Limitation of the right to strike for certain categories of employees - constitutional (complaint 62a/2017)

On 7 November 2017 the Constitutional Court delivered the judgement on the constitutional review of Article 369 paras. (2), (3) and (4) of the Labour Code, Article 21 paras. (2) and (3) of the Code on Railway Transportation and the Government Decision no. 656 of 11 June 2004 on the approval of the Nomenclature of Units, Sectors and Services whose employees cannot take part in strike (complaint 62a/2017).

Circumstances of the case

The case originated in the complaint lodged with the Constitutional Court by the People's Advocate Mr Mihail Cotorobai on the constitutionality review of certain provisions regarding the exercise of the right to strike.

The author claims that the challenged provisions prohibiting the right to strike for certain categories of employees are in essence contrary to the provisions of Articles 16, 45 and 54 of the Constitution.

The Constitutional Court ruled on the complaint in the following composition:

Mr Tudor PANȚÎRU, Chairman, 

Mr Aurel BĂIEȘU,

Mr Igor DOLEA,

Mrs Victoria IFTODI,

Mr Victor POPA,

Mr Veaceslav ZAPOROJAN, justices 

Conclusions of the Court

Having heard the reasoning of the parties and having examined the materials of the casefiles, the Court held that the right to strike was enshrined by the constituent legislator in Article 45 par. (1) of the Constitution that provides that strikes may be unleashed only with the view of protecting the economic, social and professional interests of employees.

Moreover, para. (2) of Article 45 states that the law shall set forth the conditions governing the exercise of the right to strike, as well as the responsibility for illegal unleash of strikes.

The Court held that, like other „conditional" rights, the right to strike does not entail an absolute character. It may be restricted under Article 54 of the Constitution in view of protecting important values for the functioning of the rule of law.

Furthermore, the European Social Charter (revised) admits restrictions in this regard, in order to respect the rights and freedoms of others, or to protect public order, national security, public health or good morals.

The Court noted that the challenged provisions of the Labour Code and the Code on Railway Transportation introduce a limitation in the exercise of the right to strike for employees working in areas related to healthcare, energy and water supply as well as continuous flow units; telecommunication system, air traffic, bodies ensuring the defence system, public and legal order, as well as some categories of employees within public authorities.

The Court held that these fields of activity are of primary importance for both the State and the society as a whole, as well as for each individual.

Moreover, the Court noted that the employees responsible for ensuring public and legal order and state security, as well as the judges and officials within central public authorities, are acting directly or indirectly under a system of public power, in order to achieve a public interest. They pursue their professional activity in the interest and with the support of individuals, of the community and of the state institutions exclusively on the basis of the law and with a view to enforce the law, therefore the cessation of their activity may affect essential services for society. The Court noticed that, under the inherent need to ensure the continuity of certain public services, the legislature may admit a system of „controlled freedom" in relation to certain categories of employees.

At the same time, the Court underlined that ECtHR its case-law also noted that states are entitled, in the name of „public security", to prohibit the right to strike for the persons activating within law enforcement bodies.

Consequently, the Court found that the legislator has set up certain interdictions and restrictions in respect of the right to strike with a view to ensure the proper conduct of economic and social activities and to guarantee the general interests of the State and of the society, such as national security, public security, public health.

The Court held that cessation of activity in these areas following certain demanding actions would be likely to cause an imminent harm to these areas, as well as to the society as a whole.

At the same time, the Court noted that the interdiction on exercising the right to strike does not place these socio-professional categories of employees in the impossibility to defend their professional and social interests, as well as their legitimate rights.

Thus, Article 369 para. (4) of the Labour Code provides safeguards in this respect, stipulating that in case the strike is forbidden, the collective labour disputes shall be settled by the labour jurisdiction bodies, namely: (1) conciliation commissions (extrajudicial bodies) and (2) ordinary courts.

