Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 380, Octubre 2016

1. 859. The complaint is contained in communications from the Federation of Free Trade Unions of the Chemical and Petrochemical Industries (FSLCP) dated 31 July, 15 September and 16 December 2015 and 4 April 2016.
2. 860. The Government forwarded its response to the allegations in communications dated 15 October 2015 and 4 July 2016.
3. 861. Romania 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 Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 862. In its communications dated 31 July, 15 September and 16 December 2015 and 4 April 2016, the complainant organization, FSLCP, an industrial workers’ association with more than 11,000 members legally set up and representative at the branch level in Romania, presents this complaint, based on the general mandate of union representation but also on the explicit mandates received from the Free Trade Union “Plastor” Orastie (Hunedoara county, Romania) and the Free Trade Union “Oltchim” Rimnicu Vilcea.
2. 863. The complainant denounces the flagrant violation of Articles 3(1), 4 and 8(1) of Convention No. 87 ratified by Romania in 1958 and Article 1 of Convention No. 135 ratified by Romania in 1975, international treaties which, according to article 11(2) of the Romanian Constitution, become through their ratification an integral part of the Romanian system of law and should be enforced as such. By virtue of article 20(2) of the Romanian Constitution, these norms prevail over the internal law. The complainant also criticizes the violation of trade union rights protected in the Romanian legislation (sections 7, 9, 10(1) and 40 of Act No. 62 of 2011 on Social Dialogue).
3. 864. In particular, the complainant alleges that Mr Martin Nicolae, the leader of a trade union at Chimica SA (hereinafter: the mother company or the industrial platform), the Free Trade Union “Plastor” Orastie, was dismissed based intrinsically on his trade union activity, in violation of section 10(1) of the Social Dialogue Act as well as other provisions mentioned above. In the first instance, the court decided that Mr Martin should be reinstated. However, the Constitutional Court issued a mandatory decision on 24 November 2015 that section 60(1)(g) of the Labour Code, upon which the reinstatement claim was based, is unconstitutional. This judgment led to the impossibility of restoring justice in court.
4. 865. In this context, the complainant draws attention to the fact that, while the Government deals with the enterprises from the industrial platform as distinct units, those enterprises have the same major shareholder and they have been detached from the mother company through various processes of reorganization. Thus, the complainant acknowledges that, while Mr Martin Nicolae has been dismissed under the same conditions as 12 other employees, all those employees have been offered jobs in the other enterprises of the industrial platform.
5. 866. Moreover, the complainant alleges that, in spite of the fact that Mr Martin still legally exerts the mandate as the president of the trade union, he is not permitted to enter the premises of the factory where the union has its legal residence, the archive and the records of the trade union and where, according to the trade union statute and its own regulations, the daily activity of the trade union should take place. As a result, the leader of the trade union cannot fulfil his duties at the place where the trade union is legally functioning, has got representative status and has got ongoing collective labour agreements which it is entitled to monitor. Highlighting that freedom of association and private property are constitutional rights that should be on an equal footing, the complainant questions the absence of intervention of the competent authorities to protect the right of the union leader to access the premises of the workers’ organization. The Hunedoara County Labour Inspection penalized the mother company by issuing a “warning” for the restriction of union rights through the denial of access of the union president to the union premises, as emerges from its communication No. 6564/155 l/SCRM/21.07.2015; however, many months have passed since then, and although the situation remained unchanged, no harsher measure has been imposed.
6. 867. The complainant organization denounces that the leader of a representative trade union according to section 51(C) of the Social Dialogue Act, which is legally functioning and has got patrimonial and organizational independence within a company, was illegally fired and has been denied access to the premises of the representative trade union, whereas the state authorities, while admitting that this is an unlawful situation, state that they cannot do anything to remedy it.
7. 868. Furthermore, the complainant alleges that, subsequently, the mother company has continued its actions directed against the Free Trade Union “Plastor” Orastie by displaying in an ostentatious manner communiques discrediting the trade union, and that the employer filed, on 25 August 2015, a motion with the court requesting the dissolution of the union and evacuation of its headquarters, in contravention of the Convention and national law.
