Informe provisional - Informe núm. 268, Noviembre 1989

1. 637. In a communication dated 6 April 1989, the Pancyprian Public Employees' Trade Union (PASYDY) presented a complaint of violations of trade union rights in Cyprus.
2. 638. The Government sent its reply in a communication dated 11 September 1989.
3. 639. Cyprus 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), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant's allegations

1. 640. The complainant raises two series of allegations. First, it contends that the Cyprian authorities refused to implement and/or ratify several collective agreements freely negotiated in the public sector from 1986 to 1989; second, that they issued an Order in Council prohibiting a strike in the island's ports and ordering employees back to work.
2. 641. As regards the first series of alleged violations of collective agreements in the public service, the complainant raises six issues, described below, concerning events which occurred from 1986 to 1989.
3. 642. First, after direct consultations and negotiations between the Executive Authority and PASYDY, a Bill concerning the public service was submitted to the House of Representatives by the Government in May of 1987. The Bill was intended to rationalise the machinery and procedures of the labour relations system in the public sector, and to render the public service more efficient and more effective in the execution of its duties. The complainant points out that the fate of this Bill is still unknown.
4. 643. Second, new confidential qualification reports (a new system of staff appraisal) were agreed between Government and PASYDY, approved by the Council of Ministers and submitted to the House of Representatives along with the Public Service Bill for enactment into law. The fate of these reports is also unknown.
5. 644. Third, after long and strenuous negotiations, the Joint Staff Committee (the official machinery for consultations and negotiations in the public service) agreed on 17 October 1986 on the hours of work, the shift system, overtime payment and a five-day week in the public service. None of these agreements have been implemented to this day.
6. 645. Fourth, with a view to improving the effectiveness and the performance of the public service, the Joint Staff Committee negotiated the grouping of posts at the lower entry points and approved the schemes of service of four posts in these new categories of non-professional staff which came under these groups. These schemes of service were vetted by the Attorney General, approved by the Council of Ministers and published in the Official Gazette of the Republic on 4 November 1988. However, this agreement on the schemes of service cannot be implemented before the Bill concerning the Public Service Bill becomes law.
7. 646. Fifth, a decision by the Joint Staff Committee to establish a full-fledged Central Personnel Administration Service in the public sector has not yet been implemented. PASYDY points out in this respect that it had submitted a unified plan concerning the structure and role of the service as far back as 30 September 1988.
8. 647. Finally, 56 new posts which were agreed in the Joint Staff Committee and approved by the Council of Ministers were included in the 1989 budget, which was submitted to the House of Representatives. They refused to ratify this agreement and to provide the funds for the recruitment of the necessary staff. After strong protests and threats to strike by PASYDY, the House agreed to reconsider its decision, but the matter is still pending.
9. 648. As regards the second general allegation, the complainant contends that, worse still, the executive authority has recently augmented the long list of violations of the Convention mentioned above by issuing an Order in Council prohibiting a strike in the island's ports and ordering employees back to work on the same terms as those which obtained prior to the strike.
10. 649. According to the complainant, the arbitrary intervention of the Parliament and the Executive Authority of the Republic in the labour relations system of the public service of the island violates both the spirit and the letter of Convention No. 151; it undermines free collective bargaining in the public sector; and it deprives public service employees of the right to protect and promote their legitimate interests as equal citizens of the Republic.

