Individual Case (CAS) - Discussion: 2021, Publication: 109th ILC session (2021)

Written information provided by the Government

With regard to effective protection against acts of trade union discrimination and interference – Articles 1, 2 and 3 of the Convention

Regarding the burden of proof in cases of union discrimination against union leaders, the Ministry of Justice indicates that, by Decision No. 681/2016, the Constitutional Court, ruling on the notification of unconstitutionality regarding the provisions of the sole article, point 1, of the Law amending and supplementing the Law on Social Dialogue, held inter alia, that, “as the Court held in Decision No. 814 of 24 November 2015, the courts, within the analysis of the legality of the decision to dismiss an employee who also has an elected position in a trade union body, examine whether there is any connection between the reason indicated for dismissal (as provided in article 61 – reasons related to the employee, or article 65 – reasons that are not related to the employee, of the Labour Code) and the fulfilment of the mandate that the employee holding an elected position within the union body received from the employees of the unit, and responsibility to demonstrate the legality of the dismissal rests with the employer, according to article 272 of the Labour Code”.

Therefore, in the event that an employee holding an elected position in a trade union body challenges the legality of the dismissal, the special provisions of the Labour Code become applicable, according to which: “The burden of proof with regard to labour disputes rests with the employer, who is obliged to submit evidence in his defence prior to the first day of appearance in court.” (article 272).

If the union leader considers himself to have been discriminated against, he has the possibility to address the National Council for Combating Discrimination (CNCD – Consiliul Național pentru Combaterea Discriminării), according to the procedure regulated by Government Ordinance No. 137/2000 on preventing and sanctioning all forms of discrimination. Thus, according to article 20, paragraph 1, of this Act, “The person who considers himself or herself to have been discriminated against may notify the Council within one year from the date on which it is committed or from the date on which she could become aware of its commission.” Paragraph 6 of the same article also provides that: “The person concerned shall present facts on the basis of which it may be presumed that there has been direct or indirect discrimination, and the person against whom the complaint was made shall have the burden of proving that there has been no breach of the principle of equal treatment. Any means of proof may be invoked before the Board of Directors in compliance with the fundamental rights, including audio and video recordings or statistical data.”

At the same time, article 27, paragraph 1, of Government Ordinance No. 137/2000 also provides for the possibility for the person who considers himself or herself to have been discriminated against to make a claim before the court, including for compensation and to restore the situation prevailing prior to the discrimination or the cancellation of the situation created by the discrimination, according to common law, with such a request not being conditional upon a notification to the Council. In this case, too, the person concerned shall present facts on the basis of which it may be presumed that there has been direct or indirect discrimination, and the person against whom the complaint was made shall have the burden of proving that there has been no breach of the principle of equal treatment (article 27, paragraph 4).

Regarding the number of cases of trade union discrimination and interference by employers brought to the attention of different jurisdictions, the average duration of proceedings and their outcome, the Ministry of Justice indicates that the data available in judicial statistical databases that are managed by the Ministry refer exclusively to the activity of courts. The data are collected by specialized staff at the level of each court on the basis of the nomenclature in the ECRIS system (the European Criminal Records System). Within this nomenclature, no elements were identified that would allow reporting of the available data according to the required criteria, respectively the number of cases pending in the courts relating to trade union discrimination and interference by employers. Also, judicial statistics cannot be disaggregated according to certain qualities of the parties/participants.

Regarding the actions and remedies applicable in cases of trade union discrimination, the Ministry of Justice indicates that, according to article 260, paragraph 1(r), of the Labour Code, ”The following acts constitute a contravention and are sanctioned as follows … (r) non-compliance with the provisions of article 5, paragraphs (2)–(9), and of article 59(a), with a fine of from 1,000 to 20,000 lei.” Article 5, paragraph 2, states that “Any direct or indirect discrimination against an employee, discrimination by association, harassment or victimization, based on the criteria of race, nationality, ethnicity, colour, language, religion, social origin, genetic traits, sex, sexual orientation, age, disability, chronic non-communicable disease, HIV infection, political choice, family situation or responsibility, membership or trade union activity, members of a disadvantaged category, is prohibited.”

According to the Labour Inspectorate, between 1 January and 30 April 2021, no fines were applied for violations of the law related to union membership or activity.

In the event that a person opts for a complaint to the CNCD under the conditions set out in article 20 of Government Ordinance No. 137/2000, the decisions pronounced by the Board of Directors can be appealed to the contentious administrative courts, according to the law (article 20, paragraph 9); if the decision is not contested within 15 days of its the communication, it constitutes an enforceable ruling. A decision pronounced in the court of first instance can be appealed within 15 days of its communication, in accordance with the provisions of article 20, paragraph 1, of the Law regarding the administrative court procedure No. 554/2004.

If an application is formulated directly to the court, pursuant to article 27 of Government Ordinance No. 137/2000, the Ministry of Justice specifies that, interpreting this law, the High Court of Cassation and Justice, by Decision No. 10/206, in the interests of law established that “the court competent to resolve claims for compensation and to re-establish the situation that existed prior to the discrimination or cancel the effects created by the discrimination is the court or tribunal, as the case may be, as courts of civil law, in relation to proceedings by a court having jurisdiction and its value, except in cases where discrimination has occurred in the context of legal relationships governed by special laws and where the protection of subjective rights is achieved through special jurisdictions, in which case the applications will be tried by these courts, according to special legal provisions”.

In the case of trade union discrimination, as the alleged act of discrimination occurred in a labour relationship, which is governed by a special law, respectively the Labour Code, the court competent to resolve the present dispute is the court in whose district the plaintiff is domiciled, and only the judgment of the court of first instance is subject to appeal (article 214 of the Law on Social Dialogue No. 62/2011).

In consultation with the social partners and in accordance with national practice, Law No. 53/2003 – the Labour Code was amended in 2020 in order to ensure proper recognition of harassment, intimidation and victimization of employees and their representatives, including in the exercise of legitimate trade union rights and activities (article 5), with dissuasive sanctions applied effectively, including pecuniary sanctions of up to eight minimum monthly gross wages, for individual cases.

In 2020, Government Ordinance No. 137/2000 on the preventing and sanctioning of all forms of discrimination was supplemented by the adoption of Law No. 167/2020 amending and supplementing Government Ordinance No. 137/2000, as well as supplementing article 6 of Law No. 202/2002 on equality of opportunity and treatment for women and men.