8. 869. The complainant also alleges, with regard to the union activity carried out by the other union leaders of the enterprises from the industrial platform, that at Chimica Automotive SA (hereinafter: one of the enterprises from the industrial platform), one day before the beginning of a legally announced strike on 23 September 2015, two union leaders had their work contracts suspended and were no longer allowed access to the premises. In accordance with sections 193 and 197 of the Social Dialogue Act, the organizers of a strike must continue negotiations with the management and have the obligation to protect the assets of the company, being liable to any damage caused by the participants during the strike. These obligations became however impossible to meet under the circumstances. The complainant adds that, at its request for intervention, the Hunedoara Labour Inspection did not consider the above actions as an abuse and did not impose any penalty on the enterprise. The strike had to be cancelled.
9. 870. Lastly, at Oltchim SA Rimnicu Vilcea (hereinafter: the company), in bankruptcy procedure since 2012, the judicial administrators, the de facto management of the company, have been continually displaying discrediting communiques against the Trade Union “Oltchim”, then representative union and signatory of the collective labour agreement at the company level, promoting and encouraging the creation of new enterprise unions with a view to achieve the fragmentation of the union movement, contrary to Romanian law and international norms and practices. As a result, from one single, representative union at the company level, there are presently four non-representative unions in the company, and the management used to display monthly, ostentatiously, a table with the number of members of each union. In the summer of 2015, the management forced elections on the Trade Union “Oltchim”, which led to a change in union leadership, with the new leaders having a conspicuous closeness to management. Following the election process and the dismissal of approximately 900 employees of the union, the Trade Union “Oltchim” has less and less members. The fragmentation of the union movement at the company is not beneficial to the employees, as the company is in insolvency and could any time go into bankruptcy.
10. 871. In conclusion, the complainant states that, at the industrial platform and the company mentioned above, the rule is that the employer systematically seeks the destruction of the unions that are legally functioning in the enterprise; and that, although the Social Dialogue Department within the Ministry of Labour has been notified of the abovementioned issues, the Government, instead of initiating a dialogue to defuse potential conflicts, has done nothing to remedy an increasingly explosive situation and avoid the recurrence of such situations in the future. The complainant regrets that, to the contrary, the Government has not responded to any of its attempts to dialogue with the relevant authorities, as a punitive measure for appealing to the ILO.

B. The Government's reply

1. 872. In its communications dated 15 October 2015 and 4 July 2016, the Government expresses the view that the ILO freedom of association complaint procedure is based on the principles of freedom of communication, which induces responsibility of action and the minimum proof of evidence, and the subject of the complaint concerning the practical application of trade union rights and freedoms guaranteed by Conventions, within the competency of the Committee on Freedom of Association. However, the complaint does not refer to the initiation of coherent approaches in solving the issues in the national context, such as the jurisdiction of the courts in the settlement of individual labour conflicts and conflicts of rights, including contesting decisions of labour inspection. The alleged violations of Convention No. 87 are not thoroughly grounded, and some statements are speculative or political.
2. 873. Moreover, the Government states that the institution responsible for social dialogue has no competence to pronounce itself on the duty to monitor compliance with legislation or the legality of decisions taken in this context or on the resolution of individual labour disputes. Also, the solution of this case goes beyond the competences of the executive authority and rather lies in the discretion of the court, in accordance with national legislation. Freedom of association and private property are fundamental constitutional rights, and the separation of powers limits any state actions or interventions in this case.
3. 874. In light of the regulations in the field of social dialogue, the Government specifies that the legal actions and remedies available in case of violation of legal provisions and the modalities to solve individual labour disputes are stipulated in the labour and social dialogue legislation. Thus, in accordance with sections 210 and 211 of the Social Dialogue Act, the competence for the resolution of individual labour disputes concerning the conclusion, execution, modification, suspension or termination of individual contracts of employment lies with the courts. The labour courts provide for protective measures for conflict resolution such as statutory limitation periods, tax exemption and summary proceedings (sections 266–275 of the Labour Code, in conjunction with sections 208–216 of the Social Dialogue Act and the Civil Procedure Code). Similarly, the individual labour disputes concerning termination of the individual employment contract may be the subject of independent mediation, under Act No. 192 of 2006 on mediation (section 60(1)(e)), regardless of the stage of the conflict.
