Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Romania (Ratification: 1958)

A Government representative assured the Committee of her Government’s commitment to improving the labour legislation and complying with international labour standards. She provided information on each of the points raised by the Committee of Experts. With regard to protection against acts of anti-union discrimination and the allegations of the International Trade Union Confederation (ITUC), the Government would organize a tripartite meeting with the social partners on the subject following the present session of the Conference. However, it should be noted that the national legislation was more favourable than the Convention, as it provided that negotiations were compulsory in enterprises with at least 21 employees and that, subject to agreement between the parties, negotiations could be held also in enterprises with less than 21 employees. Moreover, the legislation did not provide for the dismissal of trade union leaders in the case of an unlawful strike. With reference to the allegations made by the Block of National Trade Unions (BNS), the registration of collective labour agreements concluded at the enterprise level was the responsibility of the local administration. However, the lack of training of the personnel responsible for social dialogue in relation to the techniques for the resolution of disputes concerning representative status for collective bargaining and the absence of an up-to-date database of representative trade unions at the enterprise level gave rise to problems. To limit their impact, amendments were made to the Act on labour inspection, so that the registration of collective agreements concluded at the enterprise level now was carried out by the regional labour inspection services. With reference to the sanctions imposed in the case of restrictions on trade union activities, the Government would provide information in its next report, taking into account the fact that they were within the competence of the labour inspectorate and the Ministry of Justice. The Government representative referred to two types of labour disputes: conflicts of interest, relating to collective bargaining and which were subject to conciliation, and disputes as to rights, which were resolved by the courts. In 2010, a total of 73 conflicts of interest had been registered, of which 71 had been submitted to conciliation, related to the refusal to commence the compulsory annual bargaining round, to sign the negotiated contract or differences that had not been resolved in the context of the negotiations. During the first quarter of 2011, some 24 labour disputes had been registered for the same reasons. With regard to the sanctions envisaged in the case of acts of interference and anti-union discrimination, she indicated that they had been set following consultations with the social partners, in accordance with the legal regime governing penalties and the Code of Criminal Procedure. Their amount had been increased tenfold by the Social Dialogue Act. With respect to collective bargaining in the public budget sector, she considered that the exclusion of the determination of wages from bargaining was not in violation of the provisions of the Convention and the Collective Bargaining Convention, 1981 (No. 154). With reference to Case No. 2611, following the notification by the Ministry of Labour to the Court of Accounts recalling the obligation to negotiate a collective labour agreement, negotiations had commenced in February 2011 between that institution and the Legis union, and several working meetings had been held. Law No. 284/2010 on Unitary Salaries of Staff Paid from Public Funds, provided that the wage entitlements of such personnel, consisting of public officials and contractual employees, were not subject to collective bargaining, but were determined by law. She considered that this practice was not contrary to Article 6 of the Convention and made it possible to ensure equity and non-discrimination between contractual employees and public officials. Moreover, the system had been introduced at the request of representative unions at the national level with a view to eliminating inequalities and promoting employment in the private system. Finally, with reference to the modifications to the labour legislation, following long consultations with the social partners, the new Labour Code and the Social Dialogue Act had entered into force. The objective of the Labour Code was to introduce greater flexibility into industrial relations, in accordance with Romania’s European commitments. The Social Dialogue Act made collective bargaining more flexible, by reinforcing the role of the unions and of bargaining at the enterprise level, and was considered as the vector of wage and employment policy. The Act on the Status of Public Officials would also be revised to take into account the new Social Dialogue Act.

