Informe definitivo - Informe núm. 305, Noviembre 1996

1. 81. The complaint in this case is contained in a communication from the National Trade Union (NTU) dated 21 February 1994. The complainant later sent additional information in a communication dated 31 March 1994. The Government sent its observations in a communication dated 18 May 1995.
2. 82. At its June 1995 meeting, the Committee decided to postpone the examination of this case and requested the complainant organization to send additional information (see 299th Report, para. 5). The complainant organization sent the information requested in a communication dated 15 November 1995. The Government sent new observations in a communication dated 9 May 1996.
3. 83. Bulgaria 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

1. 84. The National Trade Union (NTU) alleges that the public authorities have interfered in the admission of national organizations of workers and employers to the National Tripartite Cooperation Council. According to the complainant, Decree No. 7/22.01.1993 of the Council of Ministers, respecting the principles and conditions for admission to the National Tripartite Cooperation Council, violates Conventions Nos. 87 and 98 (ratified by Bulgaria) in that it requires national trade union organizations to be established in the former urban districts instead of administrative districts and in half of the sectors of activity as defined in 1986, without taking account of new sectors that may emerge with changes in the economy.
2. 85. The complainant explains that the Decree was adopted pursuant to section 3 of the Labour Code, as amended, which entered into force on 1 January 1993, and provides as follows:
   • Section 3. Tripartite cooperation
   • Paragraph 3. National workers' organizations may be considered as representative if their membership comprises at least 50,000 workers, over half of the sectors of activity, and if they comprise national and regional bodies.
3. 86. The complainant specifies that Decree No. 7 of 22 January 1993 contains restrictive conditions for admission to the National Tripartite Cooperation Council which have the effect of preventing it from concluding collective agreements and limiting the possibility of making trade union demands to only two national representative trade unions in the country, CL Podkrepa and the Confederation of Independent Trade Unions of Bulgaria (CITUB).
4. 87. The complainant trade union provides the text of Decree No. 7, which lists the criteria for representativity, that is the requirement to submit a list of national and regional bodies and the names and addresses of their officers; the minimum number of members; the number of organizations in the sectors of activity based on the sectors of national activity as classified in 1986; the branch structure of workers' organizations (50 local trade unions per branch, with each local trade union required to have at least five members); and the local structure of national workers' organizations (required to have regional bodies in 80 per cent of the former urban districts and 50 enterprise trade unions at the district level, with each enterprise trade union required to have at least five members).
5. 88. The complainant organization states that it has filed an appeal with the Supreme Court for the repeal of Decree No. 7 of 1993.

B. The Government's reply

1. 89. The Government acknowledges that on 4 May 1994 the complainant organization lodged an appeal with the Supreme Court to repeal section 3, paragraph (2), of Decree No. 7 of 1993 which empowers the Council of Ministers to decide on the admission of the most representative organizations upon the proposal of the President of the National Tripartite Cooperation Council. However, the Government encloses the judgement (No. 464) handed down on 23 March 1995 by the Supreme Court, which rejected this appeal.
2. 90. In its judgement, the Supreme Court states that section 3, paragraph (2), of the Decree in question provides for a structure by branch and by territorial district of trade unions. According to the judgement, this provision only establishes a minimum standard for the membership of trade unions and their territorial bodies. It is appropriate to take account of the presence of the territorial structures of trade unions throughout the country if the impact on workers is to be indisputable. This criterion ensures that agreements concluded at the national level are truly "national".
3. 91. The Government adds that the Decree does not restrict the trade unions' freedom to choose their structures and merely lists the quantitative criteria for representativity for purposes of tripartite cooperation. Lastly, the Government states that under Decree No. 7, the criteria that workers' organizations must meet in order to be considered as most representative at the national level are as follows: a minimum number of 50,000 members; these members to be employed in over half of the sectors of activity defined in 1986; territorial coverage of at least 80 per cent of urban districts; they must have national and regional bodies; they must have 50 local trade unions per branch of activity, with each local trade union required to have at least five members; and they must have 50 local organizations at the district level.