4. 875. Moreover, Convention No. 87 guarantees are transposed into national legislation in the field of labour relations and social dialogue, referring, on the one hand, to the individual rights of employees to form or affiliate to trade unions of their choice and the principle of non-discrimination (Labour Code and section 3 of the Social Dialogue Act), and, on the other hand, the rights of organizations freely constituted to association and affiliation, independent organization, free election of representatives and establishing action programmes through their own statutes (sections 5–12, 32–35 and 41–50 of the Social Dialogue Act). The Government adds that freedom of association and the right of property are both constitutional rights, and that it has no competence to interpret constitutional provisions.
5. 876. Furthermore, the law guarantees the right of trade unions to exercise trade union activities and to defend individual and collective labour rights of members before public authorities, including the right to represent members in court (sections 6 and 32). Labour and social dialogue legislation grants protection in the exercise of trade union activities in relation to the employment relationship, including through the prohibition of modification or cancellation of labour contracts of union members for reasons of trade union membership or activity (sections 9 and 10 of the Social Dialogue Act, in conjunction with section 220 of the Labour Code). However, the Government believes that the facilities granted by law in support of trade union organizations and the exercise of trade union activities (sections 21 and 35) and the benefits negotiated by collective bargaining agreements (workspaces, technical means, free headquarters, hours paid to union representatives during working hours) are independent guarantees from the recognition of freedom of association and cannot constitute prerequisites for its application nor be invoked as violations of the exercise of the right to freedom of association. During the effective application of trade union rights and legal guarantees, it is the responsibility of the trade union to organize its activity autonomously and independently, to adopt its statutes legally, to elect representatives and to establish action programmes for the purpose of its mission and to fulfil the role for which it was established.
6. 877. Taking also into account the constitutional principles of separation of powers and freedom of access to justice, and the jurisdiction to rule on the application of constitutional provisions, the Government reiterates that its intervention in this case is limited to the exercise of monitoring and control to ascertain the notified situation, whereas at the same time the judicial authority have the exclusive competence to rule on its legality and resolve the dispute, in line with the provisions of the Constitution and the decisions of the Constitutional Court.
7. 878. Regarding the dismissal of Mr Martin Nicolae, the Government states that an audit of inspectors of the Territorial Labour Inspectorate Hunedoara took place in the mother company on 25 May 2015. According to inspection report No. 66014/25.05.2015, it was found that, at control date, 15 people were employed, including six full-time and nine part-time (one hour/month); on 19 May 2015, pursuant to Decision No. 02/18.05.2015 of the Board, 13 decisions for termination of individual employment contracts had been issued, in line with section 65(1) (termination of employment) read in conjunction with section 75(1) (prior notice of 20 working days) of the Labour Code. No such decision was issued with respect to two persons: Mihaela Todea (on sick leave) and Herban Alexandru (fixed-term contract until 3 June 2015). The union leader Martin Nicolae was among the 13 persons mentioned above, and his contract of employment has ceased following a termination decision made under the same conditions as for the other employees. Thus, by Decision No. 324/19.05.2015, as of 19 June 2015, “Mr Martin Nicolae, in his capacity as legal expert in Chimica SA is dismissed due to the termination of the individual employment contract recorded under No. 3018 on 6 January 1999”. As provided in section 6 of the termination decision of Mr Martin Nicolae, he had the possibility of challenging the employer’s decision to dissolve the individual labour contract, in the Tribunal of Hunedoara, which is the only competent body to rule on the legality and foundation of this decision (as indicated in section 80 of the Labour Code).
8. 879. In this regard, the Government indicates that, according to sections 210 and 211 of the Social Dialogue Act, individual labour disputes regarding the conclusion, modification and termination of individual labour contracts fall within the jurisdiction of court settlement. It then refers to Decision No. 3703 of 21 October 2015 issued by the Hunedoara County Court ruling on the reinstatement of the union President and the subsequent Decision No. 814/2015 of the Constitutional Court regarding the exception of unconstitutionality of the provisions of section 60(1)(g) of the Labour Code, due to article 16 of the Constitution on equality before the law. The Government explains that the protection of trade union members against dismissals on grounds of trade union affiliation or activities is guaranteed by section 220(2) of the Labour Code and section 10 of the Social Dialogue Act, and that national courts and authorities must take into account the decisions of the Constitutional Court. The Government reports that the first instance decision was then appealed by the mother company and recently reversed by the Court of Appeal Alba lulia, which fully rejected the complaint formulated by the plaintiff Martin Nicolae against the mother company (Decision No. 282/01.03.2016).
