Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 374, Mars 2015

Cas no 3073 (Lituanie) - Date de la plainte: 17-AVR. -14 - Clos

Allegations: The complainant organization alleges that the refusal of the employer, the police department and the State to involve the Lithuanian Trade Union Federation “Sandrauga”, a duly registered trade union, in the collective agreement bargaining process constitutes an act of interference that is prescribed by Conventions Nos 87 and 98 and is contrary to the national constitution that states that all trade unions shall have equal rights

1. 479. The complaint is contained in a communication from the Lithuanian Trade Union Federation (Sandrauga) dated 17 April 2014.
2. 480. The Government forwarded its response to the allegations in a communication dated 8 August 2014.
3. 481. Lithuania has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 482. In a communication dated 17 April 2014, the complainant organization alleges hostility on the part of the police department towards Sandrauga, stating that despite having operated in the Lithuanian police system since 2009, the police department has violated the constitutional principle of equality among trade unions, ignored social dialogue, withheld the required sharing of information and complicated the union’s functioning, while maintaining social dialogue exclusively with two other trade unions that it considers better represented the police.
2. 483. The complainant indicates that, as set out in the police department’s letter dated 18 June 2010, the police department invited those police officer representatives with the “best knowledge on police office problems and employees’ expectations” to a forum on 26 May 2010. The complainant organization alleges that distinguishing between trade unions has no legislative basis and violated its interests, as it informed the department on 21 June 2010.
3. 484. According to the complainant organization, the department continued to withhold information and maintained dialogue only with the other trade unions. For example, it indicated that while in September–October 2010, it had presented three written proposals to the police department pursuant to Article 22(1) of the Labour Code on lack of funds, part-time work schedule, unpaid leave and so forth, it was advised on 21 October 2010 that the department had chosen alternative options with the support of other trade unions at a meeting to which Sandrauga was not invited.
4. 485. The complainant organization further indicates that it was not advised that a Conciliation Commission was formed and so lost the possibility of being represented. While on 23 November 2010, the complainant requested the opportunity to participate in the Commission’s work, the department indicated on 30 November 2010 that the Commission had been formed in accordance with a pre-existing cooperation agreement between the police department and three other trade unions. On 20 August 2013, another Commission was established, “to evaluate the head reserve list”, on which the previously mentioned trade unions were represented, but Sandrauga was not; on 22 August 2013, the complainant requested to be included along with the other union representatives. The complainant organization considers that by ignoring the equally legal Sandrauga, the police department violated the principle in article 50 of the Constitution of the Republic of Lithuania that all trade unions shall have equal rights.
5. 486. On 2 August 2013, the complainant organization requested the Lithuanian Government and Parliament to evaluate the activities of the police department. On 22 August 2013, the Vice-Chairman of the Parliament provided a response that the complainant organization considered to be discriminatory and similar to that of the police department, in noting that Sandrauga had fewer police employee members than the other two trade unions.
6. 487. The complainant organization further raises questions arising out of collective bargaining arrangements in 2013–14. On 30 August 2013, having received news from other sources that the police branch collective agreement was being drafted with the two other trade unions chosen by the police department, but not with Sandrauga, the complainant asked to participate. The department informed Sandrauga on 2 September 2013, however, that it had not applied in accordance with the procedure established in the Labour Code. On 17 September 2013, the complainant organization again approached the police department seeking collective bargaining rights.
7. 488. Government Resolution No. 799 on the “Mandate to negotiate with trade union organizations about the penal enforcement system, the Republic of Lithuania customs and police branches of collective bargaining” came into force on 8 September 2013 and authorized the police department to open negotiations to draft a collective agreement in the police branch. The complainant organization considers that the police department nevertheless continued to act against Sandrauga’s interests, withholding information and bargaining exclusively with the two “chosen trade unions”.
8. 489. In response to an inquiry from the complainant organization, the Lithuanian Social Security and Labour Ministry issued an opinion on 27 January 2014, affirming that only one collective agreement in the police branch may be signed and that trade unions have to establish a joint representative office, appoint their negotiators, and sign the collective agreement together. The complainant organization considers that Article 60(2) of the Labour Code means that it is a requirement that all active trade unions are included in the joint trade union representative office if they have declared an interest pursuant to Article 48 of the Code. The organization stresses that this is the sole and mandatory criteria in the legislation. Nevertheless, the complainant organization states that it is still being denied the possibility of participating in the ongoing collective bargaining in the police branch.
9. 490. The complainant organization further contends that only the previously mentioned unions were involved in a working group established to consider the draft law on police activities. Article 87(1) of the Labour Code of the resulting draft submitted to the Parliamentary Committees sought to establish that only one trade union could act to protect the interests of police officers, which the organization considers to evidently conflict with national law. Following enquiries of Sandrauga and further consideration of the draft, a new draft with the same Article 87(1) of the Labour Code was registered and re-submitted for consideration to the 2014 spring session of the Parliament. The complainant indicates that it repeatedly contacted the Parliament Board and the opposition because it considers the Bill to be contrary to the Constitution.
10. 491. In summary, the complainant organization stresses that, despite having raised the question of discrimination between unions and the curbing of freedom in collective bargaining in the police branch, including appealing to the Government and public institutions, the situation has not changed and responsible state institutions have not implemented equal rights. Sandrauga has been denied the possibility of collective bargaining. The organization considers that the police department’s cooperation with only two unions should be regarded as indirect support, so as to place those organizations under the control of employers contrary to Convention No. 98. The complainant organization believes that the Government has failed to properly protect Sandrauga from interference, that the employer is illegally choosing with which representatives of employees’ organizations it will communicate, and that the State has not taken any measures to promote and develop voluntary negotiations between employers and workers’ organizations.

