Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 393, Mars 2021

1. 600. The complaint is contained in communications dated 16 July and 12 October 2018 from the International Trade Union Confederation (ITUC), the International Transport Workers’ Federation (ITF) and the Block of National Trade Unions of Romania (BNS). The complaint is supported by the National Trade Union Confederation of Romania (CNS “Cartel ALFA”), the Confederation of Democratic Trade Unions of Romania (CSDR) and the National Confederation of Free Trade Unions of Romania (CNSLR-FRATIA).
2. 601. The Government provides its observations in communications dated 23 October 2018 and 30 September 2020.
3. 602. 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. 603. In their communications dated 16 July and 12 October 2018, the complainants denounce the Government’s failure to ensure compliance with the principles of freedom of association and collective bargaining which has resulted in widespread violations in law and in practice. In particular, the complainants allege a number of shortcomings and gaps in the national legislation which have led to the effective denial of freedom of association and collective bargaining in many enterprises, as well as to systematic violations of fundamental rights of workers, including physical and verbal abuse, especially in the private sector. They also point to case-specific allegations of interference and bad faith collective bargaining by an air transport company.

Allegations of shortcomings in the national legislation

1. 604. The complainants indicate that new labour laws were adopted in the country in 2011, including the Labour Code (Act No. 40/2011) and the Law on Social Dialogue (Act No. 62/11), which abrogated Act No. 130/1996 on collective agreements which had established the National Collective Agreement providing for wage scales, Act No. 168/1999 on the settlement of labour conflicts, Act No. 356/2001 concerning employers’ organizations and Act No. 54/2003 on trade unions. According to the complainants, the Law on Social Dialogue raises a number of issues of non-compliance with the right to freedom of association and collective bargaining, including: restrictions on the right to establish and join trade union organizations through excessive minimum membership requirement; limitations on the right to strike resulting from the threat of paying extensive damages if the strike is declared unlawful; excessive and arbitrary thresholds for the determination of representativity for collective bargaining purposes; power of the employer to challenge trade union representativity at any time; a significant role for elected workers’ representatives in situations in which the most representative trade union at the enterprise cannot be determined; a reduced role for minority unions in collective bargaining and collective disputes; and imposition of a collective bargaining mechanism with restrictions on collective bargaining at the national level and limitations on the right to initiate negotiations.
2. 605. With regard to the right to establish and join trade unions, the complainants allege that the minimum membership requirement of 15 members required under section 3 of the Law on Social Dialogue is arbitrary and excessive given the prevalence of small and medium-sized enterprises in the country, 92 per cent of which employ less than 15 employees. As a result, around 1 million workers are denied the right to unionize and bargain collectively. The complainants also consider that section 201 of the Law on Social Dialogue, which allows the employer to challenge the legality of a strike and request the court to order payment of damages, has a debilitating effect on freedom of association and limits the right to strike, not only at the level of execution but also at the level of preparation, as demonstrated by the concrete situation described below.
3. 606. Concerning the thresholds for determining representativity for collective bargaining purposes, the complainants allege that section 51 of the Law on Social Dialogue establishes a minimum threshold of 50 per cent +1 of the total number of workers in an undertaking who need to be members of a legally recognized union for that union to be determined as the most representative workers’ organization in the undertaking and to be able to bargain collectively. At the sectoral level or at the level of a group of undertakings, a minimum qualification threshold for the most representative federation is 7 per cent membership of the total number of workers in the sector. At the national level, the minimum threshold required is 5 per cent of the total number of workers in the national economy and the national union must have structures in at least 50 per cent +1 counties. According to the complainants, these qualification criteria are excessive, arbitrary (unrelated to reasonably objective criteria that reflect the situation in the country) and their implementation in practice has occasioned instability and disharmony in industrial relations. They argue that since the adoption of the Law on Social Dialogue in 2011, collective bargaining at the national level has been non-existent and the number of employees covered by collective bargaining has drastically reduced from 98 per cent to 36 per cent. At the sectoral level, only nine out of 30 sectors have met the representativity criteria and the number of collective agreements signed at the level of the undertaking has reduced from 100 per cent to 15 per cent. The complainants also point to the fact that around 92 per cent of enterprises in Romania employ less than 15 employees, as a result of which the representative status of a trade union is often dependent on one or two workers shifting in and out of trade union membership. In addition, while verification of representativity takes place every four years (section 221), employers can challenge representativity at any time (section 222) which creates an environment for employer interference and anti-union discrimination, since employers incessantly put pressure on a few workers to withdraw from a union so as to undermine its representative status. Workers who refuse to succumb to the pressure are subjected to further anti-union discrimination, including dismissals, transfers and harassment, thus creating severe insecurity of employment. The complainants suggest that necessary protection should be put in place to ensure that employers cannot undermine the effectiveness and autonomy of trade union membership.