Law No. 167/2020 defines moral harassment in the workplace as any behaviour displayed with respect to an employee by another employee who is their superior, by an inferior and/or by an employee with a comparable hierarchical position, regarding the work relationship, which has the purpose or effect of a deterioration of working conditions by harming the rights or dignity of the employee, by affecting their physical or mental health or by compromising their professional future, conduct manifested under any of the following forms: (i) hostile or unwanted conduct; (ii) verbal comments; (iii) actions or gestures.

It also strengthened the attributions of the National Council for Combating Discrimination, as the national authority responsible for preventing, monitoring, assisting and mediating between the parties and for investigating and sanctioning cases of discrimination and acts of anti-union discrimination.

With regard to the promotion of collective bargaining and negotiation with elected workers’ representatives – Article 4 of the Convention

The regulation of social dialogue responds to the national situation and the lack of cooperation between the parties, against the conflicting background of labour and industrial relations, also reported by the European Commission in the 2018 Country Report.

Parliament is currently in the process of adopting, in the Chamber of Deputies (decision-making body), a draft law revising the Law on Social Dialogue, initiated in 2018, which includes in its current form the proposals and amendments made by trade unions and employers in the field of association, representativeness and collective bargaining in the context of the consultations held in Parliament, as well as the aspects accepted of the ILO recommendations in the 2018 Technical Memorandum.

The agreement of the social partners for the revision of the collective bargaining sectors, pursued by the Government, was conditional on the prior adoption of the revision of the Law on Social Dialogue.

As the ILO Report on Social Dialogue pointed out, sectoral collective bargaining has declined since the 2008 crisis, with priority being given to enterprise-level bargaining to adapt and make work and employment more flexible, a trend that continues today. Following the development of new economies and new forms of work and employment, interest in unionization and collective bargaining has diminished.

The revision of the legal framework will not directly eliminate the problem of the low interest of national employers in engaging in bargaining at higher levels of the company due to the difficulties of reconciling the individual interests of employers.

The Government has included in future national programmes and strategies for 2021–27 (the National Recovery and Resilience Plan, the National Reform Programme, and the National Employment Strategy) the objective of strengthening collective bargaining and supporting the structural capacity, organization and action of [the social] partners as a premise for motivating and supporting association, strengthening representativeness and identifying sectoral and national bargaining interests.

The Law on Social Dialogue promotes voluntary negotiation within the meaning of ILO Convention No. 98 and the Collective Bargaining Convention, 1981 (No. 154), at any level of interest to the parties. Article 153 of the Law on Social Dialogue guarantees all unions/trade unions the right to bargain, and to conclude agreements with the employer/employers’ organizations on behalf of their members, an eloquent example being the collective agreement concluded by unions and employers in the construction sector.

In the same vein, we mention that European directives favour the general notion of workers’ representatives, understood as trade unions and/or employee representatives. As such, employees’ representatives are regulated nationally as representatives elected by the vote of all employees in the company (not just those who are not affiliated, within the meaning of the Workers’ Representatives Convention, 1971 (No. 135)), in respect of freedom of association and the choice of representatives in collective bargaining, also decided by the Constitutional Court of Romania in ruling No. 62/2019.

The coverage rate of collective bargaining takes into account only the number of employees covered by collective agreements concluded in units with more than 21 employees as a result of the application of erga omnes, without taking into account all collective agreements in force, group level and sectoral contracts, voluntary agreements concluded by the parties and/or collective agreements of civil servants.

With regard to collective bargaining in the public sector and public servants not engaged in the administration of the State – Articles 4 and 6 of the Convention

The Government adopted in 2021 a working memorandum for the revision of the Law on remuneration in the public system, which is the responsibility of the Ministry of Labour.

The elaboration and adoption of the initiative will follow the legal procedures for consulting the social partners, as was the case with the current Law on the remuneration of staff in the public system, approved by the European Trade Union Confederation (ETUC) and based on a system of coefficients negotiated with trade unions.

Additional details related to the comments and direct requests of the CEACR regarding the application of Convention No. 98 will be provided in the Government’s report under article 22 of the ILO Constitution.

Discussion by the Committee

Government representative, Adviser, Ministry of Labour and Social Protection – The Romanian Government takes its ILO obligations very seriously. Romania has ratified all the fundamental and governance Conventions and a number of other important ones. We believe that respect and collective bargaining are the hallmarks of any modern and organized community. Freedom of association, collective bargaining and the right to strike are guaranteed by the Romanian Constitution.

First of all, I would like to bring to your attention some important legislative changes and provisions that would help to ensure a common high level of protection from discrimination in the employment field.

In consultation with the social partners and in accordance with national practices, Law No. 53/2003 – the Labour Code, was amended in 2020, in order to ensure proper recognition of harassment, intimidation and victimization of employees and their representatives, including in the exercise of legitimate trade union rights and activities, with dissuasive sanctions applied effectively, including pecuniary sanctions. The new amendments were made to article 5, article 59 and article 260 of the Labour Code by Law No. 151 of 2020. This new enactment amends the definitions provided for the concept of “discrimination”, both direct and indirect, by means of amending, inter alia, the criteria established by the Labour Code for assessing which acts/deeds are considered as discrimination.

Moreover, Law No. 151/2020 introduces the concept of “harassment”, “discrimination by association” and “victimization” and does also establish that any behaviour consisting in ordering a person, in writing or orally, to use a form of discrimination based on one of the criteria provided by the Labour Code, against one or more individuals, is considered discrimination.

Article 5, paragraph 2, states that: “Any direct or indirect discrimination against an employee, discrimination by association, harassment or victimization, based on the criteria of race, nationality, ethnicity, colour, language, religion, social origin, genetic traits, sex, sexual orientation, age, disability, chronic non-communicable disease, HIV infection, political choice, family situation or responsibility, membership or trade union activity, members of a disadvantaged category, is prohibited.”

The new amendment does also include the cases that are not considered discrimination, which are aiming to cover certain professional requirements that are essential and decisive and which could justify exclusions or distinctions as regards a particular job that are linked to the specific nature of that specific activity or the conditions under which that activity is performed, to the extent that the purpose is legitimate and the requirements are proportionate.

In addition, Law No. 151 amends the prohibition to dismiss employees as established under article 59(a) of the Labour Code, by means of aligning the relevant criteria with the criteria established for the prohibition to discriminate.

