Unofficial translation Article 22 of ILO Constitution Report for the period from 12 August 2010 till 12 August 2014 relatively to Convention, No. 98 (1949) concerning the application of the Principles of the Right to Organize and to Bargain Collectively (Ratified by the Decision of the Parliament of the Republic of Moldova no.593 – XIII of September 1995) In addition to the previous report on the application of Convention no.98, note that during the reporting period the coercive framework was improved, given to make sure the compliance with labour legislation, including the right of employees to associate in trade unions and to conduct union activities. On 11 October 2013 the Law no. 233 on amending and supplementing the Contravention Code of the Republic of Moldova was approved, by which was modified the Art.61 of Contravention Code which sets the responsibility for preventing to enjoy the right to found trade unions and to join them. Previously, the article 61provided a unique sanction applied from 40 to 50 conventional units1, but after modification this sanction will be applied only to natural persons, the persons with responsible functions being punished by a fine from 50 to 70 conventional units. While the Article 61 of Contravention Code establishes penalties for preventing the exercise of the right to associate in trade unions, preventing the legal work of already established trade unions is falling under article 55 of the Code (“Violation of labour legislation and legislation on safety and health at work”). The article 55 was also modified during the reporting period - due to the adoption of the Law no. 169 of July, 11, 2012 on Amending and supplementing certain legislative acts, this was newly formulated, with tightening of the respective sanctions. 1 Conventional unit of fine is equal to 20 MLD 1 Thus, according to art.55 of Contravention Code of the current wording, the violation of the labour legislation, of the legislation on safety and health, shall be punished by a fine from 100 to 140 (previously from 40 to 50) conventional units applied for natural persons, by a fine from 200 to 350 (previously from 50 to 75) conventional units applied to persons with responsible functions, by a fine from 350 to 450 (previously from 80 to 120) conventional units applied for legal persons. In the light of the above, we note that the Ministry of Labour, Social Protection and Family has recently drafted a law, providing for complimenting the Contravention Code by a new Article - nr. 611 , establishing liability in the form of legal penalties, for interfering in the legal activities of trade unions and other representatives of employees. The draft law would be sent soon for approval to interested institutions and, in case of approval, it will enhance the protection degree of employees, defining and sanctioning separately the interference in the union’s activity. During the reporting period, trade unions and employers have continued participating in the process of approval of all drafts of normative acts related to socio-economic field, as well as to negotiating collective agreements at various levels. Thus, throughout this period between the social partners (Government, National Confederation of Trade Unions and National Confederation of Employers) were negotiated and concluded 4 collective conventions at the national level. 1) Collective Convention (national level) no. 11 of 28 March 2012 “On the criteria of mass reduction of jobs”, 2) Collective Convention (national level) no. 12 of 9 July 2012 “On the registration form of the staff and the nominal permit of the access to work”, 3) Collective Convention (national level) no. 13 of 9 July 2012 “On approval of completions operated in the collective Convention (national level) no.4 of 25 July 2005 on “ The model of individual employment contract”, 4) Collective Convention (national level) no. 14 of 22 November 2014 “On approval of the amendments and supplements being operated in the Collective Convention (national level) no.8 of July 12, 2007, “On elimination of the worst forms of the child labour”. In 2010, on branch and territorial level, 18 collective conventions were concluded, in 2011- 10, in 2012 – 10, in 2013 – 14, and in the first semester of 2014 -2. On the unit level, according to data provided by Sate Labour Inspectorate, in 2010 were concluded 942 collective labour contracts, 1127 -in 2011, 1138 – in 2012, in 2013 – 993, and in the first 4 months of 2014 – 377. 2 According to the courts’ decisions, the cases related to violation of the right to organize and the right to collective bargaining are rarely examined (1-3 cases over several years). For example, we submit you a copy of the final decision in the case “Unions versus State Air Company “Air Moldova” on the refusal of employer to negotiate the collective labour contract and to appoint its members in the committee for social dialog “employeremployee” (see attached). Please note as well, that currently at the court of Rîșcani sector, of Chișinău are pending several contravention cases, filed against the enterprise “Monolit Construct” SLR, on violation of trade union rights and other labour rights. Based on the complaint of the employees of the “Monolit Construct”, in the period December 2013 – March 2014, State Labour Inspectorate has conducted several checks at the concerned enterprise, finding inter alia the following violations: The employer precludes the rights of employees to associate in trade unions, neglecting the existence of new created trade union and intimidating the employees in order to determine them to get out of it (acts, by which are violated the provisions of Article 26 paragraph(2) and Article 27 paragraph (6) of Labour Code, and article 15 of the Law on Trade Unions); The employer has not