4. 607. As to situations where the most representative status for purposes of collective bargaining at the enterprise cannot be determined, the complainants indicate that the law provides for several options (section 135). If the trade union at the undertaking is affiliated to a most representative federation, the union can, jointly with the elected representatives of workers, request the federation to carry out collective bargaining at the level of the enterprise. In the absence of such affiliation, exclusively and automatically, only the elected representatives of workers (not jointly with the union) can carry out collective bargaining at the enterprise. The complainants allege that this arrangement favours elected workers’ representatives over trade union representatives and undermines the principles of freedom of association and collective bargaining, contrary to Conventions Nos 135 and 154. According to the complainants, where trade unions exist at the undertaking, elected workers’ representatives should not be the default negotiating partner and situations where workers are required to elect representatives to facilitate engagement with the employer cannot be construed as an all-encompassing mandate to engage in collective bargaining. Even though the Committee of Experts on the Application of Conventions and Recommendations has requested the Government to change the legislation on this point, the Government has failed to do so and figures from 2014 reveal that 92 per cent of collective agreements signed at the level of the enterprise were negotiated by workers’ representatives. The complainants also denounce that under the Law on Social Dialogue, minority unions are not allowed to represent their members in collective bargaining or in collective conflict settlement. The Government’s failure to address these legislative violations and to institute an effective labour administration and inspection to oversee compliance in practice has resulted in the systematic decimation of collective bargaining and exposed workers to real and material harm for their trade union activities.
5. 608. The complainants further allege that section 128 of the Law on Social Dialogue eliminates collective bargaining at the national level by expressly excluding it from the list of levels at which collective bargaining may take place, thus undermining the principle that confederations should be able to conclude collective agreements, including at the national level. Section 129 of the Law on Social Dialogue makes collective bargaining compulsory at the level of the undertaking but vests the power to initiate collective bargaining exclusively with the employer or employers’ organization. The most representative union only benefits from a residual initiative after the employer fails to start collective bargaining, the maximum duration of which is automatically 60 days except where the parties agree to extend it. According to the complainants, these provisions impose a collective bargaining mechanism on the parties and limit their initiative to negotiate contrary to the principle of free and voluntary collective bargaining.
6. 609. Finally, the complainants argue that even though some amendments to the Law on Social Dialogue are currently before Parliament, they did not take into account the technical advice provided by the ILO in April 2018 and the proposed modifications have far-reaching harmful implications for the implementation of the principles of freedom of association, are detrimental to workers and contrary to the Government’s obligations under Conventions Nos 87 and 98. The complainants consider that despite the Government’s obligation to ensure that social partners are effectively and meaningfully consulted in the preparation and implementation of laws and regulations affecting workers’ interests, such consultations did not take place and the draft law lacks input from the workers.

Allegations of interference and bad faith collective bargaining by an air transport company

1. 610. The complainants further allege interference with freedom of association of the Free Trade Union of Aeronautics Handling (Sindicatul Liber De Handling Aeronatic (SLHA)) and bad faith collective bargaining by GlobeGround Romania, an air transport company, as well as the Government’s failure to ensure the company’s compliance with the principle of freedom of association and collective bargaining. The complainants indicate that the SLHA was formed in February 2015 in accordance with the Law on Social Dialogue and obtained its representative status by court order in July 2015 (determined as final in July 2018) with 440 members out of a total of 710 employees. The SLHA is affiliated to the National Federation of Port Trade Unions of Romania (FNSP), which is affiliated to BNS and to the ITF.
2. 611. In January 2015, the SLHA requested the management to commence collective bargaining at the unit level but almost a year after the start of the negotiations, no meaningful progress had been achieved and the enterprise put up one impediment after another to delay and stagnate the process. For this reason, in December 2015, the union notified the management of its intention to declare a negotiation deadlock and a labour dispute to trigger a strike. In January 2016, compulsory conciliation took place under the supervision of the Territorial Labour Inspectorate without, however, the parties reaching any agreement and the collective bargaining process thus remained stalled. Therefore, in accordance with the labour conflict procedure, the union notified the enterprise of an impending strike beginning with a warning strike on 22 January. One day before the intended warning strike, the enterprise instituted a court action so as to suspend the strike and to have it declared unlawful. The complainants allege that the court of first instance heard the matter in the absence of the union, upheld the claims of the enterprise and the warning strike was temporarily suspended pending final settlement. On 29 February 2016, the Court of Appeals issued a final decision granting the right to proceed with the warning strike and the substantive issue on the legality of the strike as a whole was subsequently determined in favour of the union in May 2016 (it took five months to resolve the issue of the strike). The complainants point out that had the strike been declared unlawful, its organizers and participants would have been required to pay significant damages covering the scope of the activity of the company in line with section 201 of the Law on Social Dialogue detailed above. Immediately after the litigation was completed, a warning strike took place, following which a collective labour agreement was concluded at the level of the unit and came into effect on 1 July 2016. The complainants allege that contrary to its obligation to negotiate in good faith, the enterprise unjustifiably delayed the negotiations for almost one and a half years (from January 2015 to May 2016) before concluding the first collective agreement. In the complainants’ view, the company’s anti-union policy aimed at frustrating the union and its members, reducing its representativity and relevance and causing withdrawal of membership from the union. In this situation, the Government should have ensured that measures were in place to prevent the undermining of its obligations under the principles of freedom of association and collective bargaining, such as effective inspections, supervision and reporting, but the Government failed to do so.
