Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 279, Novembre 1991

1. 400. The Committee already examined this case at its May 1991 meeting, when it submitted an interim report (see 278th Report, paras. 530-555) approved by the Governing Body at its 250th Session (May-June 1991). Since then, the Government has sent its comments and observations on this case in a communication dated 19 September 1991.
2. 401. Romania has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Previous examination of the case

1. 402. The complaint concerned measures of anti-union discrimination allegedly taken by the managers of the Intercontinental Hotel in Bucharest against officials and activists belonging to the Free and Independent Trade Union, set up at the beginning of 1990 at the Intercontinental Hotel, a public enterprise administered by the State, with a view to preventing employees from belonging to this trade union and obliging them to join the trade union backed by the management.
2. 403. The Committee had noted, from the information available, that there were two trade unions at the Intercontinental Hotel: the Free and Independent Trade Union of the Intercontinental Hotel, created the beginning of 1990; and a parallel trade union that had set itself up on 27 November 1990. According to the complainant, this parallel trade union had been set up as a result of pressure from the management; its president was a former member of the official trade unions and fulfilled leading functions within the hotel management; he was supposed to have used his authority to encourage employees to belong to his trade union. The Government had not provided any information on this aspect of the case, and particularly on the circumstances and procedures leading up to the creation of the parallel trade union.
3. 404. As concerns the allegations of anti-trade union discrimination (threats, salary cuts, downgradings, transfers from the Intercontinental Hotel to the Continental Hotel), the Committee had noted from the information provided by the Government that, following the Government's mediation, a specifically named person had been reinstated in her previous post at the Intercontinental Hotel; this was confirmed by the Confederation of Independent Trade Unions (FRATIA). However, the Government had not provided any information concerning the case of other employees who, according to the complainant, had also been subject to transfers and other acts of anti-union discrimination, including Mrs. Andrei, Mrs. Nedelciu, Mr. Carianopol, Mr. Mihaescu, Mr. Porumb and Mr. Radulescu.
4. 405. As regards the attempt of the officials of the Free and Independent Trade Union to change the employment conditions of the employees concerned at the Intercontinental Hotel, the Government had pointed out that the board of directors of the Intercontinental Hotel had cooperated with the Free and Independent Trade Union in finding a solution to the dispute, but that it had been impossible to meet the trade union's claims because they did not have a legal basis.
5. 406. The Committee drew the Government's attention to the fact that the main objective of trade union organisations was to defend the economic and occupational interests of their members. In order that these objectives might be attained and that harmonious occupational relations prevail, measures should be taken to encourage and promote the widest possible development and use of procedures of voluntary negotiation of collective agreements between social partners, and that the latter participate in good faith. While noting that the Government had mediated between both parties, the Committee expressed the hope that negotiations between the board of directors of the Intercontinental Hotel and the Free and Independent Trade Union could be resumed so as to settle, by these means, the wages and employment conditions of the employees in question.
6. 407. At its May 1991 Session, the Governing Body approved the following conclusions of the Committee:
   • (a) The Committee notes with interest that, following the Government's mediation, Mrs. Popescu was reinstated in her former post at the Intercontinental Hotel and that today her case has been settled.
   • (b) The Committee regrets the Government did not provide information on the other cases in which, according to the complainant organisation, persons were transferred for trade union activities, including Mrs. Andrei, Mrs. Nedelciu, Mr. Carianopol, Mr. Mihaescu, Mr. Porumb and Mr. Radulescu; the Committee requests the Government to provide information in this respect.
   • (c) The Committee requests the Government to guarantee all workers covered by Convention No. 98, and not only trade union officials, adequate protection against acts of anti-union discrimination, both at the time of recruitment and during their employment relationship, accompanied by sufficiently effective and dissuasive penalties. In this respect, the Committee notes that legislation on trade unions is to be adopted in the near future and that it contains, according to the Government, provisions to this effect. The Committee expressed the hope that this legislation will be in conformity with the principles of freedom of association and that it will be fully applied in practice. The Committee also draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to this aspect of the case.
   • (d) The Committee draws the Government's attention to the need to provide adequate protection against acts of interference by employers in workers' organisations. The Committee requests the Government to inform it of the measures taken at the Intercontinental Hotel to guarantee the respect of this right.
   • (e) The Committee requests the Government to provide information concerning negotiations between the management of the Intercontinental Hotel and the Free and Independent Trade Union affiliated to the Confederation of Independent Trade Unions (FRATIA).