Finally, the new enactment provides, according to article 260(1)(r), the related contravention for failure to observe said provisions. A fine of between 1,000 and 20,000 lei has been newly introduced, that is around €200 and €4,500. According to the labour inspectorate, between 1 January 2020 and 30 April 2021, no fines were applied for violations of the law related to union membership or activity.

Separately from the amendments to the Labour Code, the provisions of Law No. 167/2020 introduce the legal definition of moral harassment. Law No. 167, for the amendment and completion of Government Ordinance No. 137/2000, as well as for the completion of article 6 of Law No. 202/2002 on equal opportunities and treatment between women and men, also brings amendments to the specific legislation regarding discrimination and defines moral harassment at the workplace as a behaviour displayed with respect to an employee by another employee who is their superior, by an inferior and/or by an employee with comparable hierarchical position regarding the work relationship, which has the purpose or effect of deteriorating the working conditions by harming the rights or dignity of the employee, by affecting their physical or mental health or by compromising their professional future, conduct manifested under any of the following forms: hostile or unwanted conduct; verbal comments; actions or gestures.

It also strengthens the attributions of the National Council for Combating Discrimination, as the National Authority responsible for preventing, monitoring, assisting and mediating between the parties and verification and sanctioning in cases of discrimination and acts of anti-union discrimination.

Several specific duties are provided for employers in order to prevent and fight against acts of moral harassment at the work place, such as:

the obligation to take any measures that are required for the scope of preventing and fighting against acts of moral harassment at the workplace, including by means of establishing related disciplinary sanctions under their internal regulations;

the prohibition to establish, in any form, internal rules or measures that oblige, determine, or encourage employees to exert acts of moral harassment at the workplace.

Law No. 167 provides several specific sanctions that are applicable both to employees exerting acts of moral harassment, which could be sanctioned with fines between 10,000 lei and 15,000 lei, and to employers failing to observe the specific obligations applicable to them in this context, the level of fines ranging between 30,000 lei and 200,000 lei. This is around €6,000 and €40,000.

Moreover, the new enactment establishes the specific measures which could be imposed by a court of law or, in certain cases, by the National Council for Combating Discrimination, to the extent that it is decided that an act of moral harassment at the workplace was committed:

the obligation of the employer to pay to the employee an amount which is equal to the salary rights which were not granted to him or her;

the obligation of the employer to pay to the employee damage compensation and moral damages;

the obligation of the employer to modify the disciplinary entries regarding the employee.

With respect to the amendments brought to Law No. 202/2002, article 6 of said enactment was supplemented by means of introducing the prohibition of moral harassment based on sex, the provisions of Government Ordinance No. 137 being applicable also for such cases, accordingly.

The National Council for Combating Discrimination is the competent national authority active in the field of discrimination that guarantees compliance with, and the enforcement of, the non-discrimination principle, in accordance with the national and international legislation. The Council is an autonomous state authority, under parliamentary control, which performs its activity in the field of discrimination, combining 14 discrimination criteria, including sanctioning. It was established pursuant to the adoption of Government Ordinance No. 137 and Government Decision No. 1194 of 2001 on the organization and functioning of the Council. The Steering Board of the Council is a collective and deliberative body that takes responsibility for the tasks provided by law. The Steering Board is made up of nine members having the rank of Secretary of State, appointed by the plenary session by the two Chambers of the Parliament.

With regard to litigation, the Council intervenes before the courts and formally decides on complaints, for example through decisions or recommendations addressed to the parties. Council decisions are legally binding on the parties involved, subject to the appeal rights.

Government Ordinance No. 137 regulates the prevention and sanctioning of all forms of discrimination and implements European Union (EU) Directive No. 43 of 2000, implementing the principle of equal treatment between persons, irrespective of racial or ethnic origin, as well as Directive No. 78 of 2000, establishing a general framework for equal treatment in employment and occupation. Government Ordinance No. 137 protects all individuals, regardless of their status. It contains detailed provisions on discrimination, harassment and victimization, and it sets down the sanctions applicable in case legal provisions are breached.

The following paragraphs extend the definition of discrimination to instruction to discriminate, indirect discrimination, harassment and victimization. According to this Ordinance, the elimination of all forms of discrimination is achieved by: prevention through instituting special measures of protection for disadvantaged persons who do not enjoy equal opportunities; mediation for the amicable resolution of conflicts arising from committing acts/deeds of discrimination; and sanctioning discriminatory behaviour.

For example, I will present a case of discrimination against the union and union members that went through all of the steps of the legal process. At the end of 2014, shortly after an airline company received a notification regarding the existence of the cabin crew union “Aerolimit Professional”, the union leader was dismissed and, soon after, there followed the dismissal of another 19 members of the union, whose posts were abolished. On 19 March 2015, the court ruled that the President of the union had been unlawfully dismissed and ordered the company to reinstate him. The company chose not to respect the court decision and refused to put him into active duty under the pretext of a safety investigation by the competent national aviation authority. This argument was later dismissed by the authority itself.

On 12 May 2015, the court decided that the submission aiming at the dissolution of the trade union was unlawful and the “Aerolimit Professional” union was entitled to represent cabin crew members in the company. On 3 July 2015, the National Council for Combating Discrimination found the company guilty of dismissing 19 staff members due to their union affiliation and stated that the termination of the contracts of employment was discriminatory and had the intention to stop the union movement.

By Decision No. 260 of 2015, the National Council for Combating Discrimination decided the following:

The communication expressing disagreement with regard to the establishment of the union is an act of discrimination according to article 2, paragraphs 1 and 5, in conjunction with article 7 of Government Ordinance No. 137.

The termination of the employment contracts of the persons associated with the newly formed union represents discrimination.

The discrimination was aimed at stopping the trade union movement, which is an extremely serious act.

The Council decided also to apply a fine of 25,000 lei (approximately €5,500) of which 5,000 lei for expressing disagreement with regard to the establishment of the union and 20,000 lei for terminating the employment contracts of persons associated with the newly formed union.

In addition to the sanction applied, the Steering Board of the Council ordered the defendant to communicate the summary of this decision in the national media and in its own publication which is distributed to travellers.

On 16 July 2015, the court decided the reinstatement of the cabin crew members dismissed by the company. The court considered that the termination of the employment contracts of all the dismissed workers in this case to be unlawful and ordered the company to reinstate them into their former positions. Furthermore, the company was obliged to repay the workers their salaries from the date of dismissal until reinstatement. Each plaintiff was also entitled to compensation of approximately €1,130.

