REPUBLIC OF HUNGARY National ILO Council Ministry of Employment and Labour REPORT

Transcription

1 Appl REPUBLIC OF HUNGARY National ILO Council Minitry of Employment and Labour REPORT for the period 1 June 2001 to 10 May 2003 prepared by the Government of the Republic of Hungary in accordance with article 22 of the Contitution of the International Labour Organiation on the meaure taken to give effect to the proviion of the RIGHT TO ORGANISE AND COLLECTIVE BARGAINING CONVENTION, 1949 (No. 98) (ratification regitered: 6 June 1957) Budapet, September 2003

2 REPORT for the period 1 June 2001 to 10 May 2003 prepared by the Government of the Republic of Hungary in accordance with article 22 of the Contitution of the International Labour Organiation on the meaure taken to give effect to the proviion of the RIGHT TO ORGANISE AND COLLECTIVE BARGAINING CONVENTION, 1949 (No. 98) (ratification regitered: 6 June 1957) I. Pleae indicate whether the article of the Convention are given effect through a) cae law or practice, or b) tatutory proviion. During the reporting period there wa no comprehenive overview concerning the legilation on the right to organie or collective bargaining, there were, however, legilative amendment. Act XIX of 2002 on the amendment of Act XXII of 1992 on the Labour code (Mt) dicontinued the practice to increae the weight of the trade union whereby at employer on whoe premie there wa no trade union with repreentative power the work agreement could replace the collective agreement. However, the work agreement valid on the date on which the law entered into effect will remain valid until uch date a the partie terminate them. Act XIX of 2002 provide an exhautive lit of the iue that are ubject to the right of opinion by trade union with repreentative power on the employer premie to replace the previou lit phraed in only general term. The employer mut, prior to hi deciion, inquire about the opinion of the trade union repreentative on it premie regarding any draft action plan that are likely to concern a larger group of employee, thu e.g. tentative plan of retructuring of the employer organiation, tranformation, creation of an individual unit out of a ection of the organiation, privatiation, or moderniation. Act XIX of 2002 re-introduced the regulation whereby the employer mut provide financial compenation for the unued part of uch allowance, but for no more than half of it (previouly it wa ubject to agreement by the partie). In order to olve a practical problem related to the termination of the collective agreement Act XIX of 2002 provide that if the collective agreement wa concluded by everal trade union at a particular employer, uch trade union hall agree on whether to exercie their right to terminate it. Act XIX of 2002 further amended the proviion of Act XXIX of 1991 on the Voluntary nature of employee payment of memberhip fee in a repreentative organiation. The employer mut, following the legilative amendment, deduct from

3 the trade union member employee wage the memberhip fee and tranfer it. Previouly thi wa only o if the partie o agreed. Act XX of 2003 on the Amendment of the Labour Code (paed by Parliament on 31 March 2003, and effective ince 1 July 2003) withdrew the right of the Government whereby it could, if the national collective bargaining mechanim failed at it attempt, determine the minimum wage. Act XX of 2003 extend the protection of the trade union official under labour law. Apart from terminating their employment or redeploying them in a different job, with the new law now effective, the conent of the higher level trade union body i neceary alo in cae of out-of-office aignment, tranfer to another ite at leat 15 day long, tranfer to a different poition, or employment at another employer baed on uch agreement among employer, during economically lack period. That meaure alo applie to member of the work council. In the event of legal ucceion of employer, in order to promote the unbroken operation of employer repreentative bodie, Act XX of 2003 regulated all thoe cae in which the proce of legal ucceion would, on the bai of general rule, upend the operation of work council. Now in uch cae there are temporary regulation in place until the next work council election, but for a period no longer than 1 year making it compulory to delegate member in the work council under the ucceor employer aw the etablihment of the National Public Service Interet Reconciliation Council (OKÉT) erving a the collective bargaining forum for iue of labour, employment, wage and income policy, of interet to civil ervant employed in publicly financed intitution, public ervant, profeional taff member of the military and other employee II. Pleae provide all available information Quetion to article 1 Protection of employee againt anti-trade union dicrimination Proceeding related to the violation of the prohibition of dicrimination on ground of trade union affiliation may be conducted in the framework of an invetigation concerning the compliance with anti-dicrimination legilation. Such practice qualify a contravention in the meaning of Government Decree 218/1999 (XII. 28.) Korm. on Certain type of contravention. An employer unlawfully refuing the employment of an employee among other reaon for the latter affiliation to an employee repreentative organiation or ome activity related to that or other circumtance unrelated to the employment relationhip thereby commit negative dicrimination among the employee, and may be fined up to 100,000 HUF. The contravention proceeding belong in the juridiction of the general contravention authority (notary), and/or that of the occupational afety and labour inpector. On the bai of Act LXXV of 1996 on Labour inpection (Met) labour inpector inpect whether employer dutie related to the organiation of the trade union are fulfilled, and whether the rule aimed at the protection under labour law of trade union

