Allegations: The complainant organization alleges that Government Decree 27/2021
(I.29) on the declaration of an emergency situation and the entry into force of emergency
measures and Government Decree 36/2022 (II.11) on certain emergency rules concerning public
education institutions, restrict the right to strike in public education
institutions
- 502. The complaint is contained in communications dated 23 March 2022 and
22 April 2022, submitted by the Forum for the Cooperation of Trade Unions (SZEF), one of
the largest trade union confederations in Hungary, bringing together trade unions
representing workers in public education, public health and social care, public
collections, cultural and art institutions, state and local public administration, the
judiciary, public order and public security agencies.
- 503. The Government of Hungary transmitted its observations on the
allegations in communications dated 4 July 2022 and 3 February 2023.
- 504. Hungary has ratified the Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98).
A. The complainant’s allegations
A. The complainant’s allegations- 505. In its communications dated 23 March and 22 April 2022, the SZEF
alleges that the measures taken by the Government of Hungary pose a serious threat to
the exercise of the right to strike. In particular, it alleges that Government Decree
27/2021 (I.29) on the declaration of an emergency situation and the entry into force of
emergency measures and Government Decree 36/2022 (II.11) on certain emergency rules
concerning public education institutions, are contrary to ILO Convention No. 87 as they
restrict the right to strike.
- 506. The complainant indicates that the joint strike committee of the
Democratic Trade Union of Teachers (PDSZ) and the National Teachers’ Trade Union (PSZ)
announced a strike as of 16 March 2022 for an indefinite period of time to enforce the
strike demands and requested the government representative to the conciliation procedure
to be appointed on the basis of article 2(2) of Act VII of 1989 on Strikes (Strike
Act).
- 507. Upon the appointment of the Deputy State Secretary of the Ministry
of Education and Research, the parties began discussions on the extent and conditions of
sufficient minimum services.
- 508. The complainant alleges that before the consultations could have
been concluded and before the next round of negotiations, the Government adopted
Government Decree 36/2022 (II.11) on certain emergency rules concerning public education
institutions on 11 February 2022, which subsequently entered it into force on 12
February 2022.
- 509. The complainant notes that according to section 1 of Government
Decree 36/2022 (II.11):
- During the period of an emergency situation pursuant to
Government Decree 27/2021 (I.29) on the declaration of an emergency situation and
the entry into force of emergency measures (hereinafter referred to as “emergency
situation”), in order to ensure the continuity of the education and training of
children and students within the public education system and the effective
implementation of the epidemiological measures, the services specified in paragraphs
(2) to (9) shall be provided as sufficient (minimum) services within the meaning of
article 4 (2) of Act VII of 1989 on Public Education for children and students
affected by the strike and who are in a legal relationship with public education
institutions (hereinafter referred to as “public education institution”) within the
meaning of article 7(1) of Act CXC of 2011 on National Public
Education.
- 510. The complainant adds that since the conciliation between the parties
on the issue of sufficient services did not lead to a result, the trade unions initiated
a non-litigation procedure with the court to define the extent of sufficient services
and also to initiate the individual constitutionality review of the norm.
- 511. The complainant notes that by its order No. 22.Mpk.75.042/2022/6,
the Metropolitan Administration and Labour Court of Budapest rejected both the request
for the definition of the level of sufficient services and the request for the
individual constitutionality review. In the reasoning of the order, the Court stated,
inter alia, that “in view of the fact that, in the case of the industrial action
referred to in the application, Government Decree 36/2022 (II.11) on certain emergency
rules concerning public education institutions provides for the extent and conditions of
sufficient services, the Court cannot decide on them”.
B. The Government’s reply
B. The Government’s reply- 512. In its communications of 4 July 2022 and 3 February 2023, the
Government provides its observations on the complaint lodged by the SZEF.