B. The Government's reply

1. 408. In its reply of 19 September 1991, the Government explains that two trade unions were set up within the Intercontinental Company private enterprise:
   • - the Free and Independent Trade Union of the Intercontinental enterprise and;
   • - the Free Intertourist Trade Union of Employees of the Intercontinental enterprise.
2. 409. At its extraordinary general assembly on 27 November 1990, the majority of members of the first-mentioned trade union decided to affiliate to the Confederation of Independent Trade Unions (FRATIA). As at 30 March 1991, it had 360 members. The Government explains, however, that this trade union has never replied to the requests - both written and verbal - made by the Ministry of Labour and Social Welfare for information on developments in the dispute with the management of the Intercontinental enterprise. Similarly, the Government adds that in the letter sent to the Ministry on 19 August 1991, the Confederation of Independent Trade Unions (FRATIA) points out that: "Given the situation prevailing at the Intercontinental Hotel and the situation existing at the Ministry of Trade and Tourism, we are unable to provide you with specific information to send to the International Labour Office. We hope that the situation will be straightened out so that we might send you exact details in due course."
3. 410. Furthermore, the Government explains that the second trade union, named Intertourist, was created as a result of a split within the initial trade union - which occurred when there were discussions about the first trade union's membership of the Confederation FRATIA. The Government adds that on 12 April 1991 the Intertourist Trade Union had 381 members according to figures communicated to the Ministry of Labour, and that today it is affiliated to the Federation of Trade Unions in the Tourism Industry, a Federation that it completely independent and not affiliated to the National Confederation of Free Trade Unions of Romania (CNSLR), contrary to information submitted to the ILO.
4. 411. As regards the individual cases mentioned in the complaint, the Government provides the following information:
5. (1) The waiters Dumitru Porumb and Marin Mihaescu have remained at the Intercontinental Hotel and there was no longer any question of transferring them to the Continental enterprise; indeed, this company had pointed out that it had recruited all the staff that it needed. In their written statements of 24 August 1991, both these waiters stressed, moreover, that they had not submitted any complaint concerning a possible change in their posts when the two private enterprises - the Intercontinental and Continental - were set up following the governmental decision No. 1041 of 1990.
6. (2) Maria Nedelciu and Angela Andrei, still employed at the Intercontinental Hotel, refuse to accept a change of post within this enterprise and have appealed against the management. The Government states that it will inform the ILO of the outcome of these appeals.
7. (3) Valentin Carianopol has accepted his transfer to the Continental enterprise where he is presently employed. He benefits from the same wage and working conditions as at the Intercontinental Hotel. Moreover, the Government points out that under the labour legislation in force in Romania, an employee may not be transferred from one enterprise to another unless he has given his agreement.
8. (4) Valeriu Radulescu, along with 61 other employees, was transferred to the Continental enterprise, in accordance with the draft agreement drawn up following governmental decision No. 1041 of 1990, concerning the division of the Intercontinental Hotel into two separate entities. Today the person concerned is no longer working at the Continental as he has set up his own small undertaking.
9. 412. As regards developments in collective bargaining, the Government points out that on 5 June 1991 a collective agreement was concluded at the Intercontinental Hotel between the management and the employees, represented by the Free and Independent Trade Union, the Intertourist Trade Union and duly elected workers' representatives not belonging to a trade union, in accordance with Act No. 13 of 8 February 1991 on collective labour agreements. The collective agreement in question is valid for one year from the date upon which it was signed. The final clause No. 50 of this agreement stipulates:
   • The collective agreement shall be binding for both parties. In the event of failure to comply with obligations under the agreement, the guilty party shall be considered as responsible. If a new situation arises that is not covered by the collective agreement, the parties shall adopt the necessary measures to find a solution by means of agreement within 30 days. When a solution has been found it shall be included in a rider and incorporated in the collective agreement.
   • After the agreement had been concluded, the management and representatives of the Free Independent Trade Union had still not found a solution to two problems; according to the Government, both parties agreed to submit these matters to the arbitration committee, in accordance with the law. That committee decided that:
10. (1) in the case of work carried out during days of rest or public holidays during a working week, in accordance with a pre-established work schedule, the basic normal wage shall be paid even if a compensatory weekly day of rest has been granted; and when the work schedule has been established, every employee shall be entitled to his statutory compensatory weekly day of rest at least once every two months, in accordance with section 124(2) of the Labour Code;
11. (2) as regards the Free and Independent Trade Union's request that every quarter, 15 per cent of the individual basic wage, index-linked to the work carried out, should be paid in strong currency according to the official rate of exchange, the Committee refused this request by abiding by the Romanian legislation in force.
12. 413. Furthermore, the Government points out that the Act on trade unions of 1 August 1991 has been promulgated. It explains that section 1 of the Act states:
13. (1) Trade unions are organisations that do not have a political nature; they are established with a view to promoting the occupational, economic, social, cultural and sporting interests of their members, as well as their own rights, as provided for under labour legislation and collective labour agreements.
14. (2) Trade unions are independent from state bodies, political parties and any organisation whatsoever. All wage-earners shall be entitled to establish trade unions without any restrictions and without previous authorisation. Nobody may be forced to belong or not to belong to a trade union or to leave a trade union.
    • Section 10 stipulates:
    • Members elected to the executive of a trade union shall be protected by the law against any constraints or restrictions whatsoever in the exercise of their duties.
    • Section 11 stipulates:
15. (1) No representative elected to the executive of a trade union, or any person having carried out similar duties, may, during the year following the end of his term of office, have his or her labour contract amended or annulled on grounds not ascribable to him or her - grounds which the law leaves up to the person who recruited him or her to define - unless agreement is given by the executive elected by the trade unions.
16. (2) The annulment of a labour contract by the person who recruited the worker concerned shall be forbidden if the grounds raised are connected with his or her trade union activity.
17. (3) Any persons removed from trade union office because they have infringed statutory provisions shall be excluded from the scope of paragraph 1.
    • In Chapter V, concerning penalties, section 48 stipulates:
    • The following are considered a breach of the law and are subject to six months' to two years' imprisonment or to a fine of 5,000 to 25,000 lei:
      • (a) an attempt to prevent freedom of association or the right to join a trade union, which has been set up in compliance with the objectives and within the confines laid down in this Act;
      • (b) any form of constraint aimed at restricting the exercise of these prerogatives by the elected members of the trade union executive.
    • The Government also points out that section 41 of Act No. 15 of 7 August 1990, concerning the reorganisation of state economic agencies as state-controlled companies or private enterprises stipulates:
    • The staff of state-controlled companies and private enterprises shall be recruited by the general management or management, respectively.
    • Section 99 of Act No. 31 of 17 November 1990 on private enterprises states:
    • Appointments and recruitments shall be made by the management, provided that the collective agreement or regulations of the enterprise do not stipulate otherwise.
18. 414. In concluding, the Government expresses the hope that it has replied to all the recommendations of the Committee on Freedom of Association approved by the Governing Body at its 250th Session.

