The right of civil servants to collective bargaining


International labor standards clearly recognize that the freedom of association of workers and the right to collective negotiations are the cornerstone of labor relations. In turn the question arises whether civil servants having the specific employee status have the absolute freedom of association and the right to collective bargaining?
Civil service relations in Lithuania are ascribed to the public law regulation area, and a special branch of law – the civil service law regulates the issues of the status and legal guarantees of civil servants. Otherwise speaking employment and social guarantees of civil servants are established by the special Law on Civil Service, and other legislation regulating legal relations is applicable only whenever relevant issues are unregulated by the Law on Civil Service. This rule is also applicable to collective civil servant rights as the right to unionize, the right to collective bargaining and conclude collective agreements on the institutional or branch level and the right to strike.

Civil service concept
Lithuanian civil service institute features special dynamics due to which the civil service concept underwent changes. The Law on the Employment Contract passed in 1991 was applied with minor exceptions to all civil servants working in the state and executive institutions and to servants of courts and the prosecutor’s offices. Later in 1995 the Law on Officers was passed. Under this law the individuals with official responsibilities having influence on activities of the relevant institution according to its competence were considered to be state and municipal officers. Thus the Law on Officers interpreted civil service quite narrowly and covered quite a small share of individuals working in the civil service.
In eight years another reform of civil service relations was implemented in Lithuania and therefore the Law on Civil Service was passed in 1999. This law had the broad civil service definition: both the individuals performing public administration functions and the ones providing public services (i.e., teachers, physicians, etc.) were considered to be civil servants. Thus the main criterion for determining individuals to civil servants was the workplace rather than performing certain official responsibilities or functions.
In the context of progress of European integration processes and aiming to develop a more professional civil service the Law on Civil Service was revised in 2002. Again it was a return to the narrow civil service concept. A natural person performing duties in the civil service and carrying out public administration activities is considered to be a civil servant. Thus the civil service concept is narrowed down in the Law on Civil Service through relating it with performance of administrative functions and ensuring public interests of the state.
Civil servants are a specific category of employees with activities primarily related to implementation of the public interest. Thus the civil service as an institution of law required specific legal regulation. Irrespective of this civil servants are also employees doing certain work, therefore drawing a clear line between the civil service and labor legal relations is impossible.
Article 5 of the Law on Civil Service provides that laws and other legal acts regulating labour relations and social guarantees shall apply to civil servants in so far as their status and social guarantees are not regulated by the Law on Civil Service. Thus obviously the Law on Civil Service is prioritized. Therefore the Labor Code – the key legal act regulating employee relations in Lithuania may be applicable to civil servants only when respective issues are unregulated by the special law – the Law on Civil Service.
In terms of the freedom of association it should be noted that the above Law on Civil Service regulates only some certain guarantees of trade unions representing civil servants and issues of collective agreements in state or municipal institutions. It should also be stated that there is no clear distinction where regulation of legal civil servants’ relations is done by the Law on Civil Service and when – by the Labour Code.
The Law on Civil Service effective in Lithuania establishes a certain system of civil service relations consisting of four civil service position types. Civil service positions are grouped into the: career, political (personal) confidence, heads of institutions and statutory servants. Career civil servants are civil servants recruited for an indefinite term to office and entitled to career in the civil service. Civil servants of political (personal) confidence are civil servants for a term of office of a state politician or a collegiate state institution. Heads of institutions are civil servants recruited to head a state or municipal institution or agency. Statutory civil servants are civil servants whose service is regulated by law-approved statutes providing for special conditions of recruitment to the public service, performance of duties, responsibility and other ones related to the service peculiarities, and having public administrative powers in respect of persons not subordinate to them. The Law on Civil Service entitles to regulate service relations of these civil servants by an individual law – a statute, with respect to their peculiarities and otherwise than established by the Law on Civil Service. As of today seven statutes are in force in Lithuania regulating employment and social conditions of respective statutory civil servants. This allows to state that Lithuanian laws establish unequal collective labour rights to employees and civil servants, and to various categories of civil servants. Collective labour rights of statutory civil servants (in Lithuania they are police, customs, state security officers, wardens in prison institutions, officers of the Special Investigation Service) are even more limited than those of career civil servants.