- 513. In its communication of 4 July 2022, the Government provides
information on relevant administrative and court proceedings and their respective
outcomes. The Government details the relevant sections of the Fundamental Law of Hungary
that grants the right to organize and of trade unions’ activities, the right to enter
into negotiations and conclude collective agreements and to act jointly in order to
protect their interests, which covers the right of workers to discontinue work (Freedoms
and Responsibilities article XVII, section 2). According to article XVII, section 2, of
the Fundamental Law of Hungary, “Employees, employers and their organizations shall have
the right, as provided for by an act, to negotiate with each other and conclude
collective agreements, and to take collective action to defend their interests,
including the right of workers to discontinue work”.
- 514. In connection with the Fundamental Law of Hungary, the Government
also provides information on the relevant sections of Act CLXXV of 2011 on Freedom of
Association, on Non profit Status, and the Operation and Support of Civil Organizations
regulating the right to organize (section 3), the Labour Code (Act I of 2012) regulating
the rights of negotiating and collective agreements (sections 270–272) and Act VII of
1989 on Strikes (Strike Act) regulating the right to strike, its prohibition and
limitation.
- 515. With respect to the right to strike, the Government notes that
section 4 of the Strike Act provides that:
- (1) During the time of the strike, the
opposing parties continue further conciliation for the settlement of the debated
question, and are obliged to ensure the protection of persons and of property. (2)
In the case of employers who perform activities of fundamental public concern – such
as, in particular, in the field of mass transportation on public roads and
telecommunications, as well as at suppliers of electricity, water, gas and other
energy – the right to strike may be exercised in a way so as not to impede the
performance of services maintained at a level deemed sufficient. (3) The level of
service deemed sufficient and the related requirements may be defined by an act of
Parliament. If not governed by an act of Parliament the level of service deemed
sufficient and the related requirements shall be agreed upon previously, during the
pre-strike negotiations; in this case the strike may be carried out if the parties
concluded the agreement, or failing this, if the level of service deemed sufficient
and the related requirements had been determined by final decision of the court
hearing labour disputes, acting on the request of either of the
parties.
- 516. Concerning the facts of the events, the Government explains that on
1 October 2021, the PDSZ and the PSZ formed a joint strike committee and sent their
demands concerning a pay rise for teachers and pedagogical assistants, the decrease of
teachers’ contact hours and the revision of regulations on the mandatory COVID-19
vaccination policy. In line with section 2(2) of the Strike Act, the Deputy State
Secretary responsible for public education was appointed to conduct the negotiations
with the strike committee. Negotiations were held on the following dates: 13 October
2021, 3 and 18 November 2021, 1 and 15 December 2021, 12 and 24 January 2022, and 2
March 2022. The Government notes that the strike committee announced a two hour warning
strike for 31 January 2022 and declared a strike from 16 March 2022 in the event of
unsuccessful strike negotiation.
- 517. The Government also notes that on 8 February 2021, a state of
emergency was declared in Hungary (Government Decree 27/2021 (I.29), which lasted until
31 May 2022, and Government Decree 181/2022 (V.24) on the lifting of the state of
emergency). The Government points out that given the existence of a state of emergency,
the declaration of the strike by the strike committee was announced under special legal
order.
- 518. The Government explains that since during the negotiations no
agreement was reached on substantive demands of the strike committee, the focus was
turned towards the issue of the level of service deemed sufficient. According to section
4 of the Strike Act: “In the case of employers who perform activities of fundamental
public concern, the right to strike may be exercised in a way so as not to impede the
performance of services maintained at a level deemed sufficient”. The Government notes
that as the strike committee did not argue that the level of service deemed sufficient
in the field of public education should be defined, it was only the extent of these
services that needed to be agreed upon. The Government indicates that since the trade
unions did not consider education and teaching as part of public education as of
fundamental public concern, they did not intend to perform educational and teaching
activities during the time of the strike, providing only childcare in certain appointed
institutions. The Government’s position was that just as the right to strike is a right
granted to the unions by the Fundamental Law of Hungary, so is the children’s right to
development, culture and education. Therefore, education is a service of fundamental
public concern and thus, a defined number of classes are necessary to be held beyond
providing childcare. The Government adds that the above situation was compounded by the
aforementioned state of emergency caused by the COVID-19 pandemic necessitating to
ensure that the isolation and health protection measures previously imposed in the
public education sector were maintained during the strike. The Government notes that
there was no agreement reached on the level of service deemed sufficient.