On 7 March 2019, the High Court of Cassation and Justice, having as object the annulment of the administrative act of the National Council for Combating Discrimination decided to reject the appeal filed by the plaintiff company as unfounded. The decision of the High Court of Cassation and Justice was definitive.

On 9 December 2020, the court approved the forced execution based on the executory title represented by the decision pronounced by the National Council for Combating Discrimination, and confirmed by the decision of the court. It also upheld the decision pronounced by the National Council for Combating Discrimination, as confirmed by the final decision pronounced by the High Court of Cassation and Justice, forcing the company to publish the summary of this decision in the national media and in its own publication distributed to passengers according to article 26, paragraph 2, of Government Ordinance No. 137/2000.

Worker members – We thank the Government for the information provided, but we wish to refocus today’s discussion on the heart of the matter, which is addressed in the report of the Committee of Experts. Romania has been the subject for many years of persistent comments concerning the application of the Convention. I recall that our Committee examined this case at its session in 2011. The problems raised then are similar to those that we are discussing today and the fears expressed then have become real. The situation has deteriorated so much that the unions had to lodge a complaint with the Committee on Freedom of Association in 2018.

A process of reform has indeed been initiated, but it now seems to be under serious threat. I wish to draw the Committee’s attention to three aspects.

First, as noted by the Committee of Experts in its report, Romanian legislation does not provide effective protection against acts of anti-union discrimination. The Government has provided the Committee with written information on this subject. On the one hand, it is clear that the amendment made in 2020 does not cover acts of anti-union discrimination, as this ground is not specified. Moreover, the Government’s comment relating to section 260 of the Labour Code does not permit verification of the extent to which this provision is effective and sufficiently dissuasive. The Government has therefore not demonstrated how its legislation is sufficiently protective against acts of anti-union discrimination, and that the protection is sufficiently dissuasive and effective.

The second issue relates to representativeness. By way of a general comment, the Government indicates in its written information that the regulation of social dialogue in the country suffers from a lack of cooperation between the parties. It must nevertheless be recalled that the Government also bears significant responsibility for the creation of an enabling environment for social dialogue. This is covered by the objective of Article 4 of the Convention, which calls for appropriate measures to be taken to encourage and promote collective bargaining. It is useful to recall that Article 5(d) of the Collective Bargaining Convention, 1981 (No. 154), which has been ratified by Romania, specifies that the aims of the measures taken in this context shall include that “collective bargaining should not be hampered by the absence of rules governing the procedure to be used or by the inadequacy or inappropriateness of such rules”.

With more specific reference to the issue of representativeness, the Romanian legislation that is currently in force is based on the principle of exclusive bargaining. In other words, only the organization with membership covering over half of the workers in the enterprise can negotiate agreements erga omnes on behalf of all the workers. In the absence of such an organization, it is the elected representatives who carry out the negotiation, to the detriment of minority unions which can only bargain on behalf of their own members.

The system of exclusive bargaining is not in itself contrary to ILO standards. What raises more problems is the recourse to elected workers and its consequences. This gives rise to several comments. In the first place, we recall that the Convention guarantees the right to collective bargaining for workers’ organizations, I repeat, workers’ organizations.

Moreover, both Convention No. 154 and the Workers’ Representatives Convention, 1971 (No. 135), which has also been ratified by Romania, specify without any ambiguity that the existence of elected representatives shall not be used to undermine the position of workers’ organizations. The system of workers’ representatives was designed as a subsidiary procedure to workers’ organizations, and not to replace them. The information provided by the Government shows that, following a change made in 2016, collective bargaining through elected representatives is only possible in enterprises without a representative union.

However, in view of the required representativeness threshold, namely 50 per cent plus one, that means in practice that in most enterprises bargaining is carried out by elected representatives instead of the unions that do not attain this threshold. These representatives therefore act as exclusive negotiators. However, a coherent reading of ILO instruments only allows the application of the mechanism of exclusive negotiator between trade unions. Indeed, the extension of this role to representatives would place them in an advantageous position in relation to trade unions, and weaken the latter.

The Government explains that nothing prevents trade unions from negotiating on behalf of their members at the enterprise level, but that, in view of their lack of representativeness, the agreements concluded are not erga omnes. On the one hand, as indicated above, this practice is likely to weaken trade unions. And, on the other hand, questions arise as to the value of a union negotiating in an enterprise solely on behalf of its own members, with the resulting inequalities of treatment. Moreover, the procedure for the election of representatives also raises problems, as the legislation does not allow trade unions to submit lists when they are affiliated to a federation at the branch level. In addition, the process is organized by the employer, without the possibility for the unions to verify its transparency.

If, as it claims, the Government wishes to combat the lack of cooperation between organizations and strengthen their representativeness, there are certainly other ways of doing so that are more appropriate and more respectful of trade union pluralism. This issue must also be seen in relation to the conditions determined for the establishment of a union at the enterprise level, which create the requirement for over 15 workers. In so doing, the legislation deprives a significant proportion of workers of the right to organize and to bargain collectively through their organizations. Moreover, contrary to the Government’s indications, trade unions are indeed seeking dialogue at the national level. Indeed, even supposing that one of the parties is not seeking dialogue, it is still the responsibilty of the Government to promote and encourage negotiation at all levels, in accordance with the Convention.

I would like to conclude by referring to one final aspect. The Government appears to consider the fact that bargaining at the enterprise level has come to prevail over other levels as a sort of destiny that can only be accepted. We would suggest another interpretation: there is no destiny in this respect. It is merely the consequence of institutional and political choices. Other choices and options would certainly lead to other more virtuous and desirable results.

Employer members – The Employer members wish to thank the Government for its comments and statements today. Romania ratified the Convention in 1958. Today is the second occasion since 2011 on which our Committee has examined the application of this Convention in law and in practice by Romania.

The first comment by the Committee of Experts relates to acts of anti-union dscrimination, and accordingly to protection against such acts. The Committee of Experts requests the Government to take the necessary measures, on the basis of Articles 1, 2 and 3 of the Convention, so that acts of anti-union discrimination and interference are subject to effective sanctions. In its written information provided on 21 May 2021, the Govenment specified the following elements.

