Legal framework
In the end of the XIX-th century and the beginning of the XX –th century, Romania was faced to a complex process of changing.
Before the first world war, within the borders of the ancient kingdom, our country hadn’t developed to much the industry, which would have allowed the development of working class and the corresponding trade union organization.
In this condition, we could hardly talk about an “industrial legislation” as a term acknowledged by the juridical literature of that time, to provide regulation on industrial relations and guarantee the minimum wage, the freedom of association, the specific protection measures for work of women and children, although art.27 of the 1866’s Constitution guaranteed the association right and freedom of meeting.
The Unification of the country on December 1, 1918 had as a result the setting up and subsequently, for a certain period of time, the strengthening of the national unitary Romanian State and also a major influence on the economic and social potential of the country.
Romania was not any more an exclusively agricultural country; it also had industrial branches with a strong development trend and able to complete with the neighbors country’s industries having a multitude and a better organized working class.
In this context, the Parliament tried to draw out the legal framework required by the social and economic life, according to the international regulations which Romania was or was to be a party to.
The Law on the settlement of collective labour disputes, promulgated by the Decree no. 3703/September 4, 1920 and published in the Official Gazette no.122/September 5, 1920 was the first piece of legislation to meet these requirements, and it’s been subject to a lot of modification since then.
According to art.4 of this law, the collective cessation of the work on grounds related to work conditions, regardless the initiative, cannot take place before the fulfillment of a conciliation procedure, in which the workers’ representatives, the employers’ representatives and those of the Ministry of Labour should participate.
Under the provisions of art.14 and art.25 the 1920 law assimilated the collective labour contracts with the agreements reached through a conciliation and arbitration procedure in which the workers and the employers took part; thus, this first law of the Ministry of Labour regulated the collective agreements regime for 10 years.
The law of trade unions, promulgated by the Decree Regal no. 2207/April 27, 1921 and published in the Official Gazette no.41/May 26, 1921 was the second piece of legislation, meant to create the necessary framework in order to acquire the legal personality of the trade unions associations, which existed before but could not legally operate since they were not recognized.
According to art.1 in this law, which is similar to art.3 of the French law on trade unions, the professional trade unions have as a purpose the study, the defenses and the development of workers’ professional interests.
Finally, the Law on labour disputes, promulgated by the Decree no. 4558/December 31, 1929 together which the Regulation for its implementation, was published in the Official Gazette n. 15/January 20, 1930.
During the period of centrally planned economy (the socialist perioad) these laws have been abrogated, since the industrial relation could be only a social industrial relation regulated by the law (the Labour Code – Law no.10/1972), the piece of legislation being the main source of law stipulating the rights and the obligations of the employees as a consequence of performing a certain work.
After December 1989 and continued after the changes occurred in autumn 2000, the legislation needed to change at the level of new realities, and gave the employees the opportunity to uphold their claims formulated through specific means, out of which the starting of collective labour dispute, the work cessation and the strike have been often used.
A series of normative acts have been drawn up since 1989, namely the:
– Law no.13/1991, abrogated by the Law no.130/1996 on the collective labour agreements, and this was modified by the Law no.143/1997;
– Law no.14/1992 on salary;
– Law no.15/1992 on the settlement of collective disputes abrogated by Law no.168/1999;
– Law no.54/1991 on trade unions, abrogated by the Law no.54/2003;
– Law no 31/1991 for diminishing the duration of working time under 8 hours/day for the employees who wok particular, harmful, difficult or dangerous condition;
– Law no.6/1992 on paid holidays and other holidays of employees;
– Law no.130/1996 republished with many modifications in 1999, of collective bargaining;
– Law no.168/1999 of collective conflicts;
– Law no.365/2001, the employer’s law; and many other Governmental Decisions which transferred an important part of industrial relations regulation from the legal regulation field to collective bargaining (in present is in Parliament from 2006 a project for modifications, still in parliamentary debate).
– Law no.53/2003-Labour Code, who suffered many modifications until present.
The Law of settlement of collective labour disputes (no.15/1991) came into force on February 11, 1991 when a massive strike of railway workers from Iasi and Timisoara took place, paralyzing the local transportation and causing incalculable damages to the national economy.
In this context, some trade unions were, from the beginning, hostile to the respective law, although its draft was discussed and debated between the Government and the trade unions for a long time.
Presenting briefly the Law on settlement of collective labour disputes, that drafts has been processed out after consultations with the experts of the International Labour Office and, as we have already mentioned, with trade unions.
Between 1991 and 1997, different issues concerning the collective industrial relations were subjects to dialogue between trade unions and employers, even if it wasn’t used very often. We should stress that the claims of the employees presented by the trade unions have not been legitimated and accepted by the employers’ organization all the times.
During this period of time, the absence of social dialogue had also certain undesirable results; this is the situation of some labour disputes which have been turned, in several cases, into strike.