- 519. The Government further notes, that on the basis of paragraph (3) of
section 4 of the Strike Act, on 22 December 2021, the strike committee filed a motion to
the Court to rule on the level of services deemed sufficient in connection with the
two-hour warning strike planned to take place on 31 January 2022. The Government submits
that the Court closed the case on 13 January 2022 while at the same time rejecting the
motion. On 17 January 2022, the strike committee launched a new procedure to which the
Government’s side submitted a counterclaim. In this case, on 28 January 2022 in the
first instance order, the Court ruled that the proposed strike was legal and accepted
the strike committee’s standpoint as for the level of services deemed sufficient. The
Government, based on paragraph (2) of section 5, appealed the ruling in spite of the
call of the strike committee on 28 January 2022 to waive their right to appeal. The
Government indicates that on 31 January 2022 the strike committee carried out the
planned two-hour warning strike in spite of there not being a court ruling on the level
of services deemed sufficient. The appellate court, on 10 February 2022, states that the
warning strike of 31 January was illegal due to the lack of previous agreement of the
parties and/or court ruling on the level of services deemed sufficient.
- 520. The Government notes that on 11 February 2022, Government Decree
36/2022 (II.11) on regulations in the state of emergency concerning public education was
adopted. The Decree determined the conditions which had to be provided in the public
education sector in case of a strike during the period of the effect of Government
Decree 27/2021 (I.29) as for the level of services deemed sufficient. These are
enumerated as follows: childcare in line with the rules of separation/social distancing,
provisions of meals, and participation in prescheduled medical screenings; holding up to
50 per cent of students’ classes; holding up to 100 per cent of classes in the relevant
subjects for senior students preparing for school-leaving exams; taking care of children
with special educational needs and the ones staying in dormitories; and providing
childcare in kindergartens.
- 521. The Government also notes that on 18 February 2022, the strike
committee submitted another motion to the Court requesting the determination of the
level of services deemed sufficient for the strike to be started on 16 March 2022 in a
way that the Court disregard Government Decree 36/2022 (II.11) and accept their
proposals on the issue. At the same time, they also asked the Court to initiate a
procedure for declaring the above decree unconstitutional at the Constitutional Court.
The Government indicates, that on 26 February 2022, Government Decree 36/2022 (II.11)
came into effect. On 24 February 2022, the Court rejected the request of the strike
committee in the first instance, on 8 March 2022 in the second instance. On 4 March
2022, the strike committee turned straight to the Constitutional Court asking them to
declare the decree unconstitutional. To this day there is no decision from the
Constitutional Court in this case.
- 522. The Government also adds, that on 16 March 2022, the strike was
carried out, with the stipulations determined by Government Decree 36/2022 (II.11). In
some cases, the requirements for the level of services deemed sufficient were not met by
the strikers, these incidents were later referred to as “civil disobedience”. The
Government explains that the term “civil disobedience” is not recognized by the
Hungarian legal system. Disregarding the regulations concerning the level of services
deemed sufficient and going on strike without any lawful cause is an offence against
duties determined by laws concerning employment and appointment to public services.
- 523. Finally, the Government explains, that on 1 April 2022 – with regard
to the upcoming parliamentary elections of 3 April 2022 – the strike committee suspended
the strike until Hungary’s new government is formed. On 31 May 2022 the state of danger
declared in Government Decree 27/2021 (I.29) came to an end, thus all relevant decrees
adopted during the period of the state of danger became void, including the impugned
Government Decree 36/2022 (II.11).