With regard to specific and dissuasive sanctions, a fine of between 1,000 and 20,000 lei is envisaged for any act of direct or indirect discrimination against an employee on the grounds of trade union membership or activities. We welcome the legislative changes made in 2020, following consultations with the social partners, which now punish those responsible for harassment or intimidation at work, including with fines of up to eight times gross monthly wages. Acts of violence and intimidation directed at trade union leaders are considered to be crimes.

With regard to the burden of proof when the legality of a decision to dismiss an employee holding elected trade union office is challenged, the complainant may turn to the National Council for Combating Discrimination. Persons who consider that they have suffered discrimination have to present facts on the basis of which it may be presumed that there has been direct or indirect discrimination, and the person against whom the complaint is made has the burden of proving that there has been no breach of the principle of equal treatment.

In 2020, the powers of the National Council for Combating Discrimination were strengthened as the national authority responsible for prevention, monitoring, assistance and mediation, and the punishment of discrimination, and particularly anti-union discrimination.

The complainant may also make a claim before a court, which will examine whether there is any connection between the reason indicated for dismissal and the fulfilment of the trade union office. Once again, it is the employer who is legally responsible for proving that the dismissal is lawful.

The Employer members note the progress made by the Government in taking effective measures to combat acts of anti-union discrimination, as there are now appropriate procedures and dissuasive sanctions. Nevertheless, the Employer members wish to emphasize that the reversal of the burden of proof is not required by the Convention. Nor does the Convention require the establishment of specific sanctions for acts of discrimination on the basis of trade union beliefs: the Convention requires adequate protection against such acts.

With reference to preventive measures, the Employer members consider that it is for the unions to raise the issue with the Government if they observe that no action is taken against anti-union practices. On the basis of specific and well-founded allegations, such cases should be subject to tripartite discussion.

The second series of issues concerning which the Committee of Experts raises questions for the Government concern obstacles to the freedom of certain workers’ organizations to engage in collective bargaining for the conclusion of collective agreements at the enterprise level, including the representativeness criteria for workers’ organizations at the enterprise level.

According to the Government, the national legislation is in conformity with Article 4 of the Convention. The Social Dialogue Act promotes voluntary negotiation within the meaning of ILO Conventions Nos 98 and 154, not only at the enterprise level, but also at the sectoral and national levels. All legally constituted trade unions have the right to negotiate and conclude collective agreements on behalf of their members with the employer or with employers’ organizations. This is confirmed by section 153 of the Social Dialogue Act, under the terms of which, and I translate freely: “In accordance with the principle of mutual recognition, any legally constituted trade union may conclude with an employer or an employers’ organization any type of agreements or accords, in writing, establishing the rules for the parties and the provisions of which are only applicable to the members of the signatory organizations.”

The Employer members emphasize that the Convention covers procedures for the voluntary negotiation of collective agreements between employers and employers’ organizations, on the one hand, and workers’ organizations, on the other. The Convention does not therefore cover any negotiations with workers’ representatives elected within the enterprise. Accordingly, if agreements are concluded with such representatives, they fall outside the scope of the Convention.

With regard to the coverage rate of collective agreements which, according to Eurofound, fell from 100 per cent in 2010 to around 15 per cent in 2017, the Government indicates that these figures only take into account the number of employees covered by collective agreements concluded in units with over 21 employees, and that this coverage rate does not take into account voluntary collective agreements, which are only applicable to the members of the signatory organizations.

The Employer members observe that sectoral social dialogue is not yet fully structured. There are currently only 29 branch dialogue structures, which does not therefore cover all economic activities. This certainly explains why the predominant level of bargaining is currently at the enterprise level. Another reason for the decrease in collective bargaining may be a result of the fact that the national labour legislation already regulates working conditions down to the smallest details, which leaves little room for negotiations between the partners. The Employer members therefore encourage the Romanian authorities to make the labour legislation more flexible, precisely so that the social partners have the necessary space to enter into negotiations and conclude balanced collective agreements.

With reference to the current criterion for the representativeness of a trade union in the enterprise (50 per cent of workers plus one), the Employer members consider that it does not necessarily have to be changed as collective agreements are applicable erga omnes. Moreover, it appears that minority unions can form a coalition, on condition that they are defending a uniform position, and in so doing can together achieve the representativeness threshold. Finally, as indicated above, on the basis of mutual recognition, any legally constituted trade union can negotiate a collective agreement which will only be applicable to its own members.

The Employer members support the Government’s efforts to further develop social dialogue, which necessarily involves improving the capacities of the social partners. For this purpose, the National Recovery and Resilience Plan, supported financially by the European Union for the years 2021 to 2027, as well as programmes for the exchange of good practices in the context of European social dialogue, will play a major role.

The third issue on which the Committee of Experts raises questions concerns the public sector. According to the Government, the legislative process has just been initiated in 2021 for the revision of the Law on the remuneration of public sector employees. Tripartite consultations have also been organized.

The Employer members welcome the fact that the situation in Romania is being brought into conformity with the Convention, as this Convention also covers public employees who are not engaged in the administration of the State. However, the holding of tripartite discussions does not challenge in any way the principle that the salaries of these public employees are determined by law.

By way of conclusion, the Employer members encourage the Government authorities to promote bipartite social dialogue and to intensify their consultations with representative organizations of employers and workers, if legislative amendments are envisaged in future in relation to social dialogue. Such consultations have already borne fruit, as ILO technical assistance and the proposals made by the social partners in relation to freedom of association, representativeness and collective bargaining have been included in the new Bill which is currently being examined by the Parliament.

Employer member, Romania – I would like to provide the views of Concordia, which is the most representative employers’ organization in Romania, on the Committee of Experts’ observation concerning the application of the Convention by Romania. Overall, we consider that Romania is compliant with the Convention, and is ensuring the right to organize and adequate conditions for voluntary negotiations between employers or employer organizations and workers’ organizations.

First of all, I would like to stress that the Social Dialogue Act was adopted by the Parliament in 2011 after a large consultation with the social partners. The review of the legislation in the field of social dialogue has been debated with the social partners since 2006, and amendments to the laws on the development of the national social dialogue system were agreed upon between the Government and the social partners.

Social Dialogue Act No. 62/2011, and the Romania Labour Code, set forth trade unions’ rights and freedoms and protection in the exercise of trade union prerogatives, including against dismissal due to union reasons (articles 9 and 10) and dissuasive sanctions in enforcement (articles 217 and 218), complemented by provisions of the common and labour law which provide for court rulings on disputes from the conclusion, amendment, performance or termination of individual or collective employment agreements with the possibility to claim compensation.

