Rapport définitif - Rapport No. 320, Mars 2000

1. 747. In a communication received at the ILO on 25 October 1999, the National Trade Union Bloc (BNS) and the Federation of Underground Railway Workers (USLM) submitted a complaint alleging violation of Freedom of association by the Government of Romania.
2. 748. The Government sent its observations on this case in communications dated 22 December 1999 and 20 January 2000.
3. 749. Romania has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Workers' Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainants' allegations

1. 750. The National Trade Union Bloc (BNS) states that it is submitting a complaint on behalf of its member, the Federation of Underground Railway Workers (USLM), against interference into a labour dispute by the Minister of Transport and the commercial underground railway company of Bucharest known as METROREX SA.
2. 751. The complainants recall that Romania has ratified Conventions Nos. 87, 98, 135 and 154 and denounce, as they have done in previous cases, the fact that Act No. 15/1991 on the settlement of collective disputes and Act No. 54/1991 on trade unions are contrary to ILO Conventions (see 297th and 306th Reports, Cases Nos. 1788 and 1904, paras. 316-366 and 576-600, respectively).
3. 752. In this case, the complainants explain that the Minister of Transport illegally interfered in a dispute in the METROREX company by publishing a statement threatening the strikers with dismissal. Furthermore, the director of METROREX ordered that the underground railway should continue operating during a strike, which constitutes an interference into the activities of a trade union and an attempt to end a strike.
4. 753. The complainants claim that the Minister of Transport is given to making threats against trade unionists organizing strikes or demonstrations and add that these are part of his anti-trade union policy.
5. 754. The complainants stress once again that Romanian law makes it possible to suspend for a 90-day period the beginning or continuation of a strike which seriously affects the interest of the national economy or humanitarian interests. They state that in this case, the Supreme Court suspended the USLM strike for 90 days on these grounds and point out that, during the strike of the underground railway workers, public road transport was increased in order to guarantee the normal conditions of transport.
6. 755. The complainants consider that the obligation contained in Act No. 15/1991 imposed on certain categories of workers, including transport workers, to maintain during strikes in the essential services at least one-third of their activities, constitutes a restriction on the right to strike. They denounce the fact that employers use this provision before the courts so that a strike is declared illegal.
7. 756. Finally, the complainants state that the Government has ignored the recommendations of the Committee of Experts on the Application of Conventions and Recommendations requesting the Government to amend its legislation on trade union law, the right to strike, the definition of essential services and the powers conferred upon the Supreme Court to suspend strikes.
8. 757. In the documentation enclosed with the complaint, the complainants explain that in this particular case a warning strike had been called by the USLM on 27 July 1998 to obtain the recognition that underground railway workers had occupational diseases as a result of bad working conditions and the microclimate, the granting of certain rights identical to those of railway workers, the renewal of the collective agreement and wage negotiations for 1998. As an agreement with the authorities was reached on 21 August 1998, the strike notice was not upheld; however, on 6 April 1999, as the Government failed to follow up on this agreement, the USLM resumed the dispute and, following a vote by 1,662 workers out of 3,205 trade union members on 16 April 1999, the USLM executive unanimously decided on 26 May 1999 to call a general strike on 31 May 1999 from 4 a.m. until 4 p.m. Two days previously, on 28 May 1999, the USLM executive had lodged an appeal with the METROREX management to demand the immediate suspension of the individual labour contracts of 11 trade union officials, referring to sections 12 and 34 of Act No. 54/1991 which deals with the protection of elected representatives against anti-trade union dismissals and union leave (in a circular letter sent to the trade union members, the trade union officials, referring to Case No. 1788 previously examined by the Committee, justified their decision by citing the management's practice to dismiss trade union officials organizing strikes).
9. 758. The complainants explain that the strike began on 31 May but that the METROREX management gave the order to run trains although there were no passengers (because the passengers had been warned in advance and did not have access to the underground railway stations). On this same 31 May, the Minister of Transport accused the complainant federation in the press of carrying out terrorist practices against the population of Bucharest. He announced that the underground railway was going to be privatized, restructured and that the workers would be dismissed. He explained that 60,000 former railway workers could be taken on again to work for METROREX.