- 524. With respect to the complaint submitted by the SZEF, the Government
notes that its position is primarily based on the fact that the complaint had become
redundant because the impugned Decree had since then been repealed. According to section
4(2) of Government Decree 36/2022 (III.11), the Decree is to be repealed at the same
time as Act I of 2021 on the protection against the COVID-19 pandemic. Section 5/A
declares that the very law will be repealed on 1 June 2022. The Government, nonetheless,
adds that section 14 of Act V of 2022 on issues regarding the termination of the state
of emergency – now in line with paragraph (3) of section 4 of the Law on Strike –
re-regulates the issues of the level of services deemed sufficient in the public
educational sector, but the SZEF’s complaint had not been directed against this piece of
legal regulation. In its communication submitted on 3 February 2023, the Government
clarifies that Act V of 2022 entered into force on 1 June 2022 and that its content is
identical in its essence to that of Government Decree 36/2022 (III.11) and notes that
its position as expressed in its communication dated 4 July 2022 and detailed below – in
view of the concordance of the content between Act V of 2022 and Government
Decree 36/2022 (III.11) – remain unchanged.
- 525. The Government in its response describes the relevant ILO
Conventions that Hungary ratified (Convention Nos 87 and 98, the Labour Relations
(Public Service) Convention, 1978 (No. 151), and the Collective Bargaining Convention,
1981 (No. 154)). It notes that due to the fact that none of these Conventions include
the ensuring of the right to strike, the Government, similarly to the SZEF will rely
exclusively on the ILO’s case law in respect of interpreting the right to strike. To do
so, the Government recalls the following paragraphs of the Compilation of decisions of
the Committee on Freedom of Association, sixth edition, 2018, paras 837, 827–830, 836,
840, 842, 845–846.
- 526. Based on the above paragraphs of the Compilation, the Government
concludes that regulations having been impugned in the SZEF’s complaint are in line with
ILO’s case law. The Government indicates that according to the ILO’s case law, the level
of service deemed sufficient should fulfil citizens’ needs while preserving the
sufficient level of exerting pressure – a principle the regulations in Hungary
guarantee. The Government explains that although public education is not considered an
essential service – with the exception of provision of meals to school children and the
cleaning of schools (paras 840 and 842) – the combined implication of providing
childcare for schoolchildren and the state of emergency during the COVID-19 pandemic are
such factors that can establish that the right to strike may be restricted or prohibited
[see Compilation, paras 830(2) and 836] given such factors can constitute unequivocal
and direct danger to the life, personal safety or health of part of the population (i.e.
children and students). The Government notes that it can be readily accepted that minors
between the ages of 14–18 with limited capacities, and those between the ages of 0–14
with no capacities, must be provided with childcare for the sake of their own
security.
- 527. The Government also adds that the purpose of educational facilities
is not only to pass on knowledge but to ensure their attendees’ safety. According to
section 1 of article XVI of the Fundamental Law, “every child shall have the right to
the protection and care necessary for his or her proper physical, mental and moral
development”. In this respect the Government also refers to articles 3(1)–(2), 24(1) and
28 of the United Nations Convention on the Rights of the Child. In line with the above,
the Government reports that Government Decree 36/2022 (III.11) provided for the
following:
- Article 1(2): In those educational facilities that are
participating in the strike, the care of children and pupils must be provided as
follows: (a) On every workday of the strike from 7 a.m. until 4 p.m., in the case of
elementary schools until 5 p.m., in kindergartens until 6 p.m.; (b) In that
educational facility where the child/student receiving an education due to his/her
legal relationship; (c) With regard to the pandemic environment in a way that every
child/student should be grouped together in the same classroom with the ones that
they were originally grouped with before the strike and in compliance with the
various state of danger regulations, the mixing of children belonging to different
classes preferably should be avoided and care should be provided in the same room
where they stayed before the strike; (d) In every group or class there should be at
least one qualified kindergarten teacher, teacher, special needs teacher, tutor,
special education teacher and/or assistant present; (e) During the provision of care
the children/pupils should spend at least 1 hour in the morning and 1 hour in the
afternoon outside – weather permitting – with regards to the rules on social
distancing; and (3) In institutions affected by the strike, the provision of meals
should be ensured complying with regulations referring to public catering, health
and other professional regulations at the same premises and in the manner prior to
the strike.
