Suites données aux recommandations du comité et du Conseil d’administration - Rapport No. 330, Mars 2003

Effect given to the recommendations of the Committee and the Governing Body

1. 103. The Committee last examined this case at its March 2002 meeting [see 327th Report, paras. 605-644]. On this occasion, the Committee made the following conclusions and recommendations:
   • (a) Concerning the legal interpretation of the Hungarian Act on Strike, the Committee notes that in the case of the February 2000 strike, the decision following the re-examination proceedings has not yet been rendered and requests the Government to keep it informed of the latest developments in this case and to provide a copy of the re-examination decision.
   • (b) Recalling that it is essential that the introduction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers, the Committee requests the Government to ensure that these organizations are involved in the discussion proceedings prior to the adoption of new labour legislation.
   • (c) The Committee requests the Government to keep it informed of all developments and provide copies of the judicial decisions regarding the alleged violation of paragraph 21(2) of the Labour Code by Order No. Gy. 26-46/2000 on the management of labour affairs and the decision on the implementation of the Instructions for Clothing No. K?6441/2000.
   • (d) With regard to the allegation of the non-implementation of the annex of the collective agreement between the Directorate of Rolling Stock of the Hungarian State Railways and the Free Trade Union of the Railway Employees of Hungary at the Northern Mechanical Office of Traffic-Manager of MAV Rt. following Decree No. 1508/1999, the Committee recalls that such non-implementation of the collective agreement, even on a temporary basis, does violate the right to bargain collectively as well as the principle of bargaining in good faith and that agreements should be binding on the parties. The Committee requests the Government to transmit a copy of the judicial decision regarding this matter.
   • (e) The Committee requests the Government to take the necessary measures to ensure that the instructions from the Deputy General Manager for Public and Labour Relations are repealed and to keep it informed in this regard.
   • (f) Regarding the complainant’s premises presently occupied by the law firm, the Committee asks the Government to ensure that the complainant regains its premises.
2. 104. In a communication dated 14 October 2002 the Government states with regard to point (a) above, that the Supreme Court abrogated the decree of the Industrial Court of Budapest which had qualified the February 2000 strike as unlawful.
3. 105. Concerning point (b) of the Committee’s recommendations, that is, the carrying out of tripartite consultations prior to the introduction of draft legislation affecting collective bargaining or conditions of employment, the Government provides information on the activities of the National Labour Council between April 1999 and February 2002.
4. 106. Concerning point (c) of the Committee’s recommendations, that is the alleged violation of paragraph 21(2) of the Labour Code by Order No. Gy. 24-26/2000 on the management of labour affairs and the implementation of the Instructions for Clothing No. K-6441/2000, the Government states that the Industrial Court of Budapest rejected the complainant’s grievances and found that these measures were lawful. The decisions were made final and absolute in the absence of an appeal.
5. 107. The Government explains its position with regard to items (d) and (e) of the Committee’s recommendations as follows. Concerning the alleged non-implementation of the annex of the collective agreement at the Northern Mechanical Office of Traffic-Manager of MAV Rt. following Decree No. 1508/1999, the Government states that the matter is still pending before the Industrial Court and that the adjudicating judge has requested the Constitutional Court’s position in respect of the pertinent sections 33(3), (4), (5) and (7) of the Hungarian Labour Code which set forth the bargaining power of trade unions based on their results at the election of the works council. According to these provisions, collective agreements may be concluded: (a) jointly by all trade unions if their cumulative power represents an absolute majority of the votes cast in the elections for works councils (section 33(3) of the Labour Code); or (b) jointly by certain trade unions each one of which represents at least 10 per cent of the votes cast in these elections and have obtained altogether more than 50 per cent of the votes (sections 33(4) and 29(4) of the Labour Code); and (c) individually, only where one trade union has received more than 65 per cent of the votes cast in the elections for works councils (section 33(5) of the Labour Code).
