Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 396, Octubre 2021

Caso núm. 3399 (Hungría) - Fecha de presentación de la queja:: 13-ENE-21 - Casos en seguimiento cerrados por falta de información de parte de la organización querellante o del Gobierno al término de dieciocho meses contados desde la fecha del último examen de los casos

Allegations: The complainant organizations alleges that Act C on the Health Service Legal Relationship adopted in October 2020 and its implementing decrees issued in November 2020, in the absence of effective social dialogue, are in violation of healthcare workers’ collective bargaining rights and their right to strike

1. 384. The complaint is contained in a communication dated 13 January 2021, submitted by the Democratic League of Independent Unions (LIGA), National Confederation of Workers’ Councils (MOSZ), Confederation of Unions of Professionals (ÉSZT), Forum for the Cooperation of Trade Unions (SZEF) and the Hungarian Trade Union Confederation (MASZSZ).
2. 385. The Government of Hungary transmitted its observations on the allegations in communications dated 15 February, 23 March and 23 August 2021.
3. 386. Hungary 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. 387. In their communication dated 13 January 2021, the LIGA, the MOSZ, the ÉSZT, the SZEF and the MASZSZ allege that Act C on the Health Service Legal Relationship (hereinafter referred to as Act C of 2020), adopted by the Hungarian Parliament on 6 October 2020 and in force from 18 November 2020, restricts the rights of trade unions by prohibiting collective bargaining and the right to strike, thereby substantially undermining the right of healthcare workers and unions.
2. 388. The complainants note that the Act was adopted during the COVID-19 pandemic, when healthcare workers were fighting daily to the end of their strength.
3. 389. The complainants indicate that under Act C of 2020, the public servant status of healthcare workers was terminated and all healthcare workers were required to sign a new work contract by 1 March 2021 giving them a new legal employment relationship with a so-called ‘health service status’. The complainants note that subsequently healthcare workers have been deprived of the rights and benefits of the legal status of public servants. The complainants further indicate that after 1 March 2021, healthcare workers will only be eligible to work in the public healthcare system if they signed a new work contract under the new legal status (some exceptions are foreseen).
4. 390. According to the complainants, Act C of 2020 significantly restricts the collective rights of state healthcare workers at the state-maintained healthcare providers:
   • Under Article 15(10) of Act C of 2020, state healthcare workers at the state-maintained healthcare providers cannot conclude collective agreements.
   • Under Article 6 of the Decree issued for the implementation of Act C of 2020 (Government Decree 530/2020), all collective agreements concluded with state healthcare workers expire on 1 January 2021.
   • Under Article 15(11) of Act C of 2020, public healthcare workers can only organize and go on strike in accordance with specific rules laid down in an agreement concluded between the Government and the ‘unions concerned’. The complainants note that if no agreement is reached, the right to strike cannot be exercised.
5. 391. The complainants argue that the legal exclusion of the conclusion of collective agreements seriously violates Article 4 of ILO Convention No. 98, which was ratified by Hungary on 6 June 1957. They note that in the case of the employees under the new ‘health service status’, the relevant ILO Conventions do not allow for the exclusion of collective bargaining and of conclusion of collective agreements. This is because healthcare providers (employers), who employ the employees under the new ‘health service status’ do not qualify as public administration bodies or authorities for which this right could be restricted (ILO Convention No. 151 on Labour Relations (Public Service, also ratified by Hungary)). The complainants also note that the fact that the source of funding for public healthcare providers is mainly the state budget does not justify the complete withdrawal of the right to collective bargaining.