- According to the Government applying these regulations, the right to
strike is granted in the field of public education and can serve as a means to apply
pressure.
- 528. The Government also argues that while the ILO’s case law does not
consider teachers as public servants exercising authority in the name of the State [see
Compilation, paras 827–829 and 845], it nonetheless provides for limiting the right to
strike on grounds that public education is a sector the suspension of which for a longer
than the defined period of time might become of essential importance [see Compilation,
para. 837]. As a consequence of a strike that affects the institutional system of public
education, socialization, learning and spiritual growth may become more difficult, in
case of a prolonged period even impossible, and this might have a negative impact on the
growing-up generation. These long-term impacts – beyond the points listed above – do not
only affect childcare, but the whole educational-teaching process. The Government notes
that while, according to the ILO’s case law (para. 846), such long-term impacts do not
justify the prohibition of strikes in public education, a contrario, the limitation of
the right to strike to a certain extent is not forbidden in public education either.
Government Decree 36/2022 (III.11) did not prohibit the right to strike, only set
limitations by defining the level of service deemed sufficient.
- 529. Referring to Article 1(3) of Convention No. 154, the Government
notes that the legally regulated definition of the level of services deemed sufficient
by the Hungarian legislation was intended to ensure the fulfilment of the said Article
of Convention No. 154. The Government adds that in view of section 4(3) of the Strike
Act, since there was no previous agreement between the parties either concerning the
substantive demands or the level of services deemed sufficient during the strike
situation and that the Court’s legally binding ruling had not arrived by the proposed
day of the strike, the organizers entered into the 31 January 2022 warning strike
knowing their actions may be unlawful. Setting the level of services deemed sufficient
in a form of a decree created a clear situation and facilitated conducting collective
bargaining, thus providing a context for concentrating on substantive issues.
- 530. Finally, the Government indicates that the complainant’s statement
according to which the Government Decrees make the right to strike impossible, is
factually contradicted by the statements of the leaders of the unions organizing the
strike. The Government notes that the president of the PSZ stated that 27,000 teachers
took part in the strike on 31 January 2022, and approximately 20,000 people took part in
the strike beginning on 16 March 2022. Therefore, the Government Decree, as acknowledged
by the complainants, did not make it impossible to organize and carry out the
strike.
- 531. Considering the above, the Government asks the Committee to reject
the complaint of the SZEF.
C. The Committee’s conclusions
C. The Committee’s conclusions- 532. The Committee notes that, in the present case, the complainant
alleges that with the adoption of Government Decree 27/2021 (I.29.) on the declaration
of an emergency situation and the entry into force of emergency measures and Government
Decree 36/2022 (II.11) on certain emergency rules concerning public education
institutions, the right to strike in public education institutions has been restricted
and as such, the above Government Decrees are contrary to freedom of association and ILO
Convention No. 87.
- 533. The Committee notes from the allegations and the information
provided by the Government that on 1 October 2021, the PDSZ and the PSZ formed a joint
strike committee and sent their demands concerning: (i) a pay rise for teachers and
pedagogical assistants; (ii) the decrease of teachers’ contact hours; and (iii) the
revision of regulations on the mandatory COVID-19 vaccination policy. The Committee
further notes the series of negotiations held between the parties (13 October 2021,
3 and 18 November 2021, 1 and 15 December 2021, 12 and 24 January 2022, and 2 March
2022). Given that the negotiations did not yield results, the strike committee announced
a two-hour warning strike for 31 January 2022 and a strike for indefinite period of time
from 16 March 2022 in the event of unsuccessful strike negotiation.