6. 108. The Government states that the Constitutional Court found these provisions unconstitutional because their application prevents the trade union with the widest support from concluding a collective agreement with the employer. According to the Court’s position, this rule restricts the right of representation as provided under the Constitution. In this case, the trade union winning more than 50 per cent but less than 65 per cent of the votes cast, i.e. the Free Trade Union of Railway Workers, cannot alone conclude an agreement with the employer without the other trade union, which is also representative but with less support, i.e. the Trade Union of Hungarian Railwaymen, which is the complainant in this case. The Government adds that the same percentage requirements apply with regard to the termination of collective agreements (sections 31(1) and (3) of the Labour Code).
7. 109. The Government holds that these provisions are not unconstitutional because they are intended to encourage trade unions to come to an agreement with each other and make a coalition in order to gain larger support from the workers. This is important because, on the one hand, the effect of the collective agreement extends to all employees and, on the other, the collective agreement could contain not only provisions more favourable than those contained in the Labour Code, but also provisions which are less favourable when this is permitted by the law (e.g. in respect of the annual amount of overtime). Moreover, trade unions which received less support in the elections to the works councils and whose position differs in respect of the issues regulated by the collective agreement from the other trade unions intending to form a coalition, are authorized to take action in the field of advocacy. The Government further states that the lack of agreement between the parties in this case cannot be attributed to the legislation. The Government informs the Committee that subsequent to the promulgation of the Constitutional Court’s position on this matter and the resolution of the law suit, it will submit a copy of the award as requested by the Committee.
8. 110. Regarding point (f) of the Committee’s recommendations, namely, reinstatement in the complainant’s premises, the Government states that following consultations with MAV Rt., the premises were returned to the complainant.
9. 111. The Committee takes note of this information. With regard to Point (a) of its previous recommendations, the Committee notes with interest that the Supreme Court abrogated a decree of the Industrial Court which, based on a particular interpretation of the Hungarian Act on Strike, had qualified the February 2000 strike as unlawful. With regard to point (f) of its recommendations, the Committee also notes with interest that the complainant organization was allowed to return to its premises.
10. 112. With regard to point (b) of its recommendations, the Committee takes note of the material provided concerning tripartite consultations prior to the introduction of legislation in the area of collective bargaining and conditions of employment for the period April 1999 to February 2002.
11. 113. With respect to point (c) of its recommendations, the Committee notes that the Decrees of the Industrial Court of Budapest which rejected the complainant’s grievances concerning the alleged violation of paragraph 21(2) of the Labour Code and the implementation of the Instructions for Clothing No. K-6441/2000, became final and absolute in the absence of an appeal.
12. 114. With respect to point (d), the Committee notes that the legal suit filed by the complainant organization for non-implementation of the annex to the collective agreement at the Northern Mechanical Office of Traffic-Manager of MAV Rt., following Decree No. 1508/1999, is still pending before the Industrial Court and that in the framework of this law suit, a question has been referred to the Constitutional Court which seems to have declared section 33(3), (4), (5) and (7) of the Labour Code unconstitutional. The Committee requests the Government to keep it informed of the outcome of the proceedings before the Industrial Court and the measures taken pursuant to the decision of the Constitutional Court.
13. 115. In this respect, the Committee recalls that in accordance with Article 4 of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. The Committee observes that it might be difficult in practice for trade unions to attain a percentage of 65 per cent (individually) or 50 per cent (jointly) as required by section 33 of the Labour Code in order to be able to engage in collective bargaining, especially at the level of the enterprise or branch of activity. The Committee requests the Government to take all necessary measures as soon as possible to amend section 33 of the Labour Code so as to bring it in line with the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
14. 116. With regard to point (e), the Committee notes with concern that the Government does not provide any information concerning measures to repeal the instructions from the Deputy General Manager for Public and Labour Relations according to which trade union activities should be continuously monitored, formal and informal conversations reported and any programme or events organized by the trade union brought to the employer’s knowledge. The Committee once again recalls that respect for the principle of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard [see Digest, op. cit., para. 761]. The Committee once again urges the Government to take all necessary measures as soon as possible to ensure that the instructions are repealed and to keep it informed in this respect.