Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 377, Mars 2016

1. 382. The complaint is contained in a communication from the International Trade Union Confederation (ITUC) dated 7 July 2015.
2. 383. The Government sent its observations in communications dated 3 September and 6 November 2015.
3. 384. 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 Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 385. In its communication dated 7 July 2015, the complainant alleges that the Aluminium Plant Podgorica (KAP) dismissed Ms Sandra Obradovic, President of the Trade Union of KAP and member of the executive committee of the Union of Free Trade Unions of Montenegro (UFTUM), for the exercise of her trade union activities, in violation of the existing collective agreement, national law and ILO Conventions Nos 87 and 98. In particular, the complainant states that, prior to her dismissal, Ms Obradovic had repeatedly protested the fact that, due to bankruptcy proceedings initiated against the company, KAP workers had been denied their annual leave. The complainant also claims that the dismissal of Ms Obradovic was published by the Montenegrin media even before she was formally dismissed on 31 March 2015 and that the KAP management subsequently made a range of unconvincing (and illegal) justifications for her dismissal, such as the need to downsize the department where Ms Obradovic was employed, even though her replacement was immediately hired, and the need to hire younger staff and put Ms Obradovic into early retirement although she was only 47 years old. The complainant further indicates that Ms Obradovic appealed the decision on the termination of her employment contract to the Commercial Court of Montenegro and that two communications, one by the complainant and one by the European Trade Union Confederation (ETUC), were addressed to the Ministry of Labour and Social Welfare in June 2015, requesting it to intervene with the KAP management in order to ensure the immediate reinstatement of Ms Obradovic and the full payment of back pay. According to the complainant, the Ministry replied that, although it had submitted a request to the labour inspectorate to perform an inspection in KAP regarding the termination of employment contracts of several employees, the labour inspectorate reported that, since the enterprise was in bankruptcy, an executive authority could not interfere in the work of the judicial authorities charged with supervision of the bankruptcy proceedings, and, therefore, labour inspection, which is an administrative proceeding, could not be performed. In a communication dated 10 August 2015, the complainant provides additional information, in particular a judgment of the Commercial Court of Montenegro dated 24 July 2015, in which the Court rejects the complaint of Ms Obradovic requesting to annul the decision of the bankruptcy trustee on the termination of her employment contract.
2. 386. The complainant also indicates in its communication dated 7 July 2015 that the Executive Board of the Trade Union of KAP, in consultation with the UFTUM, adopted a decision on 27 April 2015, according to which Ms Obradovic was to continue to perform her duties of President of the Trade Union of KAP until the resolution of the court dispute relative to the legality of her dismissal. However, the complainant asserts that when Ms Obradovic tried to enter the premises of the union on the worksite on 30 April 2015 in her capacity as President of the Trade Union of KAP, private security at the entrance of the plant did not allow her to enter the building. As a result, Ms Obradovic addressed a written request to the management to provide her with access to the premises of the trade union from 7 a.m. to 3 p.m. every working day until the final judgment in the abovementioned case. According to the complainant, the management stated that they could not meet the request because Ms Obradovic was no longer an employee of KAP and could, therefore, not have access to the premises of the trade union which are located on the private property of the enterprise. Accordingly, the UFTUM appealed to the Montenegrin Ombudsman in order to enable Ms Obradovic to enter the buildings and perform her duties as President of the Trade Union of KAP. The complainant specifies that she has not yet been able to enter the trade union premises.

C. The Committee’s conclusions

1. 388. The Committee notes that this case concerns allegations of anti-union dismissal of Ms Sandra Obradovic, President of the Trade Union of the Aluminium Plant Podgorica (KAP) and member of the executive committee of the UFTUM, as well as the alleged refusal of the company management to allow Ms Obradovic to enter trade union premises after her dismissal.
2. 389. In relation to the allegations of anti-union dismissal, the Committee notes that the complainant argues that Ms Obradovic was dismissed on 31 March 2015 because, in her role as President of the trade union, she had repeatedly protested against the refusal of the management to grant annual leave to employees after bankruptcy proceedings had been initiated against the enterprise. The Committee observes that, as asserted by the complainant, the management provided a range of justifications for the dismissal of Ms Obradovic, including the need to downsize the department where she worked and the need to hire younger staff. The complainant further alleges, however, that a replacement was immediately hired on her post – an allegation to which the company has not replied. The Committee also notes the complainant’s indications that Ms Obradovic appealed the decision on the termination of her employment contract to the Commercial Court of Montenegro and that two communications, one by the complainant and one by the ETUC, were addressed to the Ministry of Labour and Social Welfare in June 2015 requesting it to intervene with the company management to ensure the immediate reinstatement of Ms Obradovic and the full payment of back pay. The Committee further observes that the complainant explains that although the Ministry of Labour and Social Welfare requested the labour inspectorate to perform a labour inspection in the company regarding the termination of employment contracts of several employees, including Ms Obradovic, such inspection, which is an administrative measure, could not be performed as it would be considered as interference in the work of judicial authorities charged with supervision of the bankruptcy proceedings.
3. 390. The Committee notes the information from the company, provided by the Government, concerning the allegations of anti-union dismissal of Ms Obradovic, indicating that: (i) bankruptcy proceedings against the enterprise were initiated by the decision of the Commercial Court of Montenegro of 8 July 2013