Informe definitivo - Informe núm. 350, Junio 2008

1. 704. The complaint is contained in communications dated 31 January and 19 April 2007 from the Confederation of Estonian Trade Unions (EAKL).
2. 705. The Government forwarded partial observations from the Ministry of Justice in a communication dated 25 May 2007. The Committee has been obliged to postpone its examination of the case on three occasions [see 344th, 346th and 348th Reports, paras 5, 6 and 8, respectively]. At its meeting in March 2008 [see 349th Report, para. 10], the Committee issued an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time. To date the Government has sent no new observations.
3. 706. Estonia 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. 707. In its communication dated 31 January 2007, the EAKL alleges that by totally prohibiting the right to strike in the public sector, the Government of Estonia violates workers’ rights.
2. 708. The complaint organization explains that the right to strike is guaranteed by article 29 of the Constitution of Estonia. The Collective Labour Dispute Resolution Act (CLDRA) establishes the procedure and conditions for its exercise. However, under the same Act, the right to strike is prohibited for public servants. While the EAKL agrees that the right to strike in the public service may and should be restricted, any legislative restriction, especially as to the categories of workers whose right to strike is restricted, should be defined as clearly and narrowly as possible. According to section 21(1) 1) and 2) of the CLDRA, strikes are prohibited in government agencies and other state bodies and local governments; in the defence forces, other national defence organizations, courts, and fire fighting and rescue services. Furthermore, according to the CLDRA and other laws in force in Estonia, employment in a state body is deemed to be an employment relationship in an elected or appointed office in an institution exercising legislative, executive or judicial power, state supervision or national defence. Thus, according to the CLDRA, the prohibition of the right to strike is extended also to the technical and assisting staff even though they do not exercise legislative, executive or judicial power.
3. 709. According to the EAKL, while the legislation (section 21(4) of the CLDRA) empowers the Government to draw up a list of companies and other bodies that provide for the essential needs of the population and the economy, thirteen years have passed since the CLDRA was enacted, but no such list exists. The complainant further points out that the compilation of such a list should not be left to the competence of the Government – the question of limiting people’s fundamental rights can only be decided by the Parliament.
4. 710. Estonian trade unions are seriously concerned about the passivity of the Government with regard to the right to strike in the public service. Since 1999, the EAKL has repeatedly tried to draw the attention of the Government and the Parliament to this question. At the same time, the EAKL has been participating in drafting amendments to the law. Since 2003 proposals to amend the CLDRA have been debated in the Parliament on more than one occasion. According to these proposals, high-level public servants, namely those exercising legislative, executive or judicial power in the name of the State, may be denied the right to strike, but this restriction may not be extended so as to cover all public servants in general.
5. 711. Unfortunately, neither the Parliament nor the Government has considered it necessary to resolve the present situation and the debate about amending the CLDRA has been suspended. The Ministry of Justice is clearly of an opinion that no amendment to the Act is necessary since the Act currently in force does not violate the right of association of public servants. According to the complainant, in the view of the Ministry of Justice, a public body, with its staff and property, is an organizational unit by means of which the state performs its tasks. A public body is able to perform its tasks only if all employees and officials are at work and fulfilling their various roles. Furthermore, the Ministry of Justice is of the opinion that to allow a public servant the right to strike is not justified and is not concomitant with the general principles of public service.