- 534. The Committee observes that according to the Government, while the
parties agreed on the need to establish a minimum service for a strike in public
education, they did not reach an agreement on the extent of the minimum service. The
Committee notes the Government’s position according to which childcare and catering is
considered to be an essential service under ILO practice where the right to strike may
be excluded or limited; while public education is an activity, the interruption of which
for a certain period of time may make it an essential service. The Committee also notes
that according to the Government, public education is a service of fundamental public
concern and that the socialization, learning and psychological development, which may
become more difficult or even impossible for a longer period of time due to a strike,
may have a long-term detrimental effect on the generations growing up. As such a defined
number of classes are necessary to be held beyond providing childcare and the regulation
of the right to strike in the field of public education is justified.
- 535. The Committee observes from the Government’s report that on 8
February 2021, a state of emergency was declared in Hungary (Government Decree 27/2021
(I.29)) due to the COVID 19 pandemic. The Committee notes the Government’s position that
the establishment of a minimum service in public education was, therefore, compounded by
the state of emergency necessitating to ensure that the isolation and health protection
measures previously imposed in the public education sector would be maintained during
the strike.
- 536. The Committee observes that in line with section 4(3) of the Strike
Act, the parties initiated the procedure for the establishment of the level of
sufficient service. According to section 4(3) of the Strike Act, the level of service
deemed sufficient may be defined by an act of Parliament or, if not governed by an act
of Parliament, then it shall be agreed upon previously, during the pre-strike
negotiations. Should the parties fail to agree on the level of service deemed
sufficient, it should be determined by the Court, acting on the request of either of the
parties.
- 537. The Committee notes that the strike committee filed a motion with
the Court to rule on the level of minimum service in connection with the two-hour
warning strike planned on 31 January 2022. The Committee observes that while the court
of first instance decided in favour of the strike committee, the Government, despite the
strike committee’s call to waive its right, appealed the decision. The Committee
observes that the strike committee went ahead with the two-hour warning strike on
31 January 2022 which, according to the Government, was subsequently deemed illegal by
the Court given the lack of agreement and/or court ruling on the level of minimum
services.
- 538. In the chronology of events, the Committee also notes that on 2
February 2022, the strike committee, in an electronic letter, initiated a negotiation
with respect to the establishment of the minimum services for the strike announced from
16 March 2022. The Committee notes the complainant’s allegation that before the
consultations could have been concluded and before the next round of negotiations, the
Government, on 11 February 2022, adopted Government Decree 36/2022 (II.11) on certain
emergency rules concerning public education institutions defining the services that
shall be provided as sufficient services. The Committee understands that, as a result,
on 18 February 2022, the strike committee submitted a motion to the Court to (a) define
the extent of sufficient services for the strike to be started on 16 March 2022, and (b)
initiate a procedure for declaring the Government Decree unconstitutional in the context
of an individual constitutionality review of the norm. The Committee notes, however,
that on 24 February 2022, the Court of first instance rejected both the request for the
definition of the level of sufficient services and the request for the individual
constitutionality review of the norm and on 26 February 2022, Government Decree 36/2022
(II.11) came into effect. The Committee notes the complainant’s allegations that the
Court in its reasoning stated, inter alia, that “in view of the fact that, in the case
of the industrial action referred to in the application, Government Decree 36/2022
(II.11) on certain emergency rules concerning public education institutions provides for
the extent and conditions of sufficient services, the court cannot decide on them”. The
Committee further notes that on 8 March 2022, the appeal was rejected in the second
instance court and on 4 March 2022, the strike committee submitted its request to the
Constitutional Court to declare the decree unconstitutional – with no decision yet
rendered.
- 539. The Committee finally notes that while on 16 March 2022, the strike
was carried out with the stipulations determined by Government Decree 36/2022 (II.11),
on 1 April 2022, in view of the upcoming parliamentary elections – the strike committee
suspended the strike until Hungary’s new government was formed. On 31 May 2022, the
state of emergency declared by Government Decree 27/2021 (I.29) came to an end and
Government Decree 36/2022 (II.11) was also repealed.
