Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 351, Noviembre 2008

1. 1241. The complaints are contained in communications from the union LEGIS–CCR dated 13 October and 30 November 2007, and from the National Education Federation (FEN) dated 15 February and 18 March 2008.
2. 1242. The Government supplied its observations in communications dated 13 December 2007 and 16 January, 8 April and 9 May 2008.
3. 1243. Romania has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants’ allegations

• Allegations by the FEN
  1244. 1244 In communications dated 15 February and 18 March 2007, the FEN states that it is a representative organization within the education sector. The complainant also indicates that it is a partner in continuous social dialogue with the Ministry of Education, Research and Youth, and with the Government, specifically, the Ministry of Labour, the Family and Equal Opportunities.
  1245. 1245 According to the complainant, the Government applies a policy of unwavering refusal to engage in social dialogue, and refuses to meet its obligations to hold meaningful consultations with the trade unions. The principles of collective rights and continuous social dialogue are violated all the time, and the role of the trade unions has been weakened at all levels, especially by the central and regional authorities. More often than not, trade unions are heard only after they have lodged protests or initiated legal action. This attitude is, according to the complainant, absurd and likely to be prejudicial to employees and to trade unions.
  1246. 1246 In the view of the FEN, the most serious fault lies in the Government’s intention to amend section 12(1) and (2) of Act No. 130/1996 concerning collective labour agreements. According to section 12 in its current wording:
  1. (1) Collective labour agreements can also be concluded by employees of public institutions. Such contracts do not allow negotiation of clauses concerning conditions for granting entitlements or the basic levels thereof as established by law.
  2. (2) Collective labour agreements for employees in budget sector institutions can be concluded at the level of the enterprise, senior management, or local public services, … or at the local department level.
  1247. 1247 It is claimed that the Government, under the pretext that the wording of the Act is not clear and allows excessive scope for interpretation, has proposed a modification of the text as follows: “Collective labour agreements can also be concluded by employees of institutions and public authorities. Such contracts do not allow negotiation of clauses concerning conditions for granting entitlements or the basic levels thereof as established by law in respect of: basic salary, pay increases, allowances, bonuses, and other staff entitlements.”
  1248. 1248 According to the complainant, the Government’s intention to clarify the wording of the law in question is in fact a disguised attempt to silence the trade unions by legalistic means. This would reduce trade unions’ rights as regards wage negotiations for employees of budget sector institutions. Given that national and international law promotes collective bargaining, the proposed amendment to Act No. 130/1996 would, if it came into force, be a de facto denial of that right and of the role and prerogatives of the trade unions.
  1249. 1249 The complainant adds that the proposed amendment to Act No. 130/1996 would be contrary to the Constitution of Romania, which in article 45, paragraph 1, guarantees the fundamental right to collective bargaining. In addition, it would contravene articles 1(5) and 11(1) of the Constitution, as well as the following provisions: section 34(1) of the Decree concerning physical and legal persons (No. 31/30 of 1954); sections 5, 217–221 and 236 of the Labour Code; sections 1, 27 and 28 of Act No. 54/2004 and section 3 of Act. No. 130/1996.
• Allegations made by the LEGIS–CCR
  1250. 1250 In its communications of 13 October and 30 November 2007, the LEGIS–CCR describes itself as a representative workers’ organization operating at Romania’s Court of Audit. The complaint concerns violation of the trade union rights guaranteed by article 41 of the Romanian Constitution and by Conventions Nos 87, 98 and 154, which Romania has ratified.
  1251. 1251 The complainant states that the Court of Audit is a public institution and the salaries of its employees are paid out of the state budget. Staff are recruited on the basis of individual contracts of employment without limit of time. The maximum number of posts at the Court of Audit is approved by annual budget legislation. For the years 2007 and 2008, the Court of Audit had provided for a total of 1,438 posts broken down as follows: (i) 18 posts for senior public posts; (ii) 1,341 posts for contractual staff; and (iii) 79 civil servants.
  1252. 1252 The complainant notes that during the past 15 years, no President of the Court of Audit has initiated talks with a view to a collective agreement. It thus claims to have initiated the very first talks for this purpose, in accordance with section 3(6) of Act No. 130/1966, registered with the President’s Office under reference No. 2604/DDS/06.12.2006.
  1253. 1253 The complainant regrets, however, that the institution’s management agreed to meet with them only in order to prevent a protest meeting due to be held on 9 January 2007. The minutes of that meeting were registered under reference No. 365/DDS/08.02.2007. The management agreed to talks in principle with a view to signing the first collective labour agreement involving the Court of Audit.