6. 392. In relation to the right to strike, the complainants note that restricting the right to strike is a serious violation of Part 1 and 2 of Article 3 of ILO Convention No. 87 on Freedom of Association and Protection of the Right to Organise, which was ratified by Hungary on 6 June 1957. They argue that making the exercise of the right to strike subject to an agreement with the Government and the conditions contained therein unduly restrict the right of trade unions under the Convention to determine their activities freely. Moreover they note that the requirement that an agreement on the exercise of the right to strike has to be concluded with the Government, which already plays a legislative, authority and maintaining role, also raises the issue of official intervention. The complainants add that legal restrictions on the right to strike for healthcare workers are already set out in the Act VII of 1989 on Strikes. As such, the further restrictive provision of the new law is unjustified and disproportionate.
7. 393. In addition, the complainants indicate that Act C of 2020 and its implementing Government Decree (530/2020) were unilaterally initiated by the Hungarian Government, providing only a couple of hours for reaction from the involved parties, ignoring effective social dialogue.
8. 394. The complainants, in light of the complaint submitted by three Hungarian confederations in May 2020 under Case No. 3381, further express their serious concern about the general tendency toward dismantling of social dialogue at various levels in Hungary.

B. The Government’s reply

1. 395. In its communications, the Government states that having recognized the needs arising from the special situation of the specific group of employees engaged in the healthcare sector, the Hungarian Parliament decided to establish a special regulation on health service legal relationship and adopted Act C of 2020 on Health Service Legal Relationship on 6 October 2020. The Government points out that with the abolition of the status of civil servant, a new status, specifically defined for the health sector was established. This new status is the so-called health service legal relationship, the details of which are laid down in Act C of 2020 in sufficient detail.
2. 396. The Government indicates that the new legislation in force devotes a separate section to labour relations. The Government states that Act C of 2020 excludes collective agreements with healthcare providers, but establishes a health Service Conciliation Forum (ESZÉF) with a view to reconcile the interests of persons with a legal relationship in the health service, negotiate settlement of disputes and establish of appropriate agreements. The Conciliation Forum operates with the participation of the Government of Hungary, the national sectoral representative organizations and the negotiating group of national employee representative organizations of persons having a health service legal relationship. It is responsible for matters relating to the living and working conditions and conditions of employment of persons employed in the health service sector.
3. 397. The Government notes that in Hungary there had been extremely heterogeneous collective agreements in the health sector. It argues that the aim of Act C of 2020 was to create a transparent and homogeneous system for health workers employed in state and municipal health institutions through the establishment of a health service legal relationship.
4. 398. The Government notes that the implementing regulation of Act C of 2020 incorporates the elements of the sectoral collective agreement affecting most hospitals. Part 6 of the Government Decree 528/2020. (XI. 28.) on the implementation of Act C of 2020 adequately reflects the provisions of the multi-employer collective agreement concluded by the National Healthcare Service Centre with the Democratic Trade union of Workers in the Social and Health Sector of Hungary in relation to the specific working time rules of a person with a health service legal relationship. The Government maintains that this ensures that healthcare workers benefit from guaranteed provisions in a uniform manner rather than from the rules varying between institutions.
5. 399. The Government explains that Act C of 2020 forms an integral part of the measures taken to alleviate the serious situation caused by the COVID-19 epidemic. It also points out that the results achieved so far regarding the general employment status of health professionals in Hungary indicate a significant improvement over the last decade in the employment status of health professionals.
6. 400. The Government also indicates that given the difficulties posed by the appropriate management of the status of the persons concerned, it has already considered some recommendations from the sector that proved to be valid and beneficial for the case. The Government argues that this clearly reflects that the voice of the professionals can be heard and will always be welcome during the governmental consultation processes.
7. 401. The Government clarifies that Act C of 2020 does not set out provisions with general effect, only provisions relating to persons falling within the personal scope of the Act, i.e. healthcare workers with so-called health service status, healthcare workers and interns. As such, Act C of 2020 is not applicable to the entire health sector, only to institutions run by the state and local authorities, hence to public sector employees.
8. 402. The Government notes that Article VIII(2) and (5) of the Fundamental Law of Hungary grants the freedom of organization, while Article XVII declares the right to collective bargaining and to strike. It also adds that the implementation of Convention No. 87 and Convention No. 98 was a priority in the drafting of Hungarian regulation.
