Interim Report - Report No 316, June 1999

Case No 1989 (Bulgaria) - Complaint date: 06-OCT-98 - Closed

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

1. 163. The Trade Union of the Engine Personnel of Bulgaria (TUEPB) and the Trade Union Section of the TUEPB at the Sofia United Engine Depot presented a complaint of violations of freedom of association against the Government of Bulgaria in an undated communication, received 6 October 1998. Further allegations and information were provided in a communication dated 9 February 1999. The Government forwarded its response to the allegations in a communication dated 1 March 1999.
2. 164. 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. The complainants' allegations

1. 165. In their communication received 6 October 1998, the Trade Union of Engine Personnel of Bulgaria (TUEPB) and the Trade Union Section of the TUEPB at the Sofia United Engine Depot allege that as a result of actions arising out of a warning strike of engine drivers, freedom of association standards and principles have been violated. In particular, it is alleged that the right to strike has been violated through the biased application of vague laws, the requirement of an agreement as to minimum services, and unreasonable prerequisites in order for a strike to be lawful. It is further alleged that engine drivers dismissed following the strike action were discriminated against on the basis of trade union activities. In their communication of 9 February 1999, the complainants allege further that members of the TUEPB have been under pressure to withdraw from the union.
2. 166. As background, the complainants state that they are members of the Union of the Transport Trade Unions of Bulgaria, which is a member of the Confederation of Independent Trade Unions of Bulgaria. TUEPB has 2,456 members and the Sofia United Engine Depot has 487. The members of TUEPB and the Sophia United Engine Depot are mainly engine drivers, but they also represent other personnel, such as aides to engine drivers and repair workers.
3. 167. The complainants state that TUEPB had strongly supported the present Government's coming into power in April 1997, and thus had made no demands and taken no action concerning the problems with the Bulgarian State Railway (BSR) for over six months thereafter. At the end of 1997, since there had been no improvement in the BSR, the members of TUEPB in various forums began to demand that action be taken to press for a salary increase. Several meetings were held between the leadership of TUEPB and BSR and on 21 November 1997 a protocol was signed agreeing that a project for increasing the engine drivers' salary would be discussed. Since no such project was realized and no discussions were undertaken for two months, on 22 January 1998 the Executive Committee of TUEPB presented a declaration in writing to the Director-General of BSR which included demands in the context of a labour dispute, as required by article 3(2) of the Act on Collective Labour Disputes, 1990. The principal demand was a salary increase of four times the average salary in the public sector. In accordance with article 3(3) of the Act, TUEPB also insisted that negotiations commence within seven days and put forward the names of five TUEPB representatives to take part in the negotiations.
4. 168. As a result of TUEPB's declaration, a meeting was held on 30 January 1998 with BSR. The TUEPB representatives reaffirmed the demands and stated their intention to commence dispute settlement procedures. BSR made two offers concerning the salary increase for TUEPB to discuss. The TUEPB representatives suggested that a protocol be signed by the two parties setting out the agreements, but BSR refused; therefore, the protocol of 30 January was signed only by TUEPB. TUEPB continued to seek the cooperation of BSR to settle the labour dispute, and another meeting was held on 10 February 1998. On 20 February 1998, the TUEPB representatives notified in writing the Minister of Transport of their demands and their intention to take strike action in the absence of an appropriate response, and requested a meeting to negotiate. A meeting was held with the Chairperson of the Board of BSR but no agreement was reached.
5. 169. According to the complainants, on 5 March 1998 a meeting of 150 engine drivers was held in Sofia, resulting in another declaration being made to the Minister asking that negotiations continue and warning that in the absence of a response they would take strike action. As no reply was received from the Ministry, and in keeping with its commitment to the interests of the members, TUEPB prepared to take strike action.
6. 170. The complainants point out that pursuant to the Act on Collective Labour Disputes, a strike must be authorized by a majority of the workers (whether trade union members or not) in a respective enterprise or unit (article 11(2)). The decision was taken in the Sofia United Engine Depot and in other engine depots to commence with "warning" strikes, which under the Act on Collective Labour Disputes do not require preliminary notice. The complainants state that the support of the workers for the warning strikes was overwhelming. They submit that there is no doubt that they could easily have taken a decision for a full strike, but that the decision for a warning strike demonstrated their good will and their willingness not to resort to extreme forms of protest.
7. 171. On 12 March 1998 the engine drivers on duty brought the trains to a halt for one hour wherever they were. The complainants submit that since most of the engine drivers wanted to take part in the warning strike and were working on shifts, the trains were stopped not only on 12 March but also during the seven days following, each day for one hour. The workers believed that they were involved in a legitimate warning strike, since the Act is vague on this point and does not expressly exclude a warning strike on different days, particularly where the employees are working in shifts. The complainants cite a decision of the Burgas Regional Court of 30 March 1998 interpreting such type of repeated action with different people working on shifts as a legitimate warning strike within the meaning of the Act on Collective Labour Disputes.
