Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations from the International Trade Union Confederation (ITUC) received on 1 September 2015, which mainly relate to matters raised by the Committee under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Furthermore, the Committee notes the 2014 observations from the ITUC and the Government’s comments thereon. The Committee also notes the observations from the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

In its previous observation, the Committee had noted with satisfaction that a number of matters raised earlier had been resolved through the adoption of Act No. 62 of 2011 concerning social dialogue (Social Dialogue Act). The Committee noted, however, that certain issues had remained unaddressed, including the denial of the right to organize to certain categories of public servants (section 4); and excessive control of trade union finances (section 26(2)). The Committee also noted a number of additional discrepancies between the provisions of the Social Dialogue Act and the Convention in terms of scope of application of freedom of association under section 3(1) (self-employed, apprentices, dismissed or retired workers not covered), eligibility conditions for trade union officials (section 8), and restriction of trade union activities (prohibition of activities with political character in section 2(2)).

Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing. Workers without employment contract. As to the scope of application of freedom of association, the Committee notes the information provided by the Government in its report that self-employed workers enjoy freedom of association in accordance with Ordinance No. 26/2000 on associations and foundations, and that apprentices have the right to trade union affiliation under Act No. 279 of 2005 on apprenticeship in conjunction with the Labour Code. Noting that, as regards retired workers, the Government merely refers to Ordinance 26/2000, the Committee recalls that legislation should not prevent former workers and retirees from joining trade unions, if they so wish, particularly when they have participated in the activity represented by the union. Noting that, in the absence of an employment contract, retired workers and dismissed or unemployed workers do not fall within the remit of the Labour Code, the Committee requests the Government to clarify whether such workers may, subject solely to union constitutions and by-laws, join a trade union or retain union membership after they cease to work.

Public officials. With respect to the denial of the right to organize to certain categories of public officials, the Committee notes the information provided by the Government that: (i) section 4 of the Social Dialogue Act excludes persons elected or appointed to positions such as president, parliamentarian, mayor, prime minister, minister, president of the Supreme Court, etc.; and (ii) judges are excluded under section 4 but have the right to join professional associations as provided by the European Charter on the statute for judges.

Article 3. Right of workers’ organizations to organize their administration. With reference to the excessive control of trade union finances, the Committee notes the Government’s indication that trade unions as legal entities are subject, without discrimination, to the national fiscal legislation, adopted after consultations with the social partners. The Committee considers that the powers afforded to state administrative bodies under section 26(2) (control over the economic and financial activity and payment of debts to the state budget) need to be limited to the obligation of submitting periodic reports, cases of complaints or serious grounds to suspect violations. The Committee requests the Government to take measures to delete or amend section 26(2) of the Social Dialogue Act so as to bring it into line with the Convention.

Right of workers’ organizations to organize their activities and to formulate their programmes. Concerning the prohibition of political activities, the Committee notes the Government’s indication that the prohibition is a constitutional measure seeking to ensure the independence of trade unions, and that the Convention only protects trade union activities that relate to the interests of union members. The Committee recalls that, while trade unions should not engage in political activities in an abusive manner promoting essentially political interests, provisions imposing a general prohibition on political activities by trade unions for the promotion of their specific objectives are contrary to the principles of freedom of association and unrealistic in practice, since trade unions may wish, for example, to express publicly their opinion regarding the Government’s economic and social policy. The Committee requests the Government to take measures to delete or amend section 2(2) of the Social Dialogue Act so as to ensure respect for the above principle.

Right of workers’ organizations to elect their representatives in full freedom. In the absence of information provided by the Government regarding the previously raised issue of eligibility conditions for trade union officers, the Committee recalls that conviction on account of offences that do not call into question the integrity of the person and are not prejudicial to the exercise of trade union functions should not constitute grounds for disqualification. The Committee requests the Government to indicate the measures taken or envisaged to amend section 8 of the Social Dialogue Act so as to ensure respect for this principle.

The Committee generally notes that the Government indicates that: (i) following an agreement in 2014 of the National Tripartite Council for Social Dialogue, two bipartite working groups have been set up concerning amendments to the Social Dialogue Act and concerning collective bargaining sectors and procedure but were unable to reach consensus on a common draft amending the relevant legislation; and (ii) a series of proposals for amendments to the Social Dialogue Act have been submitted to the ILO for comments in 2015 and the memorandum will be discussed by the National Tripartite Council. The Committee trusts that the Government will take due account of its comments in the context of this legislative review and that the new legislation will be in full conformity with the Convention. It requests the Government to indicate any progress made in this respect. Recalling also that the Government recently benefited from ILO technical assistance seeking to ensure the conformity with the Convention of a draft Emergency Ordinance substantially amending the Social Dialogue Act, the Committee requests the Government to provide information on any developments in this regard.

The Committee is raising other matters in a request addressed directly to the Government.