Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the information sent by the Government in reply to the previous comments of the International Confederation of Free Trade Unions (ICFTU) alleging several cases of anti-union discrimination, interference in trade union affairs and infringement of collective bargaining rights in practice in the public and private sectors.

The Committee recalls that the ICFTU comments related to the following specific issues.

1. Application of the Convention. The ICFTU alleged that many workers in state-owned enterprises in the health sector, water and forestry industries have had their employment contracts terminated and replaced by individual contracts. Consequently, such workers could no longer be trade union members and enjoy guarantees afforded by the Convention. Furthermore, according to the ICFTU, a fast growing trend was to fire employees and to hire them back as self-employed because such workers were not covered by collective agreements. Such practices were particularly prevalent in the transport, construction and public sectors.

The Committee notes the Government’s statement to the effect that, contrary to the ICFTU’s allegation, in the health sector, the regulations in force do not allow a simple replacement of an employment contract with a civil law contract. Pursuant to article 22(1) of the Labour Code, it is prohibited to replace an employment contract with a civil law contract, if the terms of job performance characteristics of an employment relationship are met. Thus, if an individual, being the former employee, is bound by a civil law contract with the former employer while performing work he or she performed previously under the employment contract and under the same conditions (same place and time of job performance, as well as the use of employer’s equipment), such situations should be treated as false self-employment.

2. Insufficient protection against anti-union discrimination. The ICFTU alleged that, while anti-union discrimination was prohibited under the current legislation, in practice Article 1 of the Convention was often violated. In particular, it alleged numerous cases where trade union members and officials were compelled to leave the union, transferred, dismissed or were paid less than other employees and did not receive bonuses granted to other colleagues. The ICFTU states that, according to the national labour inspectorate, the number of violations related to trade union rights was constantly increasing; the most frequent violations were changes in or the termination of labour contracts of trade union activists and their transfer to other positions. Furthermore, under the Labour Code, trade union officials were not sufficiently protected. The number of union officials protected from dismissal depended on the size of the union membership. In some instances, only one trade union representative could be protected from dismissal. Finally, while workers who had been summarily dismissed on disciplinary grounds were allowed to turn to labour courts, such procedures were long. In cases of unfair dismissal, it was often difficult to ensure reinstatement. Even when courts ordered reinstatement, such orders were often ignored by employers.

The Committee notes the Government’s statement that the legislation in force (Constitution, Labour Code and the Law on trade unions) prohibits anti-union discrimination against trade union leaders and members. With regard to trade union officials, the Government indicates that they cannot be dismissed or their conditions of work changed without an agreement of the union. This protection is afforded for the period of time specified in the resolution of the board of a trade union and, after that period, for an additional period corresponding to half of the period specified by the resolution, however, not longer than one year. The number of trade union leaders covered by the protection depends on whether the organization holds the status of a representative organization. For a representative trade union organization, the number of leaders covered by special protection depends on the number of trade union members. If a trade union does not hold the status of a representative organization, one employee indicated by this organization is protected. Protection also covers members of the founding committee of the trade union (not more than three persons) specified by a resolution of the founding committee. If no list of protected persons is provided by the union, the protection is granted to the chairperson of the union or the chairperson of its founding committee. The Government further indicates that a person whose rights were infringed has the right to be compensated. The minimum amount of compensation shall not be lower than the minimum wage/salary; the upper limit of compensation has not been fixed. Moreover, in cases of anti-union discrimination, the reinstatement, without loss of wages, shall be ordered by the court. With regard to the compliance with court orders of reinstatement, the Government indicates that the competence to verify whether an employer has complied with the decision lies with labour inspectors. Non-implementation of the court decision is a violation of workers’ rights and could potentially constitute a criminal offence under the Penal Code. If a labour inspector establishes such a violation, legal measures could be taken against the employer (fine, prosecution, etc).

While noting the explanations provided by the Government, the Committee regrets that no information was provided by the Government in respect of the specific alleged cases of anti-union discrimination (transfers, dismissals, etc.).

The Committee wishes to refer to the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos 2395 (see 344th Report, paragraph 191). It recalls its previous direct request wherein the Committee requested the Government to take all necessary measures, in consultation with the most representative employers’ and workers’ organizations, with a view to establishing procedures that are prompt, impartial and considered as such by the parties concerned, in order to ensure that trade union officials and members have the right to an effective remedy by the competent authorities for acts of anti-union discrimination. The Committee notes with regret that the Government merely reiterates its previous position according to which the legislation in force sufficiently protects the interests of trade union members and leaders against unjustified termination of employment and discrimination on account of trade union membership. The Committee once again recalls that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by speedy procedures to ensure that effective protection against such acts is guaranteed. The Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. The Committee observes that in the particular circumstances of this case, although the possibility to have recourse to penal procedures against those responsible for acts of anti-union discrimination would appear at first sight as a guarantee of protection, in the absence of appropriate institutional measures, the penal procedures might prove to be overly lengthy and complicated, precisely because of their penal nature; in such a case, the effective protection of workers is obstructed in practice.

The Committee notes the Government’s statement that, within the framework of the reform of the judiciary, several proposals to amend the Code of Civil Procedure were prepared to simplify the procedure, to shorten the proceedings and to increase efficiency of the judiciary. The reform will also concern the procedure in the field of labour law. The Committee therefore once again requests the Government to give consideration, in full consultation with the social partners concerned, to the establishment of prompt and impartial procedures, in order to ensure that trade union officials and members have the right to an effective remedy by the competent national tribunals for acts of anti-union discrimination and to keep it informed in this respect.

3. Violation of collective bargaining rights. The ICFTU alleged instances of employers’ refusal to negotiate collective agreements or to comply with them. The Committee observes that the Government failed to provide its observations thereon. It therefore once again requests the Government to provide information on the ICFTU comments.