Report in which the committee requests to be kept informed of development - REPORT_NO320, March 2000

CASE_NUMBER 1989 (Bulgaria) - COMPLAINT_DATE: 06-OKT-98 - Closed

Allegations: Violations of the right to strike; discrimination on the basis of trade union activities; and harassment and victimization of trade unionists

1. 299. The Committee already examined this case at its June 1999 meeting when it submitted an interim report to the Governing Body (see 316th Report, paras. 163-195, approved by the Governing Body at its 275th Session).
2. 300. The Trade Union of the Engine Personnel of Bulgaria (TUEPB) sent further information in support of their complaint in a communication dated 24 August 1999. The Government sent additional information in a communication dated 4 November 1999.
3. 301. Bulgaria 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. Previous examination of the case

1. 302. In its previous examination of this case in June 1999, the Committee made the following substantive recommendations:
   • (a) Concerning the majority support required pursuant to article 11(2) of the Act on Collective Labour Disputes to declare a legal strike, the Committee requests the Government to take the necessary steps to amend this provision so that account is taken only of the votes cast.
   • (b) Noting with interest the Government's statement that it intends to submit a proposal for the improvement of the Act on Collective Labour Disputes concerning the right of workers to take strike action at the sectoral, branch and national levels, the Committee requests the Government, in the context of this legislative reform, to consider amendments to overcome some of the difficulties caused by the vague strike provisions of the Act, in particular concerning how the requisite majority support is to be determined, and to consult with the concerned parties in the course of the reform process.
   • (c) The Committee requests the complainants and the Government to provide specific information concerning the workers dismissed as a result of the strike who have not yet been reinstated, and the reasons given to justify their dismissal. The Committee also requests the Government to provide copies of Decree No. 9 concerning the work of the railway personnel and management and the disciplinary statute.
   • (d) Noting the importance of the principle that workers and employers should in practice be able to establish and join organizations of their own choosing in full freedom, and that no person should be prejudiced in his or her employment by reason of membership of a trade union, even if that trade union is not recognized by the employer as representing the majority of workers concerned, the Committee requests the Government to reply to the allegations that TUEPB members are being harassed and threatened by BSR to withdraw from the union.

B. The complainants' additional information

1. 303. In a communication dated 24 August 1999, the Trade Union of the Engine Personnel of Bulgaria (TUEPB) transmitted the following information in response to the request in recommendation (c) noted above.
2. 304. Up to the present moment there are only two persons reinstated among the discharged: Peter Petrov from Varna Locomotive Depot, now retired; and Stanyo Stanev from Stara Zagora Locomotive Depot. Mr. Stanev was reinstated on 21 May 1999 but still does not work as a locomotive engine driver. According to the Railway Regulations any locomotive engine driver who does not perform his duties for a period of six months should sit for an examination. The poor mark given to Mr. Stanev on his examination was totally unjustified.
3. 305. After Mr. Stanev was reinstated, two more people were discharged: the chief of Stara Zagora Locomotive Depot and the legal adviser of Plovdiv Railway Junction. As for the Chief Legal Adviser of the national company BSR (Bulgarian State Railway), he was punished with notification of discharge.
4. 306. The rest of the discharged continue their legal proceedings. District courts have not yet passed judgements on three of the cases. Twelve people have won their cases before regional courts, but the judgements have been appealed.
5. 307. The Government claims that all courts in Bulgaria have declared the strike illegal. The judgement of Kyustendil Regional Court however, rejects the claim of Railway Locomotive Depot - Dupnitza (this judgement was attached to the complaint). This is another reason for the appeal for revision of the Act on Settlement of Collective Labour Disputes.
6. 308. The TUEPB indicates its agreement with the Government's statement that the judicial power should be independent. On 22 December the TUEPB suggested to the Minister that the colleagues who have been discharged and have won their cases before courts of first or of first and second instances should be reinstated, financially compensated and the judgements on their cases should not be appealed. In return Mr. Tonchev and Mr. Manov offered to take back their letter of complaint in order not to discredit the Government. Apparently the proposal was not approved because all the judgements have been appealed. The TUEPB also suggested that an independent inquiry be carried out under the auspices of the Ministry of Labour and Social Policy about the locomotive engine drivers' letters of complaint concerning the pressure exerted on them. They have not had any information about such an inquiry since the meeting.
7. 309. The TUEPB also does not agree with the Government's statement that the discharged colleagues who would be reinstated by means of court judgement would be fully compensated. Bulgarian law states that compensation for unlawful discharge should be paid for up to six months. However, their colleagues have been unemployed for almost one year and a half.
8. 310. The Operative Committee (OC) of the BSR has brought to the attention of the depot chiefs that "before handing in of discharge orders to trade unions leaders, agreement should be given by trade union executive bodies according to article 333 al. 3 of the Labour Code". Moreover, in its comments the Government also states that this agreement should be given before imposing disciplinary punishments according to article 9, paragraph 2, of Decree No. 9. While the source of discrimination is unknown, this procedure has not been observed. The TUEPB did not agree that their activists be dismissed, yet they were. The Director-General of BSR in a letter of 26 August 1998 ordered the chief of Plovdiv Locomotive Depot to reinstate Mr. Gueorgui Manolov, yet up to the present moment, he has not been reinstated.
9. 311. As concerns the discharge of the executives of the TUEPB in United Locomotive Depot - Sofia, two days after their discharge, the chief of the United Depot considered his actions unjustified and cancelled the discharge. After that he was discharged himself. The new chief, Mr. Bonev, discharged the same executives with a similar order. The legal adviser of United Locomotive Depot refused to sign the order and it was signed by the chief legal adviser of the BSR.