8. 172. The complainants assert that the action of the engine drivers was met with "aggressive propaganda" against the strikers from the Government and the BSR, in particular through the government-controlled media, which created a hostile climate. The warning strikes came to an end after an agreement was reached on 21 March 1998 which provided that the BSR would present new internal rules for remuneration to the satisfaction of TUEPB by 15 April 1998.
9. 173. The complainants go on to provide information concerning the court proceedings taken by BSR following the strike action. Claims that a strike is unlawful are heard by the regional courts, the decision of which is final. The complainants contend that there is, therefore, no appeal court to set standards for the unified application of the law at the national level, resulting in contradictory decisions, and making it impossible for workers to orient their actions clearly and rationally. It is further submitted that this thus opens the door for arbitrary action on the part of employers and public authorities.
10. 174. The complainants submit that the jurisprudence of the regional courts concerning the TUEPB warning strikes demonstrates the deficiencies of the framework established by the Act on Collective Labour Disputes. All the regional courts declared the strikes unlawful but the reasons differed and were often contradictory. The complainants submit that the decisions were adopted in an atmosphere of a hostile public campaign, and are biased in that they adopted an extremely formalistic approach and used the vagueness of the law to the detriment of the workers. The complainants divide the reasons for declaring the strike unlawful into five categories, and note that while some of these reasons were accepted by some of the courts, they were rejected by others:
    • (i) a warning strike can last for only one hour on one day and not on several consecutive days, thus all the prerequisites for a full strike should have been fulfilled;
    • (ii) the declaration of 22 January 1998 was not accepted as a valid presentation of the workers' demands;
    • (iii) the negotiations were unilaterally and unjustifiably terminated by TUEPB. These rulings, state the complainants, seem to impose on the workers a burden of negotiation that makes it virtually impossible to undertake strike action;
    • (iv) it was not proven that the strike had been authorized by a majority of the workers. The protocols of the meetings attesting that more than half of the workers in the depot voted in favour of the strike were not accepted as adequate proof (and the Act does not set out any particular procedure). In some cases, the courts relied on formalities to the detriment of the workers, for example the lack of all identity numbers in the petitions, in essence making a strike impossible;
    • (v) in one case the court ruled that there was not one but several consecutive warning strikes and that all the requirements of the Act, except the seven- day notice period, should have been met, including the requirement that an agreement on minimum services be concluded at least three days before the strike. The complainants submit that the imposition of this requirement is contrary to the principles of freedom of association since railways are not considered "essential services" by the ILO supervisory bodies.
11. 175. As the Act on Collective Labour Disputes allows for disciplinary action to be taken for the participation in an unlawful strike, the complainants state that BSR immediately took the opportunity to impose disciplinary sanctions as soon as the protest actions were declared unlawful. Eighteen people were dismissed, most of whom were trade union organizers. The complainants submit that this was in violation of the Labour Code, article 333(3) of which provides that an employer may dismiss a trade union leader only with the prior consent of the trade union body. TUEPB was specifically made a target of the disciplinary action, and it is contended further that trade union organizers were dismissed even when they were not among the workers who had been subject to court proceedings. An example is given of the dismissals at the Sofia United Engine Depot, where none of the four workers dismissed appeared on the list of strikers of the relevant court decision. On 21 May 1998, the Union of the Transport Trade Unions sent a letter to the BSR with a list of trade union organizers whose dissmissal it did not authorize. Despite this letter, most of the dismissals took place.
12. 176. The complainants assert that the dismissal of the engine drivers who took part in the strike and of those believed to have been organizers when they did not in fact take part in the strike, amounts to anti-union discrimination. TUEPB organizers and leaders were targeted, according to the complainants and, in any event, the sanctions imposed were disproportionate. The complainants call for the immediate reinstatement of the dismissed workers, with back pay and the costs of the legal procedures. They also call for a revision of the Act on Collective Labour Disputes with a view to defining clearly the exercise of the right to strike, including with respect to the negotiating procedure, the strike ballot and the concept of essential services.
13. 177. In their communication of 9 February 1999, the complainants state that in December 1998 and January 1999, a number of members of TUEPB, mainly from the Sophia United Engine Depot, faced extensive pressure from the leadership of the BSR to withdraw from the union. Members have been told the following:
    • (i) quit the union or they would "make their lives poor";
    • (ii) switch their membership to the Trade Union of Railway Workers;
    • (iii) members of TUEPB would be placed on a disadvantageous work schedule or "altogether shifted" (to drive non-passenger trains);
    • (iv) the union was going to be "destroyed" soon;
    • (v) those who remained members of TUEPB would be fired or otherwise affected by future personnel cuts.
14. 178. The complainants state further that on 1 February 1999, the President of TUEPB brought these facts to the attention of the Director-General of BSR and asked him to suspend two BSR instructors who were involved in the "talks" with the members. On 3 February 1999, the President of TUEPB filed a report summarizing the above-noted complaints. No response has yet been received from BSR. The complainants submit that the threats were motivated by the fact that the TUEPB filed this complaint with the ILO, in violation of trade union freedom to file a complaint.

