Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 360, Juin 2011

1. 666. The complaint is contained in communications from the Democratic League of Independent Trade Unions (LIGA) dated 3 March and 23 August 2010.
2. 667. The Government forwarded its response to the allegations in a communication dated 29 October 2010.
3. 668. Hungary has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 669. In a communication dated 3 March 2010, the complainant organization alleges that members of its affiliate, the Allied Trade Union of Air Transport (LESZ), have been subject to acts of anti-union discrimination, including harassment, intimidation and dismissal on grounds of trade union membership and participation in strikes. The complainant also alleges that the legislation does not adequately protect against acts of anti-union discrimination.
2. 670. The complainant organization states that members of LESZ, a representative trade union at the airport of Budapest that is present in several companies (Celebi Ground Handling Hungary Kft (Celebi GHH Kft), RÜK Kft and Budapest Airport Zrt), have been discriminated against for years because they are union members or hold trade union offices; this can especially be experienced at times of dismissals. All three employers are aware which employees are LESZ members, as the companies are commissioned by the union members to deduct their trade union membership fees from their wages and transfer them to LESZ.
3. 1. Celebi Ground Handling Hungary Kft
4. 671. According to the complainant, since 2006 (after three strikes), the employer has continually taken discriminative actions against union members, with the result that LESZ has lost 80–90 per cent of its members.
   • (a) The complainant organization indicates that, after the solidarity strike in December 2008, the employer terminated the employment of several trade union leaders and members participating in the strike, indicating redundancy due to reduced traffic as the reason in the notice of dismissal, while hiring new workers to their places. The employees concerned are: Péter Huszka, Gábor Dobrovinszky, József Béres, Béla Bálint, István Farkas, József Mucsi, Miklós Varga, László Dömötör, András Péter Fazekas, János Szigeti, Péter Márkus, Gábor Kenyeres and Rudolf Faragó, all of whom were trade union members. According to the complainant, the employment of the LESZ members was terminated on 5 and 6 March 2009, whereas the employer had already placed on 27 January an advertisement in the newspaper for positions where the dismissed members were working. The complainant organization also states that Ferenc Borgula, trade union officer, was already laid off by the employer during the strike talks, in the middle of the negotiations, by ordinary dismissal.
     • Furthermore, the complainant indicates that the majority of the claims filed with the Budapest Labour Court are still pending. Until now, the parties were able to settle the legal dispute by mutual agreement in two cases (Ms Orsolya Cserhati and Ms Krisztina Simon); since these employees provided satisfactory evidence that the reasons for termination were wrongful, the employer was willing to reach an agreement with them. Concerning the claim filed by Jozsef Mucsi and other former employees (36.M.16191/2009/28), the court established that the termination of employment was not justified as the reason for termination was invalid; however, the court did not consider the assertion that the employer discriminated the employees on the basis of union membership (termination due to participation in a strike) as founded and required the employees to provide satisfactory evidence supporting the assertion.
   • (b) According to the complainant, during the works council elections in 2008, several LESZ members who were candidates (e.g. Imre Péter Kis, Zoltán Morva, László Ordasi, Lajos Szabó, Éva Feketéné Zsidai) were intimidated by the employer, and as a result of the pressure, stood down from trade union representation or resigned from the union. The employment of LESZ member László Cserháti was terminated by the employer when it turned out that he would stand for election.
   • (c) The complainant states that further LESZ members have been constantly harassed at their workplace because they are union members and, as a result, have either agreed to the termination of their employment (Ferencné Szolnoki, József Fazekas) or their employment was terminated by the employer indicating other reasons (Attila Mercz, Marica Mezei). Attila Nagy, another union member, is at the moment on sick leave due to stress and psychological fatigue, which in the complainant’s view is the consequence of harassment by the employer.
5. 672. To substantiate these allegations, the complainant annexes to the complaint statements of seven dismissed employees.
6. 2. RÜK Kft
7. 673. The complainant indicates that, in 2008, after months of harassment, several union members (Csaba Daróczi, István Koós, József Krizsán, Attila Mátyás and János Radóczi) and two union officials (János Szlifka and István Téglás) signed the termination of their employment by mutual agreement.
8. 674. To substantiate these allegations, the complainant annexes to the complaint a statement from one dismissed employee.
9. 3. Budapest Airport Zrt
10. 675. According to the complainant, union members working in the Department of Passengers’ Safety and Health and in the Armed Security Services have been permanently harassed and intimidated by the employer or have experienced other types of disadvantages because of their trade union membership and activities. As a result of the employer’s behaviour, the membership of LESZ has dropped drastically, partly because the employment of union members was terminated and partly because union members left LESZ after experiencing the employer’s intimidating behaviour.
    • (a) Harassment
11. 676. The complainant organization states that trade union officials Péterné Rózsa and Péter Bihari who participated in the strike in December 2008, were constantly harassed by the employer continually trying to find fault in their work.
    • (b) Strike participation
12. 677. The complainant indicates that the employer did not renew the fixed-term employment of several union members working in the Department of Passengers’ Safety and Health, whose employment contract expired after the strike in December 2008, or did not enter into a new employment contract with them (Ágnes Szathmári, Katalin Jávori, Dániel Linguár, Róbert Tóth, László Icsó, Kitti Szekeres). These trade union members had participated in the strike. According to the complainant organization, the employer had renewed, in the past their fixed-term contracts several times in a row, almost automatically, and was satisfied with their work. Moreover, none of the employees concerned had worked for the employer for more than five years, so there would not have been a legal obstacle to employing them again. Given that, after termination of their employment relationship, the employer hired new employees for their positions, and the employment contracts of those fixed-term employees who had not participated in the strike were renewed or transformed into permanent contracts by the employer, it is, in the complainant’s view, obvious that the reason why their contracts have not been renewed is the participation of the relevant employees in the strike.
13. 678. The complainant organization further states that, after the strike, the employer also terminated the employment of Katalin Zsekov and Anikó Hirmann, two union members, indicating reduced capacity as the reason, while new employees were hired for their positions, replacing them. In the case of these two workers there is a labour dispute still ongoing before the Labour Court to establish the legitimacy of the voluntary termination of employment.
    • (c) Members resigning from the trade union due to being threatened
14. 679. In the Healthcare Centre, where LESZ used to have 17 members out of the 35 employees, including 3 officials, today LESZ has no longer any members, since, according to the complainant, all of them have left the union as a result of the constant threats by the employer.
15. 680. The complainant organization also indicates that the reason behind the employer’s behaviour is the fact that after December 2007, Edit Kranczné Majoros, a newly elected trade union official, who also became a member of the works council, together with two other union officials, openly protested against the violations of law experienced at the workplace, and asked the employer both face to face and in writing to solve the problem. Subsequently, the employer, instead of jointly looking for a solution, allegedly started a war on the trade union, keeping employees constantly under pressure and urging LESZ members to leave the union.