A analyze of collective labour disputes occurred until 1991 to this moment should start from the following three remarks:
- the intensification of the tripartite dialogue, which had as a result the drawing up of the Law on institutionalization of this dialogue, being proposed the setting up of Social and Economic Council as a body with important task in mediating the social conflicts and improving the current legal framework in this field (Law no.109/July 2, 1997 on the organization and operation of Social and Economic Council). Another consultative corps is the Social Dialogue Commissions; organize at beginning just in some ministry, after in all ministry and prefectures.
- The maturation of trade union movement, generated by certain specific economic difficulties during the transition period and the amplification of certain ways of protest which have not been coordinated and led by trade unions, having as result several so-called “spontaneous strikes” or “spontaneous revolts” which infringed the legislation in force.
- The particular political –economical context of this period.
Analyzing the statistical data, one can see that the economic difficulties to the transition period and their social effects couldn’t be influenced correspondingly neither by the social protection measures adopted now by the existing means for disputes settlement, provided by labour legislation. In other way during the electoral’s year trade unions action appear that are more intense.
In the above diagram I presented the number of collective labour disputes, declared and registered by Ministry of Labour and National Institute of Statistics.
I think is important to specific that, in reality, there were many other actions by the trade unions or by the employees, but they failed to comply with the conditions stipulated by the Law no.15/1992 and after wards by the Law no.168/1999 (they had other object that the one stipulated by the Law or they didn’t follow the procedure required) being not covered by the statistical data presented above. So in this case statistical imagine are just a first contact with reality but not the all imagine of this.
At the same time, I specify that the number of registered disputes in 1991 refers to those which took place after the adaptation of the Law nr.15/1991 (February, 11) considered at been the first period, until 1999 and the Law no.168/1999 when begin a new period, it has been organized an information and index system in the labour disputes field which has been improved in time.
From a brief analyze of social and economic reality, one can see that the number and the magnitude of the collective labour disputes have decreased since the enforcement of Law: from 216 disputes in 1991 to 195 in 1992; after that the number increased again reaching at 384 disputes in 1994 decreased gradually to 319 in 1995, 285 in 1996 and 260 in 1997; after that the number increased again at 352 in 1998 reaching a maximum of 653 in 1999, the top number for all the period, when it begins to constant decreased from 1999 to 2009.
In order to complete the analyze I included an additional indicator to the number of disputes, namely the “number of employees participating in the collective labour disputes”.
The evaluation of the indicator is quite similar to the evaluation of the first one (number of disputes), reaching a maximum in 1999-2000.
II CONCILIATION PROCEDURES
As the above data show have been registered 4.042 collective labour disputes between 1992 and 2009, in which were involved more than 7,5 million employees (the registered until 2009 is 7.508.110 employees).
The analysis of the above data underlines, in principle, the efficiency of the current collective labour disputes settlement system which, by its own definition, acknowledges not only the right to strike but also regulates some preliminary procedures meant to analyze the claims and to have as final result the complete or partial settlement of an important number of collective labour disputes before they become acute and the strike start.
It should be also stressed that the number of disputes witch have not been settled is high enough, keeping the disputes in a latent situation, without taking into account the disputes witch have been only partially settles and which can also generate sometimes different types of strike.
Also, in order to improve the mechanism of labour disputes settlement, there was the version of Law no.15/1991 abrogated by the Law 168/1999 in witch was introduced of certain mediation mechanism as well as the reconsideration of arbitration procedure. Introductions of these procedures (mediation and arbitration) within the mechanisms of labour settlement improve and make more effective the whole system.
Concerning the procedure of labour disputes settlement, the law provides two different levels of conciliation:
CONCILIATION provided by Art.14-16 of the Law no.168/1999
In all the cases when there are conditions for starting a labour dispute within an enterprise, the trade union body or, if there is no trade union body, the elected representatives of the employees shall notify the management of the enterprise about this situation.
The notification shall be made in writing, presenting the claims of the employees including their reasons as well as settlement proposals and the management of the enterprise is obliged to receive and to register it.
The discussions between the trade unions and the employers shall be registered in a minute.
The employer is compelled to answer in writing to the trade union body or to the representatives or the employees within 48 hours since the receipt of the notification, presenting his point of view for each one of the formulated claims.
If the employer has not answered to all the formulated claims or, although he replied, no consensus has been reached, the collective labour disputes shall be considered as started and the procedure goes on to the level of conciliation.
Conciliation organized by the Ministry of Labour at the conflict of interests
If a conflict of interests starts, after fulfilling conciliation procedure, the trade union or the representatives or the employees shall notify the ministry through its local body, the territorial directorates of labour, now part of the social benefits territorial agency, in order to continue the conciliation.
