree No. 17/1974 will only apply in times of war. As for requisition in times of peace, section 41 of the Act concerning “Special Regulations of Migration Policy Issues and other issues under the competence of the Ministry of the Interior, Public Administration and Decentralization” which is awaiting publication in the Official Gazette, provides that the requisition of personal services is possible only in case of emergency, i.e., “every sudden situation requiring the taking of immediate measures to face the Country’s defensive needs or a social emergency against any type of imminent natural disaster or emergency that might endanger the public health”. The Committee also notes that the decision to order a civil mobilization shall be taken by the Prime Minister on proposal by the Minister who has competence to deal with the specific emergency instead of the Minister of National Defence who had competence in all cases.
20. 1079. In view of the allegations that over the last 32 years the Government has resorted to civil mobilization orders in order to end strikes in various sectors, the Committee, noting that the new law still allows for the requisition of services in case of danger to public health, which could therefore continue to be used as grounds for suspending strikes in the future, recalls that the responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confidence of the parties concerned [Digest, op. cit., para. 571] and requests the Government to take the necessary measures to ensure that any general suspension or termination of strike is decided in accordance with this principle. It requests the Government to keep it informed of developments in this regard.

The Committee's recommendations

1. 1080. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee invites the Government and the PNO to engage in negotiations as soon as possible over the determination of the minimum service to be made available in case of strikes in the maritime sector, in conformity with national legislation on security personnel and freedom of association principles. The Committee requests to be kept informed in this respect.
   • (b) Observing with regret that issuance of a Civil Mobilization Order in this case had the effect of preventing seafarers from exercising the right to strike for over a year, while the issue was pending before the Courts, the Committee expects that the Government will ensure that any restrictions placed on the right to strike are in conformity with freedom of association principles and Convention No. 87, ratified by Greece.
   • (c) The Committee requests the Government to take all necessary measures to ensure that negotiations with the PNO recommence as soon as possible and are conducted in line with collective bargaining agreements and processes, with a view to ending the dispute and reaching an agreement over the demands presented by the trade union. The Committee requests to be kept informed of developments in this respect.
   • (d) In view of the allegations that over the last 32 years the Government has resorted to civil mobilization orders in order to end strikes in various sectors, the Committee, noting that the new law still allows for the requisition of services in case of danger to public health, which could therefore continue to be used as grounds for suspending strikes in the future, recalls that the responsibility for suspending a strike on the grounds of national security or public health should not lie with the Government, but with an independent body which has the confidence of the parties concerned [Digest, op. cit., para. 571] and requests the Government to take the necessary measures to ensure that any general suspension or termination of strike is decided in accordance with this principle. It requests the Government to keep it informed of developments in this regard.