4 official, work council member, occupational afety repreentative are being complied with by the employer. All proceeding lited here are triggered by a report. Cae of the above type repreent le than 1% of all cae inpected. Number vary: in 1999 there were 6 cae, in , in , and in The riing number in doe not necearily reflect more uch cae, but may be explained by a temporary increae of trade union activity. Public adminitration meaure reulting from labour inpection with reference to 2001 Subject of procedure Employer obligation related to regulation allowing the etablihment of a trade union in order to protect employee economic and ocial interet Violating rule concerning the protection under labour law or working time allowance of elected trade union official or work council member Violating rule concerning the delivery of the employer obligation related to meaure objected to by the trade union. Number of warning Number of intruction to dicontinue irregulariti e Number of labour law fine Amount paid in labour law fine (HUF) , , ,000 Ditribution of effective contravention reolution with reference to 2001 according to the ubject of the procedure Subject of procedure Reolution to impoe fine No. Sum (HUF ) On-the-pot fine No. Sum (HUF ) Number of contraventi on cae Amount paid in fine (HUF)

5 Employer obligation related to regulation allowing the etablihment of a trade union in order to protect employee economic and ocial interet Violating rule concerning the protection under labour law or working time allowance of elected trade union official or work council member Violating rule concerning the delivery of the employer obligation related to meaure objected to by the trade union , , Employment related meaure from 1999 to 2002 related to trade union activity Year Violating labour rule related to trade union activity In a breakdown according to ubject in 2002: Employer obligation related to regulation allowing the etablihment of a trade union in order to protect employee economic and ocial interet 2 Violating rule concerning the protection under labour law or working time allowance of elected trade union official or work council member 3

6 A a % of total 0.02 Violating rule concerning the delivery of the employer obligation related to meaure objected to by the trade union. 2 (ource: National Inpectorate for Labour and Occupational Safety) The employer may intigate a labour dipute in order to realie a due claim ariing from hi/her employment relationhip, and a trade union, or the work council to realie a claim ariing from the Labour Code, the collective agreement, or the work agreement. That proviion in the Labour Code allow for a labour uit if the prohibition of negative dicrimination wa violated, however, the number of uit initiated for that reaon i not too high. One may oberve that labour dipute are undertaken motly in order to ettle employee pecific financial claim from breache of law by the employer (e.g. unpaid wage, or everance pay), while litigated cae related to negative dicrimination are much le numerou. Quetion to article 2: protection againt interference of employer and employee organiation in each other action Act II of 1989 on the Freedom of aociation protect the independence of ocial organiation, including repreentative organiation of both employer and employee, and, a a reult, it et the baic requirement that a ocial organiation hould be created voluntarily, and be managed on a elf-governing bai. With regard to the uninfluenced and independent etablihment and operation of repreentative organiation the Mt. provide that employee, and employer may exercie their right to found organiation, or to join them without no dicrimination whatoever, oberving excluively the relevant regulation of that organiation. The requirement of independence and unbiaedne may be derived from thi rule, which, however, i not explicitly integrated in labour legilation at an organiational level (only the employee negative dicrimination, forcing him to tate hi trade union affiliation, making hi employment or dimial dependent from hi trade union affiliation are prohibited). A regard the work council, the Mt require, in conjunction with their etablihment that it hould take place independently tating that the employer may not participate or affect the election committee created to handle the nomination and the election proce itelf. Financial compenation for unued working time allowance to be granted to trade union official hould not be regarded a a tool for employer to preurie their taff, which i proven by the fact that among other thing trade union were generally in favour of introducing the tatutory ytem of making uch financial compentation compulory mentioned in I above.