C. The Government's reply

1. 312. In a communication dated 4 November 1999, the Bulgarian Government furnished the following additional information. At present a major amendment of the Bulgarian labour legislation, including the Act on Settlement of Collective Labour Disputes which regulates the right to strike, is in process. One of the important issues which is subject to discussion is the amendment, in accordance with the Committee's recommendations of section 11, paragraph 2, of the Act on Settlement of Collective Labour Disputes, which regulates the quorum for taking decisions with regard to strikes. The amendment of legislation also aims at giving a new regulation of the mediation and conciliatory procedures and at amending the provisions concerning strikes and voluntary arbitration.
2. 313. In view of the established practice for tripartite cooperation in Bulgaria, these amendments will be subject to detailed discussion with the representative workers' and employers' organizations before their submission to the National Assembly of Bulgaria for adoption.
3. 314. The Government of Bulgaria has already stated in its communication to the Committee its position regarding the dismissal of railway workers after the strike of the Union of Railway Personnel. This dismissal is a result of flagrant violations of labour discipline committed by people who do work involving high danger for the health and life of other people. This requires the absolutely strict obedience of all internal rules, provided for the work in the system of the Bulgarian States Railways (BSR). The violation of the Regulation on the Movement of Trains and the Instruction on Signalling during Strike is exclusively flagrant considering that their infringement could cause heavy road accidents and therefore result in the injury and death of people. In accordance with the requirements and the criteria set forth in the Disciplinary Statute of the Guiding and Executive Railway Personnel, the managing body of the BSR imposed on the workers the heaviest disciplinary punishment, namely dismissal. Up to the present moment 26 workers have been dismissed due to their grave violations of Decree No. 9 and the Disciplinary Statute. Decree No. 9 and the Disciplinary Statute of the Guiding and Executive Railway Personnel were attached to the Government's reply.
4. 315. As concerns the reinstatement of the dismissed workers, the Labour Code does not allow the employer (even if he/she wants) to cancel the orders for dismissal issued by him or her if the workers have appealed the dismissal in court. According to section 344, paragraph 2, the cancellation of the orders can be done up until the bringing of the case to court. As the dismissed workers and employees have brought such cases to court, the court is the only body which can issue a resolution regarding the legality of the dismissal. Therefore comments about the conformity with the law of the dismissals can be made only after the entering into force of the court rulings.
5. 316. Regarding freedom of association and the guarantees provided for in Bulgaria's Constitution and in labour legislation, these issues were treated in detail in the previous observations of the Government. A thorough check of the actions of the BSR with regard to the alleged harassing and threatening of union members aimed at forcing them to quit the union proved that these allegations are ungrounded.
6. 317. First, the president of the TUEPB, Mr. Jordan Manov, was chosen to participate in the work of the permanent working group for the preparation of all documents for the agenda of the Central Council for Social Cooperation as a representative of the transport trade unions in Bulgaria. Anti-union activity was obviously considered by this group and subsequently by the respective councils on social cooperation, the majority of which members are representatives of trade unions in the system of the BSR.
7. 318. Second, two experts of the TUEPB, Mr. Dimitar Ivanov and Mr. Ivan Tonev, took part in the activity of the working group on the negotiations for the conclusion of a collective labour agreement in 1999. The participation of the aforementioned persons in the working group is on the grounds of Ordinance No. 159 of February 1999. The working group comprised representatives of the employer, the trade unions of the Confederation of Labour "Podkrepa" and the two trade unions of the Confederation of the Independent Trade Unions in Bulgaria, namely the Union of the Railway Workers in Bulgaria and the TUEPB.
8. 319. Furthermore, the TUEPB in the respective depots enjoys the rights provided for in section 46 of the Labour Code as all other trade unions. In accordance with section 46, the TUEPB was granted the right to use property in the depots/sections of the BSR. This property is enough for accomplishing their trade union functions.
9. 320. The abovementioned actions of the BSR do not correspond to the allegations of the TUEPB for harassment and threatening of members of the union aimed at forcing them to quit the union thus causing its eventual elimination. Strengthening the prestige of the union would cause a diametrically opposite result.

