Solicitud directa (CEACR) - Adopción: 2004, Publicación: 93ª reunión CIT (2005)

With reference to its observation, the Committee requests the Government to submit information on the following points.

Article 2 of the Convention. 1. The Committee notes that under section 3 of Act No. 54/2003, employees reaching the age of 16 have the right to join trade unions without parental authorization. The Committee notes also that section 13(2) of the Labour Code, allows persons of 15 years old to conclude a contract of employment for certain works with the agreement of their parents or legal representatives. Recalling that minors who are legally entitled to work, whether as workers or as apprentices, should have the right to join trade unions without parental authorization, the Committee requests the Government to clarify whether workers of 15 years old have the right to join trade unions without parental authorization. If this is not the case, the Committee requests the Government to take the necessary measures so as to ensure that they are covered by section 3 of Act No. 54/2003 and that they have the right to join unions without parental authorization, once authorization to work has been provided.

2. The Committee notes that section 4 of Act No. 54/2003 denies the right to establish trade unions to, among others: persons holding managerial and public dignity positions, magistrates, the Ministry of Justice, Romanian intelligence service, protection and guard services, foreign intelligence service, special telecommunication services, "as well as from the units in their subordination". The Committee underlines that the only exception authorized by the Convention are the members of the police and armed forces under Article 9. In particular, civilians working in military installations or in the service of the army should have the right to establish unions. As regards executive and managerial staff, and staff "in positions of trust", the Committee recalls that these categories of workers should have the right to establish their own unions and that they should not be defined too broadly and should in particular be limited to persons exercising managerial or policy-making responsibilities. The Committee therefore requests the Government to indicate the measures taken to ensure that magistrates, persons holding managerial and public dignity positions, as well as the staff of the Ministry of Justice, Romanian intelligence service, protection and guard services, foreign intelligence service and special telecommunication services may establish and join organizations for the furtherance and defence of their occupational interests.

3. The Committee notes that under section 2(4) of Act No. 54/2003, a person may only belong to one trade union organization at the same time. Recalling that it would be desirable for workers exercising more than one occupational activity, in different occupations or sectors of activity, to have the possibility of joining the corresponding trade unions, the Committee requests the Government to take the necessary measures to amend section 2(4) so that workers exercising more than one occupational activity have the right to establish and join organizations of their own choosing.

4. The Committee notes that sections 14-19 of Act No. 54/2003, govern the procedure applicable to the registration of trade unions and thus the acquisition of legal personality. The Committee notes that the application for registration must be submitted by an authorized representative of the founding members of the trade union to the court of first instance. The court examines whether all the required information has been submitted and whether the constitution and rules of the trade union are in conformity with "the legal provisions in force". The Committee notes that this examination is undertaken within specific time limits and may take up to 27 days. It results in a judgement under which the registration is either accepted or rejected. The Committee notes that the judgement can be appealed against, in particular by the prosecutor, and that the whole procedure of appeal can take up to 65 days. The Committee notes that trade unions acquire legal personality upon the registration of the final judgement accepting the application (this registration must occur within seven days as of the date at which the judgement of the court of the first instance becomes final). The Committee notes that the procedure described above applies to any modification of the constitution and rules of the union. A similar procedure applies to the registration of higher-level organizations under sections 42-48 of Act No. 54/2003.

