Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes the Government’s report and observes that it does not reply to most of the matters raised in its previous comments.

Article 2 of the Convention. 1. In its previous comments, the Committee noted that, under section 3 of Act No. 54/2003 on trade unions, employees reaching the age of 16 have the right to join trade unions without parental authorization. It also noted that section 13(2) of the Labour Code allows persons of 15 years of age to conclude a contract of employment for certain types of work subject to the agreement of their parents or legal representatives. Recalling that minors who are legally entitled to work, whether as workers or apprentices, should have the right to join trade unions without parental authorization, the Committee requests the Government to clarify whether workers of 15 years of age have the right to join trade unions without parental authorization. If this is not the case, the Committee requests the Government to take the necessary measures to ensure that they are covered by section 3 of Act No. 54/2003 and that they have the right to join unions without parental authorization, once they are authorized to work.

2. In its previous comment, the Committee noted that section 4 of Act No. 54/2003 on trade unions denies the right to establish trade unions to, among other categories: persons holding managerial and public positions, magistrates, staff members of the Ministry of Justice, the Romanian intelligence service, protection and guard services, the foreign intelligence service, special telecommunications services, “as well as from the units in their subordination”. The Committee emphasized that the only exception authorized by the Convention concerns members of the police and the armed forces under Article 9. In particular, civilians working in military installations or in the service of the army should have the right to establish unions. With regard to executive and managerial staff, and staff “in positions of trust”, the Committee recalled that these categories of workers should have the right to establish their own unions and that they should not be defined too broadly and should, in particular, be limited to persons exercising managerial or policy-making responsibilities. The Committee notes the Government’s indications in its report that: (1) with regard to military personnel in the Ministry of Justice, section 4 of Act No. 54/2003 is no longer valid, as such personnel have been demilitarized and are now governed by the general rules respecting the establishment of trade unions, the right to strike, etc. (these consist of public officials governed by the special conditions of service of the national administration of prisons and public officials governed by the special conditions of service of the Ministry of Justice): the status of these officials is governed by Act No. 293/2004; (2) with regard to members of the judiciary, there are no provisions on the establishment of trade unions and, in principle, members of the judiciary cannot establish trade unions, conclude individual or collective agreements, negotiate, participate in strikes or exercise other collective rights recognized for other employees. There are however special instruments to protect and promote the professional and social interests of members of the judiciary. Magistrates and prosecutors are free to organize and may join local, national or international professional organizations with a view to protecting their professional interests (Act No. 303/2004); (3) with regard to specialized auxiliary workers in the law courts and prosecutors’ offices, section 61 of Act 567/2004 on the conditions of service of specialized auxiliary personnel in law courts and prosecutors’ offices provides that they are free to establish and join trade union organizations and to engage in strike action, but have to comply with the principles of the continuity and expeditious nature of judicial activities; and (4) section 27 of Act No. 188/1999 respecting the conditions of service of public officials, as amended by Act No. 251/2006, guarantees the right of association of public officials. Recalling that Article 2 of the Convention provides that workers and employers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing without previous authorization, the Committee requests the Government to adopt measures to guarantee explicitly to public officials other than the high-level officials referred to in section 4 of Act No. 54/2003, the right to establish trade unions. The Committee further recalls that, with regard to high-level officials, it considers that it is not necessarily incompatible with freedom of association to deny them the right to belong to the same trade unions as other workers, on condition that two requirements are met: that they have the right to form their own associations to defend their interests and that the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities. The Committee requests the Government to adopt measures so that these officials can establish and join organizations of their own choosing to defend their occupational interests. The Committee requests the Government to keep it informed of any amendment to Act No. 54/2003 which would bring its section 4 into conformity with section 27 of Act No. 188/1999 and, in case such amendment has not yet been made, to take the necessary measures to ensure that Act No. 54/2003 is in conformity with Act No. 188/1999.

3. In its previous comment, the Committee noted that, under section 2(4) of Act No. 54/2003, a person may only belong to one trade union organization at a time. Recalling that it is desirable for workers exercising more than one occupational activity in different occupations or sectors of activity to have the possibility of joining the corresponding trade unions, the Committee once again requests the Government to take the necessary measures to amend section 2(4) of the Act so that workers exercising more than one occupational activity have the right to establish and join organizations of their own choosing.

4. The Committee noted in its previous comment that sections 14 to 19 of Act No. 54/2003 govern the procedure applicable to the registration of trade unions and their acquisition of legal personality. It noted that the application for registration must be submitted by an authorized representative of the founding members of the trade union to the court of first instance. The court examines whether all the required information has been submitted and whether the constitution and rules of the trade union are in conformity with “the legal provisions in force”. The Committee noted that such an examination is undertaken within specific time limits and may take up to 27 days. It results in a judgement under which the registration is either accepted or rejected. The judgement can be appealed against, particularly by the prosecutor, and the whole procedure of appeal can take up to 65 days. Trade unions acquire legal personality upon their registration, as confirmed in the final judgement accepting the application (registration must occur within seven days of the date on which the judgement of the court of first instance becomes final). The Committee noted that this procedure applies to any modification of the constitution and rules of the trade union. A similar procedure applies to the registration of higher level organizations under sections 42 to 48 of Act No. 54/2003.