B. The Government's reply

1. 179. In its communication of 1 March 1999, the Government states that even prior to the submission of the complaint to the Committee, the Government contributed to the reinstatement of the temporarily dismissed workers. At the same time, and again with the help of the Government, the disciplinary dismissals of a significant number of the workers were cancelled. Upon receiving the information concerning the complaint, the Minister of Labour and Social Policy organized a meeting of the parties to discuss the claims, and an agreement was reached on the need to amend the Act on Collective Labour Disputes concerning strikes at the branch and national levels. After the Government's observations on this case had been elaborated, a second meeting with the complainants was held where they were acquainted with these observations. Concerning the claim for reinstatement, the Government emphasizes that this is within the competence of the courts, the decisions of which are binding on both parties. The Government expresses the commitment to intervene "according to its competence" should the employers violate the court decisions favourable to the workers.
2. 180. The Government states that Bulgarian labour legislation proclaims and establishes the right to freedom of association. The right to trade union association is recognized by the Constitution as one of the basic citizens' rights. The Labour Code further develops this right, including providing for the right to establish trade unions freely, which can adopt their programmes and statutes freely, no prior authorization is required, state authorities and employers are obliged to create conditions for and cooperate with trade unions in carrying out their activities, the right to paid leave to carry out trade union activities, protection from dismissal of trade union leaders, and representation before the court. The Government submits that the rights of TUEPB have not been violated: TUEPB has been treated on equal terms with the other trade unions and benefits from the opportunities provided by law.
3. 181. With respect to the right to strike, the Government states that, with ILO assistance and as part of the democratic changes, the right to strike was recognized and regulated for the first time in 1990 with the adoption of the Act on Collective Labour Disputes. The right is also recognized in the country's Constitution of 1991. Due to the special features of the activities carried on by railway workers, it is regulated by special legislation -- Decree No. 9 concerning the work of the railway personnel and management, and a disciplinary statute. It is stated that the rules for labour discipline are essential due to the necessity of providing safe rail traffic.
4. 182. Concerning the differing decisions of the courts as to the strikes, the Government states that it is not free to make an assessment as to the conformity of the courts' decisions with the law. What is important is that each court has drawn independently the same conclusion about the illegality of the action, and it is not appropriate to draw conclusions about restrictions on the right to strike on the basis of dissatisfaction expressed by one of the parties to the court proceedings. The Government asserts that the complainants do not clarify what in their view is the cause of the restriction on the right to strike -- court decisions or law, court procedures, or the substance of the individual right.
5. 183. The Government states that the collective labour dispute concerned the increase of workers' salaries in the BSR. Workers and officials are represented in the dispute by trade unions in so far as other bodies and persons have not been authorized (Act on Collective Labour Disputes, article 1(2)). However, according to the Government, it is not clear what interests the TUEPB represents, since another trade union, namely the Trade Union of Railway Workers, concluded an agreement with the management of BSR for a 20 per cent wage increase of railway workers. Thus the dispute concerning the increase in remuneration in the railway system had already been