The Worker members recalled that the Government had agreed with the social partners to proceed to improve the labour legislation, including in relation to social dialogue. Even though the Committee of Experts, at its last session, had not received any information on the changes made to a number of laws, major reforms had taken place in January 2011. The main trade unions in Romania had requested a technical opinion from the ILO on the draft Labour Code and the Social Dialogue Act. That opinion, even though it had been issued outside the working framework of the supervisory bodies, constituted an excellent basis for work inasmuch as it identified a number of provisions which posed problems of conformity with the Convention. The reform of the Labour Code and of the Social Dialogue Act, which formed part of the reforms driven by the European Union and the IMF, had not been discussed with the social partners or been the subject of democratic debate and had been implemented without taking account of the ILO’s technical opinion. The reform not only constituted an attack on social dialogue, since the social partners had not been consulted on a subject which came well within their competence, but also dealt a damaging blow to collective bargaining. The purpose of the reform was to obtain a more flexible labour market, to be in step with European directives and attract foreign investors. That affected dismissals, employment contracts, working time, collective labour relations and the regulation of collective bargaining through new rules on representativeness. Thus, for example, collective bargaining would no longer be erga omnes but would be subject to criteria linked to the number of workers represented by the signatory organizations, and the negotiation of wages in the public sector would be according to parameters which were not open to negotiation. The Worker members emphasized that the pressure from financial institutions obliged States to engage in labour law reforms without proceeding with serious reforms of a macroeconomic nature. Social protection in the broad sense seemed to have become the only variable that could be used to save the economy and finances of States. The workers were not responsible for the crisis but it was they who had been paying the price for it over the last three years. Governments had to make choices that maintained the balance between a healthy economy and protection of the population (which included the quality of work and social protection) in order to preserve social cohesion. The Worker members recalled the working paper presented at the symposium celebrating the 60th anniversary of the Convention, which emphasized, in connection with the impact of stabilization and structural adjustment policies on wage fixing and conditions of work, that such restrictions should be applied as an exceptional measure, be limited to what was necessary, not exceed a reasonable period of time, and be accompanied by appropriate guarantees to provide effective protection of the standard of living of the workers concerned, especially those who were likely to be affected the most. Any reform of the legislation on conditions of work and collective bargaining that failed to respect those criteria and was conducted outside the process of democratic consultation of the social partners and Parliament, should immediately be declared unconstitutional. Consequently, the reform of the legislation conducted in Romania should be reviewed with the competent departments of the ILO regarding its conformity with the Convention, and the social partners and the ILO should assess whether the abovementioned criteria had been taken into account.

The Employer members recalled that this was the first time that the case had been examined by the Committee, although the individual case concerning the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), had been examined in 2007 and the Committee of Experts had made observations to the Government on Convention No. 98 in 1996, 1998, 2000, 2006, 2007 and 2009, as well as direct requests, the last of which had been in 2004. With regard to anti-union discrimination, they agreed with the Committee of Experts request for the Government to initiate discussions with the most representative social partners and to keep it informed of any developments in that respect. They added that it was appropriate to request the Government to provide its observations on a series of allegations made by the ITUC and the BNS. The request for statistical information was also appropriate. With regard to protection against acts of interference, they said that the conclusion of the Committee of Experts was premature in requesting an increase in the amount of sanctions, when information had not yet been received from the Government on the alleged anti-union discrimination. They emphasized that, before seeking to resolve the issue, it was necessary to wait for the information that the Government was to provide to the Committee of Experts. With reference to collective bargaining by public servants not engaged in the administration of the State, they recalled that the observation of the Committee of Experts referred to the analysis made by the Committee on Freedom of Association in Cases Nos 2611 and 2632. They added that the Government had indicated in its report that Law No. 330 on Unitary Salaries of Staff Paid from Public Funds had been adopted in 2009 and that it referred to all workers in the public sector, including public employees engaged in the administration of the State. They recalled that Article 6 of the Convention did not cover the situation of such employees, and that it was therefore a matter to be addressed within the context of Convention No. 154, which had also been ratified by Romania. They reaffirmed that workers in the service of the State should enjoy their right to collective bargaining subject to the limitations of each country and in accordance with the national situation. In conclusion, they indicated that the Committee of Experts had adopted the correct approach to the issue of the amendment of the national legislation. They specified that there should be tripartite revision of the system of compulsory bargaining in enterprises that had more than 21 workers.

The Worker member of Romania said that the Government had embarked on labour legislation reform taking account only of conditions imposed by the international financial institutions to tackle the crisis and ignoring the observations made by the social partners. Amendments to the Labour Code and the Social Dialogue Act had been adopted by Parliament under the direct responsibility of the Government, thereby preventing any democratic debate, which constituted an attack on social dialogue and the social partners. Furthermore, technical advice from the Office concerning the texts had not been taken into account. The speaker mentioned several provisions of the new Social Dialogue Act which ran contrary to the Convention, inter alia, by providing for the disappearance of collective contracts at sectoral and even national level; imposing levels of negotiation; establishing arbitrary criteria for representativeness, such as having to have local units in half the country’s departments or, in a particular enterprise, having to have a number of trade union members equivalent to at least a simple majority of the number of employees at that enterprise; and making the Government the competent authority to determine the sectors in which collective negotiations would take place, which reduced the social partners to a mere advisory role. In that regard, the Office had expressed the technical opinion that the criteria of representativeness would be difficult to meet and that, in the future, collective bargaining would mainly take place with workers’ representatives, thereby undermining trade unions that already existed at enterprises. Consequently, the Government should put an end to the serious violations of international labour Conventions that it had ratified, by ensuring that its legislation was in conformity with them. To that end, a direct contacts mission would be necessary.