16. 681. According to the allegations, the pressure was further intensified by the redundancy process that started in autumn 2008. A rumour spread among employees that mainly union members would be made redundant by the employer, and, as a result, seven LESZ members immediately left the trade union. The complainant states that, afterwards, the employer dismissed seven workers, six of whom were union members, and that trade union officials Éva Csontos and Edit Kranczné Majoros who were continually harassed by the employer (constant checks at the workplace with the aim of finding fault in their work), signed the termination of their employment by mutual agreement after losing their union membership. In January 2009, the remaining four LESZ members also resigned from the union, worried about their jobs.
17. 682. The complainant organization further reports that Edit Kranczné Majoros went to the Equal Treatment Authority (EBH) in October 2009 because of the employer’s discriminative attitude; the procedure is ongoing (EBH/1645/2009/3) at the appeal level because her complaint was refuted in the first instance. In the complainant’s view, it is typical of the hostile way the employer is swaying employees’ opinion against the trade union that after the redundancy process, those employees who had left the union asked the employer by way of a letter on their own initiative – for fear of being dismissed – to dismiss Ms Majoros, one of the most active union leaders, indicating that her activities create disorder and weaken the unity among employees. In the case of Ms Andrea Kiss (13.M.5234/2008), the court of first instance ruled against the plaintiff but the employee has not yet received the court decision in writing.
18. 683. To substantiate these allegations, the complainant annexes to the complaint statements of four dismissed employees.
    • The Hungarian legislation
19. 684. As regards national legislation, the complainant organization explains that Act XXII of 1992 concerning the Labour Code prohibits employers from terminating the employees’ employment, or discriminating against them and mistreating them in any other way on the grounds of their trade union affiliation or trade union activities (section 26(3)). Act CXXV of 2003 on equal treatment and the promotion of equal opportunity (Equal Opportunities Act) also prohibits direct or indirect discrimination on the grounds of interest representational activities (section 8(s)). Act LXXY of 1996 on labour inspection (Labour Inspection Act) regulates in section 3(d) the protection of equal treatment, and Act II of 1989 on the right to organize protects the right to organize.
20. 685. According to the complainant, while the above legislation guarantees employees’ right to organize and requires the employer to respect the principle of anti-union discrimination, it is not effectively enforced in practice. Employees do not have at their disposal legal or other means or procedures to effectively take steps against the open or disguised illegal discriminative behaviour of the employer. In the complainant’s view, there are no effective, proportionate and quick sanctions that would – as a result of their weight and consequences – be appropriate to prevent the abovementioned violations and serve as proper deterrents for employers, and there is no possibility to expose the intimidating behaviour of the employer.
21. 686. The complainant organization also indicates that the consequence of the procedures before the Equal Treatment Authority and the Labour Inspection cannot be the reinstatement of the illegally dismissed employees, as the authorities can only impose sanctions (e.g. fines) on the employers. Reinstatement of the employment relationship can only be requested before labour courts by the harmed worker in person and employees have to cover the costs of the court procedure if they lose the case.
22. 687. The complainant states that it is extremely difficult to prove the anti-union behaviour of the employer when fixed-term contracts come to an end, despite the “reversed burden of proof” provisions. The LESZ members had been affected by this kind of behaviour while being employed on fixed-term contracts.
23. 688. Thus, the complainant organization believes that, as a result of a lack of effective sanctions, the employer can essentially harass and threaten workers on the grounds of their trade union affiliation and activities (as illustrated in the case of LESZ), which severely violates the right to organize. In its view, Hungarian legislation is not in line with Convention No. 98 (Article 1), since the existing general anti-discrimination provisions cannot provide effective protection against anti-union dismissals and other anti-union behaviour. The complainant calls on the Government to introduce sanctions and other measures which make it possible to eliminate, reduce or prevent negative discrimination on grounds of trade union affiliation or activities.
24. 689. According to the complainant organization, the enclosed employee’s statements illustrate that the employers created an anti-union environment at the workplaces, and that joining the union or pro-union activities contributed to the termination of employment, in spite of the fact that the official reason for the termination did not refer to pro-union activities. In addition to complaining about wrongful dismissal, the relevant employees also refer to discrimination on the basis of union membership.
25. 690. Finally, the complainant indicates that the majority of the relevant legal proceedings have been pending for more than one year; in most cases the plaintiffs are still waiting for the first instance ruling. According to national labour legislation, if the plaintiff is able to prove discrimination on the basis of union membership or pro-union activities, the employer – upon request of the employee – has to reinstate the employee. According to the complainant, however, many employees did not request reinstatement as legal proceedings were protracted and the employees had to find new employment to earn regular income; reinstatement is generally rare because legal proceedings take a long time. The complainant also states that the legal provisions do not provide for any special compensation for employees who have been terminated on the basis of union membership; in such cases employees are entitled to receive the same compensation as any employee whose dismissal was unfair.

B. The Government’s reply

1. 691. The Government considers that the statement of the LIGA that national legislation is not in conformity with Conventions Nos 87 and 98 lacks legal grounds. In its view, the Hungarian legislation guarantees via a detailed institutional system the trade unions’ right to organize and prohibits the negative discrimination of persons by reason of their membership or office held in a trade union; there are appropriate legal remedy procedures and extensive sanctions to ensure employers’ compliance with the regulations.
2. 692. The Government presents in its reply the relevant Hungarian legislative acts.
3. 693. Accordingly, the Equal Opportunities Act classifies membership in an interest representation organization in the category of protected characteristics on the basis of which no employees shall be subject to negative discrimination.
4. 694. This principle stemming from the constitutional freedom of association is also laid down in the Labour Code, which specifies a number of cases in which discrimination is prohibited, including: (i) the employment of an employee may not be rendered contingent upon his membership in any trade union, on whether or not the employee terminates his previous union membership, or on whether or not he agrees to join a trade union of the employer’s choice; (ii) the employment of an employee shall not be terminated, and the employee shall not be discriminated or mistreated in any other way on the grounds of trade union affiliation or activity; (iii) it is forbidden to render any entitlement or benefit contingent upon affiliation or lack of affiliation with a trade union; and (iv) employers must not request employees to reveal their trade union affiliation.
5. 695. In the case of infringements arising from discrimination, both the trade union and the employee concerned are entitled to use a number of legal instruments. Both the trade union and the employee may resort – in administrative proceedings – to the labour inspectorate or the EBH.
6. 696. Pursuant to the Labour Inspection Act, the labour inspectorate may inspect in administrative proceedings initiated upon request the following: (i) the employer’s compliance with rules ensuring the organization of a trade union with the purpose of protecting the economic and social interests of employees; (ii) the employer’s compliance with rules relating to the labour law protection of an employee holding an elected trade union office; and (iii) the employer’s compliance with rules pertaining to the fulfilment of employer’s obligations relating to measures disapproved by the trade union. If the violation of rights is established, the authority calls upon the employer to observe the rules and stop the infringement of rights within a specific deadline. It may also impose a labour fine, which may amount to a sum between 30,000 Hungarian forint (HUF) (approximately US$163) and HUF2,000,000 (approximately US$10,918) even if only one employee is concerned. In the event that several employees are affected and a number of regulations are violated, the upper limit of the fine increases to HUF8,000,000 (approximately US$43,669). Finally, if the infringement of rights is repeated within three years’ time, a fine of up to HUF20,000,000 (approximately US$109,170) may be imposed. In the first two cases of infringement described above, it is compulsory to apply the most rigorous sanction, i.e. the labour fine. The violation of the above rules is also regarded as an infraction, and the employer committing the offence may be penalized by a fine of up to HUF100,000 (approximately US$546).