settled through one of the voluntary means provided for in the Act on Collective Labour Disputes (article 3), without the necessity of taking strike action. As a result, the labour dispute concerning remuneration did not comply with the Act on Collective Labour Disputes. It is further submitted that TUEPB expressed the dissatisfaction of only one part of the workers in the BSR system, namely engine drivers, but even some engine drivers were members of the Trade Union of Railway Workers and the Confederation of Labour "Podkrepa". In order to claim an increase in remuneration for a given occupation in the BSR system, the complainants should have concluded a collective agreement by occupation under article 51(1) of the Labour Code rather than relying on the procedures under the Act on Collective Labour Disputes. The Government states that "the essence of the present complaint is that there is no collective labour dispute of BSR workers whose interests TUEPB pretends to represent".
6. 184. As to the issue of the right of workers and officials to take strike action at the sectoral, branch and national levels, the Government concedes that there is a gap in the legislation, since only the procedures for announcing and carrying out a strike at the enterprise level are regulated by the Act on Collective Labour Disputes. The Government states that for this reason, in the context of labour legislation reform, it will submit a proposal for the improvement of the Act on Collective Labour Disputes and in this respect it agrees with TUEPB's demands.
7. 185. The Government denies that there has been anti-union discrimination due to the sanctions imposed for unlawful strike action. It notes that the Act on Collective Labour Disputes allows disciplinary action to be taken for participation in an unlawful strike, but in order to impose a disciplinary sanction, the rights and procedures set out in the Labour Code (articles 186 to 198) must be fulfilled. Only if the gravity of the violation, the conditions under which it was done and the behaviour of the workers justify it, is the harshest disciplinary punishment chosen. Prior consent of the labour inspectorate for persons who are specifically protected under article 333 of the Labour Code shall be considered, and only then may the procedure to impose disciplinary penalties be continued under article 9(2) of Decree No. 9. The Government asserts that this was the manner in which the BSR management proceeded, led only by the responsibility of each railway worker and official for violations of labour discipline, in particular concerning the safety of railway transport. The Government points to protocol No. 8 of 2 May 1998 as evidence that disciplinary punishment was not imposed on the majority of the activists and, where it was, most were reinstated. However, those who committed major violations of labour discipline have been dismissed. The Government states in this regard that actions such as stopping the trains at way stations and endangering the railway traffic as a whole, or assaulting non-strikers cannot be tolerated. The criteria set out in article 45 of the Disciplinary Statutes were applied to each separate case prior to imposing disciplinary punishment: a determination is made of the gravity of the violation, the damage inflicted, the circumstances under which the disciplinary violation was carried out, and the behaviour of the worker or official. The legislation also provides that these workers may appeal against the termination of their employment. According to article 344 of the Labour Code, they have the right to demand recognition of the dismissal as unlawful and to be reinstated and compensated for the period of unemployment due to the dismissal. The legislation guarantees the right to return to work of the worker unlawfully dismissed. For not meeting the obligation to reinstate, the officials are subject to disciplinary, property, administrative and penal responsibility. At present, according to the Government, there is no enforceable court decision declaring the dismissals as a result of the strike unlawful and requiring reinstatement.

