Definitive Report - REPORT_NO392, October 2020

1. 773. The complaint is contained in a communication dated 18 January 2019 from the Union of Free Trade Unions of Montenegro (UFTUM).
2. 774. The Government provides its observations in a communication dated 14 January 2020.
3. 775. Montenegro has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainant’s allegations

1. 776. In its communication dated 18 January 2019, the complainant denounces violations of trade union rights by the Government with respect to the Trade Union of Defense and the Army of Montenegro (SOVCG) – a branch trade union affiliated to the Union of Free Trade Unions of Montenegro (UFTUM) and one of the two representative trade union organizations in the armed forces of Montenegro. In particular, the complainant alleges acts of anti-union discrimination against the SOVCG President and members, as well as the denial of certain rights to the union, while granting them to another representative organization at the same level. It informs the Committee that freedom of association and organization in the armed forces is guaranteed by article 53 of the Constitution, section 15 of the Law on Civil Servants and State Employees and section 67 of the Law on the Army of Montenegro.
2. 777. Concerning the allegations of anti-union discrimination, the complainant claims that since July 2017, the SOVCG President and members have been exposed to acts of anti-union discrimination by reason of their struggle to keep 22 soldiers in service. When the Ministry of Defence announced that the professional labour contracts for these soldiers would not be extended despite recommendations from their superiors for such extension, the SOVCG President requested a meeting with the Ministry of Defence to receive an explanation for the non-renewal of contracts to which the union is entitled by virtue of section 3 of the Agreement on Cooperation between the SOVCG and the Ministry of Defence. This provision stipulates that prior to making a decision of vital importance for the professional and economic interests of the employees in the Ministry of Defence and the armed forces, the Ministry of Defence shall seek and consider the opinions and proposals from the SOVCG. Despite this guarantee and several letters addressed to the Minister’s cabinet, the Minister of Defence did not receive the SOVCG representatives and did not provide them with information on the reasons for not extending the labour contracts of the concerned soldiers. In an attempt to protect the interests of his colleagues, the SOVCG President informed other institutions, as well as the public about this issue. Since then and without any justified reason, the SOVCG President and union members have been subjected to anti-union discrimination, as evidenced by numerous documents.
3. 778. According to the complainant, the most drastic measure of discrimination was the dismissal of the SOVCG President in October 2017 by means of forced retirement. The complainant claims that in order to ensure the President’s rapid removal from service, he was deprived of his annual leave and compensated for untaken leave and that the decision on retirement contained wrong information with regard to the President’s age which had to be later corrected. The complainant further alleges that the dismissal was ordered with the aim of intimidating union members and was preceded by a targeted amendment to the Law on the Army of Montenegro in August 2017, which gives the right to the Ministry of Defence to forcibly retire army employees if needs of the service so require (until then, the role of president in another representative organization in the army had been held for several years by a retired army official without any difficulties). The Ministry of Defence later requested an opinion from the Ministry of Labour and Social Welfare on whether a retired person could perform the function of trade union president. The opinion was issued in September 2017 and stated that a trade union is composed of employees employed by the employer. One day after the opinion was issued, the Director of Human Resources in the Ministry of Defence proposed that the SOVCG President be early retired and both representative unions in the armed forces were requested to conduct elections as they could no longer be represented by retired persons. The complainant alleges that from the date of his forced retirement, the SOVCG President was denied the possibility to perform trade union activities and that despite complaints filed to the competent institutions he did not receive any protection against dismissal.
4. 779. The complainant further alleges that the Ministry of Defence denied the SOVCG the rights granted by national legislation when it refused to act on a number of requests from the union to transfer the membership fee for new members to its account, as required by the General Collective Agreement. Furthermore, despite national law which provides for equal rights to representative unions at the same level, the SOVCG was denied several benefits that were at the same time provided to another representative union in the armed forces. These allegations refer to the SOVCG exclusion from the agreement on the establishment of a housing cooperative for employees in the Ministry of Defence and the army; refusal to provide the union and its members with regular information in the field of trade union and labour issues; and refusal to provide higher purchase services and the right to use the Fund for Financial Assistance. The complainant alleges that through these measures, the Ministry of Defence attempts to intimidate SOVCG members and that, as a result, the union lost 17 per cent of its members in five months. The union addressed these issues to the Administrative Inspection, which announced that it did not have jurisdiction to act and forwarded the case to the Protector of Human Rights and Freedoms.
5. 780. Finally, the complainant requests the Government to annul the decision on forced retirement of the SOVCG President and enable him to perform union activities, as well as to allow SOVCG members to exercise the same rights as members of another representative trade union at the same level.

