Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bulgaria (Ratification: 1959)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government and the social partners this year (see last paragraph, concerning section 51 of the Railway Transport Act), as well as on the basis of the information at its disposal in 2019.

The Committee also notes the observations of the Confederation of Independent Trade Unions in Bulgaria (CITUB), transmitted with the Government’s report in 2019 and alleging that sections 44 to 46 of the Civil Servants Act are insufficient to guarantee in practice the right to organize of civil servants, as well as of other workers under a labour relation; and affirming that the Civil Servants Act, together with the Ministry of Interior Act and the Judiciary Act, should be amended to fully guarantee all rights under the Convention to these workers and their organizations. The Committee requests the Government to provide its observations in this respect.

The Committee further notes the observations of the Bulgarian Industrial Association (BIA), transmitted with the Government’s supplementary report and alleging that certain sectoral regulations – namely the Forestry Act, the Act on Wine and Alcoholic Beverages, the Act on Tobacco and Related Products – interfere in the freedom of association of employers, in particular as to the autonomy and operation of branch associations of producers and traders, which at the same time perform functions to protect the interests of employers in the respective industry. The Committee requests the Government to provide its observations in this respect.

The Committee finally notes the observations of the Union for Private Economic Enterprise (UPEE) and the Confederation of Labour (PODKREPA), concerning the supplementary information provided by the Government and transmitted with its report.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities and to formulate their programmes. The Committee recalls that for a number of years it had been raising the need to amend section 47 of the Civil Servants Act (CSA), which restricted the right to strike of public servants. The Committee takes note with satisfaction that section 47 of the CSA has been amended to recognize the right to strike of civil servants. The Committee notes that the Government indicates that: (i) the right is applicable to all civil servants with the exception of managing senior civil servants, that is those holding the positions of Secretary-General, Municipal Secretary, Director General of the Directorate-General, Director of a Directorate and Head of Inspectorate; and (ii) section 47 also provides that participation of civil servants in a legal strike is counted as official length of service, for the time during which they participate in a legal strike civil servants have a right to compensation, and it is explicitly prohibited to seek disciplinary action or liability for civil servants participating in a legal strike.

The Committee further recalls its comments concerning the need to amend section 11(2) of the Collective Labour Disputes Settlement Act (CLDSA), which provides that the decision to call a strike shall be taken by a simple majority of the workers in the enterprise or the unit concerned; and section 11(3), which requires the strike duration to be declared in advance. The Committee notes the Government’s indication, on the requirement of support by a majority of the workers that: (i) the requirement is justified as it creates certainty that the objectives pursued by the strike are common for most of the workers and employees, and not just for a small part of them; (ii) the CLDSA provides for the possibility that the simple majority is taken only by the workers and employees in a particular division of the enterprise; (iii) the CLDSA does not explicitly specify the manner in which the decision to strike should be taken, so that it is not necessary to bring all workers and employees together in one place at the same time; and (iv) workers and employees who have expressed their consent to strike are not bound by the obligation to participate in it and it is not uncommon in practice for the number of those effectively striking to be smaller than the number of workers and employees who have given their consent to the strike. While noting these explanations from the Government, the Committee must recall again that requiring a decision by over half of all the workers involved in the enterprise or unit in order to declare a strike is excessive and could unduly hinder the possibility of calling a strike, particularly in large enterprises, and that if a country deems it appropriate to require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast and that the required quorum and majority are fixed at a reasonable level (see the 2012 General Survey on the fundamental Conventions, paragraph 147). As to the requirement to indicate the duration of the strike, the Committee notes that the Government indicates that: (i) prior notice of the duration of the strike is aimed at determining the period during which the parties make efforts to settle the dispute definitively through direct negotiation, mediation or any other appropriate means, and that the requirement seeks to encourage the parties to make every effort possible to resolve the dispute; and (ii) the CLDSA does not restrict the right to strike, as it does not prohibit workers and employees from continuing their strike actions by making a decision to do so. In this respect, the Committee must recall once again that workers and their organizations should be able to call a strike for an indefinite period if they so wish without having to announce its duration.  The Committee requests the Government to provide information on any developments concerning sections 11(2) and 11(3) of the CDLSA, and to indicate what are the requirements for continuing a strike action beyond its initially determined duration, in particular whether a new vote and decision by the workers concerned must take place, or whether instead a decision by the trade union calling the strike is enough.

In its previous comments, the Committee has also been raising the need to amend section 51 of the Railway Transport Act (RTA), which provides that, where industrial action is taken under the Act, the workers and employers must provide the population with satisfactory transport services corresponding to no less than 50 per cent of the volume of transportation that was provided before the strike. The Committee welcomed the Government’s indication that the Ministry of Labour and Social Policy recalled to the Ministry of Transport, Information Technologies and Communications (MTITC) the need for amendment of the aforementioned section 51 of the RTA in order to be in compliance with the Convention; and that the MTITC expressed readiness to take the necessary steps to amend the aforesaid section. The Committee notes that in its supplementary report the Government informs of a proposal to amend section 51 of the RTA submitted by the MTITC, which: (a) introduces a new paragraph 2 providing that workers, employers and railway authorities have to agree in the collective agreement which of the railway routes for passenger transport declared in the annual train schedule shall constitute the percentage under paragraph 1 (i.e. no less than 50 per cent), as well as the type and number of personnel required to carry out these services; (b) introduces a new paragraph 3, according to which in case of disagreement the parties may seek assistance for settlement of the dispute through mediation and/or voluntary arbitration by the National Institute for Conciliation and Arbitration; but (c) maintains in paragraph 1 the obligation to provide no less than 50 per cent of the amount of transport services (to which it adds the precision that this will be in relation to the transport services “at the time” of taking strike actions). The MTITC notes that section 51 has not been an obstacle for the exercise of the right to strike by employees of the national railway infrastructure company and its subsidiaries (referring to concrete examples of its use in 2011) and defends the need for such provision by referring to the rights of passengers, arguing that they should be able to travel by rail transport regardless of the interests of the trade union organizations. While welcoming that the draft amendment being considered provides for the participation of social partners in definition of the minimum services, as well as for a mechanism for the resolution of disputes when agreement cannot be reached, the Committee observes that it does not fully address its previous comments. In this respect, the Committee recalls that while a minimum service may be established in services of fundamental importance such as railway transportation, in order to ensure adequate respect of the right of workers’ organizations to organize their activities, such minimum service must be limited to the operations strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear by the strike; and that the establishment of too broad a minimum service (like no less than 50 per cent) restricts one of the essential means of pressure available to workers to defend their economic and social interests. The Committee notes in this regard the observations of PODKREPA, alleging that the “no less than 50 per cent” requirement is too large, noting that currently the negotiation of minimum services is practically impossible, and proposing that the percentage subject to settlement through collective bargaining be up to 20 per cent, so as to both allow for the right to strike and ensure the provision of minimum services. The Committee requests the Government to revise section 51 of the RTA, in consultation with the most representative organizations, in order to ensure that it does not unduly restrict the right of workers’ organizations to organize their activities through collective action while also covering no more than operations strictly necessary to meet the basic needs of the population or the minimum requirements of the service. The Committee recalls that the Government may avail itself of the technical assistance of the Office in this regard and requests the Government to provide information on any progress on the matter.