- 540. The Committee notes the arguments put forward by the Government
that: (i) the complaint, directed against Government Decree 36/2022 (II.11), has become
redundant given the said Decree was repealed on 1 June 2022; (ii) Government Decree
36/2022 (II.11) with its regulation of the level of service deemed sufficient in the
public education sector ensured the citizens’ needs with respect to childcare, catering
and public education especially in the context of the COVID-19 pandemic and in line with
the United Nations Convention on the Rights of the Child (articles 3 (1)-(2), 24 (1) and
28), while at the same time it preserved the sufficient level of exerting pressure for
workers through strike, and, in line with relevant ILO principles of application, did
not prohibit, but regulated the strike in Hungary in public education by defining the
level of sufficient service; (iii) setting the level of sufficient service in a form of
a decree created a clear situation and facilitated conducting collective bargaining in
public education and the right to strike by avoiding the need for prior consultation and
recourse to the courts in the absence of agreement; and (iv) the complainant’s
allegations with respect to the extent of limitation on the right to strike of teachers
in public education are contradicted by the statements of the leaders of the unions
organizing the strike and that, according to the Government’s communication submitted on
3 February 2023, it has never before been so easy to organize a strike in Hungary.
- 541. As regards the Government’s argument that Government Decree 36/2022
(II.11) was repealed with the end of the state of emergency, the Committee notes that
section 14 of Act V of 2022 on issues regarding the termination of the state of
emergency, in line with section 4(3) of the Strike Act, re regulates the issue of
minimum service in the public educational sector with a content identical in its essence
to that of Decree 36/2022 (II.11). The Committee duly notes the Government’s argument
that the complaint does not concern the said law, nonetheless, and in view that section
14 of Act V of 2022 in essence replicates the provisions of Government Decree 36/2022
(II.11) against which the complaint was submitted, the Committee will proceed with the
examination of Act V of 2022. Moreover, the Committee observes that, unlike the
Government Decree which had a limited period of application, the provisions under
section 14 of Act V of 2022 are applicable for an indefinite period of time and are
independent of the state of emergency set forth in Government Decrees 180/2022 and
424/2022 (proclaimed on 25 May and 28 October 2022) on the declaration of a state of
emergency and on certain emergency rules in view of the armed conflict and humanitarian
disaster in Ukraine and in order to avert the consequences thereof in Hungary.
- 542. As regards the level of minimum service, the Committee recalls that
measures should be taken to guarantee that the minimum services avoid danger to public
health and safety [see Compilation, para. 870]. The Committee notes that the provisions
included under Government Decree 36/2022 (II.11) and subsequently section 14 of Act V of
2022, among others, require educational facilities participating in the strike to
provide care of the children from 7 a.m. until 4 p.m., or 5 p.m. in case of elementary
school and 6 p.m. in case of kindergartens in the educational facility where the
child/student is receiving an education; ensure at least one qualified kindergarten
teacher, teacher, special needs teacher, tutor, special education teacher and/or
assistant is present in every group; guarantee time spent outside with at least one hour
in the morning and one hour in the afternoon; ensure prescheduled medical screenings and
provisions of meals at the same premises and in the manner prior to the strike. The
regulation also requires participating facilities to hold up to 50 per cent of student
classes and up to 100 per cent of classes in the relevant subjects for senior students
preparing for school-leaving exams.
- 543. The Committee notes that according to the Government, there is no
dispute between the parties whether public education sector should be considered a
service where minimum services may be established, but that the disagreement arose with
respect to the level of sufficient service. The Committee also notes that according to
the Government, Government Decree 36/2022 (II.11) and the subsequent Act V of 2022 do
not prohibit or restrict strikes but define the level of sufficient service and by doing
so, facilitate the exercise of the right to strike by avoiding the need for prior
consultation and recourse to the courts in the absence of agreement.