C. The Committee's conclusions

1. 415. The Committee notes the detailed observations and information provided by the Government on all its previous recommendations.
2. 416. Concerning the trade union situation inside the Intercontinental Hotel, the Committee notes the information that workers in this enterprise are represented by two trade unions. The first, named "free and independent" and affiliated to FRATIA, had 360 members on 30 March 1991; the second, named "free Intertourist" affiliated to the Federation of Trade Unions in the Tourist Industry - and allegedly independent of the National Confederation of Free Trade Unions of Romania (CNSLR) - had 381 members on 12 April 1991.
3. 417. As regards developments in collective bargaining between the management of the Intercontinental Hotel and workers' representatives, the Committee notes, still according to the Government, that the representatives of both these trade unions, as well as workers not belonging to a trade union, signed a collective agreement valid for one year with the management, in accordance with the provisions of Act No. 13 of 8 February 1991 on collective labour agreements. The Committee notes that section 7 of this Act states:
4. 1. The collective labour agreement shall be concluded between an employer and the employees at the level of the unit.
5. 2. When collective labour agreements are concluded, the wage-earners shall be represented by the trade unions. In units in which there are no trade union organisations or in which, although there is a trade union organisation, all the employees do not belong to it, workers' representatives shall be elected by the workers from a list, by secret ballot.
   • Section 8 stipulates:
6. 3. Employers' representatives shall be appointed by the Chamber of Commerce and Industry.
   • And section 9 stipulates:
7. (1) Collective labour agreements shall be concluded for a specific period that may not be less than one year, or for the duration of specific tasks.
8. 418. The Committee also notes that two matters of dispute remained unresolved but that, according to the Government, the management and the Free and Independent Trade Union had agreed to refer them to the arbitration committee which upheld one of trade union requests and not the other. In this respect, the Committee is of the opinion that since arbitration was requested by both parties, this system is compatible with the principles of voluntary collective bargaining.
9. 419. However, the Committee notes that in pursuance of section 10 of Act No. 14 of 8 February 1991 on wages, it is stipulated that if, during wage negotiations for 1991, differences are not settled within 30 days they may be referred to arbitration, as provided for under the legislation for the settlement of collective labour disputes. On this point, the Committee is of the opinion that if, during a dispute, arbitration is imposed on both parties and no appeal may be made against the arbitration award, this is not a system which attempts to promote and encourage the voluntary bargaining of employment conditions.
10. 420. As regards the individual cases of allegations of anti-trade union measures allegedly taken by the management to encourage workers to belong to a certain trade union rather than another, the Committee notes, from information provided by the Government, that a solution has been found to all the cases except for two: those of Mrs. Nedelciu and Mrs. Andrei. These two persons appealed against their employer's decision to transfer them but meanwhile, since they have refused to change their posts, they are still employed at the Intercontinental Hotel. The Committee requests the Government to keep it informed of the outcome of the appeals in question, in accordance with the memorandum of agreement concluded following the Government's Decision No. 1041 of 1990 concerning the breakdown of Hotel Intercontinental SA in two different entities.
11. 421. The Committee nevertheless recalls the necessity to adopt measures to ensure adequate protection against acts of interference by employers in workers' organisations.