B. The Government’s reply

1. 781. In its communication dated 28 January 2020, the Government recalls the allegations as presented by the complainant and informs the Committee that the Ministry of Defence rejected all of these allegations as unfounded. In relation to the alleged discrimination of the SOVCG President, Mr Nenad Cobeljic, the Government indicates that the person concerned filed an appeal against the decision on retirement, which was rejected by the Commission for Appeals, stating that the decision was legitimate and that the SOVCG President could not be put in a more favourable position than other persons whose employment had also been terminated.
2. 782. As to the issue of whether the SOVCG President, once retired, could hold trade union office, the Ministry of Defence reported that the opinion provided by the Ministry of Labour and Social Welfare indicated that only employed persons could organize in trade unions, which means that the role of trade union president can only be held by a person employed with the employer where the union is organized. The Government states that Mr Cobeljic, who is not employed in the armed forces, may therefore not act as president of a trade union in the armed forces.
3. 783. Concerning the allegation that the Ministry of Defence has unlawfully excluded the SOVCG from concluding an agreement on the establishment of a housing association, the Government states that it opted to conclude a more appropriate model for resolving the housing issue with another trade union organization –¬ the Trade Union of the Army of Montenegro. It indicates that the complainant has not submitted any proof of discrimination towards the SOVCG and the Ministry of Defence therefore considered this allegation as unfounded.

C. The Committee’s conclusions

1. 784. The Committee observes that this case concerns allegations of anti-union discrimination against the President of the SOVCG, including forced retirement and the ensuing inability to hold trade union office, as well as the denial of certain rights to the SOVCG, a representative trade union in the armed forces, while providing them to another representative organization at the same level. The Committee notes the Government’s reply to these allegations indicating that the decision on the SOVCG President’s retirement has been confirmed by the Commission for Appeals as legitimate and that, in line with the opinion of the Ministry of Labour and Social Welfare, Mr Cobeljic, once retired may not act as the SOVCG President, since a trade union officer must be a person employed at the employer where the union is organized. The Government also refutes the allegation of discrimination between the SOVCG and another trade union in the armed forces and points to the absence of any proof submitted by the complainant to support this claim.
2. 785. Bearing this in mind, the Committee notes that Montenegro has ratified Conventions Nos 87, 98 and 151. With respect to the application of these instruments to the armed forces, the Conventions contain a provision which stipulates that: “The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations” (Article 9(1) of Convention No. 87; Article 5(1) of Convention No. 98; and Article 1(3) of Convention No. 151). The Committee has considered that it is clear that the International Labour Conference intended to leave it to each State to decide on the extent to which it was desirable to grant members of the armed forces and of the police the rights covered by Convention No. 87. It also held that the same considerations apply to Conventions Nos 98, 151 and 154 [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1253].
3. 786. Nevertheless, the Committee notes with interest that Montenegro has recognized the right to organize to the armed forces in accordance with freedom of association principles and that this right is guaranteed by article 53 of the Constitution, section 15 of the Law on Civil Servants and State Employees and section 67 of the Law on the Army of Montenegro. The Committee also observes that several workers’ organizations have been established and are currently active in the armed forces and that an Agreement on Cooperation had been signed in 2015 between the SOVCG and the Ministry of Defence to regulate certain mutual rights, obligations and responsibilities. The Committee understands from the information provided that despite the pending dispute and the divergent opinions between the parties in this regard, there appear to be established avenues for social dialogue between the political and military authorities, on the one hand, and the representatives of trade unions in the armed forces, on the other hand.
4. 787. In light of the above, and within the framework of the existing national legislation, regulations and practice in Montenegro (Article 9(1) of Convention No. 87; Article 5(1) of Convention No. 98; and Article 1(3) of Convention No. 151), the Committee invites the Government to encourage and promote social dialogue between the parties with a view to ensuring full and effective protection of the freedom of association rights of military personnel, as guaranteed by national laws and regulations.