Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee notes the observations of the European Transport Workers’ Federation and the International Transport Workers’ Federation received on 29 July 2021 alleging violations of a collective labour agreement. The Committee requests the Government to provide its comments thereon.

The Committee also notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2021 concerning matters examined by the Committee in the present comment. It further notes the observations of the International Organisation of Employers (IOE) received on 8 September 2021 concerning the discussions that took place at the Conference Committee on the Application of Standards with respect to the application of the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 109th Session, June 2021)

The Committee notes the discussion which took place in June 2021 in the Conference Committee on the Application of Standards (the Conference Committee) concerning the application of the Convention by Romania. The Committee observes that the Conference Committee, after noting that there were significant compliance issues regarding the Convention in law and practice with respect to the protection against anti-union discrimination and the promotion of collective bargaining, requested the Government to: (i) ensure adequate protection against acts of anti-union discrimination in law and practice in compliance with the Convention; (ii) collect detailed information on the number of cases of anti-union discrimination and employer interference brought to the various competent authorities; the average duration of the relevant proceedings and their outcome; how the burden of proof is applied in such cases affecting trade union officers as well as the sanctions and remedies applied in such cases; (iii) ensure, in law and practice, that collective bargaining with the representatives of non-unionized workers only takes place where there are no trade unions in place at the respective level; and (iv) amend the law so as to enable collective bargaining for public servants not engaged in the administration of the State in line with the Convention. The Conference Committee also requested the Government to: (i) provide information on all of the above points to the Committee of Experts before its next session in 2021; and (ii) accept an ILO technical advisory mission before the next International Labour Conference.

The Committee observes that in its report the Government essentially reiterates the information already provided to the Conference Committee.

Articles 1, 2 and 3 of the Convention. Effective protection against acts of anti-union discrimination and interference. In its previous comments, the Committee requested the Government to: (i) take measures to amend the legislation in order to guarantee that acts of anti-union discrimination are subject to specific and dissuasive sanctions; (ii) indicate how the burden of proof is placed in cases of allegations of anti-union discrimination affecting trade union officers; (iii) provide detailed statistical information on the number of cases of anti-union discrimination and employer interference brought to the various competent authorities, the average duration of the relevant proceedings and their outcome, as well as the sanctions and remedies applied in such cases; and (iv) ensure that anti-union practices, and in particular preventive measures, would be subject to tripartite discussions. The Committee notes that the Government indicates that, following consultations with the social partners, the Labour Code was amended in 2020 by Law 151/2020 to ensure a proper recognition of harassment, intimidation and victimization of employees and their representatives, including in the exercise of legitimate trade union rights and activities, with dissuasive sanctions applied effectively. It indicates that: (i) section 5, paragraph 2 of the Labour Code, as amended, explicitly prohibits direct or indirect discrimination based on membership or trade union activity; (ii) section 59(a) of the Labour Code was amended to explicitly prohibit dismissal based on trade union affiliation or activity; and (iii) section 260(1)(r) of the Labour Code, as amended, provides that non-compliance with the provisions of section 5, paragraphs (2)–(9), and of section 59(a) is sanctioned with fines between 1000 LEI and 20,000 LEI (equivalent to US$229 and 4,575 respectively). Regarding the burden of proof in cases of union discrimination against union leaders, the Government indicates that, as provided for in section 272 of the Labour Code, the burden of proof with regard to labour disputes rests with the employer. The Committee notes that in the ITUC’s view, section 260 of the Labour Code does not permit verification of the extent to which the legislation is effective and sufficiently dissuasive. The Committee also takes note of the Government’s indication that no fines were applied for violations of the law related to union membership or activity between January 2020 and April 2021. The Committee finally notes that, at the discussion held at the Conference Committee, the Government indicated that the Ministry of Justice manages the courts databases and that data is collected with a particular nomenclature that did not allow the Government to identify the type of statistical information requested by the Committee.

The Committee takes note of the information provided by the Government. As regards sanctions, the Committee recalls the importance of legislation prohibiting acts of anti-union discrimination to be accompanied by dissuasive sanctions and rapid and effective procedures. In this respect, the Committee considers that the amount of the fines established in the Labour Code might not be sufficiently dissuasive, particularly for large enterprises. The Committee also recalls that, with respect to anti-union dismissals the reinstatement with retroactive compensation constitutes, in the absence of preventive measures, the most effective remedy. The Committee finally recalls the importance of statistical information for the Government to fulfil its obligation to prevent, monitor and sanction acts of anti-union discrimination. Based on the above, the Committee requests the Government to: (i) take measures, after consultation with the representative social partners, to strengthen the existing sanctions in cases of anti-union discrimination in order to ensure their effectiveness and dissuasiveness, particularly for large enterprises; (ii) indicate whether reinstatement is an available remedy in cases of dismissal based on trade union affiliation or activity; and (iii) gather and communicate information on the number of cases of anti-union discrimination and employer interference brought to the various competent authorities, the average duration of the relevant proceedings and their outcome, as well as the sanctions and remedies applied in such cases. As mentioned in its previous comments, the Committee further requests the Government to ensure that anti-union practices, and in particular preventive measures in this respect, will be subject to tripartite discussions.

Article 4. Promotion of collective bargaining. The Committee notes that Case No. 3323 concerning, inter alia, allegations of shortcomings and gaps in the national legislation with respect to collective bargaining was examined by the Committee on Freedom of Association (CFA) (see 393rd Report, March 2021). The Committee notes that the CFA referred to it the legislative aspects of the case, related to issues that have been the subject of comments by this Committee since the adoption of the Social Dialogue Act (SDA) in 2011.

