Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 362, Novembre 2011

Cas no 2838 (Grèce) - Date de la plainte: 10-FÉVR.-11 - Clos

Allegations: The complainants allege that the Government violated their trade union rights by issuing a civil mobilization order to end a lawful strike

1. 1044. The complaint is contained in a communication from the International Transport Workers’ Federation (ITF) and the Pan-Hellenic Seamen’s Federation (PNO) dated February 2011. In a communication dated 4 April 2011, the complainants provided further information. In a communication dated 11 April 2011, the Greek General Confederation of Labour (GSEE) associated itself to the complaint.
2. 1045. The Government replied in communications dated 24 May 2011.
3. 1046. 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. 1047. In their joint communication of February 2011, the ITF and its affiliate, the 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 26 October 2010 to present to the Minister of Maritime Affairs, Islands and Fisheries and the Minister of Employment and Social Security, as well as the shipowners’ associations, the following demands (which had already been presented in December 2009): recruitment and retention of young people to the maritime profession; upgrading of maritime education – retraining and creation of schools for each sector; strict implementation by the competent services of the Ministry of Maritime Affairs, Islands and Fisheries of the national legislation, such as that providing for ten months employment in the coastwise shipping or hours of work; absorption of all unemployed seafarers; speeding up and finalization of procedures for establishing an Independent Special Unemployment Fund for Greek Seafarers; immediate conclusion of satisfactory collective bargaining agreements; coverage by the state budget of all benefits provided by pension funds; clear timetable for adjusting all seafarers’ pensions to the level of 80 per cent of acting seafarers wages; to double provident funds benefits for officers and ratings; and the taxation regime of pensioner seafarers should be the same as for acting seafarers.
2. 1048. 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 15 November 2010 and decided by secret ballot to call a 24-hour strike across Greek ports, from Tuesday 23 November 2010 at 6 a.m. until Wednesday 24 November 2010 at 6 a.m., with a prospect to escalate the strike if necessary.
3. 1049. On 16 November 2011, the PNO Executive Board issued a press release with which it made known its intention to seek the satisfaction of the abovementioned demands, giving absolute priority to the signing of collective bargaining agreements for those categories of ships for which conclusion of such agreements was still pending.
4. 1050. The complainants further indicate that, on the invitation of the Minister of Maritime Affairs, Islands and Fisheries, a meeting took place on 18 November 2010, with the participation of the PNO Executive Board and the shipowners’ association concerned (EEN), but that the meeting produced no results, since the employers’ side was not prepared to sign a collective bargaining agreement with the same increase percentage for seafarers employed in coastwise shipping as the one obtained in collective bargaining agreements covering other types of ships (2 per cent).
5. 1051. According to the complainants’ indication, there exist in the passenger sector three collective bargaining agreements covering different types of ships, that is: (a) Mediterranean cruise passenger vessels, (b) coastwise passenger – “ro-ro” vessels, and (c) internal trade ferries. For the first and the third type of ships, the respective collective bargaining agreements were renewed for 2010 obtaining 2 per cent increase.
6. 1052. With subsequent decisions of the PNO Executive Board, the strike continued from 24 until 26 November 2010, and from 26 until 28 November 2010 and finally from 28 November until 30 November 2010.
7. 1053. The complainants also indicate that the Minister of Maritime Affairs, Islands and Fisheries in letter No 81/2010 dated 26 November 2010 asked the PNO “to provide the necessary personnel of vessels for the transport of persons and goods by sea, in order to face extraordinary or crucial needs of the society” and made an appeal for “reasonable suspension of strike actions”.
8. 1054. The PNO in replying to the abovementioned letter underlined “the existing gap to determine particular extraordinary or crucial needs of the society”, further stating that there is no independent body which is competent to deal with such cases and which enjoys the confidence of all concerned parties.
9. 1055. The complainants also mention that, contrary to what had happened in the past in similar cases, no legal action had been taken against the PNO concerning the strikes, which had been called pursuant to all the requirements of national legislation and was legitimate.