Freedom of association in civil service
Article 16 of Lithuanian Law on Public Service establishes the right of civil servants to be trade union members. Effective statutes also provide for statutory servant possibility to unionize. Only the Law on Special Investigation Service prohibits membership in trade unions. Such prohibition is completely illogical and unreasonably limits the freedom of association.
The Statute of the Internal Service (regulating the legal status of police officers) provides for a possibility for police officers to establish trade unions to protect their interests. However it should be noted that this statute establishes possible suspension or termination of trade union activities if proposed by the head of the institution, if such activities are against the law and is impede with functions of ensuring human rights and public safety. This provision is against Article 9 of the Law on Trade Unions stipulating that trade union activities may be suspended or terminated only by a court decision. Beside this, such position of the legislator is against the principle of freedom of association.
Irrespective of the fact that permission for many civil servants to unionize is established by law, trade unions are still quite a new phenomenon in Lithuanian civil service. Sociological studies show that in 1996 45-50% of officers failed to understand the question when asked about establishing trade unions, 31% of them thought that such activities were banned by law and 15% respondents believed such social formations were not needed. In a year (in 1997) only about 10% of police officers believed trade unions were banned or unnecessary. Lately only up to 2-4% of officers consider that unionizing is banned by law. This survey data shows that both officers and civilians increasingly understand the importance of association and this allows to assume that in the near future civil servants may be expected to more actively join trade unions.

Collective bargaining and collective agreements in civil service
Both employer and employee organizations have the right to collective bargaining. The right to collective bargaining is recognized both in the private and public sector. Is an absolute implementation of the free collective bargaining principle possible in the civil service? Article 5(1) of Lithuanian Law on Civil Service provides for quite an important limitation prohibiting to establish additional collective agreement conditions related to any additional state and municipal budget funds. Thus in the public service context parties to collective bargaining have no possibility to negotiate such issues. They almost have no possibility to negotiate other issues related to financial resources.
It should be noted that the Law on Civil Service does not regulate collective bargaining issues on the national, branch or territorial level. Such issues are regulated by the Labor Code, which also establishes no special regulations for higher level collective agreement in the civil service.
It may be considered that the collective bargaining situation would much improve in Lithuania upon switching to the centralized collective bargaining system and upon assigning the function of concluding collective branch level agreements to respective central public administration institutions. The Labor Code stipulates employer organizations and respective trade union organizations as parties to higher level collective agreements. It should be noted that state and municipal institutions subject to their legal status may not organize, thus state institutions and agencies (ministries, departments, etc.) may not conclude collective agreements and be parties to the respective collective agreements. Thus to make higher level collective agreements really possible, laws should clearly identify the social state partner.
Now it is hard to say how many civil service institutions have effective collective agreements in Lithuania, as such statistical data is not available. Just few examples could be provided. The first collective agreement in a Lithuanian statutory organization was signed in summer of 2005 in Vilnius Field Customs Office. The first branch cooperation understanding between the Police Department and Lithuanian Police Officer Trade Union signed at the end of 2006 is also worth mentioning. This is just a bilateral cooperation protocol and not a collective agreement. However as parties to this understanding say, it is the first step towards branch collective bargaining in this system. By this understanding the parties undertake to support collective bargaining processes taking place in individual police institutions and strive for closer cooperation on the overall system level.

Collective labor disputes in civil service
The Law on Civil Service and statutes have no special norms regulating collective labor disputes. One has to observe the general Labor Code provisions which hardly correspond to the peculiarities of relations in the civil service area. First, it is unclear who a civil service trade union has to contact to initiate a formal collective dispute settlement procedure, if this is a supra-institutional level collective labor dispute. This is so because, as mentioned above, the effective legislation does not answer the question about what is the civil servants’ employer on the supra-institutional level.
It should also be emphasized that the legislation in force provides for no peculiarities for reconciliation and mediation institutes in civil service. Beside this, these methods are in general not widely practiced to settle all collective labor disputes in Lithuania.