The Employer member of Romania stated that as an employer representative who had participated in the process of revision of the Labour Code and of the Social Dialogue Act, he could attest that the Government might well have committed certain formal or procedural errors but had not in any case violated the Convention or other ratified Conventions. By the end of 2010, five trade union confederations and 13 employers’ confederations represented more than 60 per cent of the active population and over 90 per cent of enterprises. In view of such situation, the Government decided to revise the legislation to better reflect reality. In the course of five months of consultations, the social partners formulated proposals and the Government decided the final form of the legislation that set out concrete criteria for the determination of the representativeness of employers’ and workers’ organizations. Romanian employers were satisfied with the final legal text, all the more so as the negotiations were carried out in an appropriate legal framework. The speaker concluded by emphasizing that the employers did not share the trade unions’ views about the alleged violation of the Convention, and he called for moderate and balanced conclusions in this case.

The Worker member of France expressed his astonishment at the statements made by the Employer member of Romania and the Government representative, which gave the impression that all ILO standards were observed, while in reality the legislation adopted contained anti-union provisions. He emphasized that the bailing out of the international financial system had had repercussions on the finances of countries and that the resources allocated to education and social protection had been reduced. The case of Romania was of concern to the trade union movement, as it symbolized the trend that existed in Europe, which was harming the economic, political and social rights of workers and their representative organizations. The national debt could not in any case justify the imposition of the Labour Code by virtue of an exceptional procedure, without consulting workers’ organizations or any plenary discussion in Parliament. That was a serious violation of the spirit and letter of the Convention, which undermined the principles of collective bargaining, as well as other principles contained in other Conventions, with the aim of weakening workers. Such violations were tending to spread to other countries and the ILO needed to be attentive. It was therefore appropriate to invite the Government to accept a direct contacts mission with a view to bringing its legislation into conformity with the relevant international labour standards.

The Worker member of Hungary referred to the changes recently introduced with respect to the representativeness criteria required for engaging in enterprise-level collective bargaining and stated that the new criteria were not in conformity with Article 4 of the Convention. Raising the threshold for collective bargaining would result in many trade unions being unable to engage in collective bargaining which would be carried out only by elected workers’ representatives for whom no representativeness criteria had been set. The Convention contained two essential aspects: action by public authorities to promote and develop collective bargaining; and free and voluntary negotiations which implied autonomy of the social partners. The new Romanian legislation on representativeness could not be seen as either promoting collective bargaining or respecting voluntary bargaining of autonomous partners. It was emphasized that collective bargaining was not a gift of public authorities to workers’ organizations, but rather a result of more than a one hundred years’ fight of the trade union movement. Recalling that collective bargaining was today universally recognized as a fundamental workers’ right, she stated that the new Romanian legislation was seriously weakening rather than promoting collective bargaining. She therefore urged the Government to take all appropriate measures, after meaningful consultations with the social partners and with the technical assistance of the ILO, in order to bring its legislation in line with the Convention.

The Government representative recalled that her Government was committed to improving the situation and had always been attentive to allegations and comments. The Government would keep this Committee informed of any legislative developments and would reply in detail to the points raised during the discussion. The crisis her country had gone through called for urgent legislative and administrative measures. The new legislation, which was adopted in the framework of a continuous and transparent tripartite social dialogue, offered certain flexibility and facilitated the adaptation of industrial relations to new socio-economic realities resulting from the crisis. By way of example, within one month from the adoption of the new Labour Code, 330,000 contracts of employment had been recorded as a result of labour inspection controls undertaken in the context of the fight against irregular employment. Those workers could, hereafter, enjoy the benefits of social protection. The speaker concluded by expressing the hope that the Government would continue to take advantage of the technical assistance of the Office and that it would pursue fruitful cooperation.

The Employer members said that they considered it appropriate to promote tripartite discussion with the main employers’ and workers’ organizations on controversial topics. It would be sensible to await the supplementary replies that the Government would send in its next report, so that the Committee of Experts could examine certain issues in more detail. They reminded the Government that it could request technical assistance from the ILO as regards amending national legislation on dispute settlement, collective agreements, trade unions, the status of public servants and other matters.

The Worker members reiterated that it was important that the Government accepted the idea of an urgent abrogation of the Labour Code and of the Social Dialogue Act, which had been adopted hastily, without consulting the social partners, and which were contrary to workers’ rights and collective bargaining. In the reform process, the tripartite partners should avail themselves of the technical opinion prepared by the ILO. This process should give rise to a new debate which should not only evaluate conformity with the Convention but should also analyse whether the restrictions introduced by the laws regarding contract of employment and collective bargaining were exceptional in nature; were limited to the extent that it was necessary; did not exceed a reasonable period; and were accompanied by adequate safeguards to protect workers’ living standards. The Government had to accept the technical assistance of the ILO in the form of a high-level mission which could address all these issues with the effective participation of the social partners. In addition, the Government should provide, for the next session of the Committee of Experts, detailed information on any progress made.