7. 697. According to the Equal Opportunities Act, a trade union may file an action with EBH for non-compliance with the principle of equal treatment under the right of so-called “claim enforcement in the public interest”, if the violation of the principle of equal treatment or the direct threat of a violation is based on a characteristic that is an essential feature of the individual and affects a larger group of persons that cannot be determined accurately. An example for this is when employees are threatened by negative discrimination by the employer on the grounds of their trade union membership or affiliation to a trade union. If the EBH has established that the provisions ensuring the principle of equal treatment have been violated, it may order that the situation constituting a violation of law be eliminated, prohibit the further continuation of the conduct constituting a violation of law, order that its decision establishing the violation be published, and impose a fine. The amount of the fine may vary between HUF50,000 (approximately US$273) and 6,000,000 (approximately US$32,748). If the application is rejected, the offended party only has to bear the procedural costs if the authority establishes that it acted in bad faith.
8. 698. The labour inspectorate and the EBH are required to observe the general administrative time limit, so they must adopt a decision within 22 working days from the date of submission of the application. In the event that the labour inspectorate imposes a labour fine, the employer shall, under Act XXXVIII of 1992 on public finance (Public Finance Act), not be entitled to any state aid from the central budget or extra-budgetary funds for a period of two years. The same applies to employers who have been fined upon the final decision of the labour authority or the EBH for reason of non-compliance with the requirement of equal treatment, provided that the infringement was repeated at the same workplace within two years. As an ancillary sanction, the acting authorities publish the names and key data of the employers excluded from state aid.
9. 699. The Government explains that, in administrative proceedings no compensation may be claimed. A claim for the recovery of pecuniary and non-pecuniary damage caused by the infringement may be lodged to the labour or civil court in the form of a lawsuit. According to the Labour Code both the trade union and the employee are entitled to file an employment-related legal action to enforce their claims arising under the Labour Code or their collective bargaining agreement. In addition, under the Code of Civil Procedure, a trade union may enter the labour dispute as a party even if otherwise it has no legal capacity.
10. 700. The Government highlights the fact that in labour disputes most employees are subject to a so-called employees’ cost allowance (Decree No. 73/2009). Accordingly, from the date of submission of the claim throughout the entire duration of the lawsuit, including the enforcement procedure, employees enjoy full cost exemption, i.e. exemption from duties; exemption from having to provide an advance for the costs arising during the proceedings (witness fees, expert fees, the fees of guardians ad litem and interpreters, public defender’s fees, cost of remote hearings and inspections, etc.) and, unless the Code of Civil Procedure provides otherwise, from the payment of such costs; exemption from providing security for costs; claim for authorization of the appointment of a public defender, where permitted by law. The Decree further specifies the income level at which the employee is eligible for the cost allowance; this applies when the employee’s average monthly gross income arising from his employment relationship affected by the labour dispute does not exceed the amount equivalent to twice the average monthly gross income in the national economy – as published by the Central Statistical Office – in the second year preceding the date indicated above. According to the Government, the Decree sets the criteria of eligibility for the employees’ costs allowance at such a high limit that most of the employees (who earn less than a monthly gross income of HUF400,000 (approximately US$2,183)) are entitled to it.
11. 701. The Government further reports that, in line with the obligation of legal harmonization with the European Union, in all actions initiated by reason of non-compliance with the requirement of equal treatment – with the exception of criminal proceedings and infraction proceedings – the rules of evidence are applicable in a special manner and are more beneficial for the injured party. In the proceedings, the injured party is only required to render probable (not prove) the following circumstances: (i) it suffered a disadvantage; and (ii) at the time of the violation of law it possessed – actually or as assumed by the offending employer – any of the protected characteristics. In the Government’s view, in cases of discrimination relating to trade union membership, rendering the above probable should not cause any difficulty. The employer may be exempted from liability if there is evidence that: (i) the circumstances rendered probable by the injured party did not prevail; or (ii) the principle of equal treatment has been observed; or (iii) the employer was not obliged to observe the principle of equal treatment in respect of the relevant relationship. If unable to prove any of the above, the employer will be held liable for non-compliance with the principle of equal treatment (so-called reversed burden of proof).
12. 702. The Government calls particular attention to the fact that trade union officials are entitled to further special labour law protection against unilateral measures of the employer whereby an official may be torn away from the community where he fulfils interest representation tasks. This protection means that the employer may take such unilateral measures only with the involvement of the superior trade union body (the body competent in the procedure must be established on the basis of the union’s statute; if this is not possible, the entitlement regarding the labour law protection shall be exercised by the trade union body in which the official conducts his activities). There are three separate levels of protection.
13. 703. In the strongest form of protection, the employer’s action will not become effective unless the superior trade union body has given its prior consent. This is required for the following actions concerning an elected trade union official: (i) temporary assignment; (ii) posting for at least 15 working days; (iii) extraordinary temporary assignment; (iv) reassignment, if this means that the employee will hold a post at another workplace; and (v) termination of employment by the employer by way of ordinary dismissal. In case of ordinary dismissal of a union official without prior consent from the superior trade union body, the union is entitled to file a demurrer. Should the parties fail to agree with respect to the demurrer, the contested action cannot be executed until final decision of the court. According to the Government, the judicial practice in this regard amounts to prohibition of termination, i.e. in the absence of the trade union’s consent the ordinary dismissal does not enter into effect.
14. 704. On the second level of protection, the immediately superior trade union body is entitled to express its opinion previously. This case applies to the extraordinary dismissal of an official. On the third level of protection, the superior body is entitled to be notified in advance in the following cases: (i) application of the legal consequences set forth in section 109 of the Labour Code (disciplinary liability); and (ii) transfer to another workplace of an official employed in a position subject to transfer.
15. 705. According to the Labour Code, elected trade union officials are entitled to labour law protection for the duration of their term, effective as from the time of election, even if the court registration of a properly established trade union takes place only at a later date. In addition, they continue to be protected for a period of one year following the expiration of their term, provided that they held the office for at least six months. Succession of the employer does not affect the labour law protection of the official. The Government underlines that compliance with the labour law provisions is inspected by the labour inspection authority, and that non-compliance entails a labour fine, which also means the exclusion of the employer from state aid schemes for a period of two years.