The Committee underlines that, when legislation makes the acquisition of legal personality a prerequisite for the existence and functioning of organizations, the conditions of acquiring legal personality must not be such that they amount to a de facto requirement for previous authorization to establish an organization, which would be tantamount to calling into question the application of Article 2 of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 76). The Committee therefore requests the Government to specify the scope of the legal basis on which the court of first instance undertakes the examination of the documents submitted by the founding members, and in particular, whether the reference to the "legal provisions in force" includes only those laid down in Act No. 54/2003 or whether the term refers to other laws or regulations and, if so, to specify in its next report the provisions in question. With respect to the procedure itself, the Committee notes that it can take nearly 100 days if an appeal is lodged and could thus constitute an impediment to the free establishment of workers’ organizations. The Committee underlines that the considerations made above are also relevant to the registration procedure applicable to higher-level organizations under sections 42-48. Trade unions should be in a position to acquire legal personality following a simple registration procedure, without any undue delay, once formalities such as the submission of documents and a rapid examination by the competent authority have been observed. The Committee therefore requests the Government to provide detailed information on the manner in which the registration procedure functions in practice, including the amount of time necessary for a final decision. As it would appear that a decision to register a union is not legally valid until the final judgement has been rendered in the case of an appeal (section 17(2)), and that this process can be excessively long, the Committee further requests the Government to amend these provisions so as to ensure that the initial court decision to register a union is legally valid pending the final judgement.

Article 3. 1. The Committee notes that the procedure applicable to unions’ registration is also applicable to modifications of trade unions’ rules (as well as higher-level organizations’ rules), which must thus be approved by the courts. The Committee refers to its comments made above on the length of the procedure which, as far as amendments to internal rules are concerned, could give rise to public authorities’ interference in trade unions’ internal matters and thus create a serious obstacle to their free organization and functioning. The Committee requests the Government to take the necessary measures so as to shorten substantially the procedure, particularly as concerns the possibility of appeal, and to remove the requirement of prior approval for the entry into force of amendments to internal rules and ensure that such modifications are effective once they have been approved by the union’s competent bodies and upon their submission to the competent authority, as is the case for the modification in the composition of union executive bodies.

2. The Committee notes with satisfaction that the requirement of Romanian nationality in order to be eligible for trade union office has now been repealed. The Committee further notes that under section 8 of Act No. 54/2003, candidates should have "full capacity of exercise" and should not "serve the complementary sentence of prohibiting the right to fill a position or exercise a profession similar to the one used by the person convicted for committing the offence". The Committee requests the Government to confirm that the condition linked to the criminal record means that individuals cannot be elected as trade union officers only during any period that they have been lawfully deprived of the usual electoral rights arising from citizenship due to a criminal conviction.

3. The Committee notes that under section 23 of Act No. 54/2003, the fixed and movable assets of a trade union acquired for its meetings, its library or for its members’ training and improvement courses "may not be pursued, except for those necessary for the payment of the debts to the state budget". The Committee underlines that the right of workers’ and employers’ organizations to organize their administration without interference by public authorities includes, in particular, autonomy and financial independence and the protection of assets and property of these organizations (see General Survey, op. cit., paragraph 124). The Committee therefore requests the Government to clarify the circumstances and the conditions under which unions’ assets can be pursued so that it can examine the compatibility of section 23 of Act No. 54/2003 with Article 3.

4. The Committee notes that under section 26(1) of Act No. 54/2003, the control of the trade union’s "own financial activity" shall be carried out by the commission of auditors functioning in accordance with the union’s rules. Under section 26(2), the control "over the economic and financial activity carried out by a trade union, as well as over the establishing and payment of the obligation to the state budget shall be carried out by the competent state administration bodies, according to the law". The Committee recalls that there is no infringement of unions’ right to organize their administration if, for example, the supervision is limited to the obligation of submitting periodic financial reports or if there are serious grounds for believing that the actions of an organization are contrary to its rules or the law; similarly, there is no violation of the Convention if such verification is limited to exceptional cases, for example, in order to investigate a complaint, or if there have been allegations of embezzlement. Both the substance and the procedure of such verifications should always be subject to review by the competent judicial authority affording every guarantee of impartiality and objectivity (see General Survey, op. cit., paragraph 125). The Committee requests the Government to indicate the measures taken or envisaged to limit the powers granted to state administration bodies under section 26(2), to the abovementioned circumstances and conditions and to indicate whether such supervision is subject to the control of judicial authorities.