9. 880. As regards the access of Mr Martin Nicolae to the premises, the Government specifies that, following the complaints filed with the Territorial Labour Inspectorate (Nos 9560/12.06.2015 and 9561/12.06.2015), a response (No. 9560, 9561/SCCMMRM/13.07.2015) was drafted and handed to the FSLCP and the Free Trade Union Plastor Orastie. The Government indicates that, accordingly, following the checks carried out by inspectors of the Territorial Labour Inspectorate at the mother company and in view of the documents attached by the FSLCP and the Free Trade Union Plastor Orastie as well as by the Territorial Labour Inspectorate Hunedoara, it was found as follows. The mother company is a private company with private capital. As part of the industrial platform in Orastie, there are six commercial enterprises of which five carry out their activities in the premises of the mother company, which are private property. One of the enterprises of the group operates under a management contract (No. 201/20.12.2013), which provides for the administration by it of the administrative buildings of some companies, and a service contract (No. 198/19.12.2013), which also stipulates the provision of security and protection services. The Free Trade Union Plastor Orastie is representative at all five enterprises carrying out their activities in the premises of the mother company. Mr Martin Nicolae holds the function of President of the Free Trade Union Plastor Orastie, which carries out its activities in a building on the industrial platform.
10. 881. Furthermore, the Government states that it was found that the Free Trade Union Plastor Orastie did not present documents certifying the right to use the office space designated as its seat. There are however documents showing that the union headquarters is in the premises of the industrial platform (the by-laws of the Free Trade Union Plastor Orastie, the tax registration certificate of the National Tax Administration Agency, collective labour agreements with enterprises of the industrial platform signed by the parties and judicial decisions on the representativity of trade unions (e.g. Decision No. 285/2013, etc.). By way of communication No. 354/27.05.2015, the mother company has requested the administrator to ensure “the prohibition of access to the platform of Mr Martin Nicolae, in his capacity as president of the Free Trade Union Plastor Orastie, until the establishment of an access program with the enterprises operating at the address mentioned above, which will be communicated”.
11. 882. The Government indicates that it was also ascertained that, on 28 May 2015, the enterprises in which the Free Trade Union Plastor Orastie is representative, sent communications to the union addressed to its President, inviting him inside the industrial platform on 8 June 2015 to attend negotiations concerning his access to the premises (communication No. 310/28.05.2015). After the negotiations of 8 June 2015, a report of the meeting was drawn up and signed by the parties. According to the report, Mr Martin Nicolae requested unrestricted access, and the employer representatives stated that they would formulate a response on the following day. On 9 June 2015, the enterprises where the Free Trade Union Plastor Orastie is representative, sent written communications (Nos 172/09.06.2015, 381/09.06.2015, 129/09.06.2015, 244/09.06.2015, 182/11.06.2015), expressing the following view: “The enterprise cannot accept the unconditional access of the president of the union to the premises, given that Mr Martin Nicolae is not an employee of the enterprise and the trade union activities at enterprise level are also carried out by the other union leaders who had been, as mentioned above, removed from production without affecting their salary rights. Also, the union is a legal entity that cannot be confused with the person of its president, whoever it may be. Moreover, the removal of further trade union leaders from production was accepted, so that they can exercise their trade union rights. In this context, we inform you that we remain ready to jointly establish a programme of access to the enterprise, and that, in addition, whenever particular situations arise, we are willing to authorize your previously announced access to the management of the enterprise.”
12. 883. Lastly, the Government states that it was established that, on 9 June 2015, at four of the five enterprises operating on the premises of the mother company, collective labour agreements concluded at enterprise level were in force. Under the provisions of those collective agreements, “for the purposes of the conduct of trade union activity, the establishment will provide for free the necessary space and furniture, means of transport and if possible, a computer and a printer, fax and telephone, and ensure their maintenance within the limits of the financial possibilities of the establishment”. Consequently, regarding the request of the Free Trade Union Plastor Orastie for unlimited access to the enterprises operating on the industrial platform, the Government indicates that, in its response mentioned above, it emphasized that, in accordance with section 131(2) of the Social Dialogue Act, interference by public authorities, in any form and modality, is prohibited in the negotiation, conclusion, execution, modification and termination of collective agreements; and that disputes concerning the execution, amendment or termination of collective agreements are governed by the competent courts.