B. The Government’s reply

1. 492. In a communication dated 8 August 2014, the Government indicated that the Ministry of Social Security and Labour has advised Sandrauga, and the police department under the Ministry of Interior, that only one collective agreement may be signed in the police branch and that trade unions, without prejudice to the principle of equality enshrined in article 50 of the Constitution, should set up a joint representative and appoint their negotiator for the signature of the branch collective agreement. Trade unions active in a particular institution can be admitted to an existing joint representative. According to the Government, the Ministry of Social Security and Labour has proposed that specific trade unions are not mentioned in the resolution concerning authorizations to conduct bargaining in the police branch, in order to involve all trade unions which are functioning in this branch. As at 1 August 2014, no collective agreement for the police branch has been registered.
2. 493. Further information from the police department dated 7 July 2014 addresses five points. In relation to the complainant organization’s operation within the police system, the police department notes that Sandrauga has not provided accurate data on the specific police institutions in which it operates, the numbers of members in the police it represents, nor any supporting documents. The department considers that the organization has not provided evidence that it complies with Article 19(1) of the Labour Code, proving that it operates within the Lithuanian police system and holds authorizations to represent the rights and interests of police officers. The department points out that international labour standards refer to most representative organizations of employers and workers and considers that there were no grounds for asserting that Sandrauga operates on a branch rather than national basis. Social partnership in the police system occurs at various levels and approximately 4,050 out of 12,100 employees in the police system are members of 23 professional organizations. The department believes that there are approximately 130 Sandrauga members at three police institutions, 120 of whom are employed by the Kaunas Country CPC which collaborates with all trade unions representing its employees, including Sandrauga, which it has invited to act on commissions and furnished with information.
3. 494. Second, in relation to its collaboration with other trade unions, the police department indicates that the cooperative agreement between the police department and three other trade unions was concluded in 2006 and renewed in 2009. The forum in May 2010 attended by representatives of those trade unions was open to all employees and trade union representatives. The department indicates that after the complainant organization had expressed a wish to attend and presented contact details on 21 June 2010, it was invited to a forum on 22 September 2011, at which its chairperson was provided with an opportunity to deliver a report. The police department states that the Reconciliation Commission formed on 3 June 2010 was not a statutory body dealing with collective labour disputes pursuant to Articles 71–74 of the Labour Code, but was a form of collaboration with the social partners to examine individual labour disputes raised by the trade unions represented on it.
4. 495. Third, the police department indicates that the draft law establishing that only one trade union can operate in the interests of police officers was not approved and that various versions have been proposed. The department points out (i) that the Government has indicated that the provision may be in contravention of article 50 of the Constitution; (ii) that all interested parties may comment on draft laws; and (iii) that Convention No. 87 allows national law to determine the extent to which guarantees apply to the armed forces and the police.
5. 496. Fourth, in relation to the question of collective bargaining, the police department indicated that on 20 September 2013 it had informed all trade unions, including the complainant, that it had been authorized to commence collective negotiations and had been approached by a joint representative office of two trade unions. Trade unions were invited to inform the department that they had formed a joint trade union representative office or joined the existing office, and to include a list of police institutions at which relevant trade unions were represented; the department noted that Sandrauga had not yet submitted such a list. The police department considers that it has provided the complainant organization with full information for it to participate in collective bargaining. The department indicates that, as it is not able to interfere in the formation of trade union representatives, it could only propose that Sandrauga should approach other trade unions to form a joint representation office.
6. 497. Fifth, the police department indicates that the Commission on the “evaluation of the management reserve list” was established pursuant to regulations approved in May 2013 to evaluate the suitability of candidates for certain management positions in the police. The regulations state that one Commission member may be a trade union representative. When the Commission was formed, the department understood that only two trade unions were represented in all police institutions, and these two organizations agreed to be represented on rotation. The regulations further state that, upon request, trade union representatives may be appointed to participate in the evaluation of candidates at territorial police institutions at which they represent employees. In the case that there is more than one trade union operating in an institution, consensus on a common representative should be agreed or no representative will be appointed. The department states that the complainant has not responded in this regard.
7. 498. Finally, the police department indicates that the complainant organization has not appealed within its national system against any decision or action taken by the police department.