B. The Government's reply

1. 650. In its communication of 11 September 1989, the Government submits that the Public Service Bill referred to by PASYDY, the aim of which is to improve the procedures concerning appointments, promotions, duties and obligations of public servants and the disciplinary code, has indeed been submitted to the House of Representatives in 1987. Since then however, the House of Representatives, through its appropriate Committee, has had consultations on several occasions both with the Government side and PASYDY on the matters dealt with in the Bill. The enactment of the Bill into law, as any other bill submitted to the House of Representatives, is a matter which falls entirely within the competence of the legislature. In no case can the delay in its enactment be regarded as a violation of a collective agreement, as alleged by PASYDY. The Bill is the outcome of joint consultations, the results of which, in accordance with the Constitution and Rules of the Joint Staff Committee, are submitted to the Council of Ministers in the form of recommendations and thereafter to the House of Representatives. Regarding the progress of the Bill, the Government adds that the appropriate Committee of the House of Representatives has recently sent a copy of the Bill as formulated by it to both sides (Government and PASYDY) for their views.
2. 651. As regards the confidential qualification reports, this new system of staff appraisal which has been agreed between PASYDY and the official side has not yet been submitted to the House of Representatives. This will be done through regulations which will be referred to the House of Representatives after the enactment of the new Public Service Law. PASYDY must be fully aware of that fact since, in an article published in the issue of the 25 May 1989 of its newspaper "Demosios Ypallelos" (Public Servant) under the title "Intensive programme for promoting pending general problems" it states that the new system of staff appraisal "cannot be implemented before the approval by the House of Representatives of the amended Public Service Bill and its enactment into law". The Government annexes the relevant page from this newspaper to its reply.
3. 652. Concerning the hours of work, shifts, overtime and five-day week, no final agreement has yet been reached at the Joint Staff Committee on the above topics. At the meeting held on 17 October 1986, to which PASYDY refers, there was only a general exchange of views. As regards overtime and shifts, a preliminary agreement on certain basic principles was reached, but all matters are still under consideration at the Joint Staff Committee.
4. 653. With respect to the grouping of posts and schemes of services, the Government submits that implementation of the agreement on the schemes of service for the posts in question is not prevented by the non-enactment of the new Public Service Law. Indeed, these schemes of service have already been published in the Official Gazette of the Republic (as PASYDY itself admits in Appendix V of its communication) and vacancies have already been advertised on this basis.
5. 654. As regards the Central Service for Personnel Administration in the Public Sector, the only agreement reached by the Joint Staff Committee concerned the creation of a new Director-General's post. The Council of Ministers approved the relevant recommendation of the Joint Staff Committee but the House of Representatives has not done so yet.
6. 655. Concerning the creation and funding of 56 new posts, which were agreed upon in the Joint Staff Committee, the Government replies that this allegation is similar to that made in 1984 by PASYDY, and to which it had already replied. The Government refers to that reply where it had indicated in this respect that, on two occasions, the House of Representatives turned down and/or modified the Supplementary Appropriation Bills which contained the final result of the agreement reached by the Government and PASYDY after extensive collective bargaining. The Government considers that the action taken on these two occasions is in absolute conformity with articles 46 and 54 of the Constitution, which provide that the power of the Council of Ministers for any kind of expenditure is limited within the ambit of the budget voted by the House of Representatives. Therefore, any collective agreement providing increased expenditure, which is concluded between the Government in its capacity as an employer and the Civil Servants' Trade Union, must be introduced in the budget and finally be forwarded for approval by the House of Representatives.
7. 656. Finally, regarding the allegation that the Council of Ministers violated Convention No. 151 by issuing an Order "prohibiting a strike in the island's ports and ordering employees back to work", the Government replies that this has nothing to do with Convention No. 151, but rather with Convention No. 105. An allegation of violation of the latter Convention by the issuance of the Order in question was made by another trade union, namely DEOK, to which the Government of Cyprus has already replied. In that reply, dated 31 July 1989, the Government stressed that, in its opinion, the services offered by the employees of the Ports Authority were essential within the meaning of Convention No. 105 and the Cyprus Constitution and that, therefore, the directions issued by the Minister of Communications and Works on 7 February 1989 directing the employees of the Ports Authority to continue to offer their services did not constitute a violation of Convention No. 105. The Government added in the same letter that said directions had been repealed on 1 March 1989 without having been enforced.