- 544. In this respect the Committee first wishes to recall that although
the education sector does not constitute an essential service in the strict sense of the
term and the possible long-term consequences of strikes in the teaching sector do not
justify their prohibition, minimum services may be established in the education sector,
in full consultation with the social partners, in cases of strikes of long duration and
establishing a minimum service in the education sector is not contrary to the principles
of freedom of association. [see Compilation, paras 842, 846, 898 and 899]. The Committee
further recalls that the determination of minimum services and the minimum number of
workers providing them should involve not only the public authorities, but also the
relevant employers’ and workers’ organizations. This not only allows a careful exchange
of viewpoints on what in a given situation can be considered to be the minimum services
that are strictly necessary, but also contributes to guaranteeing that the scope of the
minimum service does not result in the strike becoming ineffective in practice because
of its limited impact, and to dissipating possible impressions in the trade union
organizations that a strike has come to nothing because of overgenerous and unilaterally
fixed minimum services [see Compilation, para. 881]. In that regard, the Committee
observes that the unilateral determination by one of the parties of a minimum service,
in this case the Government, if negotiation has failed, is not in conformity with the
principles of freedom of association. Any disagreement in this respect should be settled
by an independent body having the confidence of the parties concerned [see Compilation,
para. 883].
- 545. While the complainant and the Government have varying views as to
the actual impact of the provisions setting a minimum service on the exercise of the
right to strike in the education sector, the Committee recalls that the minimum service
should be restricted to the operations which are necessary to satisfy the basic needs of
the population or the minimum requirements of the service, while ensuring that the scope
of the minimum service does not render the strike ineffective [see Compilation,
para. 874]. While, as stated by the Government, the Committee has considered that the
provision of food to pupils of school age and the cleaning of schools may be considered
an essential service in which strike action may be restricted or prohibited [see
Compilation, para. 840], the Committee considers that the requirement of holding 50 per
cent of the classes and up to 100 per cent of classes in the relevant subjects for
senior students preparing for school-leaving exams would appear to go beyond the notion
of a minimum service limited to the operations which are strictly necessary to meet the
basic needs of the population and may considerably restrict the right to strike of those
in the public education sector.
- 546. The Committee notes from the Government’s response that in cases
where the requirements for the level of services deemed sufficient were not met by the
strikes, the incidents were later referred to as “civil disobedience” and could be
considered to be an offence against legal duties concerning employment and appointment
to public services. The Committee notes that section 15 of Act V of 2022 allows the
employer, within eight days from the breach of duty, to apply detrimental legal
consequences pursuant to section 56 of Act I of 2012 on the Labour Code against a public
employee or employee employed in a public education institution covered by the National
Public Education Act who does not fulfil his/her obligation to work, including possible
fines or dismissal. In this regard, the Committee recalls that no one should be
penalized for carrying out or attempting to carry out a legitimate strike
[see Compilation, para. 953].
- 547. Noting with concern the complainant’s allegation that Government
Decree 36/2022 (II.11) was adopted before the ongoing consultations could have been
concluded and before the next round of negotiations could have started; and given that
Act V of 2022 replicates the restrictions on the minimum service in the same way as
Government Decree 36/2022, the Committee requests the Government to fully consult the
workers’ and employers’ organizations concerned with a view to determining the
definition of a minimum service that may be required in the education sector and, if
agreement is not possible, for the matter to be brought before an independent body for
determination, the results of which to be reflected in Act V of 2022 or other
appropriate legislation..
The Committee’s recommendation
The Committee’s recommendation- 548. In the light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendation:
- Noting with concern the
complainant’s allegation that Government Decree 36/2022 (II.11) was adopted before
the ongoing consultations could have been concluded and before the next round of
negotiations could have started; and given that Act V of 2022 replicates the
restrictions on the minimum service in the same way as Government Decree 36/2022,
the Committee requests the Government to fully consult the workers’ and employers’
organizations concerned with a view to determining the definition of a minimum
service that may be required in the education sector and, if agreement is not
possible, for the matter to be brought before an independent body for determination,
the results of which to be reflected in Act V of 2022 or other appropriate
legislation.