The notification, in two copies, is also submitted in writing and includes the date and the signatures; it shall also include at least the following information:
– the enterprise in which the conflict of interests occurred (indicating also the seat, the name of director and his phone number);
– the object of the conflict of interests (the claims)
– the proof that the requirements of the direct conciliation have been fulfilled;
– the indication of the persons delegated to represent the parties to conciliation.
Within 24 hours since the registration of the notification, the Ministry of Labour gives a registration number to dispute and designates its delegate who shall participate in the conciliation, of the labour dispute; the delegate must take the following measures:
a) to communicate the notification to the manager of enterprise within 48 hours from his/her designation;
b) to settle the conciliation day and to convoke the parties within seven days since the registration of notification.
The trade unions or the employees, as the case maybe, as well as the employers shall elect their delegations consisting of two to five persons providing then with a written authorization in order to participate in the conciliation.
The conciliation procedure shall be completed on day settled for conciliation, excepting the cases when the parties have mutually agreed on its continuation.
The role of Ministry of Labour’s delegate is limited enough by the law. He verifies the powers of the parties and persuades them to act for reaching an agreement.
I deem that the opportunities to influence the parties and to settle the dispute are also limited due to limited competencies of Ministry of Labour’s delegate stipulated by law.
I mention that there is a number of 2-3 employees specialized in settlement of collective labour disputes in each county; these employees came mainly fro the labour legislation and remuneration offices. Unlike the employees’ delegates, who were trained in the county and abroad with the updated techniques and methods of conciliation, the employers’ delegates and especially the delegates of the Ministry of Labour attend, only in several cases, such training courses. Many of those who attended such courses aboard left the legislation offices or requested their transfer.
The single utilized training opportunity was a regional share of experience, I which the problem of collective labour disputes settlement was only indirectly debated, such kind of meeting were rarely organized.
A strike could be declared only if all the possibilities for settlement the collective labour disputes through the above mentioned procedures have been used and if the starting date has been notified to the management board by the organizers with 48 hours before.
ARBITRATION
Arbitration as a method for collective labour disputes settlement, has been rarely used since the present of the Law no.168/1999.
The most arbitration procedures took place in 1991 by implementing the previsions of art.10 of Law no.14/1991, which stipulated that “if, on the occasion of wage negotiations for 1991, occur divergence which cannot be settled within thirty calendar days, the system of arbitration regulated by the Law no.15/1991 shall apply”.
In reality, after the end of 1991, year when 10 arbitration procedures took place, in the following years their number was insignificant, and uses the arbitration only if these are a strike. By the end of the year 2009 took place 2.
The Law 168/1999 considered arbitration like a way to stopped a conflict, but give the parties the alternative to used or not used this facultative method.
In last time this procedure became more known, for example in 2009 was 1 arbitration, which finished the interest conflicts.
If the strike exceeded 20 days and the involved parties have not reached an agreement and if the continuation of the continuation of the strike could affect the national interests or certain humanitarian interests, the Ministry of Labour can request the settlement of strike by an a arbitration commission composed by three arbitrators. Every year, the Ministry of Labour issued an order in which have been nominated the arbitrators out of the specialists in the economic, juridical, technical field as well as from other profession, after consultation with the trade unions and the employer’s organizations.
MEDIATION
In the situation in which the conflict of interest was not been settled by conciliation procedure, organized Ministry of Labour, the trade unions and employers in agreement can to initiate the mediation procedure.
The Law no.168/199 in art.28 specifies that the mediation procedure is established in National collective Labour agreement.
If both parties accept to use the mediation procedure in 48 hours they meet to choose the mediator from the list of mediators appointed by Ministry of Labour through its local body, the DDSSF. In this way, bout mediation labour conflicts, if the parts are agree to start mediation, in 48 hours, every part will propose a mediator list from the mediators named by the ministry of labour, at the level at aria where it have address.
If the parts don’t set of a commune mediator at the first meeting, the procedure is stopped. In the case the part set of a commune mediator they follow the next steps:
They established the mediator by convenient.
In maximum 8 days the mediator is obligated to call both parts. The employers and trade unions will have an equal number of participants.
. The parts are obligated to put all the dates are necessary in 48 hours. If the mediator is not clear about that, he can solicit any utile information, in max. 72 hours from receipt the case.
The mediation can’t last more then 30 days from receipt the case. In other case the mediation are finishes and pass at the next level.
The mediators came mainly from the labour legislation and remuneration offices, from trade unions, and employers’ local organization, which were not trained with updates techniques and methods of mediation.
The Strike
Totally of strike from 1992 to 2009 was 345 strike, with 6.691.745 strikers, 4.089.297 man/day not working , and the media of days not worked by striker is 2,04. As years average means 20,2 strikes/year, and 393.632 stikers under the many EU states.
Filed under: Analize juridice, Politica | Tagged: conciliation, evolution of legislation, labour conflicts, mediation, Romania's strike, strike |
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