9. 403. Regarding the right to strike in the healthcare sector, the Government adds that it may be exercised at public sector healthcare providers in accordance with the special rules laid down in the agreement between the Government and the relevant trade unions. In 1994 such an agreement was reached between the Government and the relevant trade unions on the exercise of the right to strike of public servants. The Government also points out that the Constitutional Court of Hungary has examined the domestic regulations several times over the past 30 years, and the Court has not found that the form of agreement would unnecessarily restrict any fundamental right. The Government explains that this provision does not exclude the right to strike at healthcare providers, but makes it conditional. The Government argues that the condition in itself cannot be considered as a disproportionate restriction. This is because for those employed at public healthcare providers there is a greater public interest in the operation of healthcare, the maintenance of continuous patient care and the fulfilment of the state’s life and health obligations than for the unconditional exercise of the right to strike.
10. 404. The Government also notes that under Act VII of 1989 on Strikes, strikes are prohibited at public authorities carrying out certain public services. In accordance with the above, Act C of 2020 similarly regulates the matter, which in the Government’s view is allowed by the ILO Conventions.
11. 405. The Government explains that Section 3(3) of Act VII of 1989 on Strikes excludes the possibility of exercising the right to strike if it would directly and seriously endanger life, health, bodily integrity or the environment, or prevent the mitigation of elemental damage. Moreover, pursuant to Section 4(2) of Act VII of 1989, at employers carrying out activities that fundamentally affect the population, in particular in the field of public transport and telecommunications, as well as at the utilities providing electricity, water, gas and other energy services, and including the health sector, the right to strike can only be exercised in a manner not impeding the provision of sufficient service. The Government notes that in this regard the new regulation under Act C of 2020 intends to determine the conditions for the exercise of the right to strike with the involvement of stakeholders, necessitated by the above-mentioned public interest provisions.
12. 406. In its communication of 24 March 2021, the Government also stresses that, in accordance with Section 1 of Act C of 2020 (Scope), collective agreements already concluded are not terminated in respect of health sector employees that do not fall under the personal scope of Act C of 2020. Rules set out under Section 15 of Act C of 2020 relating to labour relations are not applicable to persons without a health service status.
13. 407. The Government further elaborates that pursuant to Article 6 of Convention No. 98, the Convention is not applicable to the status of public service employees and in no way is it construed to affect their rights and legal status. It also refers to paragraph 576 of the Digest of decisions and principles of the Freedom of Association Committee (2006): “The right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population).” The Government adds that with the introduction of the new regulation the Government aimed to grant the relevant rights to the employees concerned – as Act C of 2020 sets out a number of provisions guaranteeing representation of the interests of healthcare workers and persons working in the health sector – while providing for adequate measures serving the protection of public health, personal lives and safety. The Government stresses its belief that this is in conformity with the relevant standards of the ILO.

C. The Committee’s conclusions

1. 408. The Committee notes that, in the present case, the complainants allege that Act C of 2020 on the Health Service Legal Relationship adopted in October 2020 and its implementing decrees issued in November 2020 are in violation of public healthcare workers’ right to collective bargaining and their right to strike. The complainants also allege that the Act and its implementing decrees were adopted without effective social dialogue and consultation with the relevant workers’ organizations.
2. 409. The Committee notes from the allegations that effective from 1 March 2021, Act C of 2020 terminated the previous public servant status of healthcare workers and subsequently required healthcare workers to sign a new contract establishing a new legal status called ‘health service status’. After 1 March 2021, signing a new work contract under the new legal status is a condition to work in the public healthcare system.