13. 884. Thus, the Government concludes that the trade union rights guaranteed by law to workers’ and employers’ organizations are illustrated in this case by the recognition of the enterprise union, the existence of its statute and programme of action, the participation of its elected leaders in trade union activities, the conclusion of a collective agreement and the granting of facilities for the exercise of trade union activities. Labour inspection decisions can be appealed in court. The Government recapitulates that the Territorial Labour Inspectorate had signalled the absence of supporting documents relating to the headquarters where the trade union operates, and that management had affirmed its availability for the mutual agreement concerning the establishment of a schedule of access able to enable the leader to carry out trade union activities. According to the Government, the access of the trade union leader at the headquarters of the union had been assured by management for the meetings to which he had been convened by the union within a programme of action freely set. In this context, issues refer to the right of unconditional access on the private property of a company which includes the headquarters of the trade union, of an external person, who is no longer an employee but was freely elected as union representative, which must comply with national legislation and court decisions. Although Mr Martin Nicolae is a freely elected trade union leader, and while respecting the guarantees laid down in ILO Conventions, the Government believes that access of persons to premises may be limited to the extent that the union headquarters is at the seat of the mother company and constitutes private property.
14. 885. As to the alleged infringement of Article 4 of Convention No. 87, the Government indicates that the guarantee granted to organizations not to be dissolved on an administrative way, is contained in sections 7 and 40 of the Social Dialogue Act. This guarantee is not extended to the decisions of the judiciary power. Decisions of the judicial authority do not constitute administrative acts of public authorities and/or employers according to section 40(1) of the Social Dialogue Act, and section 40(2) provides to interested parties the freedom to be able to address the court, exclusively entitled to rule on the issue, a reasoned request for dissolution of an organization on the grounds that the minimum requirements for its creation are no longer met. The Government states that it does not have data concerning actions in court or court decisions regarding the request for dissolution of the trade union organization, since such documents are released only to parties in the lawsuit. Issues related to alleged attempts to dissolve the trade union (which, however, negotiated and concluded the collective agreement) may be clarified and solved by the competent courts (“proof test”), following notification by the parties.
15. 886. With regard to the alleged violations at one of the enterprises from the industrial platform, the Government states that the right to strike is a constitutional right of trade unions covered by labour law. According to section 195(1) of the Social Dialogue Act, the individual labour contract of the employee is suspended by law for the whole duration of participation in the strike. During the suspension, only health insurance rights are kept. Section 195(2) provides that, at any time of the strike, either party may request the participation of a representative of the territorial labour inspection to ascertain possible violations. The Territorial Labour Inspectorate found no irregularities in the case of the strike at the enterprise and did not impose penalties, as confirmed by the plaintiff. The decisions and measures taken by labour inspection may be challenged in court. It is the responsibility of the trade union organization to defend the rights of members and strikers, including in court (sections 28 and 187 of the Social Dialogue Act)
16. 887. Concerning the alleged violations in the company in Rimnicu Vilcea, the Government indicates that Act No. 85 of 2014 on insolvency procedure, which transposes EU Directive 2001/24/EC, stipulates at its section 40(1) that the bodies responsible for the implementation of the insolvency procedure are the courts, the syndic-judge, the judicial administrator and the judicial liquidator, and that all claims and disputes related to the actions of participants in the procedure shall be judged according to the provisions of the Code of Civil Procedure.
17. 888. In conclusion, the Government states that the role of social dialogue commissions is set out in section 121 of the Social Dialogue Act. Tripartite consultation structures in place are not decision-making and dispute-solving labour courts. Nonetheless, although the portfolio of the Minister Delegate for Social Dialogue within the Ministry of Labour, Family, Social Protection and Elderly was abolished following the reorganization of the Government in November 2015, the Government highlights that, at the initiative of the former Minister Delegate for Social Dialogue, a Protocol of collaboration with the FSLCP was concluded in 2014. The result was a series of meetings and consultations aimed at identifying problems in the chemical and petrochemical industries and action needed. The Government adds that social dialogue and participatory governance continue to be promoted, giving priority to constructive cooperation and partnership culture, instead of political pressure, but that the resolution of the above issues by applying the law falls within the jurisdiction of the courts, and to this end it is important that the trade union assumes its role of defending the legal rights of members in court, as guaranteed by law.