3. 612. The complainants further allege that before the expiry of the 2016 collective agreement and upon the union’s request, the parties were to start negotiations to renew the agreement in November 2017. However, instead of the SLHA, the management invited the workers’ representatives to the meeting, unilaterally suspended the negotiations and declared that the union was no longer representative and could not negotiate a collective agreement. The enterprise also filed a lawsuit to challenge the union’s representativity and used it as a justification to refuse any further engagement with the union. According to the complainants, section 222 of the Law on Social Dialogue allows the employer to challenge the union’s representativity at any time if satisfied that the conditions of representativity no longer exist and there are no sanctions or safeguards in place when such representativity claims are made as part of an anti-union discrimination campaign by the employer. The complainants argue that the employer should not have the power to unilaterally suspend negotiations and nothing should prevent the enterprise from continuing the negotiations pending the outcome of the court case.
4. 613. In view of the intransigence of the enterprise to delay negotiations until after the court case challenging the union’s representativity, the SLHA resorted to an unprecedented step to renounce its representativity so that, in accordance with section 134 of the Law on Social Dialogue, the most representative organization at the sectoral level – the FNSP – could negotiate on behalf of the enterprise workers. However, the enterprise refused to negotiate. Even though the court of first instance dismissed the enterprise’s challenge as to the union’s representativity in May 2018, the parties have not yet commenced the negotiations as an appeal could be filed by the employer within 30 days. To prevent further delay, the union attempted to initiate a labour dispute process with a view to engaging in a strike but since the Law on Social Dialogue only allows representative organizations to do so, the union was disabled from initiating this process pending the final court decision. The complainants allege that in spite of all the legally valid actions taken by the union including a court order validating its standing to negotiate a collective agreement on behalf of its members, the enterprise has refused to negotiate with the union and the workers have not benefited from any collective bargaining protection since January 2018. According to the complainants, the Government has failed to adopt measures to ensure that no unjustifiable and unreasonable delay created gaps in protection and has not shown willingness or ability to put measures in place as required by its international obligations to ensure that the enterprise acted in accordance with principles of freedom of association and collective bargaining. At the time of the complainants’ communication in October 2018, a new agreement had not yet been in place.
5. 614. The complainants further allege that after the conclusion of the 2016 collective agreement, the enterprise engaged in retaliatory actions aimed at weakening and undermining the union and rendering its work ineffective. The management ensured that all new contracts concluded were short-term contracts and many new employees reported that the management threatened them that if they joined the union their contracts would not be renewed. As a result, no newly engaged fixed-term contract worker has joined the union in spite of the constitutional and international protection of the right to freedom of association. The enterprise also began restructuring and reduced the number of employees in the departments where the trade union density was the highest, such as the cleaning and security departments. The management revealed that it intended to dismiss 29 employees but upon the union’s challenge in court, a decision was issued in June 2018 preventing the dismissals. Nevertheless, due to the constant threat of dismissal, 20 workers have since resigned from the relevant departments and ten workers have withdrawn their membership from the union. Furthermore, the management has placed the union’s offices in an open place in front of a director’s office, as a result of which workers feel surveyed, fearful and unable to freely engage the support or assistance of the union. For example, on 31 July 2018 an employee who went to the trade union office to seek information was invited to explain a ten-minute absence from his or her desk. The complainants argue that the use of short-term contracts to avoid freedom of association, daily harassment, intimidation, anti-union retaliation and discrimination amount to a massive and deliberate anti-union attack and render meaningless the right to freedom of association and collective bargaining in practice.
6. 615. In conclusion, reiterating the allegation that the Government failed to ensure respect for the principles of freedom of association and the right to collective bargaining, the complainants ask the Committee to urge the Government to: ensure that the enterprise recognizes the most representative status of the union and starts collective bargaining in good faith pending the determination of the court case; launch a speedy investigation into cases of anti-union discrimination at the enterprise and ensure effective remedies and dissuasive sanctions; ensure that appropriate measures exist in law and practice to safeguard freedom of association, as well as effective redress for anti-union discrimination; conduct necessary labour inspections to avoid anti-union discrimination and intimidation and ensure respect for the rights of the workers; and review the Law on Social Dialogue in meaningful consultation with the social partners, in particular the provisions relating to the formation of unions, determination of representativity, collective bargaining and dispute settlement, in order to bring them into line with ILO Conventions.

B. The Government’s reply

1. 616. In its communications dated 23 October 2018 and 30 September 2020, the Government informs about the historical evolution of industrial relations in the country and points to a lack of cooperation, as well as a conflictual relationship between trade unions and employers’ organizations, leading to excessive workloads in the national courts and inspection authorities. The Government states that the regulations and measures taken to promote bipartite dialogue and collective bargaining are penalized in practice by the lack of the social partners’ capacity to cooperate at different levels through negotiation and consensual relations based on good faith.