10. 759. On 2 June 1999, the Supreme Court suspended the strike for 90 days on humanitarian grounds. As the law obliges the parties to negotiate during this period, on 3 June 1999, the Minister of Transport proposed to the Government to privatize the underground railway; negotiations took place. METROREX tried to persuade the USLM to set aside its claims concerning occupational diseases. On 24 June, the Government announced that METROREX had been privatized and was now a commercial company, despite appeals to the courts lodged by the USLM. On 13 July 1999, the USLM executives appealed to be reinstated in their jobs after 15 July in application of the Act of 1991. On 16th August 1999, the 11 trade union officials were reinstated despite a written statement from the METROREX general management claiming that the suspension of their individual labour contracts should not have been lifted until the end of their trade union term of office. From 1 September to 15 October 1999, the employees of the independent administration METROREX, which was a state company, were selectively re-employed. On 24 September 1999, the civil court announced the strike of May-June 1999 illegal, but the USLM has lodged an appeal with the courts against this ruling.
11. 760. In concluding, the USLM denounces the restructuring that took place without consultation and stipulates that three of the 11 officials who were re-employed found themselves in lower positions which were not commensurate with their professional skills and that as the selective re-employment process was not yet over, it was not known whether other officials would suffer the same fate.
12. B. The Government's reply
13. 761. In its reply of 22 December 1999, the Government explains that in this case concerning the former administration running the underground railway in Bucharest, the new administration of the commercial underground transport company, METROREX SA, and the Minister of Transport, respected the Romanian legislation pertaining to the calling of strikes, the procedure of collective labour disputes and trade union activities contained in Acts Nos. 15 and 54 of 1991.
14. 762. The Government considers that there was no interference by the authorities in trade union matters since three trade unions carry out their activities within the new commercial underground transport company of Bucharest (the complainant organization (USLM), the Free Trade Union of Railway and Underground Railway Mechanics and the Central Free Trade Union METROREX).
15. 763. According to the Government, the management of METROREX SA did not, contrary to the complainants' allegations, issue any instructions on the running of trains during the strike. The complainant federation opted to stop trains from running between 4 a.m. and 4 p.m., despite the fact that section 45, paragraph 4, of Act No. 15/1991 on the settlement of collective disputes stipulates that passenger transport services must provide a minimum service of one-third of their activities during a strike and requests the parties to agree together upon this service. If these provisions had been respected, it would have been possible to continue running the underground with longer intervals between trains during the day.
16. 764. In the present case, the Government acknowledges that the High Court of Justice did suspend the strike for 90 days by Decision No. 2038 of 2 June 1999, and encloses a copy of that decision. It also admits that the civil court of Bucharest ruled in a decision dated 24 September 1999 (of which it encloses a copy) that it would be illegal to continue with the strike called on 31 May 1999.
17. 765. In suspending the strike for 90 days, the High Court of Justice considered that it affected major national and humanitarian interests, as most people using the underground were employees using this form of transport to go to their place of work in the major industrial and economic areas of the capital, in application of section 30 of Act No. 15/1991 on the settlement of collective disputes.
18. 766. As far as the civil court is concerned, it declared the strike illegal on a number of grounds: failure by the trade union to respect the majority necessary to call a strike, i.e. the majority of members in application of section 20 of Act No. 15/1991; failure to fulfil the obligation to guarantee a minimum service of one-third of normal activities, in application of section 45, paragraph 4, of Act No. 15/1991; the lack of compliance of the claims put forward by the employees with the legal objectives for calling a collective labour dispute given that a part of these claims could not be met within the framework of the present legislation and the rest of the claims were subject to legal provisions outside Act No. 15/1991.
19. 767. As regards the requests of the members of the USLM executive to suspend their individual labour contracts on the grounds that the authorities penalized trade union officials involved in the organization of a strike by dismissing them, with reference to Case No. 1788 previously examined by the Committee, the Government states that this argument is not plausible because the previous case dealt with dismissals handed down by the law courts for extremely serious offences. On the contrary, in the present case, the Government recalls that section 29, paragraph 1, of Act No. 15/1991 on the settlement of collective disputes stipulates that a strike organized in compliance with the law does not constitute an infringement of employees' service obligations and cannot have negative repercussions for the strikers or for the organizers of the strike. According to the Government the law therefore provides protection for trade union officials and militants in this respect. In its opinion, the fears on the part of the trade union officials were subjective; moreover, at their request, those concerned were reinstated by the METROREX SA management in the posts they previously held.
