Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 6 September 2010 alleging inefficiency of anti-union discrimination legal protection, and cases of intimidation of trade unionists and anti-union harassment, as well as referring to the issues raised by the Committee below. The Committee notes the Government’s reply thereon.

Article 1 of the Convention. Protection against anti-union discrimination. In its previous observation, the Committee had noted the allegations of inefficiency of the proceedings and sanctions established in the legislation, and also noted the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos 2395 and 2474 (see 353rd Report) concerning excessive delay in processing cases of anti-union discrimination. The Committee had requested the Government to continue providing information on the number of complaints for anti-union discrimination, the average duration of the proceedings and the outcomes of these proceedings.

The Committee notes the statistics of the State Labour Inspectorate provided by the Government on the number of complaints of anti-union discrimination; a total amount of 108 complaints have been received between 1 January 2008 and 6 June 2010 (most of them were considered founded or partially founded). The Committee further notes the Government’s indication that, between 2008 and 2010, there was no conviction under section 35(3) of the Act on Trade Unions providing that “any person, who in connection with his/her position or function held, discriminates against an employee because of his/her membership in the trade union, non-membership in the trade union, or holding a trade union function, shall be liable to a fine or imprisonment”. The Committee expresses its concern about the non-application of the legal sanctions. The Committee urges the Government to take the necessary measures to ensure effective application of the legal sanctions for all cases of anti-union discrimination and requests the Government to continue providing information on the number of complaints for anti-union discrimination, as well as on the average duration of the proceedings and their outcomes.

Moreover, the Committee recalls that it had previously requested the Government to evaluate the results of the Labour Code amendments of 2008 in consultation with the social partners and to indicate any measures taken or contemplated to ensure that trade union officials and members have in practice the right to prompt and effective remedy by the competent national tribunals against acts of anti-union discrimination. The Committee had also requested the Government to keep it informed of the developments regarding the adoption of the amendments to the Code of Civil Procedure. The Committee notes the Government’s indication that no changes had been made in civil procedure to expedite legal proceedings concerning acts of anti-union discrimination against trade union activists. The Government indicates, however, that one of the means to reduce excessive length of the proceedings is the supervisory action by the Minister of Justice with regard to the activities of presidents of district and appeal courts. The Government also refers to other measures such as the draft Act amending the Law on Common Courts which provides for the periodic assessments of judges’ work. The Committee also notes that the Government states that it is worth to consider establishing new measures in the Code of Civil Procedure that would grant the right for trade union activists not to be dismissed until the proceedings in the Labour Court are completed. The Committee welcomes this information and requests the Government to continue providing information on the measures taken or envisaged to ensure that trade union officials and members have in practice the right to prompt and effective protection by the competent national tribunals against acts of anti-union discrimination.

Compensation for anti-union dismissal. The Committee notes that, according to ITUC, victims of anti-union dismissals can ask for reinstatement, but court proceedings can take up to two years; moreover, the courts are increasingly awarding just a three-month salary as compensation in lieu of reinstatement, regardless of how long the activist has been out of work. The Committee notes that the Government confirms that according to section 47 of the Labour Code, the compensation provided for an illegal dismissal of a trade union activist is limited to a maximum equivalent of a three-month salary. The Committee considers that the length of compensation proceedings is excessive and that the amount of compensation in cases of anti-union discrimination is insufficient, and therefore has no dissuasive nature. The Committee requests the Government to take the necessary measures to ensure the effective implementation of the means of full compensation of dismissed workers because of their trade union affiliation or activities.

Article 4. Collective bargaining rights. The Committee had previously requested the Government to provide information on the 2008 ITUC’s comments concerning alleged instances of employers’ refusal to negotiate collective agreements or to comply with them. The Committee notes the Government’s indication that no instances of employers’ refusal to negotiate collective agreements had been reported to the Minister of Labour acting as the registration authority for collective agreements under the national legislation.