2. 617. Concerning the adoption of new labour laws, the Government states that the review of legislation in the field of social dialogue has been debated with the social partners since 2006. Following tripartite consultations, the parties assumed the consolidation of the relevant legislation by adopting the Law on Social Dialogue in 2011, which brings together previous regulations in this field and reflects amendments agreed to by the social partners. Further efforts to improve the legal framework through consultations with the social partners in bipartite and tripartite working groups between 2014 and 2017 did not lead to consensus and no agreement could be reached on the necessary legal amendments.
3. 618. As to the minimum membership requirement of 15 employees to establish a trade union, the Government indicates that, according to the European Committee of Social Rights, a requirement for a minimum number of employees to set up a trade union complies with the right to organize if the number is reasonable and does not prevent the funding of organizations. The Government informs that the data from the National Institute of Statistics (NIS) suggests that in 2015, the average number of employees at company level in the field of industry was around 25 compared to five employees in the field of services. The requirement of 15 employees introduced by the Law on Social Dialogue and assumed by the unions during consultations thus considered the interest for organization prevalent in the field of industry. The Government asserts that this requirement aims at strengthening enterprise unions and ensuring the necessary initial funding to organize and initiate the activities of a new union, bearing in mind the affordability of union dues for the employees, so as not to deter affiliation.
4. 619. Regarding the issue of industrial disputes and strikes, the Government indicates that under national law, a collective labour dispute may be triggered by a representative union or, where there is no representative union, by freely elected employees’ representatives, without distinction between union and non-union representatives (section 183). Participation in a strike does not constitute a breach of professional duties nor does it trigger sanctions and any of the parties may request verification of any possible breach by the Labour Inspectorate. If the employer suspects a breach of the law, it may request the court to cease the strike and the court’s decision is subject to appeal. Since protection of union members during a strike does not cover offences under national law, the provisions which allow to limit a strike in case of a breach of law do not restrict freedom of association.
5. 620. With regard to the criteria of representativity, the Government indicates that, upon proposal by the trade unions, the criteria of representativity at the sectoral level (seven per cent) and national level (five per cent) remained the same as in previous legal provisions, while the representativity requirement at the enterprise level was set to a majority of 50+1 with the aim of ensuring legitimacy in the representation of individual interests required by the erga omnes effect of collective agreements, which are a source of law. It also aimed at strengthening trade unions at the enterprise by eliminating cases of mutual complaints on the lack of cooperation between unions, which penalized collective bargaining and the conclusion of collective agreements in practice. Section 221 of the Law on Social Dialogue stipulates that trade union representativity is established solely by a court decision and verified every four years and section 222 provides for measures to prevent mutual challenges on grounds of representativity of the parties during collective bargaining at different levels.
6. 621. The Government further indicates that the Law on Social Dialogue provides for several options for representation of all employees in collective bargaining at the level of the enterprise, either through representative trade unions or unions affiliated to representative sectoral federations or elected employees’ representatives. It clarifies that, following the 2016 amendment to the Law on Social Dialogue, in situations where there is no representative union or no union affiliated to a representative federation, employees at the enterprise can choose how they are represented in collective bargaining for agreements applicable erga omnes - they vote to elect their representatives among union members and non-affiliated employees (sections 134 and 135 of the Law on Social Dialogue). According to the Government, employees can thus decide by vote whether the elected representatives who can participate in collective bargaining on behalf of all employees will include trade union members or not and the choice of elected representatives thus reflects the free will and interest of the employees.
7. 622. Concerning the rights of minority unions, the Government clarifies that while section 135 of the Law on Social Dialogue provides for representativity for collective bargaining on behalf of all employees (erga omnes collective agreements), voluntary bargaining and mutual recognition of the parties are not conditioned by the representativity of the organizations and negotiations may be initiated at the bargaining levels of interest for the parties on the basis of their mutual recognition (section 153 of the Law on Social Dialogue). Accordingly, all trade unions have the right to bargain collectively and to conclude collective agreements at all levels, which are only applicable to members of the signatory parties and there is no obligation to register them or inform the authorities. The Government asserts that the recommendation of the Committee of Experts to foster voluntary collective bargaining, referred to by the complainants, is fully guaranteed by section 153 of the Law on Social Dialogue.