10. 1056. On 29 November 2010, the Prime Minister, acting on a proposal by the Minister of Maritime Affairs, Islands and Fisheries, issued a civil mobilization order for Greek seafarers effective from 8 p.m. on 29 November 2010 and valid until further notice (i.e. for an indefinite period), applicable to crews employed on coastwise passenger vessels.
11. 1057. According to the complainants, the Government’s Civil Mobilization Order was in clear breach of Conventions Nos 87, 98 and 105, ratified by Greece, and a number of provisions contained in national legislation, as well as in instruments adopted by the European Union and the Council of Europe, all of which established non-obstructed exercise of freedom of association. It was also an attack on the right to personal freedom recognized in article 5 of the Greek Constitution, as well as the prohibition of compulsory work (article 22(4) of the Constitution). The complainants also underlined relevant provisions of the Maritime Labour Convention, 2006 (MLC, 2006) (Article III – Fundamental rights and principles).
12. 1058. 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.
13. 1059. In their communication dated 4 April 2011, the complainants provided a copy of a resolution adopted unanimously by the ITF Seafarers’ Section Committee and endorsed by the Federation’s Fair Practices Committee Steering Group in March 2011, which denounces the mobilization order taken by the Greek Government and calls upon the Government to rescind it. The complainants further indicate that the same resolution was adopted unanimously by the European Transport Workers’ Federation (ETF) Maritime Transport Steering Committee and endorsed by the ETF EU Committee meeting in March 2011.
14. 1060. In its communication of 11 April 2011, the GSEE associated itself to the complaint and highlighted that, due to the civil mobilization order, PNO, which is affiliated to the GSEE, as well as its member organizations and the seafarers they represent, were not able to participate in the general pan-Hellenic strikes declared by the GSEE and aimed at safeguarding and promoting the economic and trade union interests of all the working people as well as their interests in the field of labour and social security.

B. The Government’s reply

1. 1061. In a communication dated 24 May 2011, the Government affirmed that Greece fully respects the principles, the rights and the requirements defined in Conventions Nos 87, 98 and 105, which it has ratified. The Government indicated that, by virtue of Act No. 3536/2007, the relevant legislation had been amended so that the requisition of personal services in times of peace might be allowed only 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 Government also highlighted relevant provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), and of the International Covenant on Civil and Political Rights (1966), which provide that the term “forced or compulsory labour” shall not include any service exacted in case of an emergency or calamity threatening the life or well-being of the community. The Government considered that such a situation occurred in Greece, resulting in the mobilization of sea transport workers.
2. 1062. The Government further stated that the geographic characteristics of Greece and, in particular its insularity, define the importance of and necessity for the unhindered carrying out of island cabotage in order to satisfy the vital needs of a very large number of the country’s population and that the smooth and orderly life on islands in general, which comprises public health as its main element, is directly and decisively linked to sea transport throughout the year. The Government indicated that passenger, R/R passenger and R/R cargo vessels (merchant ships) are the main, and, in some cases, the only means of transport of food, water, pharmaceuticals and other supplies, such as fuel, to islands, the lack of which, as it is commonly known, acknowledged and recognized, jeopardizes public health. The Government also noted that merchant ships substantially contribute to the transport of patients as well as of medical personnel to primary and secondary units of the national health system.
3. 1063. The Government recalled that the strike of the PNO aimed mainly at the drawing up and conclusion of collective agreements for certain categories of ships and, more specifically, at the determination of the increase rate that would be provided by the shipowners. It also recalled that the State does not intervene in free negotiations among the social partners on the determination of working conditions and workers’ salaries.