proceeded to collective bargaining for the purpose of concluding the collective labour contract, leaving without consideration the employees’ application, submitted in written form, (act by which the provisions of article 26 paragraph (2) of Labour Code have been infringed); The employer doesn’t carry out the collection of the union contributions from the union members, and doesn’t transfer them to the accounts of appropriate trade unions (by which are infringed the provisions of Article 390 of the Labour Code and Article 35 paragraph(6) of the Law on Trade Unions); Following the check-ins carried out, there were made minutes of findings and issued prescriptions to eliminate the detected infringements. The enterprise’s management had not complied with the requirements of the Inspectorate, the minutes of the offences were later on sent to be examined by the court of Râșcani sector from Chișinău. So far, the contravention case in the first instance has been examined, started because of labour legislation infringement (art. 55 of Contravention Code). Based on court decision, the enterprise “Monolit – Construct” was applied a fine in the amount of 7000 MDL for a series of infringements, including non - collection of union contributions from trade union members. The other cases are still pending. Additionally, to your request, please note the following: 3 Voluntarily arbitration By law no. 168 of July 9, 2010, from the Article 359 paragraph (2) of Labour Code was excluded out the text “within 3 calendar days from onset of collective labour conflict”. In this context, we remind that according to Article 59 paragraph (2) of the Labour Code in the former wording, the deadline of three days was foreseen for the creation of the counselling commission, which suggested the idea of compulsory setting of the commission concerned. In the context of above mentioned subject, please note also that currently a tripartite working group carries out its activity (with the participation of the representatives of Government, Trade Unions, Employers), which works for the development of the draft law on amiable settlement of collective labour disputes. The draft will establish in detail the procedure of solving the concerned conflict, including the possibility to appeal to a court of arbitration at the request of all parties. The copies of this report were submitted to the National Confederation of Trade Unions of Republic of Moldova and the National Confederation of Employers of Republic of Moldova. 4 Unofficial translation Appendix First instance: E. Silivestru dossier no. 2ra- 1115/12 Appeal instance: N.Vascan, V. Bogoroş, A. Pahopol DECISION July 11, 2012 Chisinau municipality Civil, commercial and administrative Broad College of the Supreme Court Composed by: Presiding, Judges Ala Cobăneanu Sveatoslav Moldovanu Valentin Barba Valeriu Arhip Iurie Bejenaru Examination in public hearing of the "Air Moldova" appeal on civil demand, in the summons filed, submitted by the Primary Trade Union Organization of Aircraft Commanders within "Air Moldova”, the Primary Trade Union Organization of co-pilots within "Air Moldova" and the Union of Flight Crews Members against “Air Moldova", in order to begin collective bargaining and to appoint the members of the committee for social dialogue "employer - employee" to conclude the collective labour contract, against the decision of the Court of Appeal of December 7, 2011, by which the appeal of "Air Moldova" was rejected and maintained the decision of Botanica Court, of Chisinau municipality, of 2 June 2011, by which the action was partially upheld. FINDS: On April 19, 2010 the Primary Trade Union Organization of Aircraft Commanders within "Air Moldova", the Primary Trade Union Organization of the co-pilots within "Air Moldova" and the Union of Flight Crew Members have requested for summons against "Air Moldova" in order to compel to begin collective bargaining and to appoint its members of the committee for social dialogue - "employer - employee", to conclude the Collective labour contract. 5 In motivating the action, was alleged that on September 17, 2010, by primary trade union organizations of aircraft commanders and co-pilots within "Air Moldova" against the defendant, was raddresed the proposal to initiate collective bargaining for drafting and conclusion of collective labour contract for regulating the labour relations between employers and employees – the members of these unions, and proposed as the Committee meetings to be held every Thursday, starting October 21, 2010. It also, alleges that contrary to the provisions of Articles 26, 27 of Labour Code, “Air Moldova” has not appointed within 7 days the members of the committee for social dialog. Moreover, there has been rejected the proposal of the applicants – which is inadmissible according to the legislation. The applicants consider, that the motivation for refusal, consisting in the fact that the bargaining procedure is already carried out with another trade union, is ungrounded, or according to the legislation into force, it is not prohibited the existence either of several trade unions or more collective labour contracts within the same unit. It is mentioned that the law doesn’t require the necessary creation of a unified committee on social dialogue by trade unions, each having the right to carry on talks in part, as well as to choose on their own the tactics and methods to protect the rights and interests of employees who are its members, and the provisions mentioning the possibility to create a single committee is foreseen only for the negotiation of collective convention and don’t bind over the negotiations within the unit. In the request for summons, is mentioned as well, that as a result of the refusal, in accordance with Articles 26, 27, 358 of