8. 623. With regard to collective bargaining at the national level, the Government indicates that section 128 of the Law on Social Dialogue sets forth the levels of collective bargaining agreements but does not ban voluntary bargaining at the national level and affirms that section 153 provides for collective bargaining at any level of interest based on mutual recognition of the parties. However, in practice, workers’ and employers’ confederations recognized as representative did not show any intentions to negotiate at the national level since 2011. At the sectoral level, voluntary negotiations led to the conclusion of sectoral agreements by federations, such as in the construction field. Data on registered collective agreements further indicates that: 8,367 enterprise-level agreements were registered in 2013 and 9,366 agreements in 2016 covering around 33 per cent of active employees; 12 unit-level collective agreements were registered in 2013 covering 4,605 employees and seven agreements in 2016 covering 26,180 employees; and three sector-level agreements were registered in 2014 and none in 2016. The Government states that the current situation in the country reflects the willingness, involvement and mutual interest of the parties towards voluntary collective bargaining and comparative data for the period from 2008 to 2012, as well as for later periods, indicates an increase in the number of collective agreements concluded at the enterprise level (including those negotiated through representatives of employees), at the level of groups of enterprises and at the sectoral level.
9. 624. Turning to the concrete allegations of bad faith collective bargaining at the air transport company, the Government enumerates the guarantees relevant to collective bargaining provided by the Law on Social Dialogue, including an obligation to initiate collective bargaining at the unit level, obligation not to exceed a 60-day period for negotiation without the consent of the parties, protection of trade union management against bullying and dismissals and recognition of trade union representativity by courts. Violations in this regard are identified and sanctioned by the Labour Inspectorate upon notification or following inspections and its decisions may be challenged before an administrative court. The Government further states that involvement in collective bargaining means actual bargaining capacity of the parties and the identification of common and mutually beneficial interests to reach an agreement, which has not been the case at the air transport enterprise considering that the negotiations to reach the 2016 collective agreement took almost one year (the Labour Inspectorate was not immediately informed of the prolonged negotiations) and the bargaining for a new agreement also exceeded the 60-day limit set by section 129 of the Law on Social Dialogue. The Government indicates that in order to foster an amicable resolution of legally registered collective disputes, the law provides for mandatory conciliation, as well as voluntary mediation and arbitration which can be requested by the parties. In this specific dispute, the Territorial Labour Inspectorate carried out conciliation in January 2016 but the parties failed to reach an agreement and the union refused further mediation. When the enterprise challenged the legality of the union’s announced strike, the court first postponed its decision so as to allow the union to hire a defence counsel but it later ruled in favour of the union, declaring that it had complied with the legal procedure for initiating a strike and the employer’s request to cease the strike was rejected. In May 2018, during the negotiation of a new agreement, the Territorial Labour Inspectorate was notified of the enterprise’s failure to comply with the obligation to initiate collective bargaining and conducted verification and analysed a number of documents provided by the enterprise. The Labour Inspectorate found that the union had representative status valid until July 2019 as per the 2018 court order and that on the date of the inspection in June 2018, the employer had exceeded the bargaining deadline of 60 days, contrary to section 129 of the Law on Social Dialogue. In order not to waste the efforts of collective bargaining already conducted, the Labour Inspectorate ordered that bargaining should continue upon agreement by the parties and that the enterprise should report on any progress in the negotiating process. The enterprise informed of actions taken to continue the bargaining process between June and October 2018, indicating that it would assume good faith negotiations and would maintain the benefits stipulated by the former collective agreement throughout the bargaining process. As a result, three negotiating meetings took place but the union failed to respond to two minutes of meetings and did not comment on the draft collective agreement. Given the union’s passive attitude, the enterprise informed the Labour Inspectorate that it cannot be considered responsible for the delay in negotiations. Finally, the Labour Inspectorate indicates that until July 2020, it has not received any request to register a collective labour agreement.
10. 625. Concerning the allegations of the use of short-term contracts at the enterprise, the Government affirms that the right to organize is guaranteed to persons with individual employment contracts regardless of the type and duration of the contract and this right cannot be waived. Upon notification, the Labour Inspectorate carries out inspections, applies preventive actions and sanctions and implements information and inspection campaigns. The measures and sanctions taken by the Labour Inspectorate may be challenged in line with legal procedures.
11. 626. As to the allegations of intimidation and harassment at the enterprise, the Government indicates that these allegations are speculative due to the absence of individual or collective notices or evidence of the alleged discrimination and harassment and that, according to the enterprise, written statements of four union members during a labour inspection in May 2019 demonstrate that the enterprise did not discriminate against union members throughout the bargaining process. It further states in general terms that the Law on Social Dialogue sets forth trade union rights and freedoms, as well as protection in the exercise of trade union prerogatives, including anti-union discrimination and dissuasive sanctions. The legislation stipulates mechanisms to notify and sanction acts of discrimination and harassment, including on anti-union grounds. These mechanisms include the National Council for Combating Discrimination (NCCD) which is entitled to issue enforceable decisions, the Labour Inspectorate, the Ombudsman and out-of-court mediation pursuant to the provisions of the Labour Code, the Law on Social Dialogue, laws on equal treatment and Government Ordinance No. 137/2000 sanctioning all forms of discrimination. Victims of discrimination can thus use independent mediation mechanisms, notify the NCCD or go to court. Harassment in general terms is an offence under the Criminal Code while work harassment is based on the rights guaranteed by the labour law. In order to ensure confidentiality, protect union members and not to deter affiliation, the available legal and administrative actions are solely based on statements submitted by the union with respect to the number of its members out of the total number of employees and the union may represent the interests of its members before the authorities and in court. With a view to guaranteeing employee protection in the exercise of their rights, the Labour Code also provides for the employer’s obligation to justify decisions on dismissal or modifications of the labour relation. In matters related to anti-union discrimination, trade unions and employers’ associations that are representative at the national level are directly involved in a shared mechanism for notification and inspection through their membership in the Tripartite Council established as an advisory structure at the level of the Labour Inspectorate and territorial inspectorates.

