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Obligation of the trade union bodies’ consent for the release of trade union officials
On 4 February 2020, the Constitutional Court ruled on the exception of unconstitutionality of Article 87 para. (2) and para. (3) of the Labor Code and Article 33 para. (3) of Trade Union Law no. 1129 of 7 July 2000 (Judgement no. 3 of 04.02.2020).
The Court has established that the trade union’s role in terminating the individual employment contract at the initiative of the employer is a guarantee for the employee, who is in a relationship of subordination to the employer and who requires special protection to avoid abusive release. The measure of protection of the mandate exercised by the employees' representatives elected in the management bodies of the trade unions serves as a guarantee against possible coercive or repressive actions, likely to prevent the exercise of the mandate.
At the same time, analyzing Article 87 para. (2) and para. (3) of the Labor Code, the Court noted that the impugned provisions lay down an absolute and general prohibition on the release of trade union leaders without the prior consent of the relevant trade union body. The consent of the trade union body is a mandatory condition in the absence of which the employer is unable to order the release of the trade union official.
The impugned rules shall also apply to all grounds for release provided for in Article 86 para. (1) of the Labor Code, regardless of whether or not these grounds are related to union activity. They are worded in such a way that they do not give any possibility to the employer to release the trade union employee without the consent of the trade union body for reasons not related to union activity.
The Court considered that the complete dependence of the release of the trade union official on the consent of the trade union body restricts the employer's right to organize his/her activity internally. Therefore, the impossibility to release trade union employees on the basis of the law constitutes an interference with the exercise of property rights and a restriction on the freedom of business, by restricting the employer's prerogative to decide independently on the organization of his/her business, an obvious limitation, for example, in the case of reduction in staff numbers.
The Court considered that the protection of trade union employees cannot be ensured by totally neglecting the interests of the employer, who, within the limits established by law, must have a certain autonomy in the organization and operation of his/her own company. By maintaining the impugned provisions, the employer could be obliged to keep an employee and pay remuneration to a person whose activity is not an objective necessity for the company.
The exclusive right of the employer to decide on his/her activity depending on the economic or commercial situation in which the profitable activity is carried out is likely to be obstructed. Thus, conditioning the release of the trade union employee by the consent of the trade union body may affect the economic and financial mechanisms of the company, such as the production structure, the budget of revenues and expenditures, the nature and volume of commercial contracts concluded by the unit.
The Court noted that the purpose of the impugned provisions is to protect trade union activity by establishing measures to protect the mandate exercised by elected representatives of trade union managing bodies, but they may not collide with the interests of the employer, who, in accordance with the criticized provisions, is put in the situation of bearing an excessive burden likely to affect his/her right to property. Therefore, the criticized legislative solution provided in Article 87 para. (2) and para. (3) of the Labor Code is not proportional to the aim pursued, as it limits the economic activity of the employer.
Therefore, the impugned provisions of Article 87 para. (2) and para. (3) of the Labor Code, also found in Article 33 para. (3) of the Trade Union Law no. 1129 of 7 July 2000, are not proportionate to the aim pursued because, as the Court has also ruled in JCC no. 34 of 8 December 2017, § 76, they lead to the limitation of the economic activity of the employer.
The Court found that the provisions criticized for prohibiting the release of employees who are members and leaders of trade union bodies without the consent of the trade union bodies, in cases where the release is not related to trade union activity, are contrary to the constitutional provisions of Articles 9, 46 and 126 of the Constitution.
The Court noted that by annulling the criticized norms, the employees who are trade union officials are still left with sufficient legal safeguards, which will ensure the protection of their rights and interests. In this regard, the Labor Code stipulates that “the release of employees who are trade union members is allowed with prior consultation of the trade union body (organizer) of the unit” (Article 87 para. (1)); the activities of trade union officials who fulfill their obligations and exercise their rights provided in Article 387 paras. (1) to (5) may not serve for the employer as a ground for their release or the application of other sanctions which would affect their rights and interests arising from employment relationships (Article 387 para. (6)); trade union officials enjoy the right of access to justice, in order to defend their rights in the event of abuses which gave rise to their release (Article 355), and when the court examines the individual labor dispute, the employer is required to demonstrate the legality and to indicate the grounds for the employee’s release (Article 89 para. (2)). Therefore, the legislator instituted safeguards against abusive release by the employer which may be used by employees who are trade union officials.
The Court noted that declaring the provisions of Article 87 para. (2) and para. (3) of the Labor Code and Article 33 para. (3) of the Trade Union Law unconstitutional does not prevent the Parliament from regulating the procedure of prior consultation of the corresponding trade union body in case of release of the persons elected in the trade union body and of the trade union leaders who are not released from their basic job.