Labour Code, considering the premises of a collective labour dispute, the plaintiffs have submitted claims asking for the appointment of the representative of the defendant in the Committee for social dialogue – ”employeremployee”, in order to initiate the talks on a collective labour contract regulating the labour relations between the employer and employees- members of the trade unions they represent. In accordance with the Article 359 of Labour Code, in case of unmet claims or the lack of response within 5 days to the request of primary trade union organizations, has been stated the existence of the collective labour dispute, the trade unions, within the joint meeting of October 28, 2010, decided to create the conciliation committee on November 4, 2010, hour 2 p.m., within the library ASAC. Being informed on place, date and hour of the conciliation committee, on November 4, 2010, the defendant was absent, but, by response of 03. 11. 2010, he was perplexed towards the requirement of the trade union, with regard to the existence of premise for collective labour conflict. By the decision of Botanica Court, Chisinau municipality, from June 2, 2011, the action of the applicants of the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the co-pilots within "Air Moldova" was allowed, and the action of the Union of Flight Crews Members was rejected. “Air Moldova” pledged to begin collective bargaining with the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and with the Primary Trade Union Organization of the co-pilots within "Air Moldova" and to appoint its members in the 6 committee of social dialogue “ employer-employee”, for concluding the collective labour contract. By the decision of the Court of Appeal of December 7, 2011, the declared appeals were rejected by “Air Moldova” and the decision of the first instance was kept on. On February 13, 2012, “Air Moldova” came up with an appeal against the decision of the Court of Appeal, seeking its acceptance, quashing the decision of the Appeal Instance and the decision of the First Instance to issue a new decision on the rejection of the action. Grounded on the appeal, it was raised the disagreement with the decisions of the Courts, considering them illegal, based on the proposal of the Trade Union Committee of “Air Moldova” for initiation the talks of concluding the collective labour contract, was issued the order no.52 of August 2, 2010, by which was created the Committee for social dialogue “employer – employee” to carry on the collective bargaining for complementing and supplementing the collective labour contract. Later, on September 20, 2010, in the address of the “Air Moldova” arose the proposal from two trade unions within “Air Moldova”, the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the co-pilots within "Air Moldova", to initiate the bargaining of the Collective labour contract. The appellant also points out that, by order no. 63 of 22 September, 2010 was amended the order no. 52 of August 2, 2010, completing the committee for social dialogue “employer – employee” with the representative, Vladimir Petraș - the president of the branch Trade Union Committee of Flight Crews Members, proposed by the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the co-pilots within "Air Moldova". Therewith, by letter no. 2709/02 of 21 September, 2010, “Air Moldova” informed the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the co-pilots within "Air Moldova”, about starting the collective bargaining on drafting and concluding the collective labour contract, simultaneously letting them know the date, hour and place of the next meeting of the committee for social dialogue “ employer- employee”, to be held on 6 October, 2010. Thus, in accordance with the legislation into force, “Air Moldova” accepted to start the talks in order to develop and conclude the Collective labour contract with two trade unions within “Air Moldova” - the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the copilots within "Air Moldova”, but, for unknown reasons, the representatives of the two trade unions were absent. In the appeal is also indicated, that “Air Moldova” has integrally fulfilled the Labour Code requirements and of the decision no.9 of the National Committee for consultations and collective bargaining, of May 18, 2007, on Creation of the Committee on Bargaining, Conclusion and Implementation of the Collective Contract within “Air Moldova” and on starting the talks of collective labour contract, based on the proposal of the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the co-pilots within "Air Moldova”. 7 In the end, the recurrent points out, that the courts have wrongly interpreted and implemented the Article 30 of the Labour Code, point 4 of the ILO Convention no. 98/1949 on the Application of principles of right to organize and collective bargaining, and the Decision no. 9 of the National Committee for consultations and collective bargaining, of May 18, 2007. The representative of recurrent “Air Moldova” – Adrian Racu, within the hearing of the court of appeal, had supported the appeal, requiring for its acceptance, quashing court decisions and issuing a new decision on the rejection of the action. The representatives of the appellants - the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova”, the Primary Trade Union Organization of the co-pilots within "Air Moldova” and the Trade Union of Flight Crews Members, legally informed and summoned about the place, date and time of the hearing in the appeal court, by a registered letter and the acknowledgment of receipt, have not been present. In accordance with Article 444, paragraph (2) CCP, the appeal trial is done with the summoning of parties. Their absence does not exempt or impede the examination of the appeal. Hearing