C. The Committee’s conclusions

1. 627. The Committee observes that this case concerns, on the one hand, allegations of shortcomings and gaps in the national legislation which have led to the denial in practice of freedom of association and collective bargaining in many enterprises, as well as to systematic violations of fundamental workers’ rights and, on the other hand, case-specific allegations of interference, bad faith collective bargaining, anti-union harassment and intimidation of workers at an air transport company.

Allegations of shortcomings in the national legislation

1. 628. The Committee notes that according to the complainants, several provisions of the Law on Social Dialogue, 2011, are contrary to the principles of freedom of association and the effective recognition of collective bargaining. The Committee observes that these allegations refer to: restrictions on the right to establish and join trade union organizations through excessive minimum membership requirement (section 3); restrictions on the right to strike resulting from the threat of paying extensive damages if the strike is declared unlawful (section 201); excessive and arbitrary thresholds for determining trade union representativity for collective bargaining purposes (section 51); a significant role given to elected workers’ representatives to the detriment of trade unions in situations where the most representative union at the enterprise cannot be determined (section 135); a reduced role for minority unions in collective bargaining and in collective dispute settlement; possibility for employers to challenge representativity of a trade union at any time, creating an environment for employer interference (section 222); legislative exclusion of collective bargaining at the national level (section 128); and imposition of a collective bargaining mechanism where the exclusive power to initiate collective bargaining is vested with the employer or the employers’ organization and only residual power of initiative is attributed to the most representative trade unions (section 129).
2. 629. Concerning the alleged restrictions on the right to organize, the Committee notes the complainants’ allegations that the minimum membership requirement of 15 founding members of the same unit to set up a trade union, as stipulated by section 3(2) of the Law on Social Dialogue, is arbitrary and excessive given the high prevalence of small and medium-sized enterprises in the country, most of which employ less than 15 employees, and that, as a result of this requirement, around 1 million workers are left without the right to unionize and bargain collectively. The Committee notes that the Government acknowledges the prevalence of small and medium-sized enterprises which employ on average five to 25 workers but indicates that the requirement was accepted by the unions during consultations preceding the adoption of the Law on Social Dialogue and aims at strengthening enterprise unions and ensuring they have sufficient initial funding. The Committee recalls that while a minimum membership requirement is not in itself incompatible with Convention No. 87, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered. What constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 441]. Given the high level of small enterprises in the country and the concerns raised by the complainants as to the inability for these workers to organize, the Committee invites the Government to review the minimum membership requirement to establish a trade union, in full consultation with the social partners, and to take any appropriate measures to ensure that all workers can form and join organizations of their own choosing. The Committee also requests the Government to clarify the manner in which workers in small enterprises can establish trade unions and, in particular, to indicate whether they can form inter-enterprise groups to reach the necessary threshold to be able to organize. The Committee requests the Government to provide information on the measures taken to the Committee of Experts on the Application of Conventions and Recommendations (Committee of Experts) to which it refers this legislative aspect of the case.
3. 630. The Committee notes that the complainants also allege that the current legislation has a debilitating effect on freedom of association as it limits the right to strike, including at the level of preparation, by allowing employers to request a court to declare a strike illegal, order its cessation, as well as payment of significant damages covering the scope of the activity of the company (section 201 of the Law on Social Dialogue). According to the Government, protection of union members during a strike does not cover offences under national law and provisions which allow to limit a strike in case of a breach of law therefore do not restrict freedom of association. The Committee recalls in this regard that while the principles of freedom of association do not protect abuses consisting of criminal acts while exercising the right to strike [see Compilation, para. 965], any penalties imposed in respect of illegitimate actions linked to a strike should be proportionate to the offence or fault committed.
4. 631. Regarding the thresholds of representativity for collective bargaining purposes, the Committee notes, on the one hand, the complainants’ allegations that the requirements imposed by section 51 of the Law on Social Dialogue are excessive and arbitrary – at the level of the enterprise, a legally recognized trade union must represent half plus one of the total number of workers; at the sectoral level, it must obtain 7 per cent membership of the total number of workers in the sector; and at the national level, the minimum threshold required is 5 per cent of the total number of workers in the national economy and the union must have structures in at least half plus one of the counties. The complainants also allege that the existing thresholds of representativity have led to a drastic decrease in collective bargaining agreements concluded at all levels and that minority unions are not allowed to represent their members in collective bargaining. On the other hand, the Committee notes the Government’s indication that the criteria of representativity at the sectoral and national levels remained unchanged and that the requirement introduced at the level of the enterprise aims at ensuring legitimacy in the representation of individual interests required by the erga omnes effect of collective agreements and at strengthening trade unions by eliminating cases of lack of cooperation which penalized the conclusion of collective agreements in practice. The Government asserts that the current situation in the country reflects the willingness, involvement and mutual interest of the parties towards voluntary collective bargaining.
