Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Hungary (Ratification: 1957)

Other comments on C087

Observation

Direct Request

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The Committee notes the Government's comments on the 2012 observations of the International Trade Union Confederation (ITUC). It also notes the observations of the workers’ side of the National ILO Council at its meeting of 3 September 2014 included in the report, as well as the Government’s comments thereon.

Freedom of expression. In its previous comment, the Committee had noted with concern that sections 8 and 9 of the newly adopted Labour Code prohibit any conduct of workers including the exercise of their right to express an opinion – whether during or outside working time – that may jeopardize the employer’s reputation or legitimate economic and organizational interests; and explicitly provide for the possibility to restrict the workers’ personal rights in this regard. The Committee had invited the Government to review these provisions by assessing the need for amending these provisions so as to guarantee the respect of freedom of expression.

The Committee notes the Government’s indications that: (i) as regards the legitimate economic interests of the employer, they are constituted by all that is related to the legitimate economic activities, whereas no protection is provided for employer interests which cannot be deemed legitimate; (ii) the conduct jeopardising the legitimate economic interests of the employer includes typically, but is not limited, to work carried out by the employee for other employers or membership in a business corporation of identical scope of activities as the employer; (iii) as regards the employer’s reputation, the fundamental right of freedom of speech is restricted to such an extent that the fundamental right of the employer to his reputation is not infringed out of proportion; and (iv) the Government is not aware of any problem arising with respect to the application of these provisions in effect for the past two years. The Committee recalls that the full exercise of trade union rights calls for a free flow of information, opinions and ideas and, to this end, workers, employers and their organizations should enjoy freedom of expression at their meetings, in their publications and in the course of other trade union activities. Nevertheless, the Committee underlines that, in expressing their opinions, trade unions and their leaders need to respect the limits of propriety and refrain from the use of insulting language. Considering that the broad wording of section 8 could entail serious restrictions to freedom of expression, the Committee requests the Government to indicate the steps contemplated to guarantee that the implementation of sections 8 and 9 of the Labour Code does not impede the exercise of the mandate of trade unions and their leaders to defend the occupational interests of their members; and to assess, in consultation with the social partners, the need for their amendment so as to ensure the respect of the principle set out above.

Article 2 of the Convention. Registration of trade unions. The Committee notes the allegation of the workers’ side of the National ILO Council that the enforcement and legal interpretation of the numerous rules in Act V of 2013 on the Civil Code concerning the establishment of trade unions (for example, on trade union headquarters and the verification of its legal usage) significantly hamper the registration of trade unions. It also notes that the Government states that the new Civil Code seeks to regulate in the most comprehensive manner possible the common rules for legal entities, and that the articles of incorporation of trade unions do not need to be brought into line with the new Civil Code until their amendment or until 15 March 2016 at the latest. In view of the allegation that the numerous rules in the Civil Code concerning the establishment of trade unions obstruct their registration in practice, the Committee requests the Government to take the necessary measures to ensure that the conditions for the granting of registration are not tantamount to a de facto requirement for previous authorization from the public authorities to establish a trade union, and to review in consultation with the social partners the need for simplifying the requirements for registration of workers’ and employers’ organizations.

Article 3. Right of workers’ organizations to organize their activities. The Committee previously noted that the ITUC alleged that as a result of the 2010 amendment of Act VII of 1989 on strikes (Act on Strikes), there were growing difficulties in exercising the right to strike in practice; and that, as confirmed by the Government, trade union applications for determination of the minimum level of service in the sectors of transport by road and rail had often been rejected by the courts due to formal deficiencies and, consequently, no strikes had been staged in the relevant sectors in 2011. The Committee had requested the Government to take steps to ensure that the application in practice of section 4 of the Act on Strikes as amended, did not impede the lawful exercise of the right to strike.

The Committee notes the copy of the Act on Strikes as last amended supplied by the Government and observes that, according to its section 4(3), the level of service deemed sufficient and the related requirements may be defined by an act of Parliament; or, if there is none, 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 of public administration and labour. The Committee notes the Government’s indications that: (i) the wording of the Act on Strikes as amended offers less opportunity to abuse the right to strike as occurred occasionally under the previous legislation and encourages the parties to reach an agreement on minimum services; (ii) based on the recent practice regarding trade union applications to the courts for determination of minimum services, it became necessary to amend and clarify the provisions of the Act on Strikes with respect to services where parties could frequently not agree, so as to guarantee a predictable service level for users; (iii) therefore the definition of the still adequate service was included in Act XLI of 2012 on passenger transport service, which means that transport employees are not hindered by the lack of regulation in starting a strike; and (iv) for the same reasons, Act CLIX of 2012 on postal services stipulates the extent and conditions of the still adequate services regarding postal services. The Committee also notes the views of the workers’ side of the National ILO Council that: (i) the Act on Strikes as amended in 2010 tightens the requirements of minimum services stipulating that strikes cannot be launched in a legal manner as long as the issue has not been settled by the parties; and (ii) with regard to public transport, the act defines minimum services during a strike, but in such a manner that it calls into question the pressure a strike can exert. Recalling that minimum services should be confined to operations that are strictly necessary to ensure that the basic needs of the users of the relevant service are met, the Committee requests the Government to indicate the minimum services prescribed for the public transport and postal sectors and to transmit copies of the relevant laws and regulations. More generally, the Committee requests the Government to take the necessary steps to ensure that, failing agreement of the parties, applications to the courts for determination of the minimum service level are expeditiously decided upon so as not to unduly impede the exercise of the right to strike.

[The Government is asked to reply in detail to the present comments in 2015.]