D. The Committee's conclusions

1. 321. The Committee notes that the pending allegations in this case concern the dismissals of 18 workers (according to the Government, 26 workers have been dismissed), mainly engine drivers, following warning strikes undertaken in support of a wage increase, as well as the harassment of and threats against members of the Trade Union of the Engine Personnel of Bulgaria (TUEPB) who did not withdraw from the union.
2. 322. In its previous examination of this case, the Committee noted the Government's statement that it had contributed to the reinstatement of some of the temporarily dismissed workers and had a significant number of the disciplinary dismissals cancelled. At that time, the Government had also indicated that some workers had committed major violations of labour discipline including stopping the trains at way stations and endangering railway traffic as a whole, or assaulting non-strikers, and that these workers consequently had been dismissed. In its latest communication, the Government refers only to flagrant violations of labour discipline committed by people whose work involved danger to the life and health of other people. The Government adds that the violation of the Regulation on the Movement of Trains and the Instruction on Signalling during Strike was particularly flagrant considering that their infringement could cause heavy road accidents and result in injury and death. The dismissals due to grave violations of Decree No. 9 were thus carried out in conformity with the Disciplinary Statute of the Guiding and Executive Railway Personnel.
3. 323. The Committee notes from the information provided by the complainant that only two workers have been reinstated and two more people have been dismissed (the Chief of Stara Zagora Locomotive Depot and the Legal Adviser of Plovdiv Railway Junction). The rest of the dismissed workers, according to the complainant, continue their legal proceedings; 12 workers have won their cases before the regional courts but these judgements have been appealed. The TUEPB indicated that they had proposed to the Minister to withdraw their letter of complaint if all those workers who had won their cases for reinstatement would be reinstated immediately, without appealing these judgements. Apparently, this proposal was not followed up on. According to the TUEPB, the chief of the United Locomotive Depot in Sofia who had cancelled his discharge order of two TUEPB executives two days after their dismissal also found himself dismissed. The new chief called for the dismissal of the same executives whose dismissal order had been revoked. Finally, the complainant states that the Director-General of BSR ordered the reinstatement of the Chief of Plovdiv Locomotive Depot, but he has not yet been reinstated.
4. 324. The Committee regrets that the situation in respect of those workers dismissed in connection with the warning strikes undertaken by engine personnel at the Bulgarian State Railway (BSR) has not improved. While noting the Government's statement that the life and health of the population were endangered by these strikes, no objective information was provided in this regard. In its reply, the Government has only referred to violations of Decree No. 9 and the Disciplinary Statute of the Guiding and Executive Railway Personnel, both of which merely set out quite generally issues of labour discipline and penalties for the disobedience of orders emanating from superiors. On the other hand, the Committee notes that the regional courts have issued judgements for the reinstatement of 12 workers and the one court judgement provided by the complainant (Kyustendil District Court, 25 May 1999) found that the activities carried out on 12 March 1998 were in accordance with the relevant provisions of the Law on the Settlement of Collective Labour Disputes. In this respect, the Committee must recall that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests. To determine situations in which a strike could be prohibited, the criteria which has to be established is the existence of a clear and imminent threat to the life, personal safety or health of the whole or part of the population (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 475 and 540).