7 Finally it i worthwhile mentioning the requirement of exerciing right according to the legilative purpoe, to be applied generally in the area of collective labour law. That principle provide that each meaure which e.g. i aimed at or reult in limiting other people potential to realie their interet or at keeping them from voicing their opinion i againt the legilative purpoe. The Mt provide the poibility of litigation in accordance with the general rule of labour uit a the trade union, and the work council may intigate a labour dipute in order to realie their interet ariing from the Mt. Quetion to article 3 and 4: meaure taken to give effect to article 3 and 4 For the variou procedure promoting the obervance of the right to organie, and meaure related to the iue of voluntary bargaining and the concluion of collective agreement, and relevant to the legal regulation ee I above. The following are tatitic of collective agreement in the period in quetion (baed on the information tored in the collective agreement databae): Number of collective agreement valid for one employer and total number covered: Competitive ector* Public ector ** Total Year agreement number agreement number agreement number * ize of workforce at employer employing more than 5 ** Headcount only at employer where a collective agreement could be concluded Deleted: Number of collective agreement covering everal employer: Competitive ector* Public ector** Total Year agreement number agreement number agreement number

8 Change in coverage (baed on collective agreement valid for one and for everal employer)*** Year Size of workforc e Competitive ector Public ector ** Total Number % Size of Number % Size of covered workforc covered workforce by c.a. e by c.a , , , , , , *** Headcount figure adjuted for overlap Number covered by c.a. % , , , It i clear from the data above that the ratio of collective agreement concluded hift gradually from agreement applicable to one employer to thoe applicable to employee of everal employer. That phenomenon i more and more clearly obervable in both the competitive and the public ector. At the ame time the number of employee involved ha omewhat reduced. It i typical in Hungary that collective agreement are concluded mainly at large employer. Promoting the concluion of branch level agreement may have a poitive effect on the ituation of employee of mall and medium ized enterprie, and the Government and the employer and employee organiation concerned have concluded an agreement to create the intitutional condition to encourage that proce. Even preently, the law enable the extenion of collective agreement on the entire branch, and the three ide are jointly eeking poible way of further development. Quetion to article 5: guarantee provided by the Convention applying to member of armed force and police 5.1 With repect to the right to organie, the proviion of Act XLIII of 1996 on the Service relationhip of the profeional member of armed organiation (Hzt) hall apply to the Border guard and the Police, both belonging to the armed force. The Hzt enable the member of profeional taff to create repreentative organiation, or aociation to protect and promote their right and lawful interet ariing from the ervice relationhip. The right of uch repreentative organiation are more limited than general rule provide: profeional member may not organie indutrial action, and none of their activitie may hamper the normal operation of the armed organiation, or the performance of order and meaure. The armed organiation mut cooperate with the repreentative organiation, and enure the condition of it operation (free ue of office pace, right of publication).

9 The Hzt prohibit the armed organiation to force any member of the profeional taff to make tatement concerning their affiliation to repreentative organiation, or to terminate their ervice relationhip a a reult, or caue any damage to the peron. The armed organiation mut not make any entitlement or benefit conditional upon the member affiliation to a repreentative organiation. It i the right of the repreentative organiation to obtain information (concerning the financial, ocial, cultural, living, and ervice condition of the member), to repreent it member (facing the employer, facing a public organiation, or in court), to be aked to give an opinion, to be conulted, to inpect compliance of with regulation concerning ervice and working condition, to ubmit trade union objection againt an unlawful meaure, or omiion that directly affect the member of the profeional taff or the organiation. The official are entitled to working time allowance, extraordinary paid leave for educational purpoe, and protection under labour law. The Interminiterial Interet Reconciliation Forum of Law Enforcement Organiation wa etablihed in November 2002 and ha competence in quetion of national ignificance concerning the ervice relationhip. Their fundamental right include the right of opinion in iue of baic remuneration, draft legilation applicable to them, the career promotion and alary ytem, and the further development of the aement and performance evaluation ytem. Apart from that there i the branch level body, the Police Interet Reconciliation Council, the Border Guard Interet Reconciliation Council, and the Minitry of the Interior Interet Reconciliation Council. 5.2 A eparate piece of legilation, Act XCV of 2001 on the Legal tatu of the profeional and the contracted taff of the Hungarian Military (Hjt), the latter likewie part of the armed force, enable oldier to found organiation and repreent their interet a provided by Convention 98. The Hjt, imilarly to the Hzt, provide that the member of the taff may etablih organiation, aociation, and enter thee, and have repreentation at variou interet repreentation forum to promote their right and lawful interet ariing from the ervice relationhip. Such repreentative organiation may not organie indutrial action, and none of their activitie may hamper the normal operation of the armed organiation, or the performance of order and meaure. The Hjt require that the Hungarian military hould cooperate with the repreentative organiation, and that it mut enure the operative condition to the repreentative organiation. The Hjt name the Interet Reconciliation Forum of the Military a the organiation for branch level interet reconciliation. A cloed repreentative ytem wa introduced on 1 January 2002 in the cae of military home defene ervice. The relevant proviion of the Hjt provide that member of military home defene ervice may etablih a repreentative organiation if uch etablihment involve at leat one third of the taff a founding member. That organiation may not join an international repreentative aociation, and it room for action facing military home defene ervice i alo more limited than the authority granted by general regulation. The Hjt grant the right of agreement to the repreentative organiation with regard to welfare ervice.