5. 632. The Committee understands from the above that the thresholds of representativity are used for determining the most representative trade unions at all levels (enterprise, sector and national) in a system based on exclusive bargaining rights, that is, a system where the most representative organization can negotiate and conclude collective agreements applicable to all workers in a bargaining unit. The Committee wishes to recall from the outset that systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association [see Compilation, para. 1351]. However, where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members [see Compilation, para. 1389]. The Committee notes the Government’s clarification that voluntary bargaining is not conditioned by the representativity of the organizations since all trade unions have the right to bargain collectively based on mutual recognition and can conclude collective agreements applicable to members of the signatory parties. In light of the above, the Committee trusts that, in practice, trade unions which do not reach the representativity threshold are able to represent their members and negotiate collective agreements on their behalf and that they are not deprived of essential means to defend the interests of their members or to organize their administration and activities.
6. 633. As regards the specific thresholds of representativity, the Committee is of the view that the thresholds should be assessed on the basis of the specific characteristics of the industrial relations system in the country and should not be so high as to hinder the promotion and development of free and voluntary collective bargaining. The Committee notes the concerns expressed by the complainants that the existing thresholds are very difficult to achieve and their application in practice has had a detrimental impact on collective bargaining in practice at all levels. The Committee therefore encourages the Government to encourage and promote effective recognition of collective bargaining at all levels and refers this legislative aspect to the Committee of Experts.
7. 634. The Committee further notes the complainants’ allegations that, in situations where the representativity of a trade union at the enterprise level cannot be determined, collective agreements applicable to all workers are negotiated and concluded exclusively by elected workers’ representatives, contrary to the principles of freedom of association and collective bargaining. The Committee observes the Government’s indication in this regard that following the 2016 amendment to the Law on Social Dialogue, section 134(2) now stipulates that representation is made by elected employees’ representatives only when there is no trade union at the enterprise. While taking due note of this amendment, the Committee however emphasizes the complainants’ allegation that in 2017, over 92 per cent of collective agreements in the private sector were concluded by workers’ representatives. Recalling that the Workers’ Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), also contain explicit provisions guaranteeing that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned [see Compilation, para. 1345], the Committee invites the Government to review, together with the social partners, the alleged prevalence of collective agreements concluded with workers’ representatives, so as to determine whether additional measures should be taken to promote collective bargaining between workers’ and employers’ organizations, with a view to ensuring that agreements concluded with elected representatives prior to the 2016 amendment do not have the effect of continuing to undermine the position of trade unions.
8. 635. With regard to the alleged limitations on collective bargaining at the national level, the Committee observes that while the complainants argue that the legislation expressly omits collective bargaining at the national level from the list of possible levels at which bargaining may take place and that, as a result, collective bargaining at the national level is non-existent, the Government asserts that even though section 128 of the Law on Social Dialogue does not mention bargaining at the national level, it does not prohibit such bargaining and that, in practice, representative workers’ and employers’ confederations have not shown any intention to negotiate at the national level since 2011. Recalling that the determination of the bargaining level is essentially a matter to be left to the discretion of the parties [see Compilation, para. 1406] and that the level of negotiation should not be imposed by law, the Committee trusts that the Government will reinforce measures, adapted to the national conditions, to ensure that collective bargaining can be conducted at any level whatsoever, including at the national level.
9. 636. The Committee also takes note of additional allegations with respect to collective bargaining and observes that, according to the complainants, the legislation imposes a collective bargaining mechanism on the parties where the exclusive power to initiate collective bargaining is vested with the employer or the employers’ organization (section 129), the collective bargaining duration is of maximum 60 days unless otherwise agreed by the parties (section 129) and the employers can challenge representativity of a trade union at any time (section 222), thus creating an environment for employer interference and undermining the union’s autonomy and representativity. The Committee notes that the Government refutes these allegations, indicating that trade union representativity is determined by a court decision and verified every four years, that measures are in place to prevent mutual challenges on grounds of representativity of the parties during collective bargaining and that the legislation contains a number of provisions to guarantee free and voluntary bargaining. In view of the issues raised and while taking note of the Government’s information, the Committee wishes to recall that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements [see Compilation, para. 1231]. In view of the allegations of a considerable decrease of collective bargaining at all levels, the Committee encourages the Government to take measures to encourage and promote the full development and utilization of the collective bargaining machinery by the social partners, as an effective means of regulating the terms and conditions of employment and contributing to the development and maintenance of constructive labour relations.
