Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Tchéquie (Ratification: 1993)

Autre commentaire sur C098

Observation

Demande directe

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the 2019 and 2020 observations of the Czech-Moravian Confederation of Trade Unions (ČMKOS) and of the Confederation of Industry and Transport (the latter are addressed by the Committee in its observations regarding the Collective Bargaining Convention, 1981, No. 154) communicated with the Government’s report and the Government’s comments thereon.

Article 1 of the Convention. Protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that, according to the ČMKOS, the notification requirement under section 286(4) of the Labour Code implied that a trade union may be required to provide the names of trade union members and leaders to the employer, creating a risk of anti union dismissal during the period of time between the notification to the employer about the establishment of a trade union and the day when the union’s entitlements vis à vis the employer take effect. In its reply, the Government had: (i) clarified that the notification to the employer did not require the prior submission of information on persons entitled to act in the name of the trade union; and (ii) indicated that, while it had no information about any cases of dismissals under these circumstances, the conduct denounced would be characterized as an illegal circumvention of the law, and that it was prepared to consider a legislative change based on an assessment of the practical application of the Labour Code in this regard. The Committee duly notes that the Government indicates that: (i) the Constitutional Court examined the matter in its ruling Pl. ÚS. 10/12 issued on 23 May 2017, and concluded that protection against possible abuse was sufficiently ensured by judicial review of the validity of the notice of termination; and (ii) it has not encountered the problems described by the ČMKOS and is therefore of the opinion that the existing regulation is sufficient. The Committee invites the Government to continue monitoring the practical application of the Labour Code in this regard.

Article 4. Promotion of collective bargaining. In its previous comments the Committee had noted that, according to the ČMKOS, the Register of Contracts Act required employers listed in the Act to disclose in a public register their company collective agreement, and its section 6(1) subjected its effectiveness to publication, contrary to section 26(2) of the Labour Code which provides that the effectiveness of a collective agreement begins on the first day of the period for which the collective agreement has been concluded, unless the period of effectiveness of certain rights or duties is stipulated differently in the collective agreement. The ČMKOS considered that the Act thus restricted freedom to negotiate and would lead to a substantial reduction in the number of company collective agreements. The Committee notes that the Government indicates that the Register of Contracts Act was amended by Act No. 249/2017 and collective agreements were explicitly added among the categories of agreements excluded from the obligation of publication in the Register of Contracts.

The Committee further notes that in its 2019 and 2020 observations the ČMKOS affirms that, following the decision of the Constitutional Court to repeal the provision in section 24(2) of the Labour Code (providing that the employer must negotiate with all unions but that, in case of disagreement among unions, the employer may conclude a collective agreement with one or more trade unions which have the largest number of members) and due to legislative inaction, minority unions have been given a veto power that may thwart the right to collective bargaining of the vast majority of employees. The ČMKOS alludes to concrete examples of minority unions having blocked negotiation processes given the current state of the legislation, and notes that it submitted a proposal to amend section 24(2) in order to address this challenge. The ČMKOS indicates that its proposal to amend the aforementioned provision was not adopted due to the opposition of a minority union. Given the negative effects that section 24(2) of the Labour Code has on the adoption of enterprise-level collective agreements, the ČMKOS calls for the adoption of legislation to create procedural preconditions for the successful conduct of collective bargaining and the adoption of enterprise-level collective agreements.

The Committee notes that the Government: (i) recalls that the original provision, which established significantly unequal conditions between larger and smaller trade unions, was rejected by the Constitutional Court and it is therefore not possible to return to it; (ii) considers that the proposal submitted by the ČMKOS dos not comply with the constitutional ruling; (iii) rejects the claims of inaction, noting that the issue was repeatedly discussed with the social partners, already in 2016–17 and in 2018–19 during the discussion of amendments to the Labour Code; (iv) notes that at the March 2019 session of the Council of Economic and Social Agreement this issue was removed from this draft bill that is currently being prepared due to the fundamental disagreements among various representatives of workers; (v) considers that the implementation of a specific solution would be very difficult without the consensus of all representative social partners on its wording ; and (vi) indicates that its proposed solution to undertake mandatory consultations between social partners has been repeatedly rejected by the ČMKOS. Recognizing the need to address the issue raised by ČMKOS, the Government indicates that as of 2021, the impact of the legislation in the conclusion of collective agreements will be evaluated through the Information on Working Conditions Survey (annual survey carried out by the Ministry of Labour and Social Affairs which analyzes collective agreements and provides an overview of trends in collective bargaining). Duly noting this information, the Committee recalls that both systems of collective bargaining which grant exclusive rights to the most representative union, and systems under which several or all unions in an enterprise or a bargaining unit may participate in the negotiation of collective agreements, are compatible with the Convention. The Committee continues to encourage the Government to keep on discussing the matter with the social partners with a view to preparing legislative amendments and any other pertinent measures to ensure that the current situation does not hinder the conclusion of collective bargaining agreements. Recalling that it may avail itself of the technical assistance of the Office, the Committee requests the Government to inform of any evolution in this respect.

Application of the Convention in practice. The Committee notes the information provided by the Government on collective bargaining in the country, in particular that: (i) since there is no obligation in the Czech Republic to place collective agreements in the Register of Contracts or any other register, the Government lacks complete records; (ii) the number of employees covered by higher-level collective agreements whose application is extended cannot be determined as the extension is made to an indeterminate number of employers; (iii) every year the Ministry of Labour and Social Affairs conducts inquiries into the terms and conditions of collective agreements, but, since the Information on Working Conditions Survey is voluntary, it is not possible to determine the percentage of contracts collected and analysed out of the total number of contracts, nor the exact percentage of employees covered by collective agreements; (iv) in 2017, the survey analysed selected data on wage and working conditions from 1,737 enterprise collective agreements from 27 trade unions across all sectors, covering more than 899,000 employees, as well as 19 higher-level collective agreements concluded that year; (v) in 2018, data was collected in relation to 1,705 enterprise collective agreements from 27 trade unions, representing almost 871,000 employees, as well as the 20 higher-level collective agreements concluded that year, and (vi) in 2019, the survey gathered information with respect to 1,584 enterprise collective agreements from 27 trade unions, across all sectors, covering 788,000 employees as well as 20 higher-level collective agreements. The Government further indicates that, with a view to promoting social dialogue and collective bargaining at national and regional levels, it approved a subsidy of 37,000,000 Czech Republic koruna on 7 September 2020 aimed at financing social partners’ activities. Duly noting the information provided, and encouraging the development of additional mechanisms to collect information on collective bargaining in the country, the Committee requests the Government to continue providing information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.