10 III Any reolution concerning iue of principle by court of jutice... There have been no deciion of principle (at a principle level, compulory for all court prepared by the Supreme Court) over the period ince the lat report related to proviion on the right to organie. The Supreme Court made the following occaional deciion relevant to the Convention in the reporting period: Concerning collective agreement: The lack of a trade union at a legal ucceor doe not contitute an obtacle to applying a collective agreement concluded with the legal predeceor if the legal ucceor terminated the agreement with the trade union operating at the legal predeceor. (Court deciion databae, deciion 2002/30) Inernal labour regulation may not modify the collective agreement a it content i unilaterally determined by the employer. (Court deciion databae, deciion 2002/30) Thoe trade union, repreenting employee, are entitled to amend the collective agreement that have themelve concluded the collective agreement. In line with the general principle of agreement, a collective agreement may be amended by the ame party that alo contributed to it concluion. (Court deciion databae, deciion 2002/128) Concerning work council: In the event of work council election held at an employer or at one of hi ection/ite, a trade union with member having an employment relationhip with that ection/ite may nominate at the employer (ection/ite) a member from among the member of the union. Trade union aociation are not entitled to the ame for lack of pre-condition. (Court deciion databae, deciion 2002/242) IV General obervation The legal framework of the requirement contained in the Convention have been in place in Hungary for year. The legal condition are provided for retructuring, conultation, and for concluding agreement. However, legal condition, and the variou intitution of labour law operate motly in the national bargaining proce, and at large employer becaue collective agreement are le numerou than would be jutified, and becaue there are very few collective labour dipute in comparion to claic labour uit, and for the ame reaon, the deficient guiding role of judicial practice in thi area. Thi relate, on the one hand, to limited proficiency at the local level on both employer and employee (trade union ) ide, and, on the other, to the pecial hitory of trade union movement a in the political tructure prior to the change of régime the trade union operated primarily at a political level. The reulting kepticim that i till palpably with u with repect to trade union, and to repreentative organiation in general may be claimed to be a realitic factor in the Hungarian ociety. Increaing the effectivene of branch level interet repreentation may be a way to eliminate that cepticim a it may raie the

11 confidence in the ytem of collective bargaining. The Government would like to emphaie, however, that governmental effort in themelve are not ufficient to reach that objective, and that the activity level of repreentative organiation and the culture of collective bargaining mut be further improved. CONSULTATIONS WITH ORGANISATIONS OF EMPLOYERS AND WORKERS The tripartite National ILO Council conulted thi Report on it eion of 25 September 2003 and unanimouly adopted the content of the Report. The National ILO Council i a conultative national forum for ocial dialogue. It function i to conduct tripartite conultation a provided by Convention No. 144 on tripartite conultation (International Labour Standard), to promote national meaure related to the activity of the International Labour Organiation, to perform other function defined in the Statute of the Council. Employer and employee member and deputy member of the National ILO Council are delegated from the following national interet repreentation organiation: Employer organiation: Union of Agrarian Employer National Federation of General Conumer Co-operative National Aociation of Indutrial Corporation National Federation of Trader and Caterer Confederation of Hungarian Employer and Indutrialit Hungarian Indutrial Aociation Hungarian Confederation of Utility Companie National Federation of Agricultural Co-operator and Producer National Aociation of Entrepreneur and Employer Worker organiation: National Federation of Autonomou Trade Union Trade Union Group of Intellectual Democratic League of Independent Trade Union National Confederation of Hungarian Trade Union National Federation of Worker' Council Co-operation Forum of Trade Union