Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Romania (Ratification: 1958)

Other comments on C098

Observation

Direct Request

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The Committee notes the observations from the International Trade Union Confederation (ITUC) received on 1 September 2015, which allege acts of anti union discrimination and interference on the part of the employer. The Committee requests the Government to provide its comments thereon. Furthermore, the Committee notes the 2014 observations from the ITUC and the Government’s comments thereon.

Article 4 of the Convention. Criteria of representativeness. The Committee had previously noted the representativeness criteria at enterprise level set out in section 51 of the Social Dialogue Act (union membership of at least 50 per cent plus one of the workers of the enterprise), and had requested the Government to take measures to ensure that if no union secures the absolute majority, collective bargaining rights should be granted to all the unions in the unit, at least on behalf of their own members. The Committee notes the information provided by the Government according to which: (i) all trade unions enjoy by virtue of section 1(b)(iii) and (u) of the Social Dialogue Act the right to collective bargaining in line with section 153 (the provision stipulates that any legally established trade union may conclude agreements with an employer or employers’ organization that are only applicable to the members of the signatory union); and (ii) collective bargaining by representative trade unions leads, due to their legitimacy, to collective agreements with force of law applicable to all workers in the unit.

Furthermore, the Committee had previously observed that, according to section 135(1): (i) in enterprises without a representative trade union, if an enterprise-level union exists and is affiliated to a representative federation in the relevant sector of activity, the negotiation of a collective agreement will be carried out by that federation together with the elected workers’ representatives; and (ii) in enterprises without a representative trade union, if an enterprise-level union exists but is not affiliated to a representative federation in the relevant sector of activity, the negotiation of a collective agreement will be carried out by the elected workers’ representatives. The Committee had requested the Government to ensure that the relevant legislation is amended in order to guarantee respect for the principle that negotiation between employers and organizations of workers should be encouraged and promoted. The Committee notes the Government’s indication that: (i) the requirement, in case that there is only a non-representative enterprise union, of its affiliation to a federation representative at the relevant sectoral level, originates from the former legislation and has the support of the trade unions; and (ii) the recognition of the right of workers’ representatives (elected from within the enterprise union(s) or among non-affiliated workers) to negotiate in the absence of a representative enterprise union or of a non representative enterprise union affiliated to a representative sectoral federation, responds to the necessity to cooperate at enterprise level so as to avoid mutual challenges from unions and a deadlock in collective bargaining. The Committee understands that section 135 regulates the manner of negotiating a collective agreement applicable to all workers in the unit (erga omnes) in the absence of a representative union and of its ensuing legitimacy. The Committee observes that this lack of legitimacy might explain the requirement for the non representative union to be affiliated to a representative sectoral federation in order for that federation to be able to negotiate, at the request and within the mandate of the union, together with the workers’ representatives, an erga omnes collective agreement (section 135(1)(a)). However, the Committee observes that, in cases where a non-representative union is not affiliated to a representative sectoral federation, the negotiation of a collective agreement erga omnes can be carried out exclusively by elected workers’ representatives, thus rendering obsolete the right of non-representative unions to negotiate on behalf of their own members (section 153). The Committee recalls in this regard that collective bargaining with representatives of non-unionized workers should only be possible when there are no trade unions at the respective level, and that appropriate measures should be taken, wherever necessary, to ensure that the existence of elected worker representatives is not used to undermine the position of the workers’ organizations concerned. The Committee requests the Government to take measures to amend the relevant legislation in order to guarantee the application of these principles.

Collective bargaining in the public sector. In its previous comments, the Committee had noted that, in the public budget sector, which covers all public employees, including those who are not engaged in the administration of the State, the fixation of salaries is exclusively by law, and no salaries or other pecuniary entitlements exceeding the provisions of this law can be negotiated through collective agreements (sections 3(b) and 37(1) of Act No. 284/2010 on Unitary Salaries of the Staff Paid from the Public Budget). The Committee had welcomed section 138(3) of the Social Dialogue Act as amended, according to which, in cases where the wage entitlements are established in special laws between minimum and maximum limits, the concrete wage entitlements are determined by collective bargaining within the legal limits. Considering that this provision may be compatible with the Convention, depending on the practical application, the Committee had requested the Government to indicate the categories of employees in the public budget sector for which wage entitlements were established in special laws between minimum and maximum limits so that the concrete wage entitlements were determined by collective bargaining within those limits.

The Committee notes the Government’s indications that: (i) the provisions relating to the negotiation of bonuses, increases and pecuniary rights (section 138(3) of the Social Dialogue Act and sections 12, 21–23 and 32 of Act No. 284/2010) are applied by respecting, during the negotiations, the minimum and maximum limits stipulated by the law and the special laws; (ii) such negotiations took place in the health and education sectors and resulted in agreements concerning pecuniary rights or fiscal advantages; (iii) unitary salaries under Act No. 284/2010 are based on a coefficient which is periodically reviewed in consultation/negotiation with the social partners, and to which salary increases are directly related; and (iv) a draft amendment to Act No. 284/2010 is currently being discussed. The Committee understands from the information provided by the Government and the annexes to Act No. 284/2010 that: (i) in case of pecuniary rights such as bonuses (e.g. for special, difficult or dangerous working conditions) and indemnities, negotiations are taking place with the trade unions concerned as regards the relevant workplaces, staff categories and amounts (which cannot exceed the legal limits); and (ii) in case of base salaries, however, the coefficient for the relevant staff category is fixed in the annexes to Act No. 284/2010 after consultation with the social partners. Highlighting once again the need to ensure that, in addition to pecuniary entitlements, wages are equally included in the scope of collective bargaining for all public service workers covered by the Convention, the Committee requests the Government to take the necessary measures in full consultation with the social partners and, if necessary, with technical assistance from the Office, to bring national law and practice into conformity with Article 4 of the Convention, on the understanding that upper and lower limits may be fixed for the wage negotiations with the trade unions concerned. The Committee trusts that due account will be taken of its comments during the ongoing legal review of Act No. 284/2010 and requests the Government to provide information on any developments in this respect.

More generally, the Committee notes that the Government indicates that: (i) following an agreement in 2014 of the National Tripartite Council for Social Dialogue, two bipartite working groups have been set up concerning amendments to the Social Dialogue Act and concerning collective bargaining sectors and procedure, but were unable to reach consensus on a common draft amending the relevant legislation; and (ii) a series of proposals for amendments to the Social Dialogue Act have been submitted to the ILO for comment in 2015 and the ILO memorandum will be discussed by the National Tripartite Council. The Committee trusts that the Government will take due account of its comments in the context of this legislative review and that the new legislation will be in full conformity with the Convention. It requests the Government to indicate any progress made in this respect. Recalling also that the Government recently benefited from ILO technical assistance seeking to ensure the conformity with the Convention of a draft Emergency Ordinance substantially amending the Social Dialogue Act, the Committee requests the Government to provide information on any developments in this regard.

The Committee is raising other matters in a request addressed directly to the Government.