4. 1064. The Government underlined that the decision for requisition of the seafarers’ personal services had been taken following six continuous days of strikes that had clearly created conditions which put public health at risk. It also emphasized the efforts previously made by the Minister of Maritime Affairs, Islands and Fisheries, having taken into consideration the observations of the Committee on Freedom of Association regarding Case No. 2506 (which concerned the same parties and involved similar facts): (i) a letter was sent to the PNO and to the competent shipowner organizations asking them to proceed immediately to the conducting of dialogue and negotiations in order to determine mutually acceptable working and remuneration conditions and to draw up collective agreements concerning work in the maritime sector; (ii) a meeting was held with the representatives of the PNO and of the Association of Maritime Enterprises with a view to relieving the crisis and to reaching an agreement on the collective agreement concerning the crews of coastal passenger vessels; (iii) a letter was sent to the PNO asking that the necessary vessel crews be made available to transport persons and goods by sea, with a view to meeting urgent or basic needs of the society as a whole; these crews, however, had not been made available; (iv) a communication was issued to invite the parties concerned to start a dialogue immediately, with a view to concluding the collective agreement, so that the strike might end and the problems resulting from the strike might be resolved; (v) a meeting was held with the General Secretary of the PNO and the Chairperson of the Association of Maritime Enterprises, with a view to find a commonly accepted solution and conclude the collective labour agreement which was the main demand of the PNO strike.
5. 1065. The Government noted that the continuous and permanent consultations with the social partners of the maritime sector was a reality and had never ceased and that the consultations between the social partners competent for the merchant marine, in order to determine working conditions through the conclusion of a collective labour agreement for coastal passenger ships, continue.
6. 1066. With regard to some of the recommendations made by the Committee in Case No. 2506, the Government reiterated its reservations about their practical and effective application. It stressed that decisions relating to vessels’ staffing could not be an issue to be consulted and agreed upon, and that, on the contrary, such decisions depended on the application of the law (which is based on the directions given and the requirements set by international instruments, such as ILO Convention No. 180 and the MLC, 2006) which aims at the safeguard of the vessels’ safety and that of persons on board ships. The Government also pointed to the fact that more than one shipowner operates ships carrying out island cabotage.

C. C. The Committee's conclusions

• The Committee’s conclusions
  1067. 1067 The Committee notes that the present case concerns allegations that the Government violated the complainants’ trade union rights by issuing a civil mobilization order to end a lawful strike.
  1068. 1068 The Committee notes that according to the complainants, on 15 November 2010, the PNO announced its intention to stage rolling strikes as of 23 November 2010 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 speeding up and finalization of procedures for the establishment of an Independent Special Unemployment Fund for Greek Seafarers) and social security issues (including the coverage from the state budget of all benefits provided by pension funds). The Committee notes that absolute priority, amongst the various demands, was given to the signing of collective bargaining agreements for those categories of ships for which conclusion of such agreements was still pending. With subsequent decisions of the PNO Executive Board, the strike continued from 24 to 30 November 2010. On 29 November 2010, the Prime Minister, acting on a proposal by the Minister of Maritime Affairs, Islands and Fisheries, issued a civil mobilization order for Greek seafarers effective from 8 p.m. on 29 November 2010 and valid until further notice (i.e. for an indefinite period), applicable to crews employed on coastwise passenger vessels.
  1069. 1069 The Committee also notes that according to the complainants, and contrary to what had happened in the past in similar cases, no legal action had been taken against the PNO concerning the strikes, which had been called pursuant to all the requirements of national legislation and was legitimate. According to the complainants, the civil mobilization imposed on striking workers, in this case, maritime workers, was in clear breach of Conventions Nos 87, 98 and 105, ratified by Greece, and a number of provisions contained in national legislation, as well as in instruments adopted by the European Union and the Council of Europe, all of which established non-obstructed exercise of freedom of association, the right to personal freedom, and the prohibition of compulsory work.
  1070. 1070 Furthermore, the Committee understands from the complainants’ communications dated 4 and 11 April 2011 that the civil mobilization order has not been lifted and that, for this reason, the PNO, as well as its member organizations and the seafarers they represent, were not able to participate in the general pan-Hellenic strikes declared by the GSEE and aimed at safeguarding and promoting the economic and trade union interests of all the working people as well as their interests in the field of labour and social security.
