Effect given to the recommendations of the committee and the Governing Body - REPORT_NO383, October 2017

Effect given to the recommendations of the committee and the Governing Body

1. 61. The Committee last examined this case, in which the complainant denounced the dismissal of a trade union leader in an aluminium company for the exercise of trade union activities and the refusal to let her enter trade union premises after her dismissal, at its March 2016 meeting [see 377th Report, paras 382–396, approved by the Governing Body at its 326th Session]. On that occasion, the Committee made the following recommendations [see 377th Report, para. 396]:
   • (a) The Committee requests the Government to ensure that bankruptcy proceedings do not lead to a situation where allegations of anti-union dismissal cannot be addressed and to fully review the claims of Ms Obradovic without delay with a view to ensuring her reinstatement as a primary remedy, should her dismissal be found to have been motivated by her trade union activities, or if the judicial authority determines that reinstatement is not possible for objective and compelling reasons, award adequate compensation to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee requests the Government to keep it informed of any developments in this regard.
   • (b) The Committee requests the Government to take the necessary measures without delay to ensure that the bankruptcy proceedings underway do not lead to any anti-union discrimination and that Ms Obradovic, for as long as she holds the function of President of the trade union or any other representative function, has reasonable access to the workplace and the union premises for the exercise of her functions and to facilitate agreement between the union and the employer in this regard. The Committee requests the Government to keep it informed of any developments in this respect.
2. 62. The Government provides its observations in communications dated 5 April and 19 October 2016 and 21 June 2017. In particular, it informs that the Ministry of Economy, which is responsible for drafting the Law on Bankruptcy and implementing the Committee’s recommendations, was given detailed information about the case and the Union of Free Trade Unions of Montenegro (UFTUM) was duly informed of the Government’s actions in this regard. The Government further indicates that in the process of drafting the Law on Amendments to the Law on Bankruptcy and in accordance with the Committee’s recommendations, the Ministry of Economy accepted amendments proposed by the UFTUM. As a result, section 79(4) of the Law on Bankruptcy now stipulates that the rights of persons employed in the course of bankruptcy proceedings shall be subject to the legislation regulating labour rights. These changes were adopted and published in the Official Gazette on 11 August 2016 and give effect to the Committee’s recommendations by establishing the legal status of persons under bankruptcy proceedings. The Government also reiterates the information provided in its initial observations relative to the initiation of bankruptcy proceedings, dismissal of employees and the lack of authority of the Ministry of Labour and Social Welfare to act in this case due to the ongoing bankruptcy proceedings.
3. 63. In its communication dated 17 June 2016, the complainant alleges that the Government has neither taken any action in this case nor has it indicated that it intends to do so, and that Ms Obradovic continues to be out of work. The complainant also expresses concern at the fact that the Government’s interpretation of the law – the exclusive application of the Law on Bankruptcy to workers engaged in a company undergoing bankruptcy proceedings – will not be limited to this case but used for all companies in bankruptcy. This could, according to the complainant, lead to the application of this rationale to a large part of the workforce, especially considering the poor economic situation of the country where many companies are undergoing restructuring through bankruptcy proceedings, and be perceived as inviting companies in the future to enter into bankruptcy as a union-avoidance strategy. Furthermore, both the Commercial Court and the Court of Appeals of Montenegro confirmed that the rights of employees engaged for the purpose of the completion of bankruptcy proceedings are narrowed compared to the rights of employees who are employed by companies that are not in bankruptcy. These rights are limited only to wage compensation, as prescribed by the Law on Bankruptcy, thus excluding such basic rights as the right to annual leave, 40-hour working week, paid sick leave, etc. According to the complainant, this reasoning also applies to freedom of association, which would thus be restricted for workers engaged in companies undergoing bankruptcy. In addition, the complainant reiterates that although companies have an obligation to bargain with trade unions over restructuring, the aluminium company failed to do so and it estimates that this will also be the case in companies in similar situations.
4. 64. The Committee takes due note of the information submitted and observes that while the complainant alleges that the Government has not taken any action to implement the Committee’s recommendations and denounces the exclusive application of the Law on Bankruptcy to employees engaged in companies undergoing bankruptcy running the risk of being used as a union-avoidance strategy, the Committee notes the Government’s indication that, subsequently, in August 2016, on the basis of proposals made by the UFTUM, the Law on Bankruptcy was amended and now stipulates that the rights of persons employed in the course of bankruptcy proceedings shall be subject to legislation regulating labour rights. The Committee understands from the information provided that, by virtue of this amendment, the Law on Bankruptcy will no longer be the exclusive law applicable during bankruptcy proceedings but instead workers engaged in companies undergoing bankruptcy will be governed by the relevant labour laws and regulations and will thus be able to fully enjoy trade union rights, including adequate protection against all forms of anti-union discrimination and access to rapid and effective remedies against any infringements. In light of these developments and bearing in mind the concerns expressed by the complainant, the Committee trusts that workers in the aluminium company, as well as their trade union, can exercise their trade union activities freely and that recourse to bankruptcy proceedings will not be used as a union-avoidance strategy in the future. The Committee requests the Government to provide the relevant parts of the Law on Bankruptcy, as amended.
5. 65. The Committee further observes that more than two years after her dismissal, Ms Obradovic has not yet been reinstated and regrets that the Government does not provide any observations on the measures taken in this regard. The Committee further notes that neither the complainant nor the Government provide any updated information as to the whether Ms Obradovic still holds her function as President of the company trade union and, if so, whether she has been granted access to the workplace and the union premises, as requested by the Committee. In light of these circumstances, the Committee requests the Government once again to ensure that the claims of Ms Obradovic are fully reviewed without delay with a view to ensuring her reinstatement as a primary remedy, should her dismissal be found to have been motivated by her trade union activities, or if the judicial authority determines that reinstatement is not possible for objective and compelling reasons, award adequate compensation to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination. The Committee further trusts that, should Ms Obradovic still hold the function of President of the company trade union or any other representative function, she has been given reasonable access to the workplace and the union premises for the exercise of her function and invites the complainant and the Government to provide any updated information in this regard.