The Committee’s conclusions

1. 889. The Committee notes that, in the present case, the complainant denounces the anti-union dismissal by the mother company Chimica SA of Mr Martin Nicolae, the president of the enterprise-level union Free Trade Union Plastor Orastie; the subsequent denial of his access to the premises; further anti-union action by the mother company; suspension and denial of access of two union leaders before a strike at Chimica Automotive SA, one of the enterprises from the industrial platform; and anti-union action against the Free Trade Union “Oltchim” Rimnicu Vilcea by the company Oltchim SA Rimnicu Vilcea and promotion of creation of new enterprise unions with a view to achieving fragmentation.
2. 890. The Committee notes that the complainant denounces the inaction of the Government (labour inspection, Ministry of Labour, etc.) and alleges that: (i) Mr Martin Nicolae, the leader of the Free Trade Union Plastor Orastie at the mother company, was dismissed based intrinsically on his trade union activity; (ii) however, the Constitutional Court judgment of 24 November 2015 stating that section 60(1)(g) of the Labour Code is unconstitutional, led to the impossibility of enforcing the first-instance court decision that the union president be reinstated; (iii) all enterprises from the industrial platform have the mother company as major shareholder and have been detached from it through various processes of reorganization; (iv) while Mr Martin Nicolae has been dismissed under the same conditions as 12 other employees, all those employees have been offered jobs in the other enterprises of the industrial platform; (v) while Mr Martin Nicolae still legally exerts the mandate as the president of the trade union, he is not permitted to enter the premises of the factory where the union has its headquarters; (vi) the Territorial Labour Inspectorate penalized the mother company by issuing a “warning” on 21 July 2015; but although the situation remained unchanged for many months, no harsher measure has been imposed; (vii) further anti-union action by the mother company, such as display in an ostentatious manner of communiques discrediting the trade union, and the filing of a motion with the court requesting the dissolution of the union; (viii) at one of the enterprises from the industrial platform, one day before the beginning of a strike legally announced on 23 September 2015, two union leaders had their work contracts suspended and were no longer allowed access to the premises, and the Territorial Labour Inspectorate did not impose any penalty on the enterprise so that the strike had to be cancelled; (ix) at the company in Rimnicu Vilcea, the judicial administrators have been continually displaying discrediting communiques against the Free Trade Union “Oltchim” Rimnicu Vilcea and promoting and encouraging the creation of new enterprise unions with a view to achieving fragmentation of the union movement at the insolvent company (ostentatious monthly display of table with the number of members of each union; forced elections in 2015 which led to a new board close to management; decrease in membership due to election and dismissal of 900 employees of the union).
3. 891. The Committee notes the Government's indications, in particular that: (i) regarding the dismissal of Mr Martin Nicolae, labour inspection found that, from the 15 persons employed in the unit, 13 decisions for termination of individual employment contracts had been issued, with the exception of two persons (one on sick leave and one with a finishing fixed-term contract), and that the union leader Martin Nicolae was among the 13 persons mentioned above, and his contract of employment has ceased under the same conditions as for the other employees; (ii) the Hunedoara County Court ruled the reinstatement of the union President on 21 October 2015, the Constitutional Court ruled the unconstitutionality of section 60(1)(g) of the Labour Code on 24 November 2015 due to article 16 of the Constitution on equality before the law, and the first instance decision appealed by the mother company was reversed by the Court of Appeal on 1 March 2016; (iii) as regards the access of Mr Martin Nicolae to the premises, labour inspection found that: the mother company is a private company with private capital, that as part of the industrial platform there are six commercial enterprises and the Free Trade Union Plastor Orastie is representative at five of the six and carries out its activities in a building on the industrial platform; the Free Trade Union Plastor Orastie did not present documents certifying the right to use the office space designated as its seat but that there are documents showing that the union headquarters is in the premises of the industrial platform; on 27 May 2015, the mother company has requested the administrator of the buildings to ensure “the prohibition of access to the platform of Mr Martin Nicolae, in his capacity as president