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.
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Conventional unit of fine is equal to 20 MLD
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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.
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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:
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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.
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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.
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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
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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”.
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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
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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
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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.
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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
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