Effective protection against acts of anti-union discrimination and interference is ensured not only by Act No. 62/2011, but also by other legal acts, such as article 5 of the Labour Code, which sets the non-discrimination principle in direct or indirect relation to union membership; or Government Ordinance No. 137/2000 on preventing and sanctioning all forms of discrimination, which also includes discrimination based on union membership.

The Labour Code and related legislation, in particular Act No. 62/2011, guarantees the individual and collective right to association and affiliation and to carry out trade union activities and bans employees from waiving their rights (article 38 of the Labour Code). Nobody may be constrained or forced to become a union member, and the relationship between the trade union and its members is regulated by the trade unions’ own by-laws.

Also, with a view to guaranteeing employees’ protection in the exercise of their rights, the Labour Code provides for the employer’s obligation to justify dismissal decisions or modifications of the labour relation. Within collective agreements, trade unions may negotiate specific protection measures for union members and management, as well as clauses on labour dispute resolution.

In order to protect union members and not to deter organization, the legal and administrative actions provided by law are solely based on statements provided by the union on the number of company employees as union members.

Regarding representativeness criteria and the coverage of collective bargaining: 100 per cent coverage before 2011 was achieved through collective agreements at the national level (with erga omnes effects) which created an artificial sense of strong social dialogue. Its elimination, in line with international best practice and freedom of association and voluntary negotiation, gave more room for collective bargaining at the company level. This is also linked to the bigger picture of the social dialogue landscape in Romania, where negotiations at the sectoral level are less attractive as an addition to company-level negotiations. Only a small number of economic sectors are defined by law (meaning 29) and they do not reflect the realities of the economic landscape. Moreover, every aspect related to labour conditions and relations is regulated in detail in Romania, leaving not much space for the social partners to negotiate. For instance, the minimum salary is statutory, with 100 per cent coverage.

It should also be noted that the current provisions of article 129 of Act No. 62 of 2011, setting compulsory collective bargaining at company level, are actually in conflict with the Convention as regards the freedom of the parties to establish the level of collective negotiations.

The unions also claim that the 2018 proposed amendments to Social Dialogue Act No. 62 were not consulted with the representative trade unions. However, there were extensive consultations in the Ministry for Social Dialogue at that time, for more than eight months, with both unions and employers sitting at the table. No law has been passed so far by the Government. The debate has moved to the Parliament, where both parties participated. The changes to Social Dialogue Act No. 62 are now in the final stage of approval.

Employer member, Germany – The Employer members note from the Government’s submission that there is a general decline of collective bargaining, determined by the actual changes in the world of work, which corresponds to similar developments also existing in other countries. Beyond that, we would like to point out that there may also be special reasons for the decline of collective bargaining in Romania.

Consideration should be given to the changing economic context in the country. The economic landscape has changed significantly since the 1990s and 2000s, in the sense that many large state-owned enterprises dominated by the big trade unions disappeared.

At the same time, the legal framework for social dialogue was further developed so that regulated compulsory collective bargaining at the national level was abolished in 2011. This was a necessary measure as an obligation to bargain at a particular level is not in line with the principle of “voluntary negotiation” as guaranteed by Article 4 of the Convention.

Labour regulation in Romania is still very detailed and strict, which reduces the room for collective bargaining. Currently, according to article 129 of the Social Dialogue Act, collective bargaining is still compulsory at the unit level. This situation reduces interest in collective bargaining at the sectoral level and it may also explain the high percentage of agreements concluded with elected workers’ representatives given the absence of workers’ organizations in most small and medium-sized enterprises.

Therefore, it is not possible to conclude from purely statistical data that the Government is generally not sufficiently promoting collective bargaining, as required by Article 4 of the Convention. However, if there is one measure that may be taken by the Government in this regard, it would be to introduce opening clauses in the law, in order to give more room for collective agreements between the social partners in line with the needs of their sector or their company.

Regarding the criterion of trade union representativeness, the Employers’ group would like to stress that this is required because of the erga omnes nature of the collective bargaining agreements. Due to the applicability of the agreements to all workers of the unit, it is necessary to define representativeness thresholds or other criteria to legitimize the trade union.

In addition, we would like to stress that, according to articles 134 and 135 of the Social Dialogue Act, in the absence of a representative union, a non-representative union can also participate in joint negotiations with workers’ representatives if it is affiliated to a representative sectoral trade union. Only if no trade union is established, the workers are represented just by their elected representatives.

It cannot be concluded that the Social Dialogue Act favours collective bargaining with workers’ representatives to the detriment of trade unions.

Employer member, Norway – At the outset, I would like to align myself with the intervention by the Employer spokesperson in this case. Furthermore, I would like to underscore that the Convention is a framework to ensure enabling conditions for social dialogue. However, the Convention cannot secure the success of the process or the outcome. An important element of successful social dialogue is the existence of trust between the social partners and that the partners involved both have the capacity needed.

The situation in Romania is improving and, as stated also by the Government, the country has a balanced legislation in place. On a personal note, I would like to inform you that my organization, the Confederation of Norwegian Enterprise (NHO), and Concordia, one of the main employers’ organizations in Romania, at present are running a joint project precisely on social dialogue and how to improve the functioning of it.

When it comes to issue number one on protection against anti-union discrimination, it must be recalled that both the labour law and other parts of Romanian legislation deal with the issue. In other words, protection against such discrimination is ensured in the legislation.

As far as wage negotiations in the public sector are concerned, I would like to welcome the initiative referred to by the Government that it has been decided to start a process aimed at revising the law on civil servants’ remuneration. This is to ensure an improvement of the system.

Even though there are many positive developments in Romania today, the Government should be encouraged to intensify its consultations with the social partners in order to further improve social dialogue in the country.

Worker member, Germany – I am speaking on behalf of the German Confederation of Trade Unions (DGB), the Netherlands Trade Union Confederation (FNV), the General Confederation of Labour of Belgium (FGTB) and French workers. Reading the written statement of the Government to the Committee, one feels slightly reminded of the principle “divide and conquer”. New economies and forms of work, it is stated there, diminish the interest for unionization and collective bargaining.

