Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 351, Noviembre 2008

Effect given to the recommendations of the Committee and the Governing Body

1. 73. The Committee recalls that this case concerns Act No. 3371/2005 which enables employers/banks to unilaterally denounce collective agreements concerning the supplementary pension funds of bank employees, and then provides that the funds in question will be obligatorily integrated into a single public fund. The Committee last examined this case at its May–June 2008 meeting [350th Report, approved by the Governing Body at its 302nd Session, paras 90–95]. On that occasion, the Committee requested the Government: (i) to indicate the measures taken pursuant to the decision of the Single-Member Court of First Instance of Athens which had found that the unilateral denunciation of collective agreements was invalid, that the obligatory transfer of assets from the supplementary pension fund to the public funds was contrary to articles 4(1) and (2) and 5(1) of the Constitution, and that the legislative intervention into this matter was not justified by reasons of general public or social interest (in a lawsuit filed against Emporiki bank); to keep it informed of the outcome of other lawsuits (filed by the Mutual Assistance Fund of the personnel of GENIKI BANK and this bank’s employees’ association); to communicate the forthcoming decision of the Court of Cassation as soon as it is handed down; to keep the Committee informed of any steps taken by the Human Rights Ombudsperson; (ii) to keep the Committee informed of any steps taken to amend section 2, paragraph 3, of Act No. 1876/1990 so as to ensure that supplementary pension schemes may be the subject of collective bargaining; (iii) to refrain from any further legislative interference so as to allow for the issue of the future of the supplementary pension funds of bank employees and their assets to be determined by mutual agreement of the parties; (iv) finally, the Committee once again invited the Government to host full and frank consultations on this matter with the full participation of both parties, and to amend Act No. 3371/2005 to reflect their eventual agreement.
2. 74. The Government provided its observations in a communication dated 2 June 2008. The Government indicates that the abovementioned decision of the Single-Member Court of First Instance of Athens cannot deal with the issue of constitutionality of the provisions of article 26 of Act No. 3455/2006, concerning the integration of employees and pensioners of the supplementary pension fund into the (public) Unified Pension Fund of Bank Employees (ETAT), and of article 62, paragraph 6, of Act No. 3371/2005, respecting the undertaking by ETAT of the management of supplementary pension funds of bank employees. For this reason, the temporary enforcement of the above decision is not possible nor is the decision capable of having legal effect, until the relevant provisions are declared unconstitutional by a competent court; the application, therefore, of the provisions of Act No. 3455/2008 cannot be affected. It is expected that the Plenary of the Council of State will try the appeal lodged by the OTOE and other bank employee unions relating to the constitutionality of Presidential Decree No. 209/2006 (Official Gazette 209A) on “Determination of terms and conditions for the management of and dealing with issues relating to Supplementary Pension Funds of bank employees by the Unified Pension Fund of Bank Employees (ETAT)”, which has been scheduled for 6 June 2008. By means of the decision to be made, the constitutionality of the general provisions of Act No. 3371/2005 and, by extension, of Act No. 3455/2006 and of other acts respecting integration of bank employees into ETAT will also be considered. Finally, the European Commission has accepted that, by means of the regulations provided for in Act No. 3371/2005, the public and general character of social insurance is expanded to bank employees (article 22, paragraph 5, of the Constitution of Greece), equal treatment of all employees, including bank employees, is safeguarded, the already acquired social insurance rights are ensured and terms of parity among banks are established.
3. 75. The Committee notes from the Government’s communication that the Single-Member Court of First Instance of Athens did not have competence to rule on the constitutionality of article 26 of Act No. 3455/2006, concerning the integration of employees and pensioners of a supplementary pension fund into the (public) ETAT, and of article 62, paragraph 6, of Act No. 3371/2005, respecting the undertaking by ETAT of the management of supplementary pension funds of bank employees; a decision on this subject was awaited from the plenary of the Council of State which would (at the time of the communication) hold a hearing on this matter on 6 June 2008. The Committee, noting with regret that this issue has been pending since 2005 and any further delay in issuing a court decision is likely to make the resolution of the matter extremely difficult, requests the Government to keep it informed of the decision of the Council of State as soon as it is handed down and expresses the firm expectation that such decision will be issued without further delay.
4. 76. Recalling that this case concerns allegations which go beyond social security legislation as such, but rather touch upon the Government’s actions to unilaterally modify collective agreements concerning pension funds, the Committee notes that the Government does not provide any new information on the hosting of further consultations with the full participation of both parties so as to amend Act No. 3371/2005, and recalls that a negotiated solution is always preferable to judicial proceedings or legislative intervention. The Committee once again strongly urges the Government to hold further full and frank consultations on the future of the supplementary pension funds of bank employees and of their assets so that these matters are determined by mutual agreement of the parties to the collective agreements by which the supplementary pension funds were set up, and to which only they contributed, and to amend Act No. 3371/2005 to reflect the agreement of the parties.
5. 77. The Committee finally notes with regret that the Government does not provide further information on steps taken to amend section 2, paragraph 3, of Act No. 1876/1990 so as to ensure that supplementary pension schemes may be the subject of collective bargaining. The Committee refers this legislative aspect of the case to the Committee of Experts on the Application of Conventions and Recommendations.