The Court also noted that prohibition of the strike in the aforementioned fields of activity cannot be considered discriminatory in relation to the other areas in which it is permitted. In its case-law, the Court has consistently held that the principle of equality is violated when differential treatment is applied in identical cases without objective and reasonable grounds. However, the services covered by Article 369 para. (2) of the Labour Code are of general and vital interest for the entire social and economic life of the State, as well as for the protection of State security, public and legal order, which makes them distinct from other services.

Taking into account the abovementioned considerations, the Court held that, under Article 54 of the Constitution, the limitation of the right to strike through the provisions of Article 369 para. (2) of the Labour Code and Article 21 paras. (2) and (3) of the Code on Railway Transportation is proportionate to the purpose pursued, which is without prejudice to Articles 16 and 45 of the Constitution.

In the part concerning the allegations of the author of the complaint regarding the unconstitutionality of the Government Decision no. 656 of 11 June 2004, the Court noted that it was approved based on Article 369 para. (3) of the Labour Code. The Court underlined that, according to Article 102 of the Constitution, the Government decisions are adopted to ensure enforcement of laws and such normative acts cannot regulate areas that are not previously covered by the law. Government acts are issued with a view to develop and implement the provisions of the law.

Based on the above stated, the Court noted that the Nomenclature of Units, Sectors and Services which employees cannot participate in strikes, approved by Government Decision no. 656 of 11 June 2004, cannot exceed the limits instituted by the legislator through Article 369 para. (2) of the Labour Code.

Therefore, the Court found that while Article 369 para. (2) let. e) of the Labour Code provides that only officials from central public authorities cannot take part in strikes, the dispositions of the Government Decision prohibit the participation at strikes of all employees of the Parliament, the State Chancellery and the Presidency.

Under these circumstances, the Court noted that the wording „All employees" in sections 2, 3 and 4 shall be interpreted as referring only to the officials from central public authorities.

At the same time, in line with the provisions of Article 369 para. (2) let. (f) of the Labour Code, the Court held that the words „all employees" in sections 10, 12, 16, 17, 19 and 20 of the aforementioned Nomenclature shall be interpreted as referring only to the staff members of internal affairs bodies, the General Prosecutor's Office, the Intelligence and Security Service, the Department of Penitentiary Institutions, the Department of Emergency Situations, the State Protection and Guard Service, which have as functional competencies to ensure public order, rule of law and state security. Moreover, the text „entire system" in section 11 shall be understood as referring to judges of ordinary courts.

Judgement of the Court

Stemming from the above reasoning, the Constitutional Court:

1. Partially admitted the complaint lodged by the People's Advocate Mr Mihail Cotorobai on the constitutionality review of certain provisions regarding the exercise of the right to strike.

2. Recognized as constitutional:

- Articles 369 paras. (2), (3) and (4) of the Labour Code no. 154-XV of 28 March 2003;

- Article 21 paras. (2) and (3) of the Code on Railway Transportation no. 309-XV of 17 July 2003;

3. Recognized as constitutional sections 5, 6, 7, 8, 9, 13, 14, 15 of the Nomenclature of Units, Sectors and Services which employees cannot participate in strikes, approved by Government Decision no.656 of 11 June 2004.

4. Recognized as constitutional the words „All employees" in sections 2, 3 and 4 of the Nomenclature of Units, Sectors and Services which employees cannot participate in strikes, approved by Government Decision no.656 of 11 June 2004, in so far as referring only to the officials from central public authorities.

5. Recognized as constitutional the words „all employees" in sections 10, 12, 16, 17, 19, 20 of the Nomenclature of Units, Sectors and Services which employees cannot participate in strikes, approved by Government Decision no.656 of 11 June 2004, in so far as referring only to the employees have as functional competencies to ensure public order, rule of law and state security.

6. Recognized as constitutional the words „Entire system" in section 11 of the Nomenclature of Units, Sectors and Services which employees cannot participate in strikes, approved by Government Decision no.656 of 11 June 2004, in so far as referring to judges of ordinary courts.

The Judgment of the Constitutional Court is final, cannot be appealed, shall enter into force on the date of passing, and shall be published in the Official Journal of the Republic of Moldova.

This is an English language courtesy translation of the original press-release in Romanian language.