The effective recognition of the right to collective bargaining is not only one of the four fundamental principles that ILO Members States have an obligation to respect, to promote and to realize, it also lies at the core of social dialogue and is reflected even in the tripartite nature of this Committee. Being able to speak as a collective is often the only factor that makes an individual worker’s voice heard. The picture of the flexible worker being her own entrepreneur that some like to paint is therefore essentially flawed.

The austerity measures adopted by Romania have, over the past decade, led to a severe deterioration of the collective bargaining landscape. The Social Dialogue Act adopted in 2011 has de facto eliminated collective bargaining at the sectoral and national levels. And bargaining at company level has become considerably more difficult. It is therefore no surprise that coverage has declined from almost 100 per cent in 2010 to only 15 per cent in 2017.

How can we conceive a “human-centred world of work” and strive for a “human-centred recovery” from the COVID-19 pandemic when the right to speak and negotiate collectively is so severely hampered?

Studies show that wages are lowest in Europe where collective bargaining is weakest. Romania is not only among the countries with the lowest, average and minimum wages; the current minimum wage levels also do not provide workers with an income that allows decent living. In-work poverty is among the highest in the EU, and affects one third of Romanian workers.

The situation in Romania has not only been criticized by the Committee of Experts, but also by the EU institutions. Under the European Semester, Romania has for years been receiving country-specific recommendations in relation to the very limited scope of social dialogue, the low minimum wages and the lack of objective criteria for setting the minimum wage.

We therefore call on the Government to immediately amend – in full consultation with the social partners – its legislation and bring it into line with the Convention.

Observer, IndustriALL Global Union – I am speaking in the name of IndustriALL Global Union and would like to give the Committee a practical example from workers from an automotive component plant in Romania who decided to form a union in 2019. This is to illustrate how the Romanian labour legislation actively hinders the application of the Convention.

After the registration of the trade union at the auto plant, the first stumbling block is the verification process related to the representation of more than 50 per cent of the workforce. According to article 52(C)(c) of the Social Dialogue Act, the union not only has to prove the number of members in the plant to the competent labour court, but also has to provide a document on the total number of employees issued exclusively by the company. By relating the two figures, the court can then determine whether the 50+1 threshold is met and, as a consequence, whether the union qualifies for collective bargaining.

However, the same article 52(C)(c) obliges the union to submit the document from the company, but does not oblige the company to issue this written declaration on the size of the workforce. So, it is very easy for the company to simply refuse without any sanctions, thus blocking the application of the Convention before any bargaining has even started.

In the concrete case, it required the intervention of IndustriALL Global Union, the mother company and our Global Framework Agreement to make the local Romanian management issue the required letter.

Also, it was noted that the company, which is not obliged to recognize and speak with the elected trade union representatives, persistently continued to treat the local trade union leader as a simple employee representative (her/his former status). When collective bargaining finally started, the company used two other particularities of the Romanian labour law to the detriment of the union: article 129(5) to avoid any shorter period of collective bargaining than 60 days; and article 141 of the Social Dialogue Act, saying that only one collective agreement can be signed between the social partners in 12 months. Here the company prolonged the negotiations into the pre-Christmas period threatening the employees not to pay the usual Christmas bonus in case the union decided to go for industrial action. The union had to give in and finally signed a collective agreement including a new pay agreement for 2020 at the end of 2020.

When the company invited the union for the wage negotiations for 2021 in March of that same year, the union could not exert any pressure on the company because according to article 161 of the Social Dialogue Act, the union could not open any industrial action and the wage agreement was simply an addendum to the existing collective agreement.

Due to time constraints, I have to stop here but I am sure it has become clearer to the Committee how the Romanian labour legislation prevents the proper application and implementation of the Convention.

Government representative – I welcome the numerous interventions that reflected a diversity of opinion and views on how the various parties should interact, brief one another and provide a useful basis for consideration. The Romanian Government stands ready to continue to work closely with the ILO and the social partners to find the best way forward to the benefit of all economically active persons and to ensure that their rights are well protected and represented.

Employer members – The Employer members have taken due note of the written and oral information provided by the Government representative and the discussion that followed. Our principal recommendation to the Goverment authorities is to further promote bipartite social dialogue, and to intensify its consultations with representative organizations of employers and workers, if legislative amendments are envisaged in relation to social dialogue.

With a view to improving effective protection against anti-union discrimination, and further promoting collective bargaining, several pathways to improvement are proposed.

First pathway, in relation to anti-union discrimination, it is important for the Government to provide detailed information on: the number of cases of anti-union discrimination and interference brought to the various competent authorities; the average duration of the respective procedures and their outcome; and the sanctions and remedies imposed in practice.

Second pathway, in order to promote collective bargaining and reverse the fall in the coverage rate, it appears to us to be important for the legislation to leave more room for bargaining and the conclusion of collective agreements by the social partners. They will be more motived to enter into bargaining with a view to the conclusion of balanced agreements, taking into account the needs of their sector or enterprise.

Third pathway, the efforts made recently to allow collective bargaining by public employees not engaged in the administration of the State should be continued.

The Employer members invite the Government to provide all this information in its next regular report on the Convention. I will conclude by pointing out that the mere fact of including in a law the requirement for the parties to associate will not create solid social dialogue. It is particularly necessary to reinforce the calls for the social partners to organize freely and to engage in free and independent bargaining.

Worker members – I first wish to thank those who have contributed to our discussion.

The Employer members have claimed that the Convention does not provide for the reversal of the burden of proof or that sanctions are necessary to protect against trade union discrimination. In their great wisdom, the drafters of the Convention considered it useful to speak of adequate protection. This term encompasses, among other matters, the reversal of the burden of proof and sanctions. In passing, that means that the most appropriate measures can be taken without entering into an over-detailed enumeration.

Nor do we share the assessment by the Employers that the current representativeness threshold should not be reviewed. Article 4 of the Convention does not specify the representativeness threshold. However, anything that prevents bargaining by trade unions is contrary to this Article. Representativeness thresholds that are too high, as they are in the present case, are not in conformity with the Convention.

Moreover, we cannot follow the Employer members in their claim that negotiations carried out by workers’ representatives are not covered by the Convention. The concept of collective bargaining within the meaning of the ILO is single and indivisible. There is not one type of bargaining for unions and another for the rest of humanity. This concept is the same, irrespective of who undertakes it on behalf of the workers. That is what is envisaged in Convention No. 98, Convention No. 135 and Convention No. 154, all of which have been ratified by Romania.