6. 712. In January 2006, the EAKL requested the Chancellor of Justice to provide its opinion on the total ban on strikes in the public service. It is a duty of the Chancellor of Justice to provide legal opinions on the legislation in force, including its compliance with international conventions, agreements and treaties binding on Estonia. In the Chancellor of Justice’s opinion, the total prohibition of strikes in the public service is in violation of the Estonian Constitution, the ILO principles and the European Social Charter. Thus, he recommended that the Parliament should amend the relevant laws so as to abrogate the total ban on the right to strike of public servants. On 14 March 2006, the Chancellor of Justice’s proposals were discussed in a joint meeting of two parliamentary committees, the Social Affairs Committee and the Constitutional Affairs Committee. Despite the Chancellor of Justice’s opinion that the absolute ban on strikes is contrary to the Constitution of Estonia and to the international agreements binding on Estonia, the Committees did not deem it necessary to amend the law, thus supporting the view of the Ministry of Justice.
7. 713. The EAKL regrets that the Estonian state is characterized by certain arrogance with respect to the rights of civil servants, including their right to conduct social dialogue with their employer. The latest expression of such an attitude is to be found in the Employees’ Representatives Act, passed by the Parliament in December 2006. In accordance with the provisions of the European Union on informing and consulting workers (2002/14/EU), this Act places an obligation on employers to inform their employees’ representatives of the position of the company and to consult with them before taking any decisions that will affect a significant number of employees. Despite the EAKL’s repeated proposals to impose an obligation on public sector employers (namely state bodies and local government institutions) to inform and consult their employees, both the Government and the Parliament refused to discuss this issue. In the explanatory note to the draft Act presented to the Parliament, the pretext for refusal to place such an obligation on public sector employers is that “the specific nature of the service relationship, its level of regulation and imperativeness does not fit easily with the scheme of consulting and informing employees”. The EAKL finds that these objections are purely formal and that they are without any real justification.
8. 714. The EAKL accepts the principle according to which, taking into consideration the specific nature of the public service, recognition of freedom of association of public servants does not automatically imply the right to strike. However, in cases where civil servants’ right to strike is limited, the state must protect their interests by providing compensatory guarantees, such as rapid and independent arbitration or conciliation, where the decision of the arbitrator or conciliator is binding upon both parties and must immediately be complied with.
9. 715. Unfortunately, the institution of State Conciliator, which exists in Estonia, does not meet the above requirements. First of all, it is not a court of arbitration. Secondly, the conciliation process is not wholly effective, first and foremost owing to the slow nature of the procedure itself. Thirdly, during the conciliation procedure it is only possible to make binding decisions on the parties in cases where the parties to the labour dispute reach an agreement. Thus, civil servants’ salary negotiations are conducted with the government in a situation in which the employees have, in practice, no effective means to exert pressure on their employer. The same is also true of local government civil servants.
10. 716. In view of the above considerations, there is little practical point in turning to the state conciliator when there is a conflict between parties relating to the salary negotiations of public sector employees. National and local governments unilaterally dictate the salary conditions; there is no institution or mechanism for the establishment, in the public sector, of salary conditions which take into consideration the rights and needs of employees. For many years now, public sector employees’ salary negotiations have been largely formal in Estonia, since the Government lacks the will to take public servants’ interests into account and is under no compulsion to conduct meaningful dialogue. The last public sector wage agreement between the EAKL and the Government was signed in 2001. Since then, the Government has “corrected” only pay rates at the bottom end of the lower salary grades, and this only because of rises in the national minimum wage. It is true that in January 2007, the Government established, by a decree, new civil service pay scales which brought an overall rise in salary levels, but the most likely reason behind this is the forthcoming election.
11. 717. In view of the lack of any alternative mechanism (an effective, rapid arbitration process, decisions of which are binding on the parties involved) for resolving collective labour disputes in the public sector, the State has no justified basis to limit the right to strike of public servants.