  1254. 1254 The complainant alleges that the Court of Audit drew up a draft collective agreement on the basis of which written exchanges and talks with the union took place over a period of three months, from 9 January to 26 March 2007. There was at that time no difference in the respective positions of the parties to the agreement. The complainant adds that this is attested by the recordings of meetings that took place between 23 and 26 March 2007. A copy of the recordings was sent to the complainant by the Court of Audit. The complainant, however, reports that since that date, the management has refused to sign the contract that was agreed after negotiations between the parties.
  1255. 1255 The complainant adds that it asked the Court of Audit to sign the collective agreement that had been negotiated in numerous letters between March and July 2007. Six months after the start of talks, however, the President of the Court of Audit is reported to have informed the complainant that he did not intend to sign the collective agreement on the grounds that although he was required to negotiate, he was not obliged to sign the resulting agreement. He noted also that the workers in question had been hired by a “budget sector institution” and that according to the Act on collective labour agreements, such agreements “could be” concluded in budget sector institutions, which meant that there was no obligation to do so even after negotiations had concluded with no apparent differences between the parties. In the view of the complainant, the position adopted by the Court of Audit is not consistent with article 41 of the country’s Constitution.
  1256. 1256 The complainant states that it appealed to the Ministry of Labour in May 2007 to seek a settlement through conciliation. There has been no response. Similarly the complainant asked the President of the Court of Audit to agree to arbitration or mediation to settle the dispute; this request, too, has been ignored.
  1257. 1257 The complainant alleges that its trade union rights were infringed in the sense that it engaged in collective talks with the management of the Court of Audit for ten months when the latter clearly had no intention of signing any agreement once negotiations were concluded. Freedom of association is also said to have been violated because the management refused: (i) to respect the complainant’s constitutional right to have a collective labour agreement following negotiations (article 41 of the Constitution); (ii) to grant at least the entitlements provided for under the terms of the applicable national collective agreement, in accordance with section 24 of the Labour Code Act No. 53/2003; and (iii) to accept the offer of conciliation or mediation by the Ministry of Labour to resolve the dispute.
  1258. 1258 The complainant reports the measures that have been taken to inform various national authorities of the violations of its rights, including the Ministry of Labour, the People’s Advocate, Parliament (Senate and Chamber of Deputies) and the President of the Republic. These efforts have been to no avail. The complainant indicates in particular that it has lodged an application for mediation (No. 2480/23.05.2007) with the Ministry of Labour. It explains that although the Ministry of Labour issued a summons to the Court of Audit with a view to settling the dispute, the President of the Court of Audit failed to appear and sent two representatives who had no authority to negotiate or sign any agreement on behalf of the Court. There was therefore no opportunity to negotiate a settlement to the dispute at the level of the Ministry. The complainant supplies a copy of the minutes in an annex to its complaint.

B. The Government’s reply

• Allegations of the FEN
  1259. 1259 As regards the allegations of the FEN concerning the draft amendment to Act No. 130/1996, the Government states in a communication dated 8 April 2008, that collective bargaining will henceforth be in accordance with the Act in question as subsequently republished, amended and extended. Section 12 of the Act stipulates that collective labour contracts can also be concluded for employees of budget sector institutions. Current legislation makes it impossible to negotiate through such contracts any provisions regarding entitlements that are fixed by law. Furthermore, application in practice has shown that the general nature of these provisions leads to problems of interpretation, and it was thus necessary for the legislator to provide clarification.
  1260. 1260 According to the Government, the draft law to amend Act No. 130/1996 does not violate the right to collective bargaining or weaken the role and prerogatives of trade unions in this area. The amendment to section 12, concerning the object of the law, contains a detailed and specific list of the entitlements which are fixed by law and not subject to collective negotiation. The text of section 12 is modified only in respect of the list of provisions which cannot be negotiated. The Government adds that, given that in the budget sector “basic salaries, wage increases, allowances and bonuses, as well as other entitlements”, are fixed by law, the Ministry of Education is of the view that the allegations made by the FEN regarding the proposed amendment to Act No. 130/1996 are without foundation. Lastly, it emphasizes that the allegations concern a draft text which is being examined by the social partners, will be drawn up in the form of a law, and must in addition be debated in Parliament before it can be finally adopted.