C. The Committee's conclusions

1. 657. Dealing first with the alleged delays incurred in the enactment of the Public Service Bill, a piece of legislation intended to improve the procedures concerning appointments, promotions, duties and obligations of public servants, the Committee notes that the Bill in question, after consultations in the Joint Staff Committee, has been submitted to the House of Representatives, whose appropriate committee, according to the Government, has "recently" sent a copy of the Bill to both sides for their views. In all likelihood, the Bill should be tabled soon in the House of Representatives for adoption. Therefore, it would be premature for this Committee to express an opinion on the subject. Nevertheless, the Committee points out to the Government that lengthy delays in the enactment of such a Bill are not conducive to positive industrial relations, and requests it to take the appropriate measures to speed up the adoption process. The Committee further requests both parties to keep it informed on the progress on the Bill.
2. 658. As regards the new system of staff appraisal (confidential qualification reports), the Committee notes that it depends upon the enactment of the Public Service Bill since it will be implemented through regulations. The Committee thus refers to its remarks in the preceding paragraph and requests both parties to keep it informed on the progress of these regulations, once the Bill has been enacted.
3. 659. Regarding the hours of work, shifts, overtime and five-day week, the complainant and the Government make contradictory submissions; the former alleges that an agreement had been concluded in the Joint Staff Committee on 17 October 1986, while the latter contends that only a general exchange of views took place and that, while a preliminary agreement was reached on certain basic principles concerning overtime and shifts, all matters are still under consideration at the Joint Staff Committee. To support its allegation, the Government refers in its reply to the "enclosed minutes of the meeting of the Joint Staff Committee held on 17 October 1986", a document which, in fact, was not attached to its reply. Faced with these irreconcilable statements, the Committee has no alternative but to request the parties to provide further information as to whether or not an agreement was in fact reached at the meeting of the Joint Staff Committee of 17 October 1986.
4. 660. The complainant and the Government are equally at odds concerning the establishment of a Central Personnel Administration Service in the public sector. The complainant submits that the Joint Staff Committee had decided on a fully fledged central service, while the Government maintains the agreement concerned only the creation of a new Director-General post. Here again, the Committee must ask the parties further to substantiate their allegations.
5. 661. With respect to the grouping of posts and schemes of service the Committee notes that, contrary to PASYDY's allegation that these schemes cannot be implemented before the Public Service Bill is enacted, they have already been published in the Official Gazette and vacancies have already been advertised on that basis. The Committee therefore considers that this issue does not call for further examination.
6. 662. Concerning the 56 new posts, the Government replies in substance that, while their creation and funding had been agreed to in the Joint Staff Committee, a decision which was subsequently approved by the Council of Ministers and included in the 1989 budget, it is bound by the decision of the House of Representatives, which refused to approve the appropriation bills covering the resulting additional expenditure. The Committee considers that it is the Government's responsibility to establish appropriate machinery by which collective bargaining can take place, and that the Government should have made it clear to its bargaining partners that the creation of the said posts depended on Parliament's approval.
7. 663. Turning now to the final allegation, namely that the Government issued an Order in Council to end a strike of the Port Authority employees and to order them back to work, the Committee recalls the principle that the right to strike is one of the legitimate and essential means through which workers and their organisations may defend their economic and social interests (Digest of decisions and principles of the Freedom of Association Committee, third edition, 1985, paras. 362 and 363).
8. 664. It is also well established that restrictions or even prohibitions of the right to strike can only be justified in a limited number of situations: civil servants or workers in essential services in the strict sense of the term, i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population (Digest, loc. cit., para. 387), provided however these workers have access to adequate procedures, such as conciliation and arbitration, where the parties concerned can participate at all stages and in which the awards are binding on both parties and are fully and promptly implemented.
9. 665. The Committee has previously been called upon to examine whether or not a given activity or enterprise constitutes an essential service according to the above-mentioned criteria. The Committee has stated in the past that whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, personal safety or health of the population might be endangered, a back-to-work order might be lawful if applied to a specific category of staff in the event of a strike, whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association (Case No. 1430 (Canada), 256th Report, para. 189).
10. 666. In this particular instance, the Committee has not been provided with any information suggesting that the situation was such as to justify a departure from the principle that, in normal circumstances, general dock work is not an essential service. The Committee notes that the back-to-work orders were repealed approximately three weeks after their proclamation, without having been enforced. However, it considers that the Government should have ensured that the circumstances were genuinely exceptional before issuing instructions ordering the Port Authority employees back to work.