of the Free Trade Union Plastor Orastie, until the establishment of an access programme with the enterprises operating at the address mentioned above, which will be communicated”; on 28 May 2015, the relevant enterprises invited the union President on 8 June 2015 to attend negotiations concerning his access to the premises where Mr Martin Nicolae requested unrestricted access, which was refused for the following reasons: “The enterprise cannot accept the unconditional access of the president of the union to the premises, given that Mr Martin Nicolae is not an employee of the enterprise and the trade union activities at enterprise level are also carried out by the other union leaders who had been, as mentioned above, removed from production without affecting their salary rights. Also, the union is a legal entity that cannot be confused with the person of its president, whoever it may be. Moreover, the removal of further trade union leaders from production was accepted, so that they can exercise their trade union rights. In this context, we inform you that we remain ready to jointly establish a programme of access to the enterprise, and that, in addition, whenever particular situations arise, we are willing to authorize your previously announced access to the management of the enterprise.”; (iv) in the Government’s view, access on the private property of a company which includes the headquarters of the trade union, of an external person, who is no longer an employee but is still a union representative, may be limited; (v) as to the alleged infringement of Article 4 of Convention No. 87, the guarantee granted to organizations not to be dissolved in an administrative way, is contained in sections 7 and 40 of the Social Dialogue Act, but is not extended to decisions of the judiciary; (vi) with regard to the alleged violations at one of the enterprises from the industrial platform, the right to strike is a constitutional right of trade unions covered by labour law, the individual labour contract of the employee is suspended for the whole duration of participation in the strike according to section 195(1) of the Social Dialogue Act, the Territorial Labour Inspectorate found no irregularities and did not impose penalties, and the decisions and measures taken by labour inspection may be challenged in court; (vii) concerning the alleged violations in the company in Rimnicu Vilcea, Act No. 85 of 2014 on insolvency procedure stipulates that the bodies responsible for the implementation of the insolvency procedure are the courts, the syndic-judge, the judicial administrator and the judicial liquidator, and that all claims and disputes related to the actions of participants in the procedure shall be judged according to the provisions of the Code of Civil Procedure.
4. 892. As regards the alleged anti-union dismissal by the mother company, of the president of the Free Trade Union Plastor Orastie, the Committee observes that section 60(1)(g) of the Labour Code granted an absolute protection against dismissal of employees holding a trade union function; and that the Constitutional Court ruled in November 2015 that this provision is unconstitutional, inter alia, on the grounds of equality before the law. The Committee considers that this ruling is not contrary to freedom of association and that section 220(2) of the Labour Code continues to ensure adequate protection of trade union officials by providing that, during their term of office, the representatives elected in the management bodies of the trade unions may not be dismissed for reasons related to the fulfilment of the mandate received from the employees in the organization. In light of the limited information provided by the complainant concerning the alleged anti-union reasons of the dismissal, the Committee does not consider that it has sufficient elements at its disposal to conclude that Mr Martin Nicolae was dismissed on the grounds of his function as union president or his legitimate trade union activities, but does observe that all 12 other employees dismissed from the unit have been re-employed in the other enterprises of the industrial platform. The Committee recalls that it has previously emphasized the advisability of giving priority to workers’ representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection (see Digest, op. cit., para. 833). For the same reasons, it would equally appear advisable to give priority to workers’ representatives in the case of an eventual subsequent re-employment of staff that had been made redundant. In light of the foregoing and the extraordinary circumstances of a reinstatement decision being reversed due to a subsequent unconstitutionality ruling, the Committee requests the Government to intercede with the parties with a view to finding a satisfactory solution with regard to the employment situation of Mr Martin Nicolae. The Committee also requests the Government to ensure respect of this principle in the future.