• Allegations of the LEGIS–CCR
  1261. 1261 In communications dated 13 December 2007 and 16 January 2008, the Government supplies it observations on the allegations of the LEGIS–CCR considering the collective talks in the Court of Audit. It states, first, that from the point of view of law, section 12(1) of Act No. 130/1996 as amended concerning collective labour agreements provides that such agreements can also be concluded for budget sector institutions. The Act does not, however, allow negotiation of provisions on rights and entitlements that are fixed by law, and it is thus not possible to conclude collective agreements on such provisions.
  1262. 1262 Similar provisions are contained in Act No. 188/1999 concerning the Public Service Regulations. Section 72(1) stipulates that: “… public authorities and institutions can once a year conclude, in accordance with the law, agreements with representative unions of public servants or their representatives, comprising provisions in the following areas only:
        • (a) the establishment and allocation of funds for improving conditions at work;
        • (b) the daily work programme;
        • (c) vocational training; and
        • (d) other measures as provided for by law concerning the protection of persons elected to trade union office.”
  1263. 1263 The Government explains that with regard to the salary entitlements of employees with individual employment contracts at the Court of Audit, the applicable law is the Emergency Government Ordinance No. 24/2000 concerning the system for fixing basic salaries for contractual staff in the budget sector and salaried staff, in accordance with Annexes II and III of Act No. 154/1998 on the system for fixing basic salaries in the budget sector and remuneration for persons occupying senior public posts. The salary entitlements of civil servants at the Court of Audit are covered by the Government Ordinance No. 6/24 January 2007 concerning measures to regulate salary and other entitlements of civil servants until the entry into force of the Act concerning the unified system of salaries and other allowances for civil servants, as well as the pay increase awarded to public officials in 2007.
  1264. 1264 The Government draws the conclusion that while contractual staff and established officials of the Court of Audit can conclude collective labour agreements, they cannot negotiate provisions regarding entitlements that are fixed by law.
  1265. 1265 The Government emphasizes in addition that its conclusions are consonant with the terms of Convention No. 154, which Romania has ratified. Article 1, paragraph 3, of the Convention stipulates that as regards the public service, special modalities of application of the Convention may be fixed by national laws or regulations or national practice.
  1266. 1266 Secondly, as regards social dialogue, the Government explains that the documents filed by the complainant do not suggest that the employer, namely the Court of Audit, agreed to the provisions negotiated during the meetings of 23 and 26 March 2007. The Government explains that if the complainant is able to show on the basis of these documents that the employer accepted the clauses in question, and that there is no difference of views in that respect, as it claims, it would be able to apply to the Department of Labour and Social Protection of the Ministry of Labour to register the collective labour agreement in accordance with section 26(2)(b) of Act No. 130/1996 as republished, according to which “Collective labour agreements shall be registered without the signatures of all the representatives of the parties if … (b) certain representative organizations of employers or workers have participated in talks, reached agreement on the provisions negotiated but refuse to sign the agreement, a situation resulting from the documents deposited by the parties.”
  1267. 1267 The Government adds that it would appear from the data supplied by the Department of Labour and Social Protection that on 23 May 2007, the complainant sought conciliation in connection with a conflict of interest. That took place on 25 May 2007, at the headquarters of the Department of Labour. The conciliation was unsuccessful because the parties failed to reach an agreement, according to the record of the meeting (reference No. 3783/43/23.05.2007).

C. The Committee’s conclusions

1. 1268. The Committee recalls that the allegations made by the complainants concern various infringements of collective bargaining and the conclusion of collective labour agreements in the public administration.
   • Allegations of the FEN
2. 1269. The Committee notes that the FEN alleges that the Government has drawn up draft legislation restricting both the range of issues that could be agreed through collective bargaining and the level of negotiation. The Committee notes that according to section 12(1) of Act No. 130/1996 concerning collective labour agreements, “Collective labour agreements can also be concluded by employees of budget sector institutions. Such agreements do not allow negotiation of clauses concerning conditions for entitlements or the basic levels thereof that are fixed by law.”
3. 1270. The Committee notes, in the light of the allegations made by the complainant and of the Government’s reply, that an amendment to the above provision is being drawn up. According to the complainant, the amended text would read as follows: “Collective labour agreements can also be concluded by employees of public institutions. Such contracts do not allow negotiation of clauses concerning conditions for granting entitlements or the basic levels thereof as established by law in respect of: basic salary, pay increases, compensation, allowances, bonuses, and other staff entitlements.”
