BEFORE
Mr. BOYKO BORISOV
MINISTER-PRESIDENT OF THE REPUBLIC OF BULGARIA
BEFORE
MRS MARIJANA NIKOLOVA
CHAIRMAN OF NSTS AND DEPUTY CHAIRMAN OF MC
BEFORE
MRS DENITSA SACHEVA,
MINISTER OF LABOR AND SOCIAL POLICY
Regarding: procedure for establishing the presence of the criteria for representativeness of the organizations of workers and employees and of employers (Official State Gazette No. 10, 04.02.2020, p. 47)
DEAR MR BORISOV,
DEAR MRS NIKOLOVA,
DEAR MRS SACHEVA,
In the course of the procedure for recognition of representativeness (Official Gazette No. 10, 04.02.2020, p. 47) The Commission to establish the presence of the criteria for the representativeness of the organizations of workers and employees and of employers (the Commission) established in an undoubted and indisputable way the absence of mandatory documents, namely those under Art. 35, para. 1 item 4 of the CT, (to have the status of a legal entity, acquired in accordance with Art. 49, Para. 1 at least three years before submitting the request for recognition of representativeness, which is proven by the presentation of documents under Art. 6, paragraph 1, items 1 and 2 of the Ordinance on determining the procedure for establishing the presence of the criteria for the representativeness of the organizations of workers and employees and of employers (NORUNKPORSR), namely with the presentation of a court decision for registration and a certificate of up-to-date state of the organization, as well as a court-certified copy of the organization's latest statutes) from one of the organizations applying for recognition of representativeness, namely - Association Bulgarian Employer Organization "Innovative Technologies" (BRAIT). The Commission demanded the submission of such documents and set a deadline for this, and the applicant organization did not comply with the given instructions.
According to Art. 49 of the Labor Code, trade union organizations and employers' organizations acquire the status of a legal entity after their entry in the register of trade union and employer organizations at the relevant district court at their seat. There is no legal obstacle for an organization claiming to be a trade union or an employer to be registered by the relevant court. In the specific case, this means that BRAIT either does not consider itself an employer organization or does not have the competence to request its registration as such. Both hypotheses have the same result – according to Bulgarian legislation, BRAIT is not employer organization.
The ascertained non-compliance with the legal requirements represents an insurmountable objective obstacle to the recognition of the applicant organization as representative, the opposite is a gross violation of the current Bulgarian legislation – The Labor Code and the Ordinance for determining the procedure for establishing the presence of the criteria for representativeness of workers' and employees' organizations and employers.
There is also another absolute obstacle to BRAIT being defined as an employer organization. One year after the entry into force of Art. 49 of the Labor Code, the organization has defined itself as an "association for activity in the public interest" within the meaning of the Law on Non-Profit Legal Entities /ZYULNC/ and has registered as such in the Registration Agency at the Ministry of Justice. Associations designated for public benefit work are subject to a special regime. They carry out activities for the benefit of various groups of society and receive financial assistance from the state in the form of exemption from taxes, customs duties, etc. for donations and other assistance received. Such type of associations are the only possible beneficiaries under a number of operational programs and other European projects.
These rules do not apply to workers' and employers' organizations, they are excluded by law.
Designating an association to work for public benefit and as an employer organization will place it in a privileged position compared to others and will be a clear manifestation of inequality and discrimination. It would be in gross violation of the ILO conventions as well as the European Convention on Human Rights and Fundamental Freedoms.
The lack of compliance with the basic requirements of Art. 35, para. 1, item 4, in connection with Art. 49 of the Labor Code, as well as with Art. 6, para. 1 item 1 and item 2 of NORUNKPORSR makes the BRAIT association an inadmissible candidate in the procedure for establishing the presence of the criteria for representativeness of the organizations of workers and employees and of employers.
In addition, the Commission also noted the fact that the same association does not meet the quantitative criteria for representativeness, namely those under Art. 35, para. 1, item 1, letters "a" and "b" - to have 1500 members and a total of not less than 50 workers and employees in all members of the employer organization, or 000 workers and employees employed under an employment contract, in all members of the employer organization, since named by the applicant organization as its members, they have expressly authorized other organizations and therefore should be counted in their composition.
The inadmissible candidate association BRAIT, with the submitted documents, claims that its members employ 57 (fifty-seven thousand and eighteen) workers and employees.
At the meetings of the Commission, it was established indisputably that a large part of those designated as members of BRAIT either did not authorize it at all, or expressly gave authorization to other national organizations and should be reported only to them, but not to BRAIT. We point to the following indicative examples important for the objectivity and legality of the procedure:
- A company listed by BRAIT as their authorized member under number 666 on their list. This company employs 6 workers. The company has expressly authorized another national organization for representation, where it should be accounted for in accordance with the power of attorney issued in fulfillment of the requirements of Art. 348, para. 10 of NORUNKPORSR.
- A company claimed by BRAIT as their authorized member under number 762 on their list. This company employs 3 workers. The company did not issue a power of attorney to BRAIT at all, as the latter claims. This fact (the lack of power of attorney) was ascertained by the Commission and shows the integrity of the ineligible candidate BRAIT. However, the company has expressly authorized another national organization for representation, where it should be accounted for in accordance with the issued power of attorney.
In accordance with the above-cited norms of the CT and NORUNKPORSR, the employees in the mentioned two companies should be counted in the numerical composition of the authorized national organization, not in the inadmissible candidate BRAIT. This means (even if we assume it is reliable, which is clearly not the case from the above examples) the list of companies and the workers and employees employed in them - a total of 57018 and we subtract the number of employees only in the two cited companies (6 348 + 3 237 = 9 585 ), not even considering other examples (of which there are enough) the undisputed result is 57 – 018 = 9.
It's obvious that the ineligible candidate association BRAIT also fails to:
- the quantitative criterion under Art. 35, para. 1, item 1, letter "a' from KT because it does not have 50 workers and employees in all its members
и
- the quantitative criterion of Art. 35, para. 1, item 1, letter "b" because it does not have 100 contract workers in all its members.
In the same indisputable way, we can point out other vices in the documents of the association applying for recognition of representativeness - BRAIT, but we are convinced that each one of the above, even considered independently, is sufficient for the adoption of a correct and lawful decision.
We are convinced that in the presented factual situation, the Council of Ministers of the Republic of Bulgaria will strictly observe the Bulgarian legislation, by ruling on the issues raised with a lawful and correct decision, which will preserve the legitimacy of the social dialogue in the Republic of Bulgaria.
WITH RESPECT,
VASIL VELEV
PRESIDENT
INDUSTRIAL CAPITAL ASSOCIATION IN BULGARIA
RADOSVET RADEV
PRESIDENT
BULGARIAN CHAMBER OF COMMERCE
KYRILL DOMUSCHIEV
PRESIDENT
CONFEDERATION OF THE EMPLOYERS AND INDUSTRIALISTS IN BULGARIA
VIOLIN NAKOVA
EXECUTIVE VICE PRESIDENT
UNION FOR BUSINESS INITIATIVE
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