C. Additional information supplied by the complainant

1. 92. In its communication dated 15 November 1995, the complainant organization states that its appeal to the Supreme Court for the repeal of Decree No. 7 of 1993 respecting the procedure for recognizing representativity of trade union organizations was turned down. It states further that it has taken steps, through some Members of Parliament, aimed at the amendment of certain provisions of the Labour Code, that it had proposed a draft to this effect, which had been approved by the Commission on Human Rights and was now under consideration by the Commission on Labour and Social Problems. It explains that the motives for introducing the proposed amendments and additions to the Labour Code were based on the fact that the current Code allows discrimination on the basis of trade union membership, which hampers the founding of trade union organizations other than those already recognized as representative at the national level. The complainant organization states that notwithstanding the fact that the Labour Code provides for the possibility of nominating organizations that are representative at the branch and regional levels, this cannot be applied in practice. It adds that the enforcement of decrees runs counter to the right of association, in violation of ILO Convention No. 26 (the Minimum Wage-Fixing Machinery Convention, 1928) and the Labour Code.
2. 93. Specifically, the complainant organization points out that the most serious violations may be classified as follows:
   • (i) collective agreements only protect the rights of members of the trade unions CITUB and CL Podkrepa, the most representative organizations (the complainant organization cites examples of provisions of collective agreements in different sectors, some of which refer only to members of the most representative organizations, stating, for example, that the employer shall not contract more favourable terms of payment with workers and employees for whom the collective agreement is not valid);
   • (ii) discriminating terms for joining a collective agreement (the complainant organization cites examples of collective agreements in different sectors which state, for example, that "the employer shall not have the right to sign with members of his personnel who are not members of CL Podkrepa and CITUB, more favourable individual agreements than those established in the present collective agreement");
   • (iii) coordination with the representatives of CITUB and CL Podkrepa of appointments and dismissals (the complainant organization cites examples of collective agreements in different sectors which state, for example, that "in the process of preparation of the list of workers or other employees to be discharged, one representative of CITUB and of CL Podkrepa each shall take part");
   • (iv) discrimination in connection with extra paid leave of trade union activists (the complainant organization gives the example of a collective agreement concluded in the mining sector which provides for the possibility of officers of CITUB and CL Podkrepa being granted paid leave for trade union activities);
   • (v) conditions for carrying out trade union activities (the complainant organization gives examples of collective agreements in the mining and railway sectors which refer to the requirement to provide such conditions only to CL Podkrepa and CITUB);
   • (vi) collection of membership fees (the complainant organization cites a clause of a collective agreement, without specifying the sector, to the effect that "the employer agrees with the collecting of membership fees from the payroll in the enterprise he manages upon presenting by the organizations CITUB and CL Podkrepa a list of the names of their members");
   • (vii) appointment and dismissal of managers in branch enterprises; and
     • (viii) extra holidays and payments for trade union organizations (the complainant organization refers to two collective agreements in different sectors in which various benefits are provided only to members of the CITUB and CL Podkrepa).
   • 94. The complainant organization states that Decree No. 7/22.01.93 should be repealed, as well as provisions of the Labour Code leading to an ambiguous interpretation and to the issuing of discriminatory normative acts, resulting in the impossibility of concluding agreements at the enterprise level. Lastly, it states that the quota of 50,000 members required for acquiring the status of representative trade union organizations is very high, given the fact that there are only 2.5 million workers in the country.

D. Additional reply of the Government

1. 95. In its communication dated 9 May 1996, the Government refers in detail to the provisions of national legislation concerning representativity of workers' organizations. In addition, it refers to the provisions of Chapter 4 of the Labour Code dealing with collective agreements (the sections concerned provide, for example, that collective agreements shall not contain clauses that are more unfavourable for the workers or employees than those laid down by the law; define the parties to collective bargaining; and provide for the application of a collective agreement to the members of the organization that concluded it and for the extension of the collective agreement to workers who are not members of the organizations that concluded it). The Government states that if the complainant organization alleges infringements of legislation in the conclusion of a collective agreement in the food industry branch by the organizations CITUB and CL Podkrepa, it should, under the provisions of the Labour Code, bring the case before the courts, which are competent to settle labour disputes.

E. The Committee's conclusions

1. 96. The Committee notes that in this case the complainant organization criticizes the criteria for representativity laid down in Decree No. 7 of 1993 for participation in the tripartite cooperation provided for in section 3 of the Labour Code, stating that it has the effect of preventing it from concluding collective agreements and restricting its right to present trade union demands (the complainant organization makes detailed reference to various agreements whose coverage is limited to the members of the most representative organizations). The complainant organization and the Government point out that the complainant organization appealed to the Supreme Court for the repeal of certain sections of Decree No. 7 of 1993, and that this appeal was rejected.
2. 97. The Committee notes that the Government states that the Decree in question does not require organizations to change their structures, but merely lists the quantitative or other criteria for tripartite cooperation. These criteria are as follows: minimum membership of 50,000; members in over half the sectors of activity as defined in 1986; geographical coverage throughout the national territory of 80 per cent of urban districts; existence of national and regional bodies within the organization; existence of 50 local trade unions per sector of activity, with at least five members each; and existence of 50 local organizations corresponding to the urban districts.
3. 98. In this respect, the Committee has upheld the principle that "the determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse" (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 314). The Committee considers that the criteria for representativity contained in Decree No. 7 of 1993 do not appear to be contrary to the above-mentioned principle, which allows the imposition of requirements related to the particular features of the systems of trade union structure and collective bargaining which exist in each country and that this obviates the need to involve a large number of organizations in negotiation at the national level. Specifically, as regards the requirement that a trade union organization have at least 50,000 members in order to be considered most representative at the national level (an excessive number, according to the complainant organization, given that there are only 2.5 million workers in the country), the Committee considers that this requirement is not disproportionate since it only represents 2 per cent of the national workforce.
4. 99. The Committee notes further that, contrary to the statement of the complainant organization, the Decree in question does not prevent less representative organizations from bargaining at a level below the national level and concluding collective agreements (section 51 of the Labour Code stipulates that "when there is only one organization of workers and employees in an enterprise and it is not affiliated to any trade union organization that is recognized as being representative at the national, branch or occupational level, the employer shall in any case conclude a collective agreement with the trade union of workers and employees in question"). However, the Committee notes that the application of this provision can lead to a situation where a majority union in an enterprise cannot bargain collectively unless it is affiliated to an organization that is representative at the national level. In this respect, the Committee must recall the importance to be attached to the right to bargain collectively of the majority union in an enterprise. The Committee draws the attention of the Committee of Experts to this aspect of the case.
5. 100. As regards the question raised by the complainant organization that some collective agreements apply only to the parties to the agreement and their members and not to all workers, the Committee considers that this is a legitimate option - just as the contrary would be - which does not appear to violate the principles of freedom of association, and one which is practised in many countries.