the recurrent’s representative, studying the dossier’s files, the Civil Commercial and Administrative enlarged College of the Supreme Court of Justice finds necessarily to uphold the appeal, to quash the decision of appeal instance and the decision of the first instance issuing a new decision on the rejection of action because of the following considerations: In accordance with the article 445 paragraph (1) letter b) CCP, the court after hearing the appeal, has the right to accept the appeal and to quash integrally or partially the decision of the appeal court and the decision of the first instance, issuing a new decision. From the dossier’s files, it concludes that, examining the case which has as subject of dispute the obligation to begin collective bargaining and to appoint its members within the committee for social dialogue “employer- employee”, in the view of developing and concluding the collective labour contract, the first instance concluded about the merits of action, imposing upon “Air Moldova” to start collective negotiations with the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the co-pilots within "Air Moldova” and to appoint its members within the committee for social dialogue “employer-employee” in order to develop and conclude the collective labour contract and the same request from the Trade Union of Flight Crews Members was rejected, decision which was kept as well by the appeal instance. In supporting this decision the courts referred that the plaintiffs-apellants, as subject of social partnership relations and collective bargaining at unity level – of State Airline Company “Air Moldova” and the fact that the law doesn’t prohibit the existence of either several trade union organizations or several collective labour contracts concluded within the same unit and doesn’t foresee the necessity to create a unified committee for dialogue from the primary trade union organizations, each having the right to bargain separately, as well as to choose the tactics of their own and ways of protection of the rights and interests of their own employees and members. However, the appeal instance finds that the in the settlement of the case, being fully established the circumstances which are important for judging the merits of the case, the 8 findings of the courts and the solutions given, for partial admission of the action are incorrect, a fact which results from misinterpretation of the Labour Code provisions and provisions of article 4 of Convention no.98/1949 on the implementation of the principles of the right to organize and bargain collectively, ratified on September 26, 1995. Thus, according to Article 26 of the Labour Code, the representatives of the employees’ and employers’ organizations have the right to initiate and to be involved in collective bargaining for conclusion, completion and supplementing the collective labour contracts or the collective conventions. The representatives of the parties, notified in written form on the proposal for starting bargaining, are obliged to commence it within 7 days from the date of approval. In accordance with the provisions of article 27 paragraph (4) of the Labour Code, the right to participate in collective bargaining and sign collective conventions at national, branch or territorial level on behalf of the employees, belongs to the appropriate trade unions (union associations). In cases, when there are several trade union bodies on national, branch or territorial level, a single representative body is created, to carry on collective bargaining, elaborate the draft collective convention and its conclusion. The creation of the representative body is done on the basis of proportional representation of trade unions, according to the number of the trade union members. In the absence of an agreement on the creation of a single representative body for organization of the collective bargaining, the right to carry them on will be attributed on the trade union (union association), which has the highest number of members. Taking into consideration the above mentioned rule for the case, it is stated that on the basis of the proposal of the “Air Moldova” Union Committee to initiate collective bargaining on drafting and conclusion of the Collective labour contract, the decision no. 52 of August 2, 2010 was issued, by which was created the committee on social dialogue “employer-employee” to carry on collective bargaining in order to alter and supplement the collective labour contract (d.f.22). On September 17, 2010 by the Primary Trade Union Organizations of Aircraft Commanders and co-pilots within “Air Moldova”, to the recurrent was submitted the proposal to initiate collective bargaining in order to develop and conclude the collective labour contract (d.f.4) to regulate labour relations between the employer and employees – members of these unions and proposed the committee meetings to be held every Thursday, beginning with October 21, 2010. In response to the proposal of the Primary Trade Union Organizations of Aircraft Commanders and co-pilots within “Air Moldova”, by decision no.63 of September 22, 2010, on amending the Decision no. 52 of 02.08.2010, “Air Moldova” has completed the committee on social dialogue “employer – employees” with the representative proposed by the Primary Trade Union Organizations of Aircraft Commanders and co-pilots within “Air Moldova”, Vladimir Petraş – the chairman of the committee of the branch union Flight Crews Members. In this regard, the Civil, commercial and administrative Enlarged College of Supreme Court of Justice finds that according to the information provided by “Air Moldova” (d.f. 43), within “Air Moldova”, three primary trade unions were established, which have a certain number of members – employees: The primary Trade Union