16. 706. According to the Government, the fact that, in this specific case, there are several court proceedings ongoing as well as an EBH action where the rejecting decision is currently under judicial review, proves that the persons concerned have had the opportunity to apply for legal remedy. The Government notes that there is no reference as to whether the parties have initiated labour inspection, which might have been the fastest procedure. In the Government’s view, even if there has been a violation of rights on the employers’ part, this does not imply that the Hungarian legislation is not in harmony with the requirements laid down in the ILO Conventions. Both the trade union and its members have access to various forms of legal remedy by way of administrative and court proceedings, if in their opinion they have suffered an infringement of the trade union’s right to organize or have been discriminated for exercising such right. The Government reiterates that the court actions initiated by the injured parties against the violations proves that in Hungary the democratic enforcement of rights does work. The relevant laws prescribe strict sanctions if an infringement is established. In this context, the Government draws particular attention to the Public Finance Act, under which an employer infringing labour-related rights may be excluded from significant financial state aid.
17. 707. In conclusion, the Government states that it lays special emphasis on guaranteeing trade unions the right to organize, protecting union members and officials, and, in particular, prohibiting negative discrimination. The enforcement of Conventions Nos 87 and 98 is given high priority so as to ensure the proper operation of labour relations in Hungary. The Government highlights that the content of these Conventions is considered as the basic values of labour law and Hungarian legislation guarantees their enforcement by means of an extensive set of rules and regulations, efficient procedures and rigorous sanctions.
18. 708. As to the additional documents submitted by the LIGA, the Government notes that in view of the ongoing court proceedings, the complainant organization asked the plaintiffs to make witness statements in order to prove the contested behaviour of the employer. In these statements, the parties concerned claim that they have been forced to leave their workplace on the grounds of their trade union activity. The Government reiterates that there is no relation between the transposition of ILO Conventions into national legislation and the statements of employees who allege to have suffered an infringement of their rights by their employer due to their trade union affiliation. The Government stresses that these are individual cases, and that both the trade union and its members have access to various forms of legal remedy through administrative and court proceedings, should they believe that their right to organize has been violated or that they have been discriminated for exercising such right.
19. 709. With respect to the interim ruling (36.M.1691/2009/28.) forwarded by the complainant, the Government indicates that the court established that the defendant employer terminated the employment relationship of the four plaintiff employees unlawfully. The employer had indicated operational grounds as reason for their ordinary dismissal, i.e. reorganization due to a decline in sales (number of passengers) and subsequent redundancy. However, the court found that, on the one hand, no redundancy actually occurred and, on the other hand, the termination of employment lacked reasonable cause. The court further established that the plaintiffs had proved their trade union membership and that they suffered a loss, while the defendant failed to fulfil its obligation to provide evidence of compliance with the principle of equal treatment. In the case of one employee, the court held that the employer abused its right (the employment relationship was terminated by reason of sick leave).
20. 710. As regards court decisions in general, the Government emphasizes that national courts are independent from any other authorities, and that the decisions adopted by them in individual cases are binding for every party (the authorities and private individuals alike). The Government again draws attention to the fact that, if any rights are violated in a specific case and the injured party takes legal action against such violation, it means that the democratic enforcement of rights does work in Hungary.
21. 711. In respect of the above, the Government forwards the replies received from the three employers concerned and from the Confederation of Hungarian Employers and Industrialists (MGYOSZ).
22. 712. Accordingly, Budapest Airport Zrt and RÜK Kft generally indicate that they have always been committed to orderly industrial relations and observed the trade union rights stipulated by law; annually, 150 coordination and consultation meetings take place and information is provided on all changes affecting a larger group of employees. In their view, the reason LIGA failed to attach any favourable final court ruling is that its claims are unfounded. According to both companies and the MGYOSZ, national legislation fully complies with ILO Conventions. All three employers as well as the MGYOSZ consider that, if any trade union feels that its rights have been violated, it should turn to the appropriate forums for legal remedy.
23. 713. More specifically, Budapest Airport Zrt strongly refutes the claim that it has discriminated against employees on the basis of their trade union membership or office or that it has terminated employment relationships on such grounds. It vehemently rejects the accusations of harassment and intimidation. The allegation that the decrease in the LIGA membership is due to termination, harassment and intimidation was deemed unfounded by EBH and is not supported by the relevant numbers (outsourcing projects did not only affect union officials but all employees at the affected unit and did not entail a significant change in the rate of organization of employees). As regards the alleged harassment, the employer states not to be aware of any cases or procedures aiming at finding fault in the work of certain union officials. Concerning the December 2008 strike, the company stresses that almost 100 per cent of the employees in the field of passenger screening were in favour, so it could not possibly differentiate between employees on that basis during the redundancy process. When the definite term of employment expires, the employment relationship undoubtedly ends, and the employer has no further employment obligations. The company further highlights that none of the listed employees decided to turn to the court or any other authority, and that the majority of the passenger screening personnel is still made up of employees who participated in the December 2008 strike. Regarding the termination of the union members Katalin Zsekov and Anikó Hirmann after the strike and subsequent hiring of new employees, the employer states that the headcount reduction which already took place in September was justified by objective reasons (passenger shortfall) and affected several employees, and that the rehiring in December was for a period of two months due to unforeseen reasons. With respect to members allegedly resigning from the union due to threats, Budapest Airport Zrt refers to the EBH findings in the case of Ms Majoros, in particular that the company did not threaten her on account of her union membership or status as union official, and that the decrease in members was not due to the employer. According to the employer, Ms Majoros asked for the termination of her employment by mutual agreement owing to the foul relationship with her colleagues, and the decrease in membership was the result of a conflict between the employees and the union official, as illustrated by the joint letter of several employees. While confirming the restructuring process, the company underlines that there was no redundancy list showing LESZ members upfront, and that most of the affected employees left the company under much better conditions than termination of employment by mutual agreement.
24. 714. Similarly, RÜK Kft strongly refutes the claim that it has discriminated employees on the basis of their union membership or office or that it has terminated employment relationships on such grounds. While confirming a reduction of staff from 72 in 2006 to 39 in 2010 to sustain its position within a very competitive market, the employer stresses that the union was consulted on the issue beforehand and that those difficult decisions were taken diligently, in accordance with the relevant laws and solely based on each individual’s overall performance within the company. Each employee’s situation was analysed, and a potential pre-retirement plan was considered where appropriate. The company indicates that in each case it came to an agreement with the employees dismissed, including a fair indemnity payment, and strongly refutes, as untrue, the accusation that the named employees were forced to sign the termination by means of harassment. The company also highlights the fact that the listed employees account for less than 25 per cent of the released workforce, which illustrates that LESZ members have not been discriminated; this also applies for the time they have been working for the company.
25. 715. Celebi GHH Kft also confirms that, in order to improve efficiency, there has been significant internal restructuring resulting in jobs contracting, collective redundancy and much other reorganization. Among those lay-offs, only the 2006 terminations of employment qualified as collective redundancy, and the employer conducted the negotiations prescribed by law and informed the Government. As to the 2009 lay-off, the company points out that the turnover had decreased by 30 per cent compared to 2008 due to recession, and thus, additional employments had to be terminated by ordinary notice with reference to reorganization and workforce redundancy. However, the group affected by the lay-off was larger than alleged by the complainant, and the employer did not take account of participation in strike. The company acknowledges that the reorganization measures might have led to a decrease in union membership but stresses that this could not be attributed to the alleged unlawful conduct but to justified workforce redundancy. The company further states that certain dismissals referred to by the complainant were due to the employee behaving in a way that made it impossible to maintain the employment relationship (e.g. commitment of crime), that no employees were dismissed on the grounds of strike participation or union membership/office, and that most of them were dismissed in response to the flight decrease.
