2012 Annual Survey of Violations of Trade Union Rights - Romania

Population: 21,400,000
Capital: Bucharest

ILO Core Conventions Ratified:

29 (Forced Labour (1930))
87 (Freedom of Association and Protection of the Right to Organise (1948))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
138 (Minimum Age for Employment (1973))
182 (Worst Forms of Child Labour Convention (1999))

Reported Violations – 2012

Murders: none reported
Attempted Murders: none reported
Threats: none reported
Injuries: none reported
Arrests: none reported
Imprisonments: none reported
Dismissals: none reported

Documented violations – actual number of cases may be higher

Introduction

The government's reforms of the country's labour code and law on social dialogue have led to a dilution in the right to collective bargaining and generated considerable legal uncertainty. In addition, the consequences of previous austerity measures are still being felt by large swathes of the population.

Background

Following the tough austerity measures and large cuts in state spending of 2010, the economy witnessed growth in 2011 of around 2%, the budget deficit stood at 4.4% of GDP, with unemployment at around 7.3%. The government introduced changes to Labour Code and Law on Social Dialogue, diluting collective bargaining rights and weakening workers' employment rights; a situation that has caused serious concern within the trades union movement in Europe.

In November parliament decided to freeze wages and pensions in 2011.

Trade union rights in law

In 2011, the Labour Code was substantially amended and a new law on Social Dialogue was adopted. In this context, restrictions to trade union rights persist. Although the modification or termination of employment on the ground of union membership or activity is prohibited, the legislation does not seem to foresee sanctions in the case of violations. In addition, a minimum membership of 15 workers of the same enterprise is required to form a union. This may hinder representation of workers' interests by trade unions given that the big majority of Romanian companies have less than 10 employees. Furthermore, in order to be registered, trade unions have to follow a long and cumbersome procedure; workers exercising more than one occupational activity do not have the right to establish or join more than one trade union; state administrative bodies are afforded wide powers to control the economic and financial activity of trade unions; and public prosecutors and judges are not allowed to establish or join a union.

Trade union officials have by law a right to a shorter work schedule for trade union activities without loss of pay, but in a recent ruling, No. 1276/2010, the Constitutional Court declared this provision unconstitutional. The law also provides for sanctions for obstructing union activities; however, those sanctions cannot be applied in practice due to loopholes in the Penal Code.

A cumulative membership of at least 5% of the labour force and territorial structures in more than half of the national municipalities is required to be considered representative at the national level. A membership of at least 50% plus one of the workers of the enterprise is required to be recognised as a bargaining agent. Furthermore, in the public sector the following subjects are excluded from the scope of collective bargaining: base salaries, pay increases, allowances, bonuses and other staff entitlements which are fixed by law.

A lawful strike can only be called in defence of workers' economic interests, and compulsory arbitration can be imposed where a strike lasts more than 20 days. Should a court declare a strike illegal, the trade union has to pay damages and its leaders may be dismissed. A minimum service of one third of the normal activity must be provided in the event of a strike in a number of sectors, including public transportation.

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

Legal changes hamper union rights:

The Law on Social Dialogue, published in the Official Gazette on 10 May 2011, repealed all previous regulations on collective labour agreements and incorporated them under a single umbrella. The new bill restricts certain trade union rights and how social partners can organise. Changes have been introduced into collective bargaining, abolishing the previous national agreement relating to the 32 defined branches of the national economy. This decentralisation in collective bargaining has brought with it uncertainty as the government has not defined the economic sectors in which bargaining can take place. It has already had an impact in some disputes (see Tarom case below). Some commentators argue that collective bargaining has come to a standstill.

Changes to criteria for social partners' representativeness will also impact on unions. Under the previous law, 15 people working in the same economic branch or profession, albeit in different companies, were required before a trade union could be set up. Now, it takes 15 employees in the same company to establish a trade union. However, as 90% of Romanian companies have up to nine employees, representation of workers' interests by trade union will be out of the question.

Furthermore if a trade union is to be representative and allowed to negotiate a single-employer collective agreement, then at least half plus one of the company's workers have to be affiliated to it (compared to one third under the old law). Consequently, only one trade union may be deemed representative in one company, whereas under the previous legislation it was possible to have three such trade unions.

Despite, intensive consultations with the social partners before the Labour Code and Law on Social Dialogue were adopted and the unions' and the employers' organisations' rather common positions, the government disregarded them and assumed on its own the adoption of the legislation in spite of the social partners' opposition.

The changes of the social dialogue and labor legislation are affecting almost half of the Romanian workers, namely the public servants, i.e. almost 2 million employees out of the total 4.198.500 employees. The Labour Code amendment also seriously hinder and limits the collective bargaining process for public employees, as all the rights established through laws cannot be the object of collective bargaining.

Lack of clarity in new law fuels airline dispute: The Tarom National Technical Trade Union has reported that the management of the national airline, CN Tarom SA, has been refusing to negotiate with the union over a new contract despite the fact that it continues to represent workers. It is understood that the company may be using a gap created as a result of a new law, the Social Dialogue Act, to justify the action. New criteria have been introduced in how social partners represent workers and also to collective bargaining, but the government had not defined the sectors in which agreements can be signed.

Consequences of the implementation of the new legislation:

The new laws that changed the representativity criteria already generated great disturbances and abuses.

In SC Electrocentrale Braila SA (energy sector company), there were two unions, the Sindicatul Liber Productie CET representing 50% + 1 workers (800 workers – as required by the new legislations) and the Sindicatul Liber Productie CET Braila, a National Trade Union Bloc (BNS) affiliate representing 400 workers.

Problems arose when the larger union, the representative one, according to the new legislation, negotiated the collective agreement. This agreement should apply to all workers. But in practice Sindicatul Liber Productie CET stated that only its members could benefit from certain provisions included in the collective agreement. The other workers, members of the Sindicatul Liber Productie CET Braila, would only benefit from the provisions included in the individual work agreement, unless the smaller union transfer to the account of the representative one 60% of the collected dues. BNS filed a complaint with the National Council for the Prevention of Discrimination. The decision was still pending by the end of the year.

In September 2011, a similar situation occurred in another power production unit, in the Craiova region. In a company with several subsidiaries in different locations, the Sindicatul Energetic Craiova, a union of just one subsidiary but with a larger number of members (820 members), negotiated the collective agreement at company level.

However, only the members of this union could benefit from the provisions (besides the salary rights). The workers members of the other union, the Sindicatul Independent CET Craiova, affiliated to a BNS federation (780 members) can not have the same benefits. Furthermore, the employer deducts from the salaries only the dues for the members of the representative union, even though they should retain it for all the unions, according to the collective agreement.

Violations

National Agency for Integrity pursues union President:

Back in 2007 the National Agency for Integrity introduced the requirement for presidents and other senior union officials to file statements of assets and interests relating to any property acquired during the exercise of their mandates, as well as of any conflicts of interest. At the time the union confederation "Cartel Alfa" stated that this affected the independence and autonomy of trade unions and ultimately violated their freedom of association.

In April 2011 the agency requested from Cartel Alfa documentation relating to all mandates of its President, Bogdan Iuliu Hossu. Given that Mr Hossu has been President since 1990 a retrospective application of the law seemed to be taking place. In addition the request from the agency contained no grounds for the statements, as is required by law.

In an initial court case the in June 2011 the judge upheld the agency's request and ordered Cartel Alfa to pay a civil fine of 200 lei per day, starting from 7th April until the requested documents are received. An appeal was due to be heard in November.