10. 637. Furthermore, the Committee notes the complainants’ allegations that even though the Law on Social Dialogue is in the process of being amended, the version currently before Parliament lacks input from the workers due to the absence of any meaningful consultation with the social partners and does not take into account the technical advice provided by the ILO in April 2018, as a result of which the proposed modifications could have far-reaching harmful implications for the implementation of the principles of freedom of association. The Committee notes that the Government, for its part, maintains that bipartite and tripartite consultations with the social partners did take place between 2014 and 2017 with the aim of further improving the legal framework but no agreement could be reached on the necessary legal amendments. Recalling that tripartite consultations before a Government submits a draft to the legislative assembly or establishes a labour social or economic policy should be full, frank and detailed [see Compilation, para. 1545], the Committee trusts that the Government will ensure meaningful involvement of the social partners in the remaining part of the ongoing legislative review and that the proposed amendments will address all pending concerns as to the protection of the right to organize and collective bargaining. The Committee requests the Government to provide information on any developments in this regard to the Committee of Experts, to which it refers this legislative aspect of the case.

Allegations of interference and bad faith collective bargaining by an air transport company

1. 638. The Committee notes that the complainants also point to case-specific allegations of bad faith collective bargaining on the part of an air transport company vis-à-vis the Free Trade Union of Aeronautics Handling (Sindicatul Liber De Handling Aeronatic (SLHA)). The Committee observes that these allegations refer to purposeful impediments to collective bargaining, including unjustified delays in negotiations, the filing of a court case challenging the union’s representativity, unilateral suspension of bargaining and negotiations with elected workers’ representatives, as a result of which the enterprise workers were deprived of collective bargaining benefits for several months. The Committee further observes that while the complainants denounce the company’s attempts at frustrating the union and reducing its representativity and point to the Government’s failure to take steps to ensure compliance by the enterprise of its good faith collective bargaining obligations, the Government, for its part, contends that the legislation provides guarantees with respect to collective bargaining and that measures had been taken to address the specific allegations at the enterprise, including conciliation in January 2016 and labour inspection in June 2018. The Committee also observes from the information provided that, following the labour inspection, the enterprise demonstrated willingness to engage in good faith negotiations with the union, that three negotiating meetings took place between July and October 2018 but that up until July 2020, the Labour Inspectorate has not received any request to register a collective labour agreement. It observes that, according to the enterprise, the union demonstrated a passive attitude by not responding to two minutes of meetings or to the draft collective agreement and the enterprise thus cannot be considered responsible for the delay in negotiations. In these circumstances, the Committee recalls that it is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover, genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties. The principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided [see Compilation, paras 1328 and 1330]. Furthermore, the Collective Agreements Recommendation, 1951 (No. 91) emphasizes the role of workers’ organizations as one of the parties in collective bargaining; it refers to representatives of unorganized workers only when no organization exists [see Compilation, para. 1343]. In light of the above, the Committee trusts that the Government will take measures to bring the parties together with a view to encouraging genuine and constructive social dialogue based on good faith, as a means of establishing and maintaining a relationship of confidence between the parties and harmonious labour relations in the enterprise.
2. 639. Finally, with regard to the allegations of an anti-union policy at the enterprise, the Committee observes that while the complainants denounce the company’s use of short-term contracts, intimidation of newly recruited workers, daily harassment, anti-union retaliation, threats of dismissals and discrimination, and allege that this practice amounts to a massive and deliberate anti-union attack rendering meaningless the right to freedom of association and collective bargaining in practice, the Government considers these allegations as speculative due to the absence of individual or collective notices or any evidence of the alleged harassment and indicates that, according to the enterprise, written statements of four union members during a labour inspection in May 2019 demonstrate that the enterprise did not discriminate against union members throughout the bargaining process. The Government also affirms that the right to organize is guaranteed to workers regardless of the type and duration of the employment contract and that the legislation sets forth protection in the exercise of trade union prerogatives and stipulates mechanisms to notify and sanction acts of discrimination and harassment, including on anti-union grounds. Taking due note of the Government’s indication, the Committee observes, however, with concern the allegations of intimidation of newly-recruited workers and retaliation against trade union members and recalls in this regard that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. 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. Direct threat and intimidation of members of a workers’ organization and forcing them into committing themselves to sever their ties with the organization under the threat of termination constitutes a denial of these workers’ freedom of association rights [see Compilation, paras 1072, 1098 and 1100]. Furthermore, fixed-term contracts should not be used deliberately for anti-union purposes [see Compilation, para. 1096]. In light of the above and taking into consideration the negative effects that anti-union retaliation can have on trade union affiliation and functioning, the Committee requests the Government to conduct an independent investigation into the allegations of persistent anti-union retaliation at the enterprise and, should these be confirmed, ensure the availability of effective remedies for the persons concerned, as well as sufficiently dissuasive sanctions. The Committee also invites the complainants to provide any relevant information in this regard to the competent national authorities so that they can proceed to an objective and full investigation of the matter. The Committee requests the Government to keep it informed of any investigation conducted, the outcome and the measures taken as a result thereof.