26. 716. Finally, the MGYOSZ asserts that labour relations are sound at both affiliated companies (Budapest Airport Zrt and RÜK Kft). Relations between the employer and workers’ organizations are continuous and regular, and they consult over future changes affecting employees in accordance with national law. In its view, the allegations are not grounded.

C. The Committee’s conclusions

1. 717. The Committee notes that, in the present case, the complainant alleges that members of its affiliate, the LESZ, have been subjected to acts of anti-union discrimination, including harassment, intimidation and dismissal on grounds of trade union membership and participation in strikes. The complainant also alleges that the legislation does not adequately protect against acts of anti-union discrimination.
2. 718. The Committee notes that, according to the complainant, the general anti-union discrimination provisions are not effectively enforced in practice and cannot provide effective protection against anti-union dismissals and other anti-union behaviour, since employees do not have at their disposal legal or other means or procedures to effectively take steps against the open or disguised illegal discriminative or intimidating behaviour of the employer, and there are no effective, proportionate and quick sanctions that would serve as proper deterrents for employers. The Committee notes from the allegations that no special compensation is stipulated for employees who have been terminated on the basis of union membership and that the latter receive the compensation generally granted in case of unfair dismissal. The Committee also notes that consequence of the procedures before the Equal Treatment Authority (EBH) and the labour inspectorate cannot be the reinstatement of the illegally dismissed employees, as the authorities can only impose sanctions (e.g. fines), and that reinstatement can only be requested before labour courts, where employees have to cover the costs of the court procedure if they lose the case. Despite the “reversed burden of proof” provisions, it is extremely difficult to prove anti-union behaviour when fixed-term contracts come to an end. Finally, the Committee notes the complainant’s indication that the majority of the relevant legal proceedings are pending for more than one year, and that in general, reinstatement is rarely requested because legal proceedings are protracted and employees need to find new employment.
3. 719. The Committee notes the presentation of the relevant Hungarian legislative acts in the Government’s reply, especially the Equal Opportunities Act (prohibition of negative discrimination on the basis of membership in an interest representation organization) and the Labour Code (prohibition of discrimination and dismissal on the basis of trade union affiliation or activity). It also notes the Government’s indications concerning the relevant judicial procedure in case of claims for reinstatement or compensation (emphasis being put on the recently introduced cost allowance for employees) and the relevant administrative procedures (labour inspectorate or EBH), which may entail remedial measures within a specific deadline and/or a fine (but no compensation) and might result in the withdrawal of state aid for a company under the Public Finance Act. Furthermore, the Committee notes that the Government highlights the reversed burden of proof in cases of discrimination relating to trade union membership, where the injured party is only required to render probable that it suffered a disadvantage and that it possessed at that time one of the protected characteristics, and the employer needs to prove that it has observed the principle of equal treatment or that it was not obliged to observe it in respect of the relevant relationship. It notes from the Government’s reply that trade union officials are entitled to special labour law protection according to which the employer may take unilateral measures only with the involvement of the superior trade union body, e.g. prior consent in case of ordinary dismissal (otherwise the union is entitled to file a demurrer; should the parties fail to agree, the contested action cannot be executed until final decision of the court; according to the Government, the judicial practice in this regard amounts to prohibition of termination) and prior request for opinion in case of extraordinary dismissal. The Committee notes the Government’s conclusion that the allegation that national legislation is not in conformity with Conventions Nos 87 and 98 lacks legal grounds, and that, even if there has been a violation on the employers’ part, this does not imply that the Hungarian legislation is not in harmony with ILO requirements. It notes that in the Government’s view, the fact that the injured parties have initiated administrative and court proceedings against the alleged violations proves that the democratic enforcement of rights does work in Hungary. As regards court decisions in general, the Government emphasizes that national courts are independent from any other authorities, and that the decisions adopted by them in individual cases are binding for every party (authorities and private individuals alike).
4. 720. As regards the allegedly ineffective protection against anti-union dismissals, the Committee notes that, although there is no specific provision prohibiting the dismissal of trade union officials during their period of office, section 28 of the Labour Code provides for special labour law protection of union officials, as described by the Government. The ordinary dismissal of a union official requires the consent of the trade union, and in the case of extraordinary dismissal, section 28 provides that the employer must request the trade union’s opinion beforehand. Extraordinary notice may be given by the employer if it is considered that the employee has “engaged in conduct rendering further existence of the employment relationship impossible” (section 96). The Committee considers that the situations envisaged under this provision should be limited to extraordinary circumstances. The Committee also recalls that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct [Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 804].
5. 721. With respect to the reversed burden of proof, the Committee notes the relevant mechanism contained in section 19 of the Equal Opportunities Act and described by the Government. It further notes with interest that, according to ruling 36.M.16191/2009/28, after establishing that in view of the subsequent rehiring and the lack of restructuring there was no need for the redundancy measures and thus no reasonable basis for the termination, the court also examined the allegations of anti-union discrimination and ruled in favour of the plaintiffs, given that they were able to prove their trade union membership and the link between the suffered prejudice and their union membership, and that the employer was unable to prove that the principle of equal treatment had been observed, as it became clear that one of the selection criteria in the redundancy process had been union membership (although the court did not establish a causal link between the dismissal of the plaintiffs and their participation in the strike of December 2008).
6. 722. Concerning the alleged lack of effective remedy measures in cases of anti-union discrimination (particularly as regards compensation), the Committee considers that, in the event that reinstatement, which should be the privileged option, is no longer possible for objective and compelling reasons, it should be ensured that the injured worker is paid full and adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissals and other acts of anti-union discrimination. The Committee recalls that it has always emphasized that the compensation should be adequate, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future [Digest, op. cit., para. 844].
7. 723. As to the allegedly protracted judicial proceedings which usually lead to rather rare requests for reinstatement, the Committee, noting that according to the complainant’s communication dated 23 August 2010 most of the plaintiffs were, after at least one year, still waiting for the first-instance ruling, recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned. In a case in which proceedings concerning dismissals had already taken 14 months, the Committee requested the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and emphasized that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts [Digest, op. cit., paras 826 and 827]. In the light of the above principles, the Committee trusts that the legal proceedings referred to will be concluded as soon as possible and invites the Government to review with the social partners the delays invoked in proceedings related to anti-union discrimination and to take any necessary measures to accelerate the time for their handling.