4. 1271. The Committee notes that according to the Government, the proposed amendment to
   • Act No. 130/1996 does not infringe the right to collective bargaining or weaken the role and prerogatives of the trade unions. It states that the amendment concerns a detailed and specific list of entitlements which are fixed by law and which consequently cannot be negotiated in collective labour agreements. The Government maintains that the change to the text of section 12 of Act No. 130/1996 would involve a list of those provisions which cannot be negotiated, and that, in view of the fact that in the budget sector “base salaries, pay increases, allowances, bonuses and other staff entitlements” are fixed by law, the allegations made by the FEN concerning the proposed amendment to Act No. 130/1996 are without foundation.
5. 1272. As this case concerns a teachers’ organization, the Committee recalls the principle of free and voluntary negotiation expressed in Article 4 of Convention No. 98, and emphasizes that action by the public authorities to promote and develop collective bargaining on conditions of work and employment in the public administration are fundamental principles of both Conventions Nos 98 and 154, which Romania has ratified. In the Committee’s opinion, teachers do not carry out tasks specific to officials in the state administration; indeed, this type of activity is also carried out in the private sector. In these circumstances, it is important that teachers with civil servant status should enjoy the guarantees provided for under Convention No. 98 [see Digest of decisions and principles of the Freedom of Association Committee, para. 901].
6. 1273. As regards the Government’s stated position that due account must be taken of the fact that in the budget sector, “base salaries, pay increases, allowances, bonuses and other staff entitlements” are fixed by law, which it claims justify exclusions from the scope of collective bargaining in respect of these issues, the Committee considers that this approach is contrary to the principles of the collective bargaining Conventions ratified by the Government, which encourage and promote the development and use of collective bargaining machinery on terms and conditions of employment. The Committee, in recognition of the fact that the special characteristics of the public service require some flexibility in the application of the principle of autonomy of partners to collective bargaining, takes the view that the Government could adopt legislative provisions which allow Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations or to establish an overall “budgetary package” within which the parties may negotiate monetary or standard-setting clauses (for example: reduction of working hours or other arrangements, varying wage increases according to levels of remuneration, fixing a timetable for readjustment provisions). Such measures would leave a significant role to collective bargaining and meet with the agreement of the parties concerned. The Committee recalls nevertheless that it is essential that workers and their organizations be able to participate fully and meaningfully in designing this overall bargaining framework, which implies in particular that they must have access to all the financial, budgetary and other data enabling them to assess the situation on the basis of the facts [see inter alia, Digest, op. cit., para. 1038].
7. 1274. In the light of the foregoing considerations, the Committee requests the Government to take any necessary measures to amend section 12(1) of Act No. 130/1996 so that it no longer excludes from the scope of collective negotiations base salaries, pay increases, allowances, bonuses, and other entitlements of public service employees. Furthermore, the Committee considers that any modification to section 12(1) of Act No. 130/1996 that would have the effect of extending the range of provisions excluded from the scope of collective bargaining on conditions of work and employment of public service employees would be contrary to the principle of developing and using collective negotiations as set out in the Conventions ratified by the Government. The Committee trusts that in any process of amending Act No. 130/1996, the Government will take account of the principles referred to here above and of its recommendations on the possibility of fixing upper and lower wage limits and an overall budgetary package within which the parties may negotiate monetary clauses. In any event, if the country’s laws or Constitution require that any agreements concluded be subject to a budgetary decision by Parliament, the system should in practice ensure full respect for provisions that have been freely negotiated. The Committee requests the Government to keep it informed of any developments in that regard.
   • Allegations of the LEGIS–CCR
8. 1275. The Committee notes the allegation by the union LEGIS–CCR that the management of the Court of Audit refused to sign a collective agreement after ten months of talks. According to the complainant, the reason given for the refusal was the fact that the institution’s management was obliged only to negotiate the collective agreement, not to sign it once it had been negotiated, given that the workers concerned are hired by a “budget sector institution” and the Act on collective agreements provides only that such collective agreements “may be concluded” with budget sector institutions. Consequently the view of the management of the Court of Audit is that it is not obligatory to conclude collective labour agreements, even if negotiations have been concluded with no apparent differences of view between the parties.
9. 1276. The Committee notes the allegations that trade union rights were violated by the refusal of the management of the Court of Audit vis-à-vis the complainant: (i) to respect the complainant organization’s constitutional right to have a collective labour agreement once negotiations were concluded (article 41 of the Constitution); (ii) to allow the minimum rights provided for in the collective labour agreement applicable at the national level, under the terms of section 24 of the Labour Code Act No. 53/2003; and (iii) to accept conciliation or mediation by the Ministry of Labour in settling the dispute.