20. 768. As regards the transformation of independent administrations into commercial companies, the Government explains that this is part of the privatization and restructurization programme and that the Government decision concerning the establishment of the commercial underground transport company in Bucharest, METROREX SA, ensued from Government Ordinance No. 30 of 1997 on the reorganization of independent administrations approved by Act No. 207/1997. What is more, article 27 of the regulations of this company provides for the selective recruitment of staff by means of competition or examination; it also stipulates that the staff come under the regulations pertaining to railway workers and that the rights and obligations of employees of the underground railway are regulated by collective agreement.
21. 769. The Government states that the management of the enterprise informed it, on 1 November 1999, that a collective agreement had been concluded for 1999-2000 granting wage increases and that the process of taking over staff from the previous independent administration had been completed. The trade union officials were reinstated in the positions they held before the strike had been declared.
22. 770. The Government assures the Committee that it did not ignore the recommendations of the Committee of Experts on the Application of Conventions and Recommendations concerning the improvement of Romanian legislation and that the new law concerning collective labour disputes (Act No. 168/1999), of which it encloses a copy, was adopted on the basis of consultations with the social partners taking into account the recommendations of the Committee of Experts and the ILO Conventions ratified by Romania.
23. 771. In its supplementary communication of 20 January 2000, the Government points out that on 1 November 1999 the collective labour agreement was concluded for a period of one year between the representative trade union "Unitatea" and the administrative board of METROREX SA. The USLM includes the members of the trade union "Unitatea". On the basis of the collective agreement, a wage increase of 48 per cent was granted to all employees.
24. 772. Concerning the re-employment of staff of the former independent administration, 100 per cent of the staff were re-employed and the trade union officials were all recruited to the posts they held before the start of the dispute. The Government communicates the name of those concerned, the posts they hold at present, and the posts they held before the dispute.
25. ================================================================= No.
26. Name and first name Post held before Post held the dispute at present ================================================================= 1. Radoi lon, Second engineer Second engineer President USLM
27. 2. Crisu Florin, Traffic Traffic First Vice-President controller controller
28. 3. Geamanu Mihai, Foreman Foreman Secretary General
29. 4. Dumitrica Constantin, Engineer Engineer Vice-President
30. 5. Baragau Marian, Instructor Instructor Vice-President
31. 6. Stancu Paul, Electromechanic Electromechanic Vice-President
32. 7. Ghita Nichifor, Head of Head of Vice-President railway team railway team
33. 8. Covei Ion, Locksmith Locksmith Vice-President mechanic mechanic
34. 9. Lucian Florea, Electrician Electrician Vice-President
35. 10. Bala Stelian, Locksmith Locksmith Vice-President mechanic mechanic
36. 11. Gogue Elena, Technician Technician Vice-President =================================================================
37. 773. Finally, the Government informs the Committee that on 1 January 2000 the new law on the settlement of labour disputes entered into effect (Act No. 168/1999). On the same date, Act No. 15/1991 on collective labour disputes was therefore repealed. According to the Government, the new law improves the legislation regulating labour disputes and their settlement. In this context, the law introduces a series of new concepts, including that of conflicts of interests and that of conflicts of law. It authorizes strikes which arise because of a conflict of interests at both branch and national levels and introduces the concept of solidarity strike. It also introduces a procedure of mediation and voluntary arbitration, with the agreement of the parties, before the strike is called (in the previous law, no provision was made for this possibility; arbitration could be requested by the Ministry of Labour and Social Protection when a strike had taken place for 20 days without the parties involved reaching an agreement, or when the continuation of the strike might affect the interests of the national economy or interests of a humanitarian nature). Furthermore, section 30 of Act No. 15/1991, which was the subject of the complaints and stipulated that the High Court of Justice could suspend for a maximum of 90 days the calling or continuation of a strike if there was a danger that major interests of the national economy or interests of a humanitarian nature might be affected, has been amended; the new law stipulates that a strike may only be suspended by the courts for 30 days from the date it is called or continued and if it endangers the life or health of individuals. According to the Government, the reduction of the strike suspension period to 30 days benefits both parties to the dispute because it implies that a solution must be found within a reasonable time limit. The new law introduces a further positive aspect, i.e. that it does away with the requirement to maintain at least one-third of the "normal activity" during strike action in the teaching sector.

C. The Committee's conclusions

1. 774. This case concerns allegations referring to the Government's interference in a labour dispute in the Bucharest underground railway within the independent administration METROREX, which subsequently became the METROREX SA commercial transport company, and to the Government's refusal to amend its legislation in accordance with the recommendations of the Committee of Experts on the Application of Conventions and Recommendations.
