Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

Comments made by the Confederation of Trade Unions of the Republic of Moldova (CSRM) and the International Confederation of Free Trade Unions (ICFTU) on the application of the Convention. The Committee notes the comments made by the CSRM and the ICFTU in communications of 2005 and 2006, respectively, concerning the application of the Convention. The observations of both organizations concern legislative issues raised in the previous comments of the Committee, and more particularly to the absence of specific sanctions to be imposed for violation of trade union rights, as well as the violation of trade union rights in practice, as alleged in Case No. 2317 examined by the Committee on Freedom of Association in its 335th Report. According to the allegations, the Government has adopted a new Penal Code but it does not include sanctions regarding violations against trade unions. The allegations also concern acts of interference of the authorities in the organization of trade unions in the health sector, in the culture sector and in the education sector. The Committee regrets that the Government has not replied to these comments and requests the Government to send its reply without delay.

In its previous comments, the Committee had pointed out some discrepancies between the legislation and the Convention. The Committee regrets that the Government has not replied specifically to these comments. It must therefore repeat its previous observations.

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee had noted that neither the Labour Code nor the new Penal Code adopted in April 2002, provided for specific sanctions to be imposed on employers found guilty of anti-union discrimination. The Committee had recalled that the effectiveness of legal provisions depends, to a large extent, on the way in which they are applied in practice and on the forms of compensation and sanctions provided. Legal standards are inadequate if they are not coupled with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application (see General Survey on freedom of association and collective bargaining, 1994, paragraph 224). The Committee again requests the Government to adopt specific provisions providing for sanctions to be imposed on employers found guilty of anti-union discrimination.

Article 2. Protection against acts of interference. The Committee had noted that the new Penal Code does not provide for sanctions against acts of interference. The Committee was of the view that legislation should make express provisions for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application in practice of Article 2 of the Convention. Moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should explicitly lay down appeals and sanctions in order to guarantee the application of provisions prohibiting acts of interference (see 1994 General Survey, op. cit., paragraph 232). The Committee again requests the Government to adopt legislative provisions providing for effective and sufficiently dissuasive sanctions (civil administrative or penal) against acts of interference.

Article 4. Compulsory arbitration. The Committee had noted that, pursuant to section 360(1) of the Labour Code, if the parties to the collective labour dispute have not reached an agreement or disagree with the decision of the reconciliation commission, each of the parties to the dispute has the right to submit an application to settle the conflict in the judicial tribunals. As regards arbitration imposed by the authorities at the request of one party, the Committee had considered that it is generally contrary to the principle of the voluntary negotiation of collective agreements established in the Convention and thus the autonomy of the bargaining partners. Recourse to compulsory arbitration in cases where the parties do not reach an agreement through collective bargaining would be permissible only in the context of essential services in the strict sense of the term (i.e. services, the interruption of which, would endanger the life, personal safety or health of the whole or part of the population) and for public servants engaged in the administration of the State. The Committee requests again the Government to take measures to amend the legislation so as to ensure that referral of the dispute to the judicial tribunals is possible only upon request by both parties to the dispute.