The right to strike
Article 51 of the Constitution of the Republic of Lithuania establishes the employee right to strike to protect their economic and social interests. The ILO Committee on Freedom of Association stresses that limitations of the civil servants to strike are not in conflict with the freedom of association. Otherwise an absolute ban to strike for civil servants in the national law is incompatible with the requirements of ILO conventions. Of course, limitations to the right to strike are allowed, however not only with respect to the formal status of civil servants, but primarily subject to functions they fulfill. Limitations applied to civil servants shall be sufficiently justified, otherwise they may turn into the violation of the freedom of association.
Beside other civil servant rights Lithuanian Law on Civil Service provides for right to strike. However the law provides for an exception – civil servants being department heads of a state or municipal institution, or the ones having any other senior post have no right to strike. Statutes applicable to statutory civil servants also prohibit striking.

Examples of collective labor disputes in civil service
Policemen started their protests with a modest action at the Government building in November, 2005. Officer trade unions aimed to recover from the state the part of remuneration unpaid to officers for the years 2002-2004, when due to the state budget deficit remuneration was reduced to all civil servants in proportion to the lacking funds. They also required an increase of salaries and refraining from the reform causing reduction in pension payments of newly appointed officers. Thus the warning protest action was started known as „They did, do and will take away“. About twenty police, customs officers, border guards, fire and rescue officers and civil servants gathered at the Government building in Vilnius. They lined further away from the Government building and stood in silence without any chanting. Two paper policemen and firemen with the following text on: “I do not eat, sleep, cost” and “I am an ideal officer for the state. And for you?” were seated in front of the Government building. They meant that if the Government paid no further attention to officer problems, “paper policemen” and “rubber firemen” were soon to start ensuring public safety. After the warning action in Vilnius, protests moved to other Lithuanian cities.
Employment and remuneration problems arise both among civil servants and employees working in the same state institutions. The collective labor dispute raised by Vilnius employees of Migration divisions on January this year caused many discussions in Lithuania. According to the trade unions study employee remuneration in Vilnius Migration divisions vs. other major Lithuanian cities was by 10-15% lower and stable for 5 years. The head of the Police Commissariat stated that employees of Migration divisions received remuneration agreed upon by employment contracts and that the amount of remuneration was not in conflict with legal provisions of labor laws.
Otherwise speaking this officer limited himself only to consistent implementation of effective legislation but demonstrated no wish whatsoever to engage in collective negotiations and talk with employees about improving their employment conditions. This is a very frequent phenomenon in statutory state institutions where the head’s order and a quoted act of law are higher than any interests of employees and civil servants. After the negotiations with the employer failed, the trade union started organizing the warning Migration employee strike.
The two hour warning strike had to take place on 21February. But the employer applied to court requesting to declare the future strike illegal and apply stop-gap measures under the Code of Civil Procedure and postpone the strike to March 23. It should be noted that under the Labor Code strike may be postponed only if a direct threat arises that during the strike minimum public needs may be uninsured. But in this case the court, completely without deciding on the strike legality and without providing any circumstances which could cause a threat to the public interest and without regard to the unsuccessful trade union’s effort to negotiate with the employer about the same issues, banned the strike of Migration employees by postponing its date by one month. After such court decision employees had to continue working. However on the date when the court-banned strike had to take place they worked in T-shirts with the word “Strike” on thus expressing their requirements to the employer and problems they faced at work. The Migration employees were supported by employees of the same type in other cities and police officers who for several days in February organized pickets at Vilnius City Chief Police Institution in their free time. This way solidarity of all Lithuanian statutory civil servants and employees working in statutory institutions was expressed.

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