C. The Committee's conclusions

1. 186. The Committee notes that this case concerns allegations of violations of the right to strike and dismissals based on trade union activities, arising out of warning strikes undertaken by the complainants and their members, mainly engine drivers, in support of a wage increase. The complainants also raise allegations of harassment and threatened victimization of TUEPB members who do not withdraw from the union.
2. 187. With respect to the right to strike, the complainants contend that they put forward their demands and made attempts to negotiate in conformity with the Act on Collective Labour Disputes, 1990 ("the Act"). It was only after several fruitless attempts at reaching a settlement that the workers in the Sofia United Engine Depot and other depots decided to commence with warning strikes, pursuant to article 11(5) of the Act, which states that: "The workers may go on a warning strike without previous announcement. This warning strike may not last more than one hour." The complainants claim that the support of the workers for the warning strike was overwhelming. In order to ensure that all those working different shifts could participate in the warning strike, the trains were stopped on 12 March 1998 for one hour, and then for one hour on each of the following seven days.
3. 188. The complaint concerns more particularly the conflicting reasoning supporting the court decisions arising out of the strike, and the lack of a further appeal procedure to ensure unified application of the law. The Committee notes that all the regional courts charged with determining the legality of the strikes held that the requirements of the Act had not been met; therefore, the strikes were declared unlawful. The complainants contest a number of aspects of the decisions as well as the absence of a further appeal procedure. First, the lack of clarity as to the requirements for holding a warning strike, since at least one court found that holding a strike for one hour on consecutive days was not in violation of the Act, whereas others ruled that it was. Secondly, as some of the courts had found that TUEPB did not make sufficient efforts to negotiate, the complainants submit that the negotiation requirement has been interpreted in such a way as to make strikes impossible in practice. Thirdly, some of the courts found that there was insufficient proof that the strikes had been supported by a majority of the workers, as required under article 11(2) of the Act, thus, in the view of the complainants, again making it virtually impossible to call a legal strike. Finally, the minimum service requirement under article 14 of the Act is alleged to be in violation of freedom of association principles.
4. 189. While noting that the reasons of the various regional courts concerning the warning strikes differ, the Committee does not consider that the lack of an appeal procedure is in violation of freedom of association principles, since responsibility for declaring a strike illegal already lies with an independent body (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 522). Regarding the determination of whether sufficient efforts to negotiate had been made before taking strike action, the Committee notes that a strike may be temporarily restricted by law until all procedures available for negotiation have been exhausted, as long as the legal procedures are not so complicated as to make it practically impossible to declare a legal strike (see Digest, op. cit., paras. 499, 501).
5. 190. Concerning the support required to declare a legal strike, the Committee notes that the means of determining the level of support is not set out in the Act, as article 11(2) merely states that "the decision to go on strike is made by the workers in a respective enterprise of unit with a simple majority". Given that some courts appear to have accepted the evidence of majority support provided by the complainant whereas others did not, the Committee notes that the lack of precision in the Act on this point could lead to difficulties. The Committee also notes that, as has also been raised for a number of years by the Committee of Experts on the Application of Conventions and Recommendations, article 11(2) requires the support of a majority of all workers, rather than the majority of those casting ballots. The Committee recalls that, while it has considered in the past that the obligation to observe a certain quorum may be acceptable (see Digest, op. cit., para. 510), the Committee has stated clearly that "the requirement that an absolute majority of workers should be obtained for the calling of a strike may be difficult, especially in the case of unions which group together a large number of members. A provision requiring an absolute majority may, therefore, involve the risk of seriously limiting the right to strike" (see Digest, op. cit., para. 508). The Committee, therefore, requests the Government to take the necessary steps to amend this provision so that account is taken only of the votes cast. The Committee also draws this aspect of the case to the attention of the Committee of Experts.
6. 191. The Committee notes that article 14 of the Act provides that a written agreement must be concluded between the workers and the employers at least three days prior to a strike, ensuring "the conditions for the realization of the activities, the non-fulfilment or stoppage of which during the strike may create risks for: (1) satisfying daily and public services and transportation of the population ...". The Committee recalls that transport services are not essential services in the strict sense of the term (see Digest, op. cit., para. 545) and has in general accepted that it is legitimate for a minimum service to be maintained in the event of a strike in the rail transport sector (see Digest, op. cit., para. 567).
7. 192. The Committee notes with interest the Government's statement that it intends to submit a proposal for the improvement of the Act concerning the right of workers to take strike action at the sectoral, branch and national levels. In the context of this legislative reform, the Committee requests the Government also to consider amendments to overcome some of the difficulties caused by the vague provisions referred to above, and to consult with the concerned parties in the course of the reform process.
8. 193. On the issue of anti-union discrimination, the Committee notes the serious allegations that 18 people were dismissed as a result of the strike, most of whom were trade union organizers, some of whom did not participate in the strike. According to the complainants, TUEPB organizers and leaders were targeted for dismissal. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom (see Digest, op. cit., para. 724). The Committee notes that the Government states that it has contributed to the reinstatement of some of the temporarily dismissed workers, and has had a "significant number" of the disciplinary dismissals cancelled. The Committee requests the complainants and the Government to provide specific information concerning those workers who have not 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.
9. 194. The allegation of anti-union dismissals is closely linked to the allegation that TUEPB members are being pressured, through threats, to withdraw from the union and to join the rival Trade Union of Railway Workers. The Committee notes 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 (see Digest, op. cit., para. 274), and 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 (see Digest, op. cit., para. 693). The Committee notes that the Government has not replied to this allegation, and requests it to do so.

The Committee's recommendations

1. 195. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following 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 allegation that TUEPB members are being harassed and threatened by BSR to withdraw from the union.
   • (e) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.