Organization of Aircraft 9 Commanders within “Air Moldova” has 2 members; the Primary Trade Union Organization of the co-pilots within "Air Moldova” has 2 members and Trade Union organization “Air Moldova” – 253 members. Hence, in case when there are several trade union bodies in the unit, in accordance with the provisions of article 27, paragraph 4 of LC of RM, a single representative body is set in order to develop collective negotiations, draft and conclude collective conventions. Setting of the representative body is done on the basis of proportional representation of trade union bodies depending on the number of union members. In the absence of an agreement on the establishment of the single representative body to organize collective bargaining, the right to carry them on will be taken by the union (union association), which has the highest number of members. Thus, the labour legislation expressly provides for that only one collective labour contract is concluded per unit as a whole, which extends to all employees. However, the decision no. 9 of the National Committee on consultations and collective bargaining of May 18, 2007, states that for the bargaining, concluding and implementing the collective contract on unity level, is set out a body of social partnership – the Committee for social dialogue “employer – employee” which is established on parity principles, made of the representatives of employer and the unit trade union body, or the representatives of the employees are elected. According to article 30 of the Labour Code, the collective labour contract is the legal document which regulates the labour relations and other social relations within the unit, concluded in written form, between the employees’ and employer’s representatives. The notion of the word “collective” by itself denotes the fact that this legal act is unique and extends to all employees of enterprise, regardless of their membership to any trade union. The hierarchal inferior courts concluded, ungrounded, that the law doesn’t prohibit the existence of more labour contracts within the same unit and does not require the necessity to establish a joint committee of primary trade union organizations. It should be noted that the law doesn’t oblige the employer to bargain separately with each union body, and neither party can be forced to choose how to participate to collective bargaining, which way the courts have wrongly interpreted and applied the article 30 of the Labour Code of the Republic of Moldova, p.4 of ILO Convention 98/1949 on the application of the principles and the right to organize and collective bargaining and decision no.9 of National Committee on consultations and collective bargaining of May 18, 2007. Setting such findings, being sure that the circumstances of case have been found out by the hierarchical inferior courts, being unnecessary the additional check of any evidences, the Civil, commercial and administrative Enlarged College of Supreme Court of Justice concluded to accept the appeal declared by “Air Moldova”, to quash the decision of the Appeal instance and the decision of the first instance and to issue a new decision, by which to reject the appeal submitted by the primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the copilots within "Air Moldova”, against “ Air Moldova”, concerning the obligation to start collective bargaining and the appointments of its members in the Committee for social dialogue - “employer-employees”, in the view of concluding the collective labour contract. 10 As regards the requirements of the Trade Union of Flight Crews Members, the College considers that the inferior instances have correctly stated that this union hasn’t the quality of primary trade union and cannot be part of the Collective labour contract, therefore, it cannot pretend the collective bargaining for the purpose of concluding the collective labour contract, and that the requirements submitted were correctly rejected, a judgment, which in this part was not attacked, neither appealed by the Union of Flight Crews Members. For these reasons, the judgment of the first instance and the decision of appeal instance, in this part, would be maintained. In accordance with Article 419, Article 445, paragraph (1) letter b) CPC, the Civil, commercial and administrative Enlarged College of the Supreme Court of Justice. DECIDES: The appeal declared by “Air Moldova” is admitted. The decision of Court of Appeal, of Chișinău, of December 7, 2011, is quashes and the decision of Botanica Court, municipality of Chișinău, of June 2, 2011, on civil case on the summons submitted by the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the co-pilots within "Air Moldova”, against “Air Moldova”, obliging “Air Moldova” to start collective bargaining with the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the co-pilots within "Air Moldova” and to appoint its members in the committee for social dialogue “ employer – employee” in order to conclude the Collective Labour Contract, and issue a new decision by which: The case submitted by the Primary Trade Union Organization of Aircraft Commanders within “Air Moldova” and the Primary Trade Union Organization of the copilots within "Air Moldova” against “Air Moldova” on the obligation to begin collective bargaining and to appoint its members in the committee for social dialogue vs “employer – employee”, aimed at concluding the collective labour contract, is rejected, as ungrounded. Further, the decision of the Court of Appeal of Chișinău municipality, of December 7, 2011, is kept without changes. The decision is irrevocable from its pronouncement. President of hearing, judge Ala Cobăneanu Judges Sveatoslav Moldovanu Valentin Barba Valeriu Arhip Iurie Bejenaru The copy corresponds to original Judge specialist 11