Subject matter: Method for calculating retirement pensions and regime governing the early retirement of Public Administration workers Keywords: Freedom of association Freedom to form, belong to and operate trade unions Right to participate in the preparation of labour legislation |
RULING Nº 360/03
8 of July of 2003
Headnotes:
In relation to the civil and public services, labour legislation comprises all measures concerning general and particular aspects of the employer-employee relationship, working conditions, pay and other forms of remuneration, retirement pension, social benefits and additional entitlements.
The Constitution guarantees trade unions the right to participate in the preparation of legislation so that holders of rights are able to influence the legislature. This arrangement is the only way to safeguard a right designed to ensure that the legislature's decisions take workers' interests into account, even though participation as such does not mean that the legislature is bound by trade unions' proposals.
Official publication of a bill, provided it is properly done (i.e. has the desired outcome), should be sufficient to reach all the bodies that have a guaranteed right to participate. The bill on the national budget was published in the parliamentary gazette - that is, before parliament had given it general approval. This form of publication, in the absence of an invitation to trade unions to comment on provisions amending pension rules - those provisions being included in the bill in the form of budget items - cannot be regarded as sufficient to achieve the constitutional aim of genuinely enabling trade unions to influence the legislation that parliament will pass.
Trade unions are freely set up. They are also free to form trade-union federations and some may choose not to participate either directly or indirectly in such federations. It is therefore unnecessary for the constitutional right to be consulted to be exercised by each and every workers' organisation.
Summary:
The President of the Republic asked the Constitutional Court to assess those provisions in the national budget for 2003 which amended either the method of calculating retirement pensions (thus also altering their value) or the early-retirement scheme for public servants, and to issue a general and binding ruling that the disputed provisions were unconstitutional and unlawful. To summarise, he argued that they should have been the subject of prior collective negotiation between the Government and the trade unions representing public servants. As no such collective negotiation had taken place, the provisions were unconstitutional because they interfered with trade unions' right to bargain collectively (under Article 56.3 of the Constitution). Further, under Article 56.2.a of the Constitution, trade unions had the right to participate in the preparation of labour legislation, and the pension scheme for public servants had to be regarded as falling under that heading. In any event - if trade unions' constitutional right to take part in the preparation of labour legislation were not to be rendered meaningless - consultation should not have taken place after parliament had given general approval to the bill, at a stage when, objectively, there could no longer be any effective public participation.
The provisions fixing or substantially amending the method of calculating - and consequently the value of - retirement pensions were possibly unconstitutional because of non-observance of trade unions' right to bargain collectively. Deciding the matter would entail determining whether the subject of the provisions in question fell within the constitutional right to bargain collectively. The Court had already delivered many rulings on the extent of that right, notably in relation to social security measures. However, it would not be necessary to determine the matter unless the second ground of unconstitutionality which the President had raised - namely that the trade unions had not participated in the legislative process - was rejected.
The provisions which the Court had been asked to assess had to be regarded as core aspects of the pension scheme and therefore as falling under the heading of labour legislation.
The right was one that workers could exercise only through trade unions. It was also a right subject to the law: the Constitution guaranteed it "in accordance with the law". Legislation - with a limiting or restrictive effect - could be enacted in respect of the right to bargain collectively but there always had to be a basic set of matters that was left open to bargaining. In other words the law had to ensure that certain matters were reserved for settlement by collective agreement.
Each and every trade union was entitled (under Article 56.2.a of the Constitution) to participate in the preparation of labour legislation. The procedure followed therefore had to be capable of guaranteeing all of them the possibility of participation. Under the Constitution, therefore, workers' committees and trade unions were entitled to participate in the preparation of labour legislation.
In the light of this finding of unconstitutionality it was unnecessary to rule on whether the right to bargain collectively had been infringed. Likewise it was unnecessary to pursue either the question of possible unconstitutionality resulting from indirect infringement of Articles 2 and 112.3 of the Constitution, or the application for a general and binding declaration that the disputed provisions were unlawful.