Observation (CEACR) - adoptée 2018, publiée 108ème session CIT (2019)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Grèce (Ratification: 1962)

Autre commentaire sur C098

Observation

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The Committee takes note of the detailed observations provided by the International Organisation of Employers (IOE) and the Hellenic Federation of Enterprises and Industries (SEV) in a communication received on 31 August 2018. The Committee further notes the detailed observations provided by the Greek General Confederation of Labour (GSEE) received on 1 November 2018 and requests the Government to reply in detail.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 107th Session, May–June 2018)

The Committee notes the conclusions of the Committee on the Application of Standards (hereafter “Conference Committee”) at the 107th International Labour Conference (June 2018). It notes that the Conference Committee had expressed concern regarding the Government’s submission related to the compulsory arbitration system and the decision of the Council of State concluding that the provision in Act No. 4046, which provided for the suppression of unilateral recourse to compulsory arbitration, was unconstitutional. The Conference Committee also expressed concern regarding the Government’s failure to provide a report to the Committee of Experts in time for its previous session in November 2017. Taking into account the Government’s submissions and the discussion that followed, the Conference Committee urged the Government to: (i) ensure that unilateral recourse to compulsory arbitration as a way to avoid free and voluntary collective bargaining is employed only in very limited circumstances; (ii) ensure that public authorities refrain from acts of interference, which restrict the right to free and voluntary collective bargaining, or impede its lawful exercise; (iii) provide information on the number of collective agreements signed, the sectors concerned and the number of workers covered by these collective agreements; (iv) provide information and statistics related to complaints of anti-union discrimination and any remedial action taken; (v) avail itself of ILO technical assistance to ensure the implementation of these measures; and (vi) report to the Committee of Experts on the implementation of these recommendations before its session in November 2018.

Article 4 of the Convention. Promotion of collective bargaining. The Committee recalls that its previous comments concerned the Council of State decision finding that the provision in Act No. 4046 of 14 February 2012, which provided for the suppression of unilateral recourse to compulsory arbitration, was unconstitutional. The Committee trusted that the measures taken by the Government to respond to this decision would fully take into account its previous considerations that as a general rule, legislative provisions which permit either party unilaterally to request compulsory arbitration for the settlement of a dispute does not promote voluntary collective bargaining and is thus contrary to the Convention. The Committee notes the concerns expressed by the SEV that the Government has ignored its proposals to consider amendments that would significantly reduce the existing distortion and be more in line with international labour standards as an interim measure until an opportunity to settle the matter at the level of the Constitution or its interpretation could be found.

The Committee notes that the Government refers to recent amendments made to Law 1876/1990 brought about through Law 4549/2018 which favours autonomous resolution of disputes during mediation and enables a unilateral request for arbitration to be taken only by the party that has accepted the mediation proposal where the other party has rejected it. The Government affirms that the fundamental principle of the Greek mediation and arbitration system is that the social partners themselves may specify conditions for having recourse to it and the provisions of the law on mediation and arbitration only apply when there has been no such agreement. The Government emphasizes that mediation has only an auxiliary function and the vast majority of collective regulations are resolved by mutual consent of the parties. In order to strengthen the principle of good faith, under Law 4549/2018, the right to unilateral recourse to arbitration is granted in only two cases: (i) on the initiative of any party where the other has refused mediation; and (ii) on the initiative of any party that accepted the mediation proposal which was rejected by the other party. Previously it had not been necessary to accept the mediation proposal in order to be able to have unilateral recourse to arbitration. According to the Government, unilateral recourse to arbitration is thus only granted as a last resort only to the parties that have exhausted all efforts of good-faith behaviour and demonstrated willingness to consent. The Government adds that Law 4549/2018 explicitly introduces the evolution of purchasing power of wages among the considerations for a mediation proposal or arbitral award in order to respond to living costs that have frequently adversely affected the purchasing power of workers. The Government states that the above changes were made after intensive social dialogue with the social partners on the basis of an extensive study on the evolution of the arbitration system since the entry into force of Law 1876/1990. The Government adds that these changes are in compliance with the decision of the Greek Supreme Court which had ruled that the institution of unilateral recourse to arbitration as an auxiliary mechanism for the resolution of collective disputes is guaranteed and prescribed under the Greek Constitution, while the scope of this right has been restricted, stressing the importance of good faith behaviour. To demonstrate the infrequent use of the arbitration mechanism, the Government provides statistics from the period 2010–17 in which 3,506 collective regulations were signed with 96.38 per cent being labour collective agreements and 3.62 per cent being arbitral awards.

