Observation (CEACR) - adoptée 2004, publiée 93ème session CIT (2005)

The Committee takes note of the comments made by the World Confederation of Labour (WCL) and its affiliate, the Association of Democratic Trade Unions (ADS) on the application of the Convention in a communication dated 14 July 2004. The Committee further takes note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2047 relating to the matters raised by WCL and ADS.

Article 3. Right of workers’ and employers’ organizations to organize freely their activities without interference of the public authorities. The Committee recalls in this respect that in its previous comments, it had asked the Government for information on the application of the representativeness criteria set out in sections 34 and 35 of the Labour Code. It had also requested the Government to indicate how it intends to carry out the inspection mentioned in section 36(a) of the Labour Code and to provide information on the manner by which organizations that are not considered to be representative may request a review of their status after a reasonable period has elapsed since the last election.

The Committee notes that according to WCL and ADS, as per paragraph 1 of the recently adopted Ordinance No. 64/18, only organizations acknowledged as representative were required to submit by 15 October 2003 the necessary documents to certify their representativeness. ADS had therefore sought a clarification from the Government as to whether the Ordinance would be applicable to assess its representativeness and that of NTU (formerly, PROMYANA). The Committee notes that ADS received a reply dated 17 September 2003 from the Deputy Minister of Labour and Social Policy informing them that while ADS had been recognized by a decision of the Council of Ministers in 1997, that decision was subsequently revoked by the Council of Ministers in 1999 in respect of ADS and other workers’ organizations and therefore, ADS is not recognized as representative at the national level. The letter further stated that the Ordinance does not apply to ADS or to other workers’ organizations whose representativeness had been repealed by the Council of Ministers.

The Committee notes the explanation given by the Government to the Committee on Freedom of Association in respect of Case No. 2047 that as per section 1 of the Transitional Provisions of the Council of Ministers Decree No. 152 promulgating Ordinance No. 64/18, only workers’ and employers’ organizations that had been recognized as representative at the national level by a decision of the Council of Ministers were required to submit by 15 October 2003 the necessary documents to assess their representative status. According to the Government, this provision was in accordance with section 36(a), paragraph 2, of the Labour Code and this was affirmed by the Supreme Administrative Court. The Committee also takes note of the observation of the Government that it was however open for ADS and NTU on the basis of section 36, paragraph 2, of the Labour Code, to have made a request to the Council of Ministers in order to have their representativeness assessed for recognition at the national level.

Taking into account the information provided by both WCL and the Government and the contents of the aforesaid letter from the Deputy Minister of Labour and Social Policy to ADS and the fact that the letter does not indicate the avenues which should be taken to assess their representativeness, the Committee considers that access to established mechanisms for determining representativeness is far from evident. The Committee further considers that in order to ensure that the determination of representative organizations is based on clear, precise and objective criteria and not on arbitrary decision-making authority, all relevant workers’ and employers’ organizations must have an opportunity to prove their representative status at regular intervals so that they may freely organize their activities accordingly. In this respect, it notes with concern that ADS and PROMYANA (now, NTU) have since 1999 been unable to participate in a poll to determine their representativeness at the national level.

The Committee trusts that the Government will rapidly take the necessary measures to enable ADS and NTU to establish their representativeness at the national level and requests the Government to indicate, in its next report, the progress made in this regard.

The Committee further requests the Government to reply to the other issues raised by WCL in its observations as well as to the outstanding matters raised in respect of the application of the Convention (see 2003 observation and direct request, 74th Session) in its next report due for the regular reporting cycle in 2005.