As I said in my introductory intervention, the industrial relations situation in Romania has not occurred by chance. It is the consequence of the backward steps taken in 2011 under pressure from the Troika. These changes resulted in the displacement of the centre of gravity of collective bargaining to the enterprise level.

As we have shown, the modification of the representativeness threshold at this level has had a heavy impact on trade unions. This impact can easily be measured by observing the collapse in the number of collective agreements concluded at the branch and national levels.

The right to collective bargaining guaranteed to trade unions by the Convention has also suffered from this new configuration. If proof is needed, over 92 per cent of the collective agreements concluded in the private sector have been negotiated by elected representatives. But, over and above the unions, this situation has also greatly fragilized the situation of workers as a whole, with over one third of them being paid at the rate of the minimum wage. Nor will I insist on the economic and social consequences implied by this pauperization, with a significant rise in emigration leading to shortages of workers in a series of sectors.

May I now recall the essential points for the Workers’ group. It is the Government’s responsibility to provide effective and dissuasive protection against acts of anti-union discrimination. The issue of the representativeness threshold deserves particular attention, and in particular urgent action. On the one hand, it is crucial to review the representativeness threshold at the enterprise level. It is also necessary to review the procedure for the election of representatives so as to allow unions to submit lists in all situations and to ensure the transparency of the procedure. Finally, we call on the Government to promote and encourage collective bargaining at all levels, including the national level.

With a view to giving effect to these elements, we call on the Government to accept a high-level mission.

Chairperson – I would now like to consult the Employer and Worker spokespersons. The Worker member of Romania, who was not able to connect, has just managed to connect and would like to take the floor. Are the Employer and Worker spokespersons in agreement that we can exceptionally give him the floor?

(The two spokespersons indicate their agreement.)

Worker member, Romania – The Committee of Experts emphasizes in its report that, through its provisions, the Social Dialogue Act, adopted in 2011, establishes a minimum requirement of 15 founder members in the same enterprise/unit to establish a union.

It should be noted that this is an unsurmountable obstacle in a country where most employers are small and medium-sized enterprises, as they represent 92.5 per cent of all enterprises in Romania and have fewer than 15 employees. This requirement therefore denies the right to organize to over 2.2 million workers. The unions have indicated that, in order to be in conformity with the provisions of the Romanian Constitution (the Basic Law), the requirement should be 15 employees in the same enterprise or in several enterprises in the same field, thereby offering the possibility to establish a union even at the national sectoral level.

We recall that the law prohibits dismissed and retired workers from joining unions, if they so wish, even if they have participated in trade union activities. Those who have the right to establish and/or join a union are set out in section 3 of the Social Dialogue Act. The categories of persons referred to above are not explicitly included. The reference by the Government to section 32 of the Social Dialogue Act is not pertinent and does not respond to the question, as the statutes of trade unions are subject to control by the courts. As a consequence, section 32 does not apply ex ante, but only following the approval of the statutes by the court. Those who have been dismissed or who have retired can therefore only become members of unions if that is accepted by the courts.

I emphasize that, in accordance with the provisions of the Social Dialogue Act, as also noted by the Committee of Experts, daily workers, self-employed workers and workers engaged in atypical forms of employment, who account for around 25.5 per cent of the total active population in Romania, are not covered by the Act and cannot therefore exercise their trade union rights.

Most collective labour agreements, over 80 per cent of them, are now negotiated by the elected representatives of employees, because unions not considered to be representative do not have the right to negotiate on behalf of their own members. Although the amendment of the Act has been called for, in the sense that bargaining with non-unionized representatives of the employees should only be possible when there is no union at the respective bargaining level, no action has been taken.

In 2010, all collective agreements and accords were negotiated and concluded by unions, while in 2017 only 14 per cent of all the collective agreements concluded were negotiated by unions, with 86 per cent being negotiated by elected representatives of employees. Although the Convention establishes the right to collective bargaining for both workers’ organizations (unions), irrespective of their level, and for employers and their organizations, collective bargaining is carried out principally by non-unionized workers’ representatives, and not by unions.

The level of representativeness that allows participation in bargaining is 50 per cent plus one of the total number of employees, which has led to a drastic fall in the number of collective agreements concluded at the enterprise level. The requirement imposed for the conclusion of a sectoral collective agreement, namely only if the signatory organization represents at least 50 per cent plus one of the workers in the sector, has blocked collective bargaining at this level. These 2011 legislative provisions are not the outcome of agreement between the social partners, nor of public or parliamentary debate: they were adopted and introduced by law, by the Government.

The main consequences of these legislative changes are the following. First, the elimination of the single collective labour agreement at the national level, which was the principal source of law in the field of labour and industrial relations in Romania. Over 1.7 million workers, out of a total of around 5 million workers in the country, are paid at the level of the gross minimum wage established by the Government. More than 4 million workers have left Romania to find work abroad as a result of the precarity of labour relations.

Second, the insitution of collective bargaining in Romania has been dismantled and the role of unions in this institution has been weakened, contrary to the provisions of the Constitution of Romania, the Basic Law (article 41(5)) which guarantees rights to collective bargaining.

I emphasize the gravity of the situation of industrial relations in Romania and of collective bargaining, which has been dismantled since 2011.

Conclusions of the Committee

The Committee took note of the written and oral information provided by the Government representative and the discussion that followed.

Having examined the matter and taking into account the Government’s submissions and the discussion that followed, the Committee noted that there are significant compliance issues regarding the Convention in law and practice with respect to the protection against anti-union discrimination and the promotion of collective bargaining.

In this regard, the Committee requests the Government of Romania to:

• ensure adequate protection against acts of anti-union discrimination in law and practice in compliance with the Convention;
• collect detailed information on the number of cases of anti-union discrimination and employer interference brought to the various competent authorities; the average duration of the relevant proceedings and their outcome; how the burden of proof is applied in such cases affecting trade union officers as well as the sanctions and remedies applied in such cases;
• ensure, in law and practice, that collective bargaining with the representatives of non-unionized workers only takes place where there are no trade unions in place at the respective level; and
• amend the law so as to enable collective bargaining for public servants not engaged in the administration of the State in line with the Convention.

The Committee requests the Government to provide information on all of the above points to the Committee of Experts before its next session in 2021.

The Committee requests the Government to accept an ILO technical advisory mission before the next International Labour Conference.