Constitutional Court: Dismissal of employees who have been elected in trade union bodies is not allowed for 2 years after the expiration of the mandate

The guarantees provided by Article 388, par. (4) of the Labour Code, for the persons elected in the trade union bodies are constitutional. Therefore, the dismissal of employees who have been elected in trade union bodies is not allowed for 2 years after the expiration of the mandate, except in the cases of the liquidation of the unit or the guilty actions by the employees, for which the legislation in force provides for the possibility of dismissal. This is stated in the decision of the Constitutional Court on 9 July 2018.

This legal guarantee has recently been the subject of a referral by the Constitutional Court (refer to petition No. 100g of 5 July 2018 on the objection of unconstitutionality of Article 388 (4) of the Labour Code). Verification of the constitutionality of the provisions of art. 388, par. (4) of the Labour Code, was requested by the Civil College of the Chisinau Court of Appeal. The referral was made ex officio because the College considered that “the prohibition of dismissal within the 2 year term following the termination of the mandate of a member of the trade union committee … is disproportionate to the legitimate aim of protecting the rights of employees in relation to the rights of the employer in the process to organize the operation of the unit”.

In its allegations presented in the petition, the Civil College of the Chisinau Court of Appeal appreciated the legal guarantee provided by art. 388, par. (4) of the Labour Code as an interference that “violates the provisions of Articles 9, 46 and 126 of the Constitution, which enshrine the free economic initiative, free entrepreneurship and the right to property”.

Examining the admissibility of the referral on the objection of unconstitutionality of Article 388, par. (4) of the Labour Code, by its decision no. 87 of July 9, 2018, the Constitutional Court stressed the following:

The principle of trade union democracy provides special protection to employees elected to the governing bodies of the trade union bodies to prevent abusive decisions by the management of the units;

Article 1 of the Convention of the International Labour Organization no. 135 of 23 June 1971 on the protection of workers’ rights in undertakings granted to them and Article 7 of Directive 2002/14 / EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community prescribes effective protection and sufficient safeguards to enable trade union representatives to duly fulfil the obligations entrusted to them;

The protection measure of the mandate exercised by the elected representatives in the trade union management bodies has the character of a legal guarantee against possible coercion, blackmail or repression, which would impede the exercise of the mandate;

Trade union leaders could not fulfil the mandate entrusted by employees to defend their rights and promote their professional, economic and social interests if they were exposed to repression, threats or blackmail from employers;

The special situation in which the employees are members of the governing bodies of the trade unions is determined by their attributions in ensuring the fulfilment of the role of the trade unions provided in Article 42 par. (2) of the Constitution;

The members of the trade unions, in their capacity as representatives, promoters and advocates of the employees’ professional and economic rights and interests, come more often into direct contact with the employer’s representatives, often in conflict situations where they would not be able to act effectively if they were repressive measures by the employer. These circumstances warrant legal treatment by regulating special and effective measures to defend the stability of working relationships.

The Constitutional Court declared inadmissible the objection of unconstitutionality of Article 388, par. (4) of the Labour Code and stated that its provisions constituted “a necessary and adequate protection, which corresponds to the constitutional requirements and those stipulated in the international acts, being established in order to respect the trade union freedom and guarantee its effectiveness”.

Department of mass media and international relations