Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Romania (Ratification: 1957)

The Committee notes the information contained in the Government’s report. It notes in particular the adoption of Act No. 429/2003 amending the Constitution, Act No. 53/2003 on the new Labour Code and the new Act No. 54/2003 on trade unions. The Committee notes that Act No. 188/1999 on civil servants has been amended by Act No. 251/2004 which the Committee will examine once it has received its translation. The Committee notes the Government’s comments on the observations submitted by the National Trade Union Bloc (BSN).

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that its previous comments related to sections 55 and 56, as well as to section 62 of Act No. 168/1999, on the settlement of labour disputes. The Committee recalls that under section 55, the management of a production unit may demand the suspension of a strike, for a maximum period of 30 days, if it endangers the life or health of individuals, and an irrevocable decision may be taken in this respect by the Court of Appeal under the terms of section 56. As regards section 62, the management of a production unit may submit a dispute to an arbitration commission in the event a strike has lasted for 20 days without any agreement being reached and its continuation would affect humanitarian interests. The Committee invited the Government to provide details and actual examples of the application of these provisions, including any court decisions handed down.

The Committee notes that the Government indicates that, under section 55, the decision of suspending a strike is taken by the competent court if the latter considers that the strike endangers the life or health of individuals. The Government states that the individuals concerned can be participants in the strike, members of the local community or any other beneficiaries of the service affected by the strike; their life or health could be endangered, for example, if the strike is taking place in a pharmaceutical company, in the thermal and energy sector, in transportations, communications, industry and medical services. With respect to section 62(1), the Committee notes that the Government merely reiterates the contents of the provision, underlining that a company may avail itself of the possibility provided for in section 62(1).

With respect to the comments submitted by BSN, the Committee notes that they relate to the right to strike as well. According to BSN, the social partners failed to reach an agreement on amendments to Act No. 168/1999. BSN submits that under the current legislation, many strikes are declared illegal and refers to the conditions imposed under the Act, on the exercise of the right to strike underlining that a small error of procedure can lead to a strike being declared illegal by a tribunal. BSN states that, in practice, tribunals are often requested to intervene in such situations. The Committee notes that, in its response to BSN, the Government describes the contents of section 58 of Act No. 168/1999, under which the management of a production unit can ask the competent tribunal to order the cessation of the strike, if the strike has been called without observing all the legal requirements or is taking place in an illegal manner. Under section 60, the tribunal’s decisions are final.

With respect to the suspension of a strike under sections 55 and 56 and its cessation under sections 58-60, the Committee considers that, while the terms of these provisions do not raise in themselves particular problems of compatibility with the Convention, it must be able to assess their practical impact on the exercise of the right to strike by workers’ organizations so as to ensure that their application does not make the exercise of the right to strike impossible or very difficult in practice. The Committee therefore asks the Government to supply in its next report detailed information on the practical application of these provisions and, in particular, whether they are frequently invoked by the management of a production unit, and to provide copies of decisions handed down under these provisions.

With respect to section 62, the Committee notes that, the arbitration committee which is called on to settle the dispute of interests, may, under sections 32 and 38, take irrevocable decisions, thus bringing a dispute to an end. The Committee would like to recall that restrictions on the right to strike by the imposition of compulsory arbitration can only be justified in respect of workers working in essential services and public servants engaged in the administration of the State. The circumstances set out in section 62(1) and under which the management of a production unit may unilaterally submit a dispute to the arbitration committee exceeds the restrictions to the right to strike that are compatible with the Convention. The Committee further notes that Act No. 168/1999 contains a number of safeguards to avoid damages which would be irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties. The Committee refers in this respect to the suspension of the strike under sections 55 and 56 mentioned above and to the minimum service that must be established in case of a strike in essential or public utility services, under section 66. The Committee therefore requests that the Government repeal section 62 so as to fully guarantee the right of workers’ organizations to engage in industrial action to defend and further the occupational interests of their members.

The Committee is raising a number of other points with respect to the new Act on trade unions in a request addressed directly to the Government.