2. 775. The complainants criticize the fact that the Minister of Transport accused the Federation of Underground Railway Workers (USLM), who had called a general strike from 4 a.m. to 4 p.m. on 31 May 1999 to obtain satisfaction of their work-related claims, of "terrorist practices" against the population of Bucharest and verbally threatened to dismiss the underground workers. They also condemn the ruling of the Supreme Court to suspend the strike for 90 days on the grounds that it affected the interests of the national economy and humanitarian interests. They also criticize the fact that the strike in question was declared illegal by a civil court. Finally, they denounce an order from the company management to run empty trains at the beginning of the strike.
3. 776. For its part, the Government acknowledges that the Supreme Court suspended the strike for 90 days and that the civil court declared it illegal. Nevertheless, it explains that the Supreme Court's ruling is justified inasmuch as the USLM failed, when the strike was called, to respect the legal provisions stipulating that a minimum service of 30 per cent of staff be provided during the strike, since it called a total unlimited strike from 4 a.m. to 4 p.m. which affected major national interests and the humanitarian interests of the Bucharest inhabitants, because those using the underground railway were employees who had to travel to their place of work in the country's major industrial and economic areas. The Government also explains that the civil court declared the strike illegal on account of the failure to respect the legal provisions on the majority of members needed to call a strike and on the maintenance of a minimum service of one-third of normal activity in the underground railway. The ruling was also based on the fact that the claims put forward by the employees required new legislation to be adopted. The Government rejects the allegation that the employer ordered the underground railways to continue running. Furthermore, it states that the dispute is over since on 1 November 1999 a collective agreement was concluded for 1999-2000 between the METROREX SA company and the representative trade union "Unitatea", which belongs to the USLM, granting wage increases. Finally, the Government indicates that the staff of the former independent administration were taken over by the new company and the trade union officials who had themselves requested the suspension of their labour contracts at the beginning of the dispute were reinstated at their request in the posts they held before the beginning of the dispute.
4. 777. Furthermore, the Government communicates the text of the new Act on the settlement of collective labour disputes (Act No. 168/1999) and states that it was drawn up on the basis of tripartite consultations with the social partners taking account of recommendations by the Committee of Experts.
5. 778. In this case, the Committee notes that the situation in which the complainants alleged there was an infringement of freedom of association seems to have been cleared up since a collective agreement has been signed for 1999-2000 granting wage increases to underground railway workers; it also notes that the trade union officials who had themselves requested the suspension of their labour contracts and then their reinstatement, as well as the workers of the former independent administration of the underground railways, have been reinstated in their previous jobs.
6. 779. It further observes with interest that the new Act on the settlement on collective disputes, which entered into effect on 1 January 2000 and was drawn up in consultation with the social partners, has done away with the regulations concerning the majority needed to call a strike, reduced from 90 to 30 days the power of the judicial authorities to suspend a strike at the request of an employer, and limited its application to strikes endangering the life or health of individuals, thus suppressing the concept of major national interests as grounds for suspending a strike (section 55 of the new Act). It also bans the management of a unit from recruiting employees to replace strikers (section 35).
7. 780. Concerning the provision regarding the obligation to guarantee a third of the unit's normal activity during a strike, in this case the transport of passengers using the underground railway, contained in section 45, paragraph 4, of Act No. 15/1991 taken up in section 66, paragraph 1, of the new Act No. 168, which stipulates that this obligation must be guaranteed in units of public transport to meet the minimum requirements of local communities, the Committee acknowledges that the maintenance of minimum services in the case of strike action may be imposed in public services of fundamental importance (see Digest of decisions and principles of the Committee on Freedom of Association, 4th edition, 1996, para. 556) and it specifies that in relation to strike action taken by workers in the underground transport enterprise, the establishment of minimum services and the absence of agreement between the parties should be handled by an independent body (see Digest, op. cit., para. 565). In this particular case, the Committee notes that the complainants acknowledge that this was a general strike, from 4 a.m. to 4 p.m. It is of the opinion that respect of the obligation to maintain a minimum service of the underground railway's activities to meet the minimal needs of the local communities is not an infringement of principles of freedom of association.
8. 781. In these circumstances, the Committee hopes that the positive legislative developments, which have occurred following its recommendation in previous cases, will result in the Government refraining in future from undue intervention in labour disputes. The Committee requests the Government to amend its legislation so as to guarantee the establishment of minimum services by an independent body in the absence of agreement between the parties on the issue.
9. 782. The Committee draws the attention of the Committee of Experts to the legal aspects of this case.