8. 724. Furthermore, the Committee expresses concern at the above allegations of individual acts of anti-union discrimination (including dismissals, harassment and intimidation of union officials and union members), as a result of which LESZ has lost, according to the complainant, virtually all its members at Celebi GHH Kft and a considerable part of its members at the two other companies. It also notes that the complaint as well as the statements of dismissed employees annexed to the complaint refer to numerous acts of interference. In this regard, the Committee notes with regret that the Government has only referred to the relevant legal provisions, but has not itself responded to the complainant’s allegations with respect to the specific cases of alleged interference and anti-union discrimination. It notes the replies from the three employers as well as the MGYOSZ, forwarded by the Government, in which they refute as unfounded LIGA’s allegations that they have discriminated against employees on the basis of their trade union membership, office or activity; have terminated employment relationships on such grounds, or have harassed or intimidated union members and officials; and state that unions should turn to the appropriate forums for legal remedy if they feel that their rights have been violated. The Committee requests the Government to provide its own observations with respect to the specific cases of alleged interference and anti-union discrimination.
   • Celebi GHH Kft
9. 725. In particular, the Committee notes that, according to the complainant, since 2006 (after three strikes), Celebi GHH Kft has taken discriminative action against union members. In particular, the Committee notes from the allegations that, after the solidarity strike in December 2008, the employer terminated, on 5 and 6 March 2009, the employment of the following trade union members who had participated in the strike indicating redundancy due to reduced traffic as the reason in the notice of dismissal, while hiring other workers into their positions (advertisement in the newspaper already placed on 27 January for their positions): Péter Huszka, Gábor Dobrovinszky, József Béres, Béla Bálint, István Farkas, József Mucsi, Miklós Varga, László Dömötör, András Péter Fazekas, János Szigeti, Péter Márkus, Gábor Kenyeres and Rudolf Faragó. The Committee also notes the complainant’s indication that Ferenc Borgula, union officer, was already laid off by the employer during the strike talks, in the middle of negotiations. Furthermore, the Committee notes that, according to the complainant, during the works council elections in 2008, several LESZ members who were candidates (e.g. Imre Péter Kis, Zoltán Morva, László Ordasi, Lajos Szabó, Éva Feketéné Zsidai) were intimidated by the employer, and as a result, stood down from trade union representation or resigned from the union, and that LESZ member László Cserháti was dismissed when it turned out that he would stand for election. Also, the Committee notes from the allegations that LESZ members have been constantly harassed at their workplace due to their union membership, and, as a result, have agreed to the termination of their employment (Ferencné Szolnoki, József Fazekas), were dismissed for other reasons (Attila Mercz, Marica Mezei) or are on sick leave (Attila Nagy).
10. 726. The Committee notes from the statements of dismissed employees annexed to the complaint that: (i) according to union official Ferenc Borgula, he was officially dismissed based on purported threats to damage aircraft that had been the result of a mistranslation during a meeting with the employer at the end of August 2008, but, in his view, the dismissal was actually due to the fact that the union protested against the workforce reduction initiated by the employer and threatened to take industrial action; the employer consulted the union, as required by law, about the intended extraordinary dismissal and LESZ protested against it emphasizing that the termination was based on anti-union discrimination; he lodged a complaint indicating that the reason for termination was his position as union official but court proceedings are still pending; (ii) according to union official Attila Mercz, his extraordinary dismissal was officially attributed to a minor mistake but was actually due to his protests against the alleged policy of the employer to hire cheap contract workers and to replace the regular workforce which did not accept salary cuts; he lodged a complaint indicating that the grounds for dismissal were discriminatory but court proceedings are still pending; moreover, the employer refused him the access to work premises, did not grant him the same wage increase as other workers, failed to deduct union dues from wages following a strike and removed union announcements from the bulletin board; (iii) according to union member László Cserháti, his ordinary dismissal was officially based on company restructuring and turnover reduction but was actually due to his candidature at the works council elections; he lodged a complaint indicating that the reason for termination was his nomination by LESZ for the works council elections but court proceedings are still pending; (iv) according to union member József Mucsi, the official grounds for the ordinary dismissal of himself and three other colleagues was workforce reduction but the actual reason was trade union membership, as illustrated by the subsequent hiring of workers for the same jobs and the fact that only union members were dismissed at that time (the court ruled in their favour); moreover, the employer distributed disaffiliation forms, encouraged employees to cancel the deduction of union dues from their wages, set up less favourable work schedules with shorter breaks and unpredictable working times for union members and made abusive statements against the union; (v) according to union official Ferencné Szolnoki, she agreed to the termination of her employment due to insults and discrimination suffered as union official; moreover, the employer discriminated union members by assigning them more work or not respecting their holiday wishes, removed union announcements from the bulletin board, prohibited the distribution of the news bulletin, openly suggested to members to quit the union and distributed disaffiliation forms; (vi) according to union members Orsolya Cserháti and Kristina Simon, the official grounds for their ordinary dismissal was collective redundancy but the actual reason was trade union membership, as illustrated by the subsequent hiring of contract workers to fill in the vacancies (the courts ruled in their favour as they could prove the subsequent hiring and thus the invalidity of the reason for dismissal).
11. 727. The Committee notes from its reply that the company: (i) confirms that, due to the need to improve efficiency, there has been significant internal restructuring resulting in collective redundancy, lay-offs, jobs contracting and other reorganization (inter alia, the turnover had decreased by 30 per cent in 2009 compared to 2008 due to the recession, increasing the need for additional lay-offs); (ii) points out that it conducted the negotiations prescribed by law and informed the Government of the 2009 lay-off; (iii) underlines that the lay-offs did not exclusively affect LESZ members but rather a much larger number of employees which shows that employees have not been discriminated against on account of union membership or strike participation; and (iv) indicates that certain dismissals referred to by the complainant were due to the employee behaving in a way that made it impossible to maintain the employment relationship (e.g. commitment of crime).
12. 728. As regards the termination of employment of several union members, the Committee notes the company’s indication that it has conducted the consultations required by law in connection with lay-offs, while the complainant does not provide information in this regard. It observes however, that the company does not comment on the alleged hiring of workers to fill the positions of the union members dismissed in March 2009, and notes that in the judicial proceedings concerning union members Orsolya Cserháti and Kristina Simon, who were dismissed on grounds of collective redundancy, the court ruled in favour of the plaintiffs, since they were apparently able to prove the subsequent hiring of workers and thus the invalidity of the reason for termination. The Committee further notes that, with respect to the complaint filed by the union members József Mucsi, József Béres, Béla Bálint and István Farkas, the court ruled in their favour establishing that, in view of inter alia the subsequent hiring of workers, there was no need for the redundancy measures and thus no reasonable basis for the termination, and while no causal link was found between the dismissal and the participation in the December 2008 strike, the court established anti-union discrimination on the basis of union membership, as one of the selection criteria in the redundancy process had been the affiliation to LESZ. The Committee recalls that no person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. It would also like to stress that acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity [see Digest, op. cit., paras 771 and 795]. The Committee trusts that the above principles will be fully taken into account in practice. In this regard, the Committee asks the Government and the complainant to indicate whether the nine remaining union members dismissed in March 2009 have initiated judicial proceedings and, if so, to keep it informed of their final outcome. It also expects that the ongoing court proceedings concerning László Cserháti will be concluded expeditiously and requests to be kept informed of the final ruling as soon as it is handed down. The Committee expects that, should it be found that the abovementioned union members were dismissed due to their trade union affiliation or legitimate trade union activities (such as candidature at works council elections), they will be reinstated in their position without loss of pay or, in the event that, given the time elapsed, their reinstatement would be impossible for objective and compelling reasons, they will receive adequate compensation so as to constitute a sufficiently dissuasive sanction against anti-union dismissals.