The Committee recalls that compulsory arbitration in the case that the parties have not reached agreement is generally contrary to the principles of collective bargaining. In the Committee’s opinion, compulsory arbitration is only acceptable in certain specific circumstances, namely: (i) in essential services in the strict sense of the term, that is those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis (see 2012 General Survey on the fundamental Conventions, paragraph 247). The Committee takes due note of the efforts made by the Government to further restrict recourse to compulsory arbitration within the framework of Law No. 4549/2018, taking into account the constitutional rules by which it is bound. The Committee nevertheless trusts that the Government will continue to engage with the social partners, both during its review of the law and within the context of the constitutional reform, to bring this mechanism into full compliance with the obligation to promote free and voluntary collective bargaining by eliminating, except in the cases described above, the possibility of a single party to have recourse to compulsory arbitration if the other party rejects the mediation proposal. It requests the Government to provide detailed information in this regard.

As regards extension of collective agreements, the Committee notes the information provided by the SEV that the revival of the ministerial right to extend the coverage of sectoral agreements after the end of the completion of the third economic adjustment programme for Greece should bear in mind the following basic conditions: (i) a reliable methodology for ensuring the collective agreement covers at least 51 per cent of the employees; (ii) the parties to the agreement agree to the extension; and (iii) compulsory arbitration awards should be excluded from the extension mechanism. The Committee notes the Government’s indication that it has issued Circular No. 3291/2175/13.06.2018 which defines the procedure to be followed to identify whether 51 per cent of the sector’s workers are covered by the collective agreement before deciding whether it may be declared universally applicable under article 11.2 of Law 1876. The Government indicates that this approach has been the subject of intensive consultations and had been accepted by all social partners. Referring to a subsequent exchange of letters with the SEV, the Government indicates that the discretionary authority to declare a labour collective agreement as universally applicable is conferred solely upon the Minister of Labour.

The Committee recalls in this regard that Paragraph 5.2 of the Collective Agreements Recommendation, 1951 (No. 91), provides that: National laws or regulations may make the extension of a collective agreement subject to the following, among other, conditions: (a) that the collective agreement already covers a number of the employers and workers concerned which is, in the opinion of the competent authority, sufficiently representative; (b) that, as a general rule, the request for extension of the agreement shall be made by one or more organizations of workers or employers who are parties to the agreement; and (c) that, prior to the extension of the agreement, the employers and workers to whom the agreement would be made applicable by its extension should be given an opportunity to submit their observations.

Enterprise-level collective agreements and association of persons. The Committee recalls its previous comments concerning Act No. 4024/2011 which provided that, where there is no trade union in the company, an association of persons is competent to conclude a firm-level collective agreement. The Committee had previously expressed concern that, given the prevalence of small enterprises in the Greek labour market, the facilitation of association of persons, combined with the abolition of the favourability principle set out first in Act No. 3845/2010 and given concrete application in Act No. 4024/2011, would have a severely detrimental impact upon the foundation of collective bargaining in the country. The Committee notes the Government’s indication that the favourability principle has been restored and observes the recent statistics provided according to which, in 2017, 155 firm-level collective agreements were signed with trade unions and 91 association agreements were signed with associations of persons. Twenty-six sectoral agreements and 15 occupational agreements are also in force. The Committee further notes, however, the continuing concerns of the GSEE that associations of persons still remain in detriment to democratically elected and functioning sectoral trade unions. Recalling the importance of promoting collective bargaining with workers’ organizations and thus improving collective bargaining coverage, the Committee requests the Government to reply in detail and to indicate the steps taken to promote collective bargaining with trade unions at all levels, including by considering, in consultation with the social partners, the possibility of trade union sections being formed in small enterprises.

Articles 1 and 3. Adequate protection against anti-union dismissal. In its previous comments, following concerns raised by the GSEE, the Committee had requested the Government to provide information and statistics relating to complaints of anti-union discrimination and any remedial action taken. The Committee notes the information provided that, in 2017, the labour inspectorate had handled 30 complaints related to hindrances to union members to take part in union action. Twelve of these cases were resolved according to the inspectorate recommendation, while seven cases were filed and 11 were referred to the civil courts. The inspectorate also handled 22 cases of dismissals of trade union officials of which ten were resolved, ten were referred to the courts and two were handled with fines. The Government attaches great interest to such infringements and classifies them as very serious. The Committee requests the Government to continue to provide information and statistics relating to complaints of anti-union discrimination and any remedial action taken.