  1071. 1071 The Committee notes the Government’s indication that, by virtue of Act No. 3536/2007, legislation had been amended so that the requisition of personal services in times of peace might be allowed only 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. According to the Government, such a situation occurred in Greece, resulting in the mobilization of sea transport workers.
  1072. 1072 The Committee also notes that the Government stated that the geographic characteristics of Greece and, in particular its insularity, define the importance of and necessity for the unhindered carrying out of island cabotage in order to satisfy the vital needs of a very large number of the country’s population and that the smooth and orderly life on islands in general, which comprises public health as its main element, is directly and decisively linked to sea transport, throughout the year. According to the Government, passenger, R/R passenger and R/R cargo vessels are the main, and, in some cases, the only means of transport of food, water, pharmaceuticals and other supplies, such as fuel, to islands, the lack of which jeopardizes public health, and merchant ships substantially contribute to the transport of patients as well as of medical personnel to primary and secondary units of the national health system.
  1073. 1073 The Committee notes that the Government underlined that the decision for requisition of the seafarers’ personal services had been taken following six continuous days of strikes that had clearly created conditions which put public health at risk. It also notes the efforts that the Government made before such a decision was taken, having taken into consideration the observations of the Committee on Freedom of Association regarding Case No. 2506, in particular that the Minister of Maritime Affairs, Islands and Fisheries, sent a letter to the PNO and to the competent shipowner organizations asking them to proceed to the conducting of dialogue and negotiations in order to determine mutually acceptable working and remuneration conditions and to draw up collective agreements concerning work in the maritime sector and that he held meetings with representatives of both social partners with a view to relieving the crisis. Also, a letter was sent to the PNO asking that the necessary vessel crews be made available to transport persons and goods by sea, with a view to meeting urgent or basic needs of society as a whole, but these crews had not been made available.
  1074. 1074 The Committee recalls that, in the course of its examination of Case No. 2506, which involved the same parties and similar facts, it had noted with interest from a communication of the Government dated 2 September 2008 that the issue of minimum services would be addressed, in the event of a general strike in the maritime transport sector, from the time of notification of a strike to its actual staging, given the difficulty of predicting the extent of the minimum service, which largely depends on the time of year and other factors (353rd Report approved by the Governing Body at its 304th Session, March 2009, paragraph 101). The Committee notes with regret that it does not appear from the Government’s indications relating to the efforts made between the notification of the strike and the decision to take a back-to-work order that genuine negotiations were conducted on the specific issue of the minimum service to be made available.
  1075. 1075 While taking due note of the reservations reiterated by the Government about the practical application of the minimum service to be made available, and in particular that the manning of ships is subject to international regulations, the Committee recalls that the minimum service may relate to the number of crossings carried out per day, instead of the number of staff manning the ships.
  1076. 1076 The Committee once again emphasizes that, although the ferry service is not an essential service, 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 [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 615]. 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, op. cit., para. 621]. In general, 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]. Therefore, the Committee requests the Government to take the necessary measures to ensure that any determination on the minimum service to be made available in the event of a strike is the result of negotiations between employers’ and workers’ organizations of the maritime sector, it being understood that such negotiations could take place, if not before the beginning of a conflict, between the date of the notification of the strike and its possible realization, all the more so in the light of the ongoing civil mobilization. The Committee requests to be kept informed of developments in this respect.
  1077. 1077 With regard to the civil mobilization order in particular, the Committee notes with great concern that it was apparently still in force at the time of the GSEE communication dated 11 April 2011 in which the GSEE highlighted that, due to the civil mobilization order, the PNO, as well as its member organizations and the seafarers they represent, were not able to participate in the general pan-Hellenic strikes declared by the GSEE. The Committee requests the Government to respond without delay to this allegation and clarify whether the civil mobilization order issued on 29 November 2010 is still in force. If this is the case, the Committee considers that this prolonged duration is out of proportion 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]. Therefore, if it has not already done so, the Committee urges the Government to lift the civil mobilization order. The Committee requests to be kept informed in this respect.