13. 729. As regards the termination of employment of union officials Ferenc Borgula, Attila Mercz and Marica Mezei, the Committee recalls that, on the one hand, the principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds a trade union office confers immunity against dismissal irrespective of the circumstances. On the other hand, the Committee reiterates that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate that they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [Digest, op. cit., paras 799 and 801]. The Committee considers that it is for the relevant courts to undertake the necessary fact-finding and decide whether: (i) the purported threats by Mr Borgula to damage aircraft are actually the result of a mistranslation or constitute serious misconduct; and (ii) the mistake made by Mr Mercz is actually minor or justifies extraordinary dismissal. It asks the Government and the complainant to indicate whether Ms Marica Merzei has initiated legal proceedings. The Committee expects that full account will be taken of the above principles during the judicial review and trusts that the court proceedings relating to these cases will be concluded without further delay. The Committee requests to be kept informed of the final rulings as soon as they are handed down and expects that, should it be found, after examination of the alleged anti-union discrimination, that the union officials were dismissed due to their position and exercise of legitimate trade union activities, they will, given that they have found new employment, receive adequate compensation so as to constitute a sufficiently dissuasive sanction against anti-union dismissals.
14. 730. As regards the alleged intimidation and harassment of a union official and union members who were candidates in the works council elections by means of threats of redundancy and constant checks at the workplace to find fault in their work, with the aim that they sign the termination of their employment by mutual agreement, resign from the union or stand down from trade union representation for the works council elections, the Committee asks the Government and the complainant to indicate whether any of the abovementioned employees have initiated judicial proceedings and, if so, to keep it informed of their final outcome. The Committee recalls that acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize [Digest, op. cit., para. 786]. The Committee expects that, in the future, full account will be taken of the above principle in practice.
15. 731. The Committee notes with concern that the statements of dismissed employees annexed to the complaint depict a general anti-union climate at the company (e.g. distribution of disaffiliation forms by the employer, less work assigned to non-union members, more favourable work schedules for non-union members with longer breaks and more predictable working times, etc.). The Committee recalls that, as regards allegations of anti-union tactics in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions, it considers such acts to be contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration. In this regard, the Committee points out that the existence of legislative provisions prohibiting acts of interference on the part of the authorities, or by organizations of workers and employers in each other’s affairs, is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [Digest, op. cit., paras 858 and 861]. The Committee expects that the above principles will be fully taken into account in practice and, with reference to the relevant observations concerning acts of interference that the Committee of Experts on the Application of Conventions and Recommendations has been making for many years, the Committee requests the Government to adopt specific legislation ensuring the adequate protection of workers’ organizations against acts of interference by the employer and establishing rapid appeal procedures coupled with effective and dissuasive sanctions against such acts.
    • RÜK Kft
16. 732. With respect to RÜK Kft, the Committee notes that in 2008, allegedly due to months of harassment, several union members (Csaba Daróczi, István Koós, József Krizsán, Attila Mátyás and János Radóczi) and two union officials (János Szlifka and István Téglás) signed the termination of their employment by mutual agreement.
17. 733. The Committee notes from the statement of a dismissed employee annexed to the complaint that, according to union official Tibor Kovács: (i) János Szlifka, István Téglás and István Lakner (all three union officials) were summoned twice by the employer who conveyed them the company’s intention to dismiss them and offered them two options, either termination of their employment by mutual agreement or, as ordinary dismissal was difficult due to their statutory protection, a dismissal under more unfavourable conditions; (ii) following private individual meetings with the employer, János Szlifka and István Téglás gave in to the pressure and consented to the termination of their employment by mutual agreement, whereas István Lakner was not terminated and refrained from union-related activities ever since; and (iii) the union was hitherto unable to replace the two union officials because union members no longer trust the statutory protection and fear retaliatory measures.
18. 734. The Committee notes from its reply that the company: (i) confirms that, due to the need to achieve a sustainable position in a very competitive market, it had to lay off employees in recent years; (ii) points out that the union was consulted on the issue beforehand; (iii) indicates that those difficult decisions were taken diligently, in accordance with the relevant laws and solely based on each individual’s overall performance within the company; (iv) underlines that the lay-offs affected not exclusively the seven named LESZ members but a total of 33 employees; and (v) stresses that in each case the company came to a voluntary agreement with the employees dismissed, including a fair indemnity payment.
19. 735. The Committee notes that the statement of a dismissed employee annexed to the complaint refers to union officials being intimidated into signing the termination of their employment by mutual agreement, which would allow the employer to circumvent their statutory protection. The Committee asks the Government and the complainant to indicate whether any of the abovementioned five union members and two officials has initiated judicial proceedings against the employer. If so, the Committee expects that full account will be taken in practice of the principle recalled above concerning acts of harassment and intimidation and requests the Government to keep it informed of their final outcome.
    • Budapest Airport Zrt
20. 736. As to Budapest Airport Zrt, the Committee notes the complainant’s allegations that: (i) union officials Péterné Rózsa and Péter Bihari who had participated in the strike in December 2008 were constantly harassed by the employer who continually tried to find fault in their work; (ii) as regards several union members working in the Department of Passengers’ Safety and Health who had participated in a strike, the employer did not renew the fixed-term employment of those whose employment contract expired afterwards (Ágnes Szathmári, Katalin Jávori, Dániel Linguár, Róbert Tóth, László Icsó, Kitti Szekeres), although there was no legal obstacle to the hitherto almost automatic renewal and the employer was satisfied with their work; the employer also terminated the employment of Katalin Zsekov and Anikó Hirmann from the same department indicating reduced capacity as the reason; in the complainant’s view the reason was the participation in the strike, given that the employer hired new employees for the positions of the eight abovementioned union members, and the contracts of fixed-term employees who had not participated in the strike were renewed or transformed into permanent contracts; and (iii) following protests emanating from two union officials in December 2007, the employer’s intimidating behaviour (especially during the 2008 redundancy process when a rumour spread that mainly union members would be made redundant) resulted in 11 out of 17 LESZ members from the Health Department resigning from the union; the employer subsequently dismissed seven workers of whom six were union members (thus reducing to nil the number of union members in the department), and union officials Éva Csontos and Edit Kranczné Majoros who had been continually harassed by the employer (constant checks at the workplace with the aim of finding fault in their work) signed the termination of their employment by mutual agreement.
