Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - San Marino (Ratification: 1986)

Other comments on C098

Direct Request

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In its previous comment, the Committee noted that a legislative reform regarding freedom of association and collective bargaining was under preparation. The Committee also noted, in the context of its comment on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the observations of the San Marino Entrepreneurs Organization (OSLA) on this legislative reform. The Committee takes due note of the adoption on 9 May 2016 of Act No. 59 relative to freedom of association and union activity in the workplace, collective bargaining and the right to strike. The Committee notes that the Government indicates that the adoption of the Act has been preceded, on the one hand, by consultations and debates with the social partners and that, on the other hand, its content has benefited from comments and inputs of the Office, which undertook a technical assistance mission in this regard in January 2016. The Committee requests the Government to provide information on the application in practice of the new legislation.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee notes with interest that, unlike the previous legislation, the scope of the new legal provisions prohibiting anti-union discrimination is no longer restricted to workers’ organizations which fulfil certain criteria of representativeness. The Committee also notes with interest that section 23 of the Act provides that, where allegations are made about an anti-union act, the judge shall convene the parties within five days and shall order immediately enforceable measures to put an end to any violation found and to restore the rights violated.

Article 4. Representativeness criteria for the conclusion of sectoral collective agreements of general application. The Committee notes that, in its 2015 observations, the OSLA criticized the representativeness criteria for the conclusion of sectoral collective agreements of general application contained in the draft Act on freedom of association and collective bargaining that was under discussion at that time. The Committee notes that, as provided for in the draft Act, Act No. 59 adopted in May 2016 establishes representativeness criteria for the conclusion of sectoral collective agreements with erga omnes effect, that is, applicable to all enterprises and workers in a given sector. The Committee observes that, under the new Act, the conclusion of a sectoral collective bargaining agreement of general application is possible, in the first place, if it is signed by majority organizations of workers and employers or, where this condition is not fulfilled, if the agreement is signed by organizations of workers and employers after it has been approved by a referendum convened by the most representative organizations in the sector.

The Committee notes that the OSLA specifically alleged that the aforementioned criteria of representativeness did not respect the principle of democracy in that: (i) the required thresholds of representativeness were too high and led to situations where agreements they had not signed were imposed on organizations that were not majority organizations but nevertheless representative; and (ii) excessive weight was given to large enterprises to the detriment of small ones, since the calculation of representativeness of employers’ organizations was based solely on the number of workers employed by the affiliated enterprises.

In this respect, the Committee also notes the Government’s indication that: (i) the industrial relations system of San Marino, a country of 61 km2 and 33,000 inhabitants, has traditionally been based on sectoral collective agreements applicable to all enterprises and workers in a given sector (agreements with erga omnes effect); (ii) the emergence of additional trade unions and employers in recent years has led to the coexistence of competing collective agreements in several sectors of activity, without the legislation in force fixing any criteria to determine which collective agreement was of general application; and (iii) one of the aims of the new Act is, therefore, to lay down the conditions for the conclusion of collective agreements of general application in order to ensure legal certainty and the representative nature of the system of collective relations, as well as the maintenance of the very broad coverage of collective agreements in the country.

The Committee recalls that the granting of particular prerogatives in the field of collective bargaining to the most representative employers’ and workers’ organizations is not contrary to the Convention, as long as the criteria to determine representativeness are pre-established, objective and specific. In this regard, the Committee considers that provisions of Act No. 59 providing for the recognition of the general application of sectoral collective agreements signed by majority organizations of workers and employers do not infringe the guarantees enshrined in the Convention. As regards the criteria of representativeness of employers’ organizations required for the conclusion of sectoral collective agreements of general application, which is based on the number of workers employed by the affiliated enterprises, the Committee observes that employers’ organizations of San Marino were broadly consulted on the elaboration of this criterion and that the two main employers’ organizations of the country have given their support in this regard. Observing that this criterion is frequently used at the national level in relation to the extension of collective agreements and that it is based on the evaluation of the representativeness of professional organizations from a labour market perspective, the Committee considers that the criterion established by Act No. 59 does not violate ILO Conventions on freedom of association and collective bargaining.

Mechanisms for determining representativeness. The Guarantee Committee. The Committee notes that, in its 2015 observations, the OSLA expressed its reservations about the political nature of the body responsible, under the draft Act, for supervising the implementation of the legal provisions and, in particular, for determining whether the various thresholds of representativeness were reached. In this regard, the Committee notes the Government’s indication that: (i) Act No. 59 establishes the “Guarantee Committee for collective bargaining and representativeness of workers’ and employers’ organizations” (hereinafter, “the Guarantee Committee”); (ii) this independent authority is composed of three experts in labor law and industrial relations; (iii) the workers’ and employers’ organizations determine one expert each, who will then jointly appoint the president; (iv) in case of disagreement between the different workers’ or employers’ organizations on the choice of their respective members, it is up to the Government to appoint the members of the Guarantee Committee on the basis of a list of names provided by the different organizations; (v) the Guarantee Committee shall be supervised by a supervisory body composed of one representative of each workers’ and employers’ organization and one representative of the Government; and (vi) in case of a serious violation of the provisions of the Act, the supervisory body may appeal to the labour court. The Committee notes the measures taken to ensure the independence of the Guarantee Committee and also recalls the importance that the determination of the representativeness of workers’ and employers’ organizations be carried out in accordance with a procedure that offers every guarantee of impartiality by an independent body that enjoys the confidence of the parties. The Committee requests the Government, on the one hand, to provide information on the appointment in practice of the Guarantee Committee’s members and, on the other hand, to clarify whether only the supervisory body may appeal to the labour court in relation to a decision made by the Guarantee Committee or whether any workers’ or employers’ organization is also in a position to do so.