B. The Government’s reply

1. 718. In a communication dated 25 May 2007, the Ministry of Justice, to whom the Ministry of Social Affairs had forwarded the complaint, sends partial information according to which, an analysis on public service has been undertaken by that Ministry, which will become a basis for a new Estonian public service concept 2007 and a new Law on Public Service. The reform of Estonian public service will also address the issue of the strike prohibition.
2. 719. The Government admits that the prohibition to strike imposed on public servants is not justified, especially in respect of technical and assisting staff. In the Government’s view, the right to strike should be prohibited in the public service for public servants who are officials exercising legislative, executive or judicial powers; other public servants should enjoy the right to strike.

C. The Committee’s conclusions

1. 720. The Committee deeply regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not fully replied to the Committee’s recommendations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case.
2. 721. Under these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had expected to receive from the Government in respect of all the pending matters.
3. 722. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed replies concerning allegations made against them.
4. 723. The Committee notes that this case concerns the right to strike in the public service and the right of public servants to bargain collectively, particularly with regard to wages
5. 724. With regard to the legislative prohibition of the right to strike imposed on public servants, the Committee notes section 21 of the CLDRA, according to which:
6. § 21. Restrictions on right to strike
7. (1) Strikes are prohibited:
8. 1) in government agencies and other state bodies and local governments;
9. 2) in the defence forces, other national defence organizations, courts and firefighting and rescue services;
10. (2) Agencies or other organizations specified in subsection (1) of this section shall resolve collective labour disputes by negotiations, through the mediation of a conciliator or in court.
11. (3) In enterprises and agencies which satisfy the primary needs of the population and economy, the body which calls a strike or locks out employees shall ensure indispensable services or production which shall be determined by the agreement of the parties. In the case of disagreement, indispensable services or production shall be determined by the Public Conciliator whose decision is binding on the parties.
12. (4) A list of enterprises and agencies which satisfy the primary needs of the population and economy shall be established by the Government of the Republic.
13. 725. The Committee notes that both the Government and the complainant organization agree that the CLDRA, in force since 1993, needs to be amended so as to remove the total ban on strikes in the public service. In this regard, the Committee notes with interest the Government’s indication that a concept for a new law on public service was being developed and expects that the legislation will be soon amended, in consultations with representative workers’ and employers’ organizations concerned, so as to ensure that public servants, who do not exercise authority in the name of the State, enjoy the right to strike.
14. 726. With regard to the compensatory guarantees in the event of the prohibition of strikes in the public service, the Committee notes that according to the CLDRA, collective labour disputes are to be solved by negotiations, through the mediation of a conciliator or in court, which, according to the complainant organization, are not effective means for dispute resolution, due to their slowness and lack of binding effect. The Committee recalls that where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services. As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service, restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 595 and 596]. The Committee considers that, in the event of deadlock, the parties must have the possibility of recourse to machinery seen to be reliable to and having the confidence of the parties concerned. The Committee requests the Government, within the framework of consultations on the reform of the public service law, to ensure that the mechanisms available to workers who are deprived of an essential means of defending their socio-economic and occupational interests (mediation, conciliation and/or arbitration) are impartial and rapid. The Committee requests the Government to keep it informed in this respect.
15. 727. The Committee notes the complainant’s allegation that the legislation lacks clarity to the extent that no list of enterprises and agencies where the right to strike can be restricted has been established by the Government pursuant to section 21(3) and (4) of the CLDRA. The complainant organization also considers that the right to establish such a list should not lie with the Government. The Committee notes that the Committee of Experts on the Application of Conventions and Recommendations has been requesting the Government to adopt/provide this list since 1998, to which the Government has consistently replied that it was on the verge of being adopted. The Committee recalls that a minimum service could be appropriate as a possible alternative in situations in which a substantial restriction or total prohibition of strike action would not appear to be justified and where, without calling into question the right to strike of the large majority of workers, one might consider ensuring that users’ basic needs are met or that facilities operate safely or without interruption [see Digest, op. cit., para. 607]. Furthermore, 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 over-generous and unilaterally fixed minimum services. As regards the legal requirement that a minimum service must be maintained in the event of a strike in essential public services, and that any disagreement as to the number and duties of the workers concerned shall be settled by the labour authority, the Committee is of the opinion that the legislation should provide for any such disagreement to be settled by an independent body and not by the ministry of labour or the ministry or public enterprise concerned [see Digest, op. cit., paras 612 and 613 ]. The Committee therefore expects that a list of enterprises or agencies where minimum services should be maintained during a strike will be soon adopted, in full consultation with the workers’ and employers’ organizations concerned.
16. 728. The Committee notes that the complainant also alleges restrictions on the right of public servants to bargain collectively with regard to wages. The Committee recalls that public servants in state-owned commercial or industrial enterprises should have the right to negotiate collective agreements, enjoy suitable protection against acts of anti-union discrimination and enjoy the right to strike, provided that the interruption of services does not endanger the life, personal safety or health of the whole or part of theh population [see Digest, op. cit. para. 577]. While being aware that collective bargaining in the public sector allows for special modalities of application, the Committee considers that the authorities should, to the greatest possible extent, promote the collective bargaining process as a mechanism for determining the conditions of employment therein. The Committee therefore requests the Government to ensure that priority is given to collective bargaining as a means of determining the employment conditions of public servants, rather than adopting legislation to restrain wages in the public sector.
17. 729. The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.
18. 730. The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.