  1078. 1078 The Committee also recalls that in the course of its examination of Case No. 2506, it had noted with interest the Government’s indication, concerning the Committee’s recommendation on the establishment of an independent authority to bear the responsibility for suspending a strike on the grounds of national security or public health, that it would be favourable towards such an institutional initiative, but that it would need to be provided by law (349th Report approved by the Governing Body at its 301st Session, March 2008, paragraph 123). The Committee notes with regret that there is no indication that such an initiative has been moved forward. The Committee is bound to recall 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]. It firmly urges the Government to take the necessary measures to ensure that any general suspension or termination of strike is decided in accordance with this principle. The Committee requests to be kept informed of developments in this respect.
  1079. 1079 Finally, concerning the list of demands presented by the PNO to the Government, the Committee notes that the Government indicates that the continuous and permanent consultations with the social partners of the maritime sector was a reality and had never ceased and that the consultations between the social partners competent for the merchant marine, in order to determine working conditions through the conclusion of a collective labour agreement for coastal passenger ships, continue. The Committee recalls that 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 [Digest, op. cit., para. 935]. The Committee also notes that the Government indicates that the State does not intervene in free negotiations among the social partners on the determination of working conditions and workers’ salaries. Nevertheless, the Committee understands that the demands were addressed to the Government as they concerned, inter alia, the promotion of seafarers’ employment (including the speeding up and finalization of procedures for the establishment of an Independent Special Unemployment Fund for Greek Seafarers) and social security issues (including the coverage from the state budget of all benefits provided by pension funds). Stressing that the demands presented by the PNO are long-standing demands and that the absence of agreement on these demands may lead to further conflicts, the Committee urges the Government to take all necessary measures to ensure that negotiations are conducted in good faith and that all parties make every effort to reach an agreement. The Committee requests to be kept informed of developments in this respect.

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 requests the Government to take the necessary measures to ensure that any determination on the minimum service to be made available in the event of a strike is the result of negotiations between employers’ and workers’ organizations of the maritime sector, it being understood that such negotiations could take place, if not before the beginning of a conflict, between the date of the notification of the strike and its possible realization. The Committee requests to be kept informed of developments in this respect.
   • (b) Noting with great concern that the civil mobilization order was apparently still in force at the time of the GSEE communication dated 11 April 2011 in which the GSEE highlighted that, due to the civil mobilization order, the PNO, as well as its member organizations and the seafarers they represent, were not able to participate in the general pan-Hellenic strikes declared by the GSEE, the Committee requests the Government to respond without delay to this allegation and clarify whether the civil mobilization order issued on 29 November 2010 is still in force. If this is the case, the Committee considers that the prolonged duration of the civil mobilization order is out of proportion and amounts to a denial of the right to strike of seafarers contrary to Convention No. 87 ratified by Greece, and therefore, if it has not already done so, the Committee urges the Government to lift the civil mobilization order. The Committee requests to be kept informed in this respect.
   • (c) Noting with regret that, although it indicated in the past that it would be favourable to the establishment of an independent body to bear the responsibility for suspending a strike on the grounds of national security or public health, the Government did not move such an initiative forward, the Committee firmly urges the Government to take the necessary measures to ensure that the responsibility for suspending a strike on the grounds of national security or public health does not lie with the Government, but with an independent body which has the confidence of the parties concerned. The Committee requests to be kept informed of developments in this respect.
   • (d) Finally, noting the Government’s indication that consultations concerning the list of demands presented by the PNO continue, and stressing that these demands are long-standing demands and that the absence of agreement on them may lead to further conflicts, the Committee urges the Government to take all necessary measures to ensure that negotiations are conducted in good faith and that all parties make every effort to reach an agreement. The Committee requests to be kept informed of developments in this respect.