Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 308, Novembre 1997

1. 207. The Railwaymen's Trade Union of Croatia (RTUC) presented a complaint against the Government of Croatia in a communication dated 7 February 1997, alleging violations of trade union rights. The International Transport Workers' Federation (ITF) expressed its support for the complaint in a communication dated 11 March 1997. Further information was received from the RTUC in a communication of 2 April 1997. In response to the allegations, the Government forwarded observations and information in a communication of 12 May 1997.
2. 208. Croatia has ratified both 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. The complainant's allegations

1. 209. In its communication of 7 February 1997, the RTUC alleges that the court decisions declaring unlawful a strike called by the RTUC violates the right of workers' organizations to organize their activities in full freedom. It further alleges that the public authorities unlawfully interfered in the strike. Finally, it claims that the Croatian Railways Act, 1994, contravenes principles of freedom of association as it restricts the right to strike of railway workers.
2. 210. According to the complainant, it was involved in collective bargaining with Croatian Railways, a public enterprise, together with seven other trade unions, with the RTUC representing the largest proportion of railway workers. The negotiations broke down, resulting in the RTUC giving 10 days' strike notice, as required by law. Pursuant to the Croatian Railways Act, the Minister of Maritime Affairs, Transport and Communications ("the Minister") prepared a list of the trains that were to continue operating during the strike in order to maintain minimum railway service. This list covered 20 per cent of the trains. Before the commencement of the strike, the complainant maintains that it had not been consulted regarding the trains to be included on the list and had not officially received the list; therefore, it established its own list, including 21 per cent of the trains, which it submitted to the Minister together with the strike notice, and which it applied during the first few days of the strike (28 November to 1 December 1996). Once informed of the decision of the Minister, the complainant observed that list, until 3 December, at which time the complainant halted all railway traffic. The complainant states that this measure was taken in response to illegal pressure on and threats to striking workers, including management requesting each worker to give a statement confirming their participation in the strike, and the Vice-President of Croatia publicly stating that "There is nothing at all to negotiate because we have already met all your requests. You can strike until Easter - but to your own detriment ...". Another stated ground for the action was that the management of Croatian Railways had contravened the Minister's decision by putting into operation trains that had not been listed, and doing so in such a manner as to jeopardize the lives of passengers and employees.
3. 211. The complainant recommenced all passenger trains on 4 December 1996, and the minimum cargo traffic on 8 December. As a result of the stoppage on 3 December, Croatian Railways brought an action before the Supreme Court claiming that the strike was unlawful and asking that further strike action be prohibited. A copy of the Supreme Court decision of 9 December 1996 was appended to the communication of 7 February. The Court held that the strike had been organized and carried out in a manner contrary to the law; the complainant was ordered to put an end to the strike and to pay the costs of the legal proceedings. The Court found that the complainant had received the decision of the Minister defining the trains to remain operational and the tracks to be maintained during the strike and that the manner in which it had been received was irrelevant. Croatian Railways was deemed by law to be a public service of vital interest to the State; therefore, the Court noted that a number of preconditions needed to be met in order for the strike to be lawful. In the opinion of the Court, all the preconditions were met, with the exception of the requirement that the decision of the Minister defining the minimum service to be maintained during the strike be observed. In not fulfilling this precondition, the entire strike was rended unlawful.
4. 212. The complainant appealed against the decision of the Supreme Court of First Instance. In its decision of 17 December 1996, a copy of which was appended to the complainant's communication, the appellate court upheld the lower court's decision on the basis that the complainant was obliged to observe the Minister's decision throughout the strike. The Court stated that the decision to interrupt the entire train service was contrary to the law "even in the case of unruly behaviour by the plaintiff, because unlawful conduct does not justify unlawful protection of one's rights and interests". The complainant claims that political influence was exerted on the Court to ban the strike as a warning to the public to refrain from strikes and demonstrations.
5. 213. Based on the Court's decision declaring the strike unlawful, the complainant states that Croatian Railways summarily dismissed 24 employees who had been involved in organizing the strike, including four trade union officials. Croatian Railways also filed a claim against the RTUC for compensatory damages. Regarding the dismissed employees, as part of an agreement between RTUC and Croatian Railways to settle a second strike in January 1997, management agreed to withdraw the 24 dismissal notices.
6. 214. The complainant also draws attention to the specific provisions of the Croatian Railways Act which states that "In order to protect the vital interests of the State, other legal personalities or citizens of a certain area, and in the case of a strike in the railway enterprise, the Minister shall define the trains that must run and the railway tracks that must be maintained in order to secure the essential services of the railway traffic. Employees performing jobs and tasks in the railway traffic that are defined as essential pursuant to the decision under paragraph 1 of this Article, have the obligation to carry out orders issued by the management during a strike." The RTUC asserts that in giving the Minister an unfettered right to determine which are the essential services that must remain operational during a strike, the law is contrary to principles of freedom of association. It notes that in response to a strike notice submitted by the complainant regarding another strike scheduled for 28 December 1996, the Minister redefined the minimum services to be provided, which covered 70-80 per cent of the regular train service.
7. 215. In its communication of 2 April 1997, the RTUC brought to the attention of the Committee the fact that it had lodged a complaint with the Constitutional Court claiming that the above-noted provisions of the Croatian Railways Act violate the constitutionally guaranteed right to strike.