Collective bargaining at the company level. In its previous comments, against the background of a sharp decline in collective bargaining coverage in the country following the adoption of the SDA, the Committee noted that a number of aspects of the SDA and its implementation raised issues of compatibility with the Convention. The Committee noted in particular the high representativeness threshold required to negotiate at company level (50 per cent plus one of the workers of the company) and the fact that the SDA allowed elected workers’ representatives to bargain collectively for the totality of workers of the company. In its last comment, while noting the Government’s indication that, following a 2016 amendment to section 134.2 of the law, negotiation with elected workers’ representatives was now only possible in the absence of a trade union, the Committee had noted with concern the statistical data provided by the ITUC according to which 86 per cent of all collective agreements signed were by elected workers’ representatives and only 14 per cent by trade unions. On that basis, the Committee had requested the Government to amend the threshold applicable to negotiations at the company level so as to effectively promote collective bargaining, to clarify whether the negotiating powers granted to the elected workers’ representatives existed only when there is no trade union and to provide its comments on the statistics provided by the ITUC.

As regards the representativeness thresholds established by the legislation with respect to collective bargaining at the company level, the Committee notes that, in its replies to the CFA, the Government clarified that voluntary bargaining is not conditioned by the representativity of the organizations since minority unions have the right to bargain collectively based on mutual recognition and can conclude collective agreements applicable to members of the signatory parties. The Committee notes the ITUC observations in this respect, according to which, while the Government states that nothing prevents trade unions from negotiating for their members at the company level, given their lack of representativeness, the agreements reached have no erga omnes effect. With regard to the impact of negotiations conducted by elected workers’ representatives on the right to collective bargaining recognized by the Convention to trade unions, the Committee notes that the Government refers to a draft revision of the SDA currently being adopted but does not comment on the ITUC’s observations that the vast majority of company collective agreements were still signed by elected workers’ representatives to the detriment of trade unions. The Committee notes in this respect that, in its 2021 observations, the ITUC adds that: (i) while the Government states that collective bargaining through elected representatives is only possible in companies that do not have a representative union, the fact that the required representativeness threshold is 50 per cent plus one means in practice that in the majority of companies it is the elected representatives who negotiate instead of the unions who do not reach that threshold; (ii) elected representatives have concluded over 92 per cent of collective agreements in the private sector; and (iii) the procedure for electing representatives does not allow trade unions to present lists when they are affiliated to a federation at the branch level.

The Committee recalls that, under the terms of the Convention, collective bargaining with non-union actors should only be possible when there are no trade unions at the respective level. The Committee also recalls that, by virtue of Article 4 of the Convention, the Government has the obligation to effectively promote free and voluntary collective bargaining in a manner appropriate to national conditions. Expressing its concern at the persistent indications of a very low level of bargaining coverage and noting the recommendations of the Committee on Freedom of Association in Case No. 3323, the Committee requests the Government to take the necessary measures to promote collective bargaining between workers’ and employers’ organizations and to ensure that the existence of elected workers’ representatives is not used to undermine the position of the workers’ organizations concerned. In this regard, the Committee specifically requests the Government to: (i) specify how the mutual recognition between an employer and a minority trade union mentioned by the Government takes place in practice; (ii) provide information on the number of collective agreements concluded at the enterprise level, indicating those concluded by minority trade unions on behalf of their own members; (iii) clarify whether, under section 134(2) of the SDA, the negotiating powers granted to the elected workers’ representatives exist only when there is no trade union at the respective level; and (iv) take the necessary measures to ensure that agreements concluded with elected representatives prior to the 2016 amendment to the SDA do not have the effect of continuing to undermine the position of trade unions.

Collective bargaining at the sectoral and national levels. The Committee recalls that in its previous comments, it had taken note of the information from both the Government and the trade unions concerning the drastic decrease in the number of sectoral collective agreements following the changes introduced by the SDA. The Committee had therefore requested the Government to take the necessary measures to amend the representativeness thresholds so as to effectively promote collective bargaining at all levels. The Committee notes the absence of specific information from the Government in this respect. Taking due note of the conclusions and recommendations of the CFA in Case No. 3323, the Committee recalls once again that collective bargaining should be possible at all levels and that the Government has an obligation to ensure effective promotion of collective bargaining in a manner appropriate to national conditions. The Committee therefore reiterates its request to the Government to revise, in consultation with the representative social partners, the relevant thresholds and conditions in order to ensure that collective bargaining is effectively possible at all levels, including the sectoral and national levels. The Committee further requests the Government to provide information on the evolution of the number of collective agreements signed at the different levels above the enterprise level, as well as on the overall coverage of collective bargaining in the country.

The Committee notes that the Government indicates that the Parliament is in the process of adopting a draft law revising the SDA with proposals and amendments made by trade unions and employers in relation to representativeness and collective bargaining and recalls in that regard that the ITUC had previously indicated that trade unions had not been consulted on the proposed amendments. The Committee requests the Government to ensure that the mentioned reform has been duly consulted with the representative social partners and that its content will take on board the present comments in order to give full effect to the Convention. The Committee further trusts that the ILO technical advisory mission requested by the Conference Committee will take place before the next International Labour Conference and that it will be able to take note of the progress achieved in this respect.