10. 1277. The Committee notes that, in its reply, the Government states that the salaries of Court of Audit employees are fixed by law. It explains also that contractual staff as well as established public officials of the Court of Audit can conclude collective labour contracts or collective agreements but cannot negotiate those provisions concerning entitlements that are fixed by law. The Committee also notes that according to the Government, its position is consonant with Article 1, paragraph 3, of Convention No. 154, according to which as regards the public service, special modalities of application of the Convention may be fixed by national laws or regulations or national practice. The Committee recalls in this regard that such special modalities should nevertheless not be of such a kind as to entirely negate the principle of promoting collective bargaining in the public administration or render meaningless the subject matter of such collective bargaining, in accordance with Article 5 of the Convention.
11. 1278. The Committee notes that the Government refers to Act No. 188/1999 concerning the Public Service Regulations, in particular section 72(1) according to which: “… public authorities and institutions can once a year conclude, in accordance with the law, agreements with representative unions of public servants or their representatives, comprising the following measures only: (a) the establishment and allocation of funds for improving conditions at work; (b) the daily work programme; (c) vocational training; and (d) other measures as provided for by law concerning the protection of persons elected to trade union office.” The Committee once again refers to the conclusions it reached previously concerning the limitation of the scope of negotiation of collective labour contracts in the public service, namely, that such limitations in general are contrary to the principles of the collective bargaining Conventions ratified by the Government, in particular Convention No. 154, which encourage and promote the development and use of collective bargaining machinery on terms and conditions of employment. The Committee therefore requests the Government to take the necessary steps to amend Act No. 188/1999 so as not to restrict the scope of subjects for negotiation in the public administration, in particular those normally pertaining to conditions of work or employment. The Committee encourages the Government to rectify this situation, in particular by drawing up with the social partners guidelines on collective negotiations, and thus to define the scope of collective bargaining, in accordance with Conventions Nos 98 and 154 which it has ratified. In any event, if legislation requires that agreements concluded be subject to a budgetary decision by Parliament, the system should in practice ensure full respect for provisions that have been negotiated freely.
12. 1279. The Committee recalls also that the special characteristics of the public service require some flexibility in the application of the principle of autonomy of partners to collective bargaining, and one possible response to this would be to adopt legislative provisions which allow Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations or to establish an overall “budgetary package” within which the parties may negotiate monetary or standard-setting clauses (for example, reduction of working hours or other arrangements, varying wage increases according to levels of remuneration, fixing a timetable for readjustment provisions) [see Digest, op. cit., para 1038].
13. 1280. The Committee notes the Government’s statement to the effect that the documents filed by the complainant do not suggest that the employer, namely the Court of Audit, agreed to the provisions negotiated during the meetings of 23 and 26 March 2007. The Committee also notes that according to the Government, if the complainant is able to show on the basis of these documents that the employer accepted the provisions in question, and that there is thus no difference of opinion in that respect, as it claims, it would be able to apply to the Department of Labour and Social Protection of the Ministry of Labour to register the collective labour agreement in accordance with section 26(2)(b) of Act No. 130/1996 as republished, according to which “Collective labour agreements shall be registered without the signatures of all the representatives of the parties if … (b) certain representative organizations of employers or workers have participated in talks, reached agreement on the provisions negotiated but refuse to sign the agreement, a situation resulting from the documents deposited by the parties.”
14. 1281. Furthermore, the Committee notes the Government’s statements to the effect that the data supplied by the Department of Labour and Social Security suggest that on 23 May 2007, the complainant sought conciliation to resolve a conflict of interests and this took place on 25 May 2007 at the headquarters of the Department of Labour. It was unsuccessful, as the parties failed to reach agreement, according to the record of the meeting (reference No. 3783/43/23.05.2007). The Committee notes that according to the complainant the conciliation failed because the President of the Court of Audit failed to attend the meeting and sent two representatives who lacked the authority to negotiate or sign an agreement on behalf of the institution.
15. 1282. The Committee notes in this case that it does not have any information on any agreement between the parties. It notes also, however, that quite apart from possible considerations of the legality of the refusal to sign an agreement that had been freely negotiated, such an action is not conducive to the development of normal and sound industrial relations. In that regard the Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations; that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; that genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties; and lastly, that agreements should be binding on the parties [see Digest, op. cit., paras 934, 935 and 939]. The Committee therefore requests the Government to take all the measures necessary to settle the dispute concerning the agreement negotiated between the trade union LEGIS–CCR and the management of the Court of Audit, as quickly as possible and in accordance with the established procedures; and to promote collective bargaining within the institution in question. The Committee trusts that the Government will keep it fully informed of any new developments in this respect.