C. The Committee’s conclusions

1. 499. The Committee observes that this case concerns allegations that the police department has acted against the interests of the complainant organization by undertaking social dialogue solely with two other trade unions it considers better represented, an assessment the complainant organization argues is contrary to the constitutional principle of equality of trade unions. It is alleged that this has involved the withholding of information and the lack of opportunity to be represented on a number of committees, to be involved in law reform initiatives and, particularly, to participate in collective bargaining. Moreover, a draft bill allegedly includes a provision that only one trade union can act to protect the interests of police officers. The complainant organization points out that this attitude by the public authorities constitutes a violation of Conventions Nos 87, 98 and 154.
2. 500. The Committee notes that the Government states that the complainant organization has not provided evidence that it is authorized to represent the rights and interests of police officers and appears to represent only a small number of police. Nevertheless, according to the Government and the police department, the organization has been invited to participate in social dialogue, has been provided with information concerning collective bargaining and was invited to join a joint trade union representation office for this purpose. The Government points out that the provision in the draft bill that only one trade union could act in the interests of police officers may be contrary to the Constitution. In any case, the Government states that Convention No. 87 allows national law to determine the extent to which its guarantees apply to the police.
3. 501. The Committee notes that Lithuania has ratified Conventions Nos. 87, 98 and 154. With respect to the application of these instruments to the police force, Article 9(1) of Convention No. 87 and Article 5(1) of Convention No. 98 provide that: “The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations”; Convention No. 154 contains a similar provision with the same import. The Committee has previously considered that it is clear that the International Labour Conference intended to leave it to each state to decide on the extent to which it was desirable to grant members of the armed forces and of the police the rights covered by Conventions Nos 87, 98 and 154 [see 335th Report, Case No. 2325 (Portugal, para. 1257) and 368th Report, Case No. 2943 (Norway, para. 761)].
4. 502. The Committee, nevertheless, notes with interest that several member States have recognized the right to organize and bargain collectively of the police and the armed forces in accordance with freedom of association principles and that this appears to be the case in Lithuania.
5. 503. In these circumstances, and welcoming the efforts made to promote collective bargaining for police, the Committee invites the Government to keep the Committee informed of developments relating to the draft law on police activities insofar as it has an impact on organizations and bargaining rights.

The Committee’s recommendations

1. 504. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Recognizing and welcoming the efforts made to promote collective bargaining for the police, the Committee invites the Government to keep the Committee informed of developments relating to the draft law on police activities insofar as it has an impact on organizations and bargaining rights.