5. 893. With respect to the subsequent denial of the union President's access to the premises, the Committee observes that the union is representative in five of the six enterprises on the industrial platform; that while it was not able to present documents certifying the right to use the office space designated as its seat, there were documents showing that the union headquarters has been and is in one building of the industrial platform; that shortly after his dismissal, the mother company had ordered the prohibition of access of Mr Martin Nicolae in his capacity as president of a union, until establishment of an access programme; that on 8 June 2015, during the negotiations of his access to the premises, the President requested unrestricted access, and the enterprises on the industrial platform rejected the request signalling readiness to jointly establish a programme of access; and that the Territorial Labour Inspectorate issued a warning on 21 July 2015 for the restriction of union rights through the denial of access of the union president to the union premises but no further measures have been imposed although the situation remained unchanged. The Committee recalls that it has always held that trade union representatives who are not employed in the undertaking but whose trade union has members employed therein should be granted access to the undertaking. The granting of such facilities should not impair the efficient operation of the undertaking concerned. Moreover, the Committee reiterates that governments should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization (see Digest, op. cit., paras 1103 and 1105). In view of the above, the Committee considers that, regardless of his dismissal and the existence of other full-time union officials as highlighted by the enterprises on the platform, the President should have the right to access the premises of the undertaking where the union is operating to enable him to carry out his representation function; however, such right of access is not an absolute right but a right limited by the rights of property and management. In a similar case, the Committee has emphasized that access to the workplace should not of course be exercised to the detriment of the efficient functioning of the administration or public institutions concerned. Therefore, the workers’ organizations concerned and the employer should strive to reach agreements so that access to workplaces, during and outside working hours, should be granted to workers’ organizations without impairing the efficient functioning of the administration or the public institution concerned (see Digest, op. cit., para. 1109). The Committee therefore requests the Government and the complainant to intercede with the parties to ensure the expeditious establishment of a programme of access of Mr Martin Nicolae, as may be necessary for the proper exercise of his function as President, with due respect for the rights of property and management and without impairing the efficient operation of the undertaking concerned.
6. 894. As to the denounced request for dissolution of the union by the employer, the Committee observes that the mother company filed a motion for dissolution of the union with the court. The Committee emphasizes that the dissolution of a union ordered by the court on account of insufficient membership does not in itself constitute an infringement of freedom of association. The Committee notes that, under section 40(2) of the Social Dialogue Act, any third party may file a motion for union dissolution with the court on the basis of a request reasoning that the union no longer fulfils the minimum requirements for its constitution. In the absence of sufficient elements at its disposal to conclude that the action taken by the mother company amounts to anti-union harassment, the Committee requests the Government to provide a copy of the court decision on this matter once it has been issued.
7. 895. Concerning the suspension of two union leaders before a strike at one of the enterprises from the industrial platform, the Committee observes that the Government does not contest the allegations and argues that according to section 195(1) of the Social Dialogue Act, the individual labour contract of the employee is suspended by law for the whole duration of participation in the strike. The Committee notes however that the employment relationship of the trade union leaders was suspended already one day before the strike. Noting that labour inspection has not established any irregularities, the Committee must recall that no one should be penalized for carrying out or attempting to carry out a legitimate strike, and that it has previously emphasized that respect for the principles of freedom of association requires that workers should not be dismissed or refused re-employment on account of their having participated in a strike or other industrial action. It is irrelevant for these purposes whether the dismissal occurs during or after the strike. Logically, it should also be irrelevant that the dismissal takes place in advance of a strike, if the purpose of the dismissal is to impede or to penalize the exercise of the right to strike (see Digest, op. cit., paras 660 and 663). Noting that, moreover, the suspension prior to the strike was accompanied by a denial of access to the undertaking which made it impossible for the trade union leaders to pursue their legitimate trade union activities, the Committee considers that this measure amounts to a sanction of trade union activity and an act of anti-union discrimination, and requests the Government to take measures to ensure adequate compensation for the workers concerned and ensure full respect of the above principles in the future.
8. 896. With reference to the alleged display of discrediting communiques by the mother company against the Free Trade Union Plastor Orastie and by the company in Rimnicu Vilcea against the Free Trade Union “there accompanied, in the latter case, by alleged measures to promote the creation of new enterprise unions and fragment the union movement in the company, the Committee observes that these allegations have not been contested by the Government. The Committee wishes to recall that, in previous cases it has held that respect for the principles of freedom of association requires that employers should exercise restraint in relation to intervention in the internal affairs of trade unions; they should not, for example, do anything which might seem to favour one group within a union at the expense of another.. As to the Government’s reference to insolvency law according to which the bodies responsible in this case are the courts, the judicial administrators, etc. and that all claims and disputes related to the actions of participants in the procedure are judged according to the provisions of the Code of Civil Procedure, the Committee considers that freedom of association is a transcending and enabling right which should be guaranteed in all enterprises, whether public or private, including insolvent enterprises managed by judicial administrators in the framework of a bankruptcy procedure. Considering that the alleged acts, if proven true, amount to acts of interference contrary to the principles of freedom of association, the Committee trusts that the Government will fully ensure respect for this principle.