The Committee emphasized that, when legislation makes the acquisition of legal personality a prerequisite for the existence and functioning of organizations, the conditions for acquiring legal personality must not be such that they amount to a de facto requirement for previous authorization to establish an organization, which would be tantamount to calling into question the application of Article 2 of the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 76). The Committee therefore once again requests the Government to specify the scope of the legal basis on which the court of first instance undertakes the examination of the documents submitted by the founding members and, in particular, whether the reference to the “legal provisions in force” includes only those laid down in Act No. 54/2003, or whether the term refers to other laws or regulations and, if so, to specify in its next report the provisions in question.

With regard to the procedure itself, the Committee notes that it can take nearly 100 days if an appeal is lodged and could thus constitute an impediment to the free establishment of workers’ organizations. The Committee emphasized previously that the considerations outlined above are also relevant to the registration procedure applicable to higher level organizations under sections 42 to 48. Trade unions should be in a position to acquire legal personality following a simple registration procedure, without any undue delay, once formalities such as the submission of the required documents and a rapid examination by the competent authority have been observed. The Committee therefore once again requests the Government to provide detailed information on the manner in which the registration procedure functions in practice, including the amount of time necessary for a final decision. As it would appear that a decision to register a union is not legally valid until the final judgement has been rendered in the case of an appeal (section 17(2)), and that this process can be excessively long, the Committee further requests the Government to amend these provisions so as to ensure that the initial court decision to register a union is legally valid pending the final judgement.

Article 3. 1. The Committee noted in its previous comments that the procedure governing the registration of unions is also applicable to modifications of the rules of trade unions (as well as the rules of higher level organizations), which must therefore be approved by the courts. The Committee refers to its comments made above on the length of the procedure which, in the case of amendments to internal rules, could be tantamount to interference by the public authorities in the internal affairs of trade unions, thereby creating a serious obstacle to their freedom of organization and functioning. The Committee once again requests the Government to take the necessary measures to shorten the procedure substantially, particularly in relation to appeals, and to remove the rule imposing the requirement of prior approval for amendments to internal rules, so that such modifications are effective once they have been approved by the competent bodies of the trade union and upon their submission to the competent authority, as is the case for any modification to the composition of the executive bodies of a trade union.

2. The Committee noted previously that, under section 8 of Act No. 54/2003, candidates for trade union office must enjoy “full capacity to exercise their rights” and not be “under an accessory conviction prohibiting the right to occupy a position or exercise a profession similar to that carried on by the person convicted for committing the offence”. The Committee once again requests the Government to confirm that this condition related to the criminal record means that individuals are barred from election as trade union officers only during any period for which they have been lawfully deprived of the exercise of their civic rights due to a criminal conviction.

3. The Committee noted previously that, under section 23 of Act No. 54/2003, the fixed and moveable assets of a trade union acquired for its meetings, its library or for the training of its members “may not be subject to liquidation, except in the proportion necessary for the payment of debts to the state budget”. The Committee emphasized that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes, in particular, autonomy and financial independence and the protection of the assets and property of these organizations (see General Survey, op. cit., paragraph 124). The Committee therefore once again requests the Government to clarify the circumstances and the conditions under which the assets of a union may be subject to liquidation so that it can examine the compatibility of section 23 of Act No. 54/2003 with Article 3 of the Convention.

4. The Committee noted previously that, under section 26(1) of Act No. 54/2003, the control of the trade union’s “own financial activity” shall be carried out by the board of auditors, operating in accordance with the rules of the union. Under the terms of section 26(2), the control “over the economic and financial activity carried out by a trade union, as well as over the determination and payment of debts to the state budget, shall be ensured by the competent bodes of the national administration, in accordance with the law”. The Committee recalls that it considers that there is no infringement of the right of organizations to organize their administration where, for example, the supervision is limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law; similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. In all cases, such verifications should be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125). The Committee once again requests the Government to indicate the measures adopted or envisaged to limit the powers afforded to state administrative bodies under section 26(2) to the circumstances and conditions outlined above and to indicate whether such supervision is subject to review by the judicial authorities.

5. The Committee notes section 27(3) of Law No. 188/1999, as amended by Law No. 251/2006, which provides that, in cases where high or leading civil servants are elected to the management of trade unions, they are obliged to choose one of the two positions. If the civil servant chooses to carry on his/her activity in the management of the trade union, his/her relationship as civil servant shall be suspended for a period equal to the mandate he/she has in the management of the trade union. The Committee considers that there are cases where it is not necessary for the civil servant to be suspended and that, therefore, it would be more appropriate to leave such matters for consultation between the competent minimum organizing entity and the union concerned. The Committee requests the Government to amend section 27 of Law No. 188/1999 so as to ensure that civil servants are not automatically suspended when they choose to carry on their activities in the management of a trade union and that the matter will be subject to consultations with the union concerned.