B. The Government's reply

1. 216. In response to the allegations, the Government in its communication of 12 May 1997 notes that the right to strike is guaranteed by the Constitution and maintains that the law complies with 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). The Government emphasizes that pursuant to the law, the question of the legality of a strike is referred to the competent court, and only a court is authorized to determine the facts and prohibit the strike if it is found to be unlawful. In the case at hand, the facts were duly examined by both the Supreme Court of First Instance and on appeal. The Government asserts that given the principle of the separation of powers between the legislative, executive and judicial arms of the Government, the judicial authorities are autonomous and independent and it would not be appropriate for the executive authority to explain or supervise the court decisions.
2. 217. The Government declined to enter into the merits of the dispute regarding the issues that have already been determined by the Court. In response to the claim that 24 employees were dismissed due to their involvement in organizing the strike, the Government states that, to its knowledge, no employee was dismissed for such a reason. In this regard, the Government also draws the attention of the Committee to article 182 of the Labour Law which provides that trade union officers cannot be dismissed without the prior consent of the trade union.
3. 218. The Government points out that there is no general law regulating strikes in the public service. Special laws establish which services are to be maintained and who is to determine the work that is to continue during the strike. The Croatian Railways Act specifies that the basic function of Croatian Railways is to provide for continuous and unobstructed railway transport of people and goods. Pursuant to the Act, the Minister is authorized to manage the rights pertaining to the country on the basis of its property, with a view to protecting vital interests of the State, other legal entities or citizens. On this basis, the Minister is empowered to determine which trains must remain functioning and which sections of the railway track must be maintained during a strike in order to ensure the basic functioning of railway traffic. Given the Government's ownership of the enterprise, and the concomitant right of the Minister to manage, the Government contends that statements of the Minister made regarding the railway are made in the capacity of someone representing the owner and not as a member of the executive of the Government.

C. The Committee's conclusions

1. 219. The Committee notes that the allegations of violations of freedom of association in this case arise out of a strike called by the RTUC which was declared unlawful by the courts on the basis that the minimum services defined by the Minister pursuant to the Croatian Railways Act had not been maintained throughout the strike. As a result of the declaration that the strike was unlawful, the complainant alleges that a number of those involved in organizing the strike were dismissed.
2. 220. The RTUC alleges that the Croatian Railways Act, 1994, empowers the Minister to determine unilaterally which trains are to operate and which tracks are to be maintained during a strike "to ensure the essential services of the railway traffic", and thus violates principles of freedom of association. According to the complainant, in one instance the minimum services designated included 20 per cent of trains, whereas in another similar situation, 70-80 per cent of trains were implicated. The determination of the Minister does not appear to be subject to appeal.
3. 221. Regarding the right to strike, the Committee recalls that it is one of the essential means through which workers and their organizations may promote and defend their economic interests (see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, para. 474). While accepting that the right to strike can be restricted or prohibited in essential services, essential services are to be strictly defined to mean those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (see Digest, op. cit., para. 542). In previous cases, the Committee has not considered transport in general, and railway services in particular, to be essential services (see Digest, op. cit., para. 545; 273rd Report, Case No. 1521, (Turkey), para. 39; 297th Report, Case No. 1788, (Romania), para. 358 ). The Committee has recognized, however, that given the particular situation of the railway services of a country, a total and prolonged stoppage could lead to a situation of acute national emergency endangering the well-being of the population, which may in certain circumstances justify government intervention, for instance by establishing a minimum service (see 265th Report, Case No. 1438, (Canada), para. 401).
4. 222. The Committee recalls with respect to the determination of minimum services that they are to be limited to operations that are strictly necessary to avoid endangering the life or normal living conditions of the whole or part of the population. In addition, it is important that workers' organizations be able to participate, along with employers and the public authorities, in defining the minimum service (see Digest, op. cit., paras. 557-558). In the case at hand, the Minister appears to have unfettered discretion regarding the determination of the minimum service to be maintained in the event of a strike; as a result, 20 per cent can be declared as the minimum in one case and 80 per cent in a similar case, showing that the determination is not limited to operations that are strictly necessary to avoid endangering life or normal living conditions. Nor was the RTUC, the trade union representing the largest proportion of railway workers, consulted regarding the determination of minimum services. The Committee recalls that the involvement of the relevant trade unions and employers' organizations allows not only a careful exchange of viewpoints on what in a given situation can be considered to be the minimum services that are strictly necessary, but also contributes to guaranteeing that the scope of the minimum service does not result in the strike becoming ineffective in practice because of its limited impact, and to dissipate possible impressions by the trade unions that a strike has not been effective due to over generous and unilaterally fixed minimum services (see Digest, op. cit., para. 560). The Committee also considers that where there is disagreement as to the determination of minimum services, the legislation should provide for such disagreement to be settled by an independent body and not by the ministry or public enterprise concerned (see Digest, op. cit., para. 561). The Committee requests the Government to modify the legislation accordingly. The Committee also draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
5. 223. While noting with concern the dismissal of 24 employees involved in organizing the strike, the Committee observes that the workers have been reinstated and therefore considers that this aspect of the case does not call for further examination.