5. 325. The Committee further notes that it has been almost two years since these workers were dismissed and yet only two reinstatements have taken place (one now retired, the other out of action) whereas all other court judgements for reinstatement have been appealed. The Committee would recall in this respect that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of trade union rights of the persons concerned (see Digest, para. 749). In light of the above, and bearing in mind the strict criteria to be used for determining whether there was indeed a clear and imminent threat to the life, safety or health of the population, the Committee urges the Government to take the necessary steps to ensure that all those workers dismissed from the BSR for the exercise of legitimate trade union activity be reinstated without further delay in their jobs with full compensation. The Committee requests the Government to keep it informed in this regard.
6. 326. As concerns the alleged harassment of and threats against TUEPB members by BSR so that they might withdraw from the union, the Committee notes from the Government's reply that Mr. Manov, President of the TUEPB, and Mr. Ivanov and Mr. Tonev, TUEPB experts, have been appointed respectively to various working groups charged with preparing documents for the Central Council for Social Cooperation and with negotiating the conclusion of the 1999 collective agreement. Furthermore, the TUEPB was granted the right to use property in the depots/sections of the BSR. Consequently, the Government considers that such actions demonstrate that the BSR, rather than harassing TUEPB members, has been promoting the union.
7. 327. On the other hand, the Committee notes that the TUEPB has requested an independent inquiry into the complaints of harassment made by the engine personnel. The Committee would recall that where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention (see Digest, para. 754). Given that the complainant and the Government appear to have two diametrically opposed visions of the atmosphere at BSR in respect of TUEPB members, the Committee requests the Government to take the necessary measures for an independent inquiry to be undertaken into the alleged harassment of TUEPB members and to remedy any effects of anti-union discrimination brought to its attention. It requests the Government to keep it informed in this regard.
8. 328. Finally, as concerns its previous recommendations in respect of the legislative provisions concerning strike action, in particular the Act on the settlement of Collective Labour Disputes, the Committee notes with interest the Government's indication that amendments along the lines of the Committee's recommendations are in the process and that they will be discussed with the representative workers' and employers' organizations before being submitted to the National Assembly. The Committee requests the Government to keep it informed of the progress made in this regard.

The Committee's recommendations

1. 329. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Bearing in mind the strict criteria to be used for determining whether there was indeed a clear and imminent threat to the life, safety or health of the population in respect of the warning strikes carried out by BSR engine personnel, the Committee urges the Government to take the necessary steps to ensure that all those workers dismissed from BSR for the exercise of legitimate trade union activity be reinstated without further delay in their jobs with full compensation. The Committee requests the Government to keep it informed in this regard.
   • (b) The Committee requests the Government to take the necessary measures for an independent inquiry to be undertaken into the alleged harassment of TUEPB members by BSR and to remedy any effects of anti-union discrimination brought to their attention. It requests the Government to keep it informed in this regard.
   • (c) The Committee requests the Government to keep it informed of the progress made in amending the Act on the Settlement of Collective Labour Disputes in line with its previous recommendations.