21. 737. The Committee notes from the statements of dismissed employees annexed to the complaint that: (i) according to union member Katalin Zsekov, his ordinary dismissal and that of four other colleagues was officially based on workforce reduction but was actually due to his participation in the strike of 2007, which is illustrated by the fact that after a few weeks the employer converted the fixed-term contracts of 74 employees into indefinite contracts; (ii) similarly, according to union member Andrea Kiss, her ordinary dismissal was officially based on workforce reduction but was actually due to her union membership, which is illustrated by the fact that the redundancy measure did not affect non-union members but only employees who did not give up their union membership and that employees who left the union are still working for the employer; the employer offered the choice between ordinary dismissal and termination by mutual agreement, the latter providing more favourable termination benefits; her intention is to lodge appeal against the court’s ruling in favour of the employer, which established that the invoked reason of collective redundancy was valid; (iii) according to union official Edit Kranczné Majoros, the LESZ board raised shortcomings at the workplace orally and in writing with the employer and, following rumours concerning possible redundancies targeting union members, wrote to the employer requesting information but received no answer; subsequently, colleagues requested her and two other union officials to give up their statutory protection given the upcoming lay-off, and, in view of their refusal, left the trade union, wrote a letter to the employer distancing themselves from the union and its officials; after the employer signalled the intention to terminate her employment, the same colleagues complained in writing to the employer that they could not work with her, allegedly motivated by fear of losing their jobs; redundancy measures only affected LESZ members and, finally, none of the 17 members continued working for the employer; after the employer confronted her with a list of alleged omissions and wrongdoings, she finally accepted the offer of termination by mutual agreement and filed a complaint with EBH for workplace harassment, which was not successful; (iv) according to union Vice-President Zoltán Molnár, the employer continually tried to create discord between employees and union officials as illustrated by the case of Ms Majoros (e.g. by spreading the rumour that as union official she could not be dismissed due to statutory protection), or by the fact that when he tried to make use of the time off for union officials the employer told employees that they needed to take over his work and perform additional duties.
22. 738. The Committee notes from its reply that the company: (i) confirms that, due to passenger shortfall, there has been outsourcing and headcount reduction; (ii) underlines that the outsourcing projects did not cause a significant change in the rate of organization of employees and did not exclusively affect LESZ members but all employees at the affected unit; (iii) indicates that almost all employees in the field of passenger screening were in favour of the December 2008 strike, so it could not possibly differentiate on that basis during the redundancy process, and the majority of that personnel is still made up of employees who participated in the strike; (iv) when the definite term of employment expires, the employment relationship undoubtedly ends, and the employer has no further employment obligations; (v) none of the employees on fixed-term contracts decided to turn to the court or any other authority; (vi) as regards union members Katalin Zsekov and Anikó Hirmann, the headcount reduction affected a total of five employees and already took place in September 2008 (i.e. before the strike of December 2008), and the subsequent hiring of workers in December replacing them was for a definite term of two months due to unforeseen reasons; and (vii) the decrease in union members was not due to threats from the employer but the result of a conflict between the employees and the union official, and Ms Majoros asked for the termination of her employment by mutual agreement owing to the foul relationship with her colleagues.
23. 739. With respect to the alleged non-renewal of fixed-term contracts following the December 2008 strike, the Committee notes that the company expressed the view that there is no further employment obligation when the definite term of employment expires and, while commenting on the subsequent hiring of workers replacing Mr Zsekov and Mr Hirmann, did not comment on the alleged subsequent hiring of workers to fill the positions of the non-renewed contract workers. The Committee wishes to reiterate that the non-renewal of a contract for anti-union reasons constitutes a prejudicial act within the meaning of Article 1 of Convention No. 98 [see Digest, op. cit., para. 785]. The Committee asks the Government and the complainant to indicate whether any of the contract workers named above has initiated judicial proceedings. As to the alleged dismissal of union members Katalin Zsekov and Anikó Hirmann following the strike, the Committee understands from the allegations and the statement of a dismissed employee annexed to the complaint that the dismissal was linked to the strike action in 2007 (and not to the December 2008 strike). Noting that the court ruled in favour of Katalin Zsekov establishing that the invoked reason of collective redundancy was invalid in view of the subsequent conversion of fixed-term into indefinite contracts, the Committee asks the Government and the complainant to indicate whether Anikó Hirmann has initiated judicial proceedings. The Committee expects that all pending judicial proceedings relating to the abovementioned union members will be concluded without delay and that full account will be taken in practice of the principles recalled above concerning anti-union dismissal or non-renewal of contract. It requests the Government to keep it informed of the final outcome of ongoing legal proceedings. The Committee expects that, should it be found that the union members concerned were dismissed due to their union membership or exercise of legitimate trade union activities (e.g. participation in strike action), they will be reinstated in their position without loss of pay or, in the event that, given the time elapsed, their reinstatement would be impossible for objective and compelling reasons, they will receive adequate compensation so as to constitute a sufficiently dissuasive sanction against anti-union dismissals.
24. 740. As regards the alleged intimidation of union members in the Healthcare Centre by means of threats of redundancy, with the aim that they resign from the union or sign the termination of their employment by mutual agreement, the Committee notes that the company indicates that outsourcing projects affected entire units or divisions and that it does not provide information concerning consultations undertaken in this regard with LESZ, whereas the statement of the dismissed union official Edit Majoros points to the absence of consultations with the union. The Committee wishes to recall that it has always requested that, in the cases where new staff reduction programmes are undertaken, negotiations take place between the enterprise concerned and the trade union organizations [see Digest, op. cit., para. 1082]. Noting with concern that, according to the allegations and two statements, eleven, i.e. more than two-thirds, of the 17 union members in the Healthcare Centre have resigned from the union out of fear for their job and the redundancy measures in the Healthcare Centre targeted exclusively union members reducing to nil the number of union members in that unit, whereas the employer indicates that the decrease in union members was due to an internal conflict between the union members and union official Edit Majoros, the Committee requests the Government to institute an independent inquiry to establish the facts and to ensure that any acts of intimidation or harassment identified are adequately remedied and, where appropriate, that sufficiently dissuasive sanctions are imposed so that such acts do not recur in the future. The Committee asks the Government to keep it informed of developments in this regard. As regards the alleged harassment of Ms Majoros, while noting the indication of the union official that the court ruled at first instance and appeal level in favour of the company because witnesses testified in support of the employer, colleagues still employed declined to testify against their employer, and her witnesses were not considered by the court as they no longer worked for the company, the Committee takes due note of the fact that the court decisions at first instance and appeal levels established that no harassment took place.
25. 741. Finally, the Committee expresses concern at the fact that, according to the allegations made by the complainant, in the already completed proceedings concerning Andrea Kiss, the courts have examined the validity of the reason for termination (workforce reduction), but have chosen not to consider the allegation of discrimination on grounds of trade union membership. The Committee recalls that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed [see Digest, op. cit., para. 818]. The Committee trusts that this principle will be taken into account in practice, in a manner so as to ensure that allegations of anti-union discrimination which are put forward are effectively considered by the courts in their review, and requests the Government to forward the decision on appeal as soon as it is rendered.