The Worker member of France stated that the new Labour Code had not been the subject of consultations but had been imposed. The consultations to which the conclusions referred concerned texts of laws that had been adopted previously. Moreover, the possibility of bargaining collectively at the branch level had been suppressed, with bargaining now being limited to the enterprise level. The conclusions suggested progress that did not exist in reality.

The Chairperson indicated that he did not agree with the views of the Worker member of France. The conclusions reflected the discussion that had taken place in the Committee, the statements of the parties, as well as the requests made by the Committee.

The Worker member of France replied that, while the conclusions indeed included these three elements, they did not reflect the positions that he and the Worker member of Romania had expressed during the discussion.

The Government representative of Romania wished to specify that the social partners had participated in the development of the Labour Code. With regard to collective bargaining at the branch level, he emphasized that while the new legislation referred to collective bargaining at the sectoral level, this corresponded to the previous bargaining at the branch level.

Conclusions

The Committee took note of the statement made by the Government representative, and the discussion that followed.

The Committee noted the conclusions and recommendations of the Committee on Freedom of Association and the comments made by the Committee of Experts concerning legislative restrictions on the scope of collective bargaining for public servants, including those who are not engaged in the administration of the State (such as teachers). In particular, it noted the exclusion from the scope of collective bargaining for these workers of subjects such as base salaries, pay increases, allowances and other staff entitlements which were fixed by law. In addition, Act No. 330/2009 on Unitary Salaries of Staff Paid from Public Funds stipulated that salaries were fixed exclusively by law and could not be negotiated. Finally, the Committee of Experts had been referring to the insufficiency of the fines imposed for acts of interference.

The Committee noted that the Government representative indicated that the limitation of the scope of collective bargaining in the public service and, in particular, the exclusion from it of the salary entitlements of public servants through Act No. 330/2009 on Unitary Salaries of Staff Paid from Public Funds, had been undertaken by the Government at the initiative of the national representative trade unions. Moreover, following a long series of consultations with the social partners, the new Labour Code just came into force with the aim of bringing flexibility to labour relations in conformity with the country’s European commitment and in response to the important economic constraints on the country. As regards the allegations of anti union discrimination made by the ITUC, she stated that the Government was going to organize a tripartite meeting after the International Labour Conference to discuss this matter. She stated that some problems being experienced by the Government were due to the lack of training of staff in social dialogue and the absence of an updated database of representative unions at each enterprise. As regards the insufficiency of relevant sanctions, she stated that the Law on Social Dialogue had increased the amount tenfold.

The Committee took note of the allegations of serious restrictions to the effective exercise of the right to collective bargaining within the context of a financial and economic crisis. It recalled the importance of the principle that restrictions on collective bargaining as part of a stabilization policy should be imposed only as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and they should be accompanied by adequate safeguards to protect workers’ living standards. It expressed the firm hope that the Government would review the legislative measures recently taken, as well as those envisaged, with the technical assistance of the ILO and in full consultation with the social partners, with the aim of ensuring full respect for the abovementioned principle and to ensure that matters normally pertaining to conditions of work and employment were included in the scope of collective bargaining for those public service workers covered by the Convention.

The Committee requested the Government to submit all the pending matters for intensive tripartite dialogue and to provide a detailed report to the Committee of Experts for its session in 2011, on the steps taken, as well as a copy of the relevant legislative texts so that it would be in a position to assess their conformity with the Convention. It further requested the Government to provide detailed information and statistics relating to the impact of the recent legislative changes on the application of the Convention. The Committee was awaiting the next report of the Committee of Experts so that it would be able to note substantial progress in the application of the Convention in the near future. The Committee welcomed the Government’s commitment to continue to avail itself of ILO technical assistance.

The Worker member of France stated that the new Labour Code had not been the subject of consultations but had been imposed. The consultations to which the conclusions referred concerned texts of laws that had been adopted previously. Moreover, the possibility of bargaining collectively at the branch level had been suppressed, with bargaining now being limited to the enterprise level. The conclusions suggested progress that did not exist in reality.

The Chairperson indicated that he did not agree with the views of the Worker member of France. The conclusions reflected the discussion that had taken place in the Committee, the statements of the parties, as well as the requests made by the Committee.

The Worker member of France replied that, while the conclusions indeed included these three elements, they did not reflect the positions that he and the Worker member of Romania had expressed during the discussion.

The Government representative of Romania wished to specify that the social partners had participated in the development of the Labour Code. With regard to collective bargaining at the branch level, he emphasized that while the new legislation referred to collective bargaining at the sectoral level, this corresponded to the previous bargaining at the branch level.