3. 410. The Committee also notes the complainants’ allegations that: (a) according to Article 15(10) of Act C of 2020, public healthcare workers at state-maintained healthcare providers cannot conclude collective agreements; (b) according to Article 6 of Government Decree 530/2020 implementing Act C 2020, collective agreements concluded with state healthcare workers shall expire on 1 January 2021; and (c) according to Article 15(11) of Act C of 2020, public healthcare workers at the state-maintained healthcare providers can only organize and go on strike in accordance with specific rules laid down in an agreement concluded between the Government and workers’ organizations concerned.
4. 411. The Committee notes the Government’s indication that the Fundamental Law of Hungary grants freedom of organization under Article VIII(2) and (5) and, under Article XVII, the right to collective bargaining and strike. The Committee further notes the Government’s statement that Conventions Nos 87 and 98 were regarded as a priority during the process of drafting Act C of 2020. The Committee also notes from the Government that the aim of the Act was to create a transparent and homogeneous system for healthcare workers employed in state and municipal health institutions through the establishment of a health service legal relationship. Moreover, it notes that according to the Government, Act C of 2020 forms an integral part of the measures taken to alleviate the serious situation caused by the COVID-19 pandemic.
5. 412. As regards the allegation concerning the right to collective bargaining of workers in a health service legal relationship, the Committee notes the Government’s reply that: (i) according to Article 1(1) of Act C of 2020, the personal scope of the Act covers public and municipal health providers, their maintainers, as well as the legal status of persons in a health service legal relationship with said public and municipal healthcare providers; and (ii) according to Article 15(1) of Act C of 2020, in order to reconcile the interests of persons in a health service legal relationship, settle disputes with negotiation and establish appropriate agreements, a Health Service Conciliation Forum was established. The Committee also notes that the Conciliation Forum operates with the participation of the Government, the national sectoral representative organizations and the negotiating groups of national employee representative organizations of individuals in a health service legal relationship. As for persons who are not in a health service legal relationship, the Government indicates that different regulations apply, that are not prohibitive or restrictive.
6. 413. The Committee acknowledges the exceptional circumstances posed by the COVID-19 pandemic, particularly in relation to healthcare workers, and the necessity to adopt measures to mitigate the effects of the resulting crisis. The Committee, however, understands both from the Government and the complainants’ indication that Act C of 2020 was adopted as part of an overall reform to create transparent and homogeneous system for healthcare workers employed in state and municipal health institutions and that measures under Act C of 2020 were not adopted with a temporary nature, but as the standing regulation of the rights and obligations of persons in health service legal relationship working at public and municipal healthcare providers.
7. 414. The Committee recalls that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1241]. In this regard, it recalls that the encouragement and promotion of collective bargaining applies both to the private sector and to nationalized undertakings and public bodies. It further recalls that a distinction must be drawn between, on the one hand public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies), as well as officials acting as supporting elements in these activities who may be excluded from collective bargaining and, on the other hand, persons employed by the government, by public undertakings or by autonomous pubic institutions who may not. In that regard, the Committee has considered that health service employees cannot be considered to be public servants engaged in the administration of the State whose right to negotiate may be subject to restrictions and that persons employed in public hospitals should enjoy the right to collective bargaining [see Compilation, paras 1270 and 1269].
8. 415. As regards the establishment of the Health Service Conciliation Forum, the Committee notes that according to Articles 15(2) and 15(6) of Act C of 2020, the Government shall consult through the Conciliation Forum with the representatives of national trade union federations and national representative bodies of municipalities regarding matters falling within its competence, that is matters relating to the living and working conditions, as well as the employment conditions of persons in a health service legal relationship. Article 15(7) of Act C of 2020 further notes that the Conciliation Forum shall be consulted on matters falling within its competence as detailed under paragraph 2, namely those relating to human resources management and the management of personal remunerations and benefits. At the same time, Article 15(10) of Act C of 2020 explicitly states that “collective agreement may not be concluded with a healthcare provider falling within the scope of this Act”. The Committee recalls in this regard that only armed forces, the police and public servants in the administration of the State may be excluded from collective bargaining [see Compilation, para. 1239].
9. 416. Regarding the Government’s note that Act C of 2020 was adopted with the aim to create a transparent and homogeneous system for health workers employed in state and municipal health institutions and that the Act incorporates the elements of the sectoral collective agreement affecting most hospitals ensuring that healthcare workers benefit from guarantees in a uniform manner rather than from the rules varying between institutions, the Committee recalls that according to the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and, consequently, the level of negotiation should not be imposed by law, by decision of the administrative authority or by the case law of the administrative labour authority [see Compilation, para. 1404].
10. 417. In view of the above, and noting that the Government indicates that it has already considered some recommendations from the representative organizations in the sector, the Committee requests the Government to revise Act C of 2020, in consultation with the representative workers’ and employers’ organizations concerned, so that persons in a health service legal relationship have the right to engage in collective bargaining on their terms and conditions of employment.
11. 418. Regarding the allegation that under Article 6 of Government Decree 530/2020 implementing Act C 2020, collective agreements concluded with state healthcare workers shall expire on 1 January 2021, the Committee notes the Government’s indication that already existing collective agreements will remain in force for individuals who do not fall within the scope of the Act but does not otherwise contest the allegation that these agreements have been annulled with respect to those covered by the Act. The Committee, therefore, is obliged to recall that the interruption by law of provisions in already concluded collective agreements is not in conformity with the principle of freedom of association and the effective recognition of collective bargaining and that a legal provision which modifies unilaterally the content of signed collective agreements, or requires that they be renegotiated, is contrary to the principle of freedom of association and the effective recognition of collective bargaining, as well as to the principle of acquired rights of the parties. In view of the new legal status of persons in a health service legal relationship, the Committee requests the Government to engage with the representative workers’ and employers’ organizations concerned so that the terms and conditions of employment can be jointly agreed and, if not possible, to ensure that any pending matters may be reviewed by an arbitration body that has the confidence of the parties concerned.
12. 419. Regarding the allegation that under Article 15(11) of Act C of 2020, public healthcare workers at the state-maintained healthcare providers can only organize and go on strike in accordance with specific rules laid down in an agreement concluded between the Government and workers’ organizations concerned, the Committee notes the Government’s response that the regulation does not prohibit the right to strike, but merely restricts it and is not a disproportionate restriction of fundamental rights. In that regard the Committee notes the information provided by the Government according to which: (i) under Section 3(3) of Act VII of 1989 on Strikes, there is no legal possibility for strike if it would directly and seriously endanger human life, health, corporal integrity or the environment, or would impede prevention of the effect of natural disasters; and (ii) under Section 4(2) of Act VII of 1989 on Strikes, in the case of employers who perform activities of fundamental public concern – such as, in particular, in the field of mass transportation on public roads and telecommunications, as well as at suppliers of electivity, water, gas and other energy – the right to strike may be exercised in a way so as not to impede the performance of services maintained at a level deemed sufficient. The Government adds that healthcare may be included in the list given and that the list provided in the law is not exclusive. The Committee also notes the Government’s indication, that the regulation under Act C 2020 requesting the conclusion of an agreement between the parties is not unprecedented in Hungarian law and that an agreement between the Government and trade unions has been in force since 1994.
13. 420. The Committee notes that according to the complainants, legal restrictions on the right to strike for healthcare workers are already set out in Act VII of 1989 on Strikes and further restrictive provision of the new law is unjustified and disproportionate. The Committee also notes the complainants’ indication that: (i) the requirement that an agreement on the exercise of the right to strike has to be concluded with the Government, which already plays a legislative authority and maintaining role, raises the issue of official intervention; and (ii) if no agreement is reached the right to strike cannot be exercised.
14. 421. The Committee recalls that the right to strike may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) [see Compilation, para. 830].
15. 422. The Committee welcomes the Government’s indication that Section 15(11) of Act C of 2020 does not prohibit the right to strike of healthcare providers and notes the Government’s indication that healthcare may be included among cases where minimum services could be applied and refers in that regard to Section 4(2) of Act VII of 1989 on Strikes. The Committee observes that the Strike Act, as amended, states that the degree and condition of the minimum level of service may be established by law, and that, in the absence of such regulation, they shall be agreed upon by the parties during the pre-strike negotiations or, failing such agreement, they shall be determined by final decision of the court.
16. 423. However, the Committee observes that the obligation to have an agreement on the conditions under which the right to strike can be exercised means that some healthcare workers with health service status that are not considered essential will not be able to exercise this right as long as such an agreement is not concluded. In these circumstances, the Committee recalls that the workers’ and employers’ organizations concerned must be able to participate in determining the minimum services which should be ensured, and in the event of disagreement, legislation should provide that the matter be resolved by an independent body and not be the administrative authority [see Compilation, para. 882]. Moreover, as regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Compilation, para. 856].
17. 424. In view of the above considerations, the Committee requests the Government to keep it informed of any agreements made on the right to strike of persons in a health service legal relationship and, upon consultation with the representative workers’ and employers’ organizations concerned, review Section 15(1) of Act C of 2020 so as to ensure that for those who may not be considered to be essential services in the strict sense of the term, an independent body may determine the minimum service for industrial action should no agreement be reached between the parties. For persons who may be considered to be in essential services in the strict sense of the term, the Committee requests the Government to ensure that adequate, impartial and speedy conciliation and arbitration proceedings are available in the event that they are not able to have recourse to industrial action.
18. 425. With regard to the allegation that Act C of 2020 and Government Decree 530/2020 implementing Act C of 2020 were unilaterally initiated by the Hungarian Government and adopted without sufficient consultation with the relevant organizations, the Committee notes that the Government has not provided any response. The Committee has emphasized the value of consulting organizations of employers and workers during the preparation and application of legislation which affects their interests [see Compilation, para. 1536]. The Committee recalls that in any case, any limitation on collective bargaining on the part of the authorities should be preceded by consultations with the workers’ and employers’ organizations in an effort to obtain their agreement [see Compilation, para. 1421]. Moreover, in line with the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), the Committee underlines the importance of social dialogue in general and collective bargaining in particular in responding to crisis situations by encouraging the active participation of employers’ and workers’ organizations in planning, implementing and monitoring measures for recovery and resilience. The Committee trusts that the Government will review the measures taken affecting healthcare workers, in consultation with the representative workers’ organizations concerned, and fully ensure respect for this principle on any further measures considered.

The Committee’s recommendations

1. 426. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee requests the Government to revise Act C of 2020, in consultation with the representative workers’ and employers’ organizations concerned, so that persons in a health service legal relationship have the right to engage in collective bargaining on their terms and conditions of employment.
   • (b) In view of the new legal status of persons in a health service legal relationship and the cancellation of the previously concluded collective agreement, the Committee requests the Government to engage with the representative workers’ and employers’ organizations concerned so that the terms and conditions of employment can be jointly agreed and, if not possible, to ensure that any pending matters may be reviewed by an arbitration body that has the confidence of the parties concerned.
   • (c) The Committee requests the Government to keep it informed of any agreements made on the right to strike of persons in a health service legal relationship and, upon consultation with the representative workers’ and employers’ organizations concerned, review Section 15(1) of Act C of 2020 so as to ensure that an independent body may determine the minimum service for industrial action should no agreement be reached between the parties. For persons considered to be in essential services in the strict sense of the term, the Committee requests the Government to ensure that adequate, impartial and speedy conciliation and arbitration proceedings are available in the event that they are not able to have recourse to industrial action.
   • (d) Finally, the Committee trusts that the Government will review the measures taken affecting healthcare workers, in consultation with the representative workers’ organizations concerned, and take the necessary measures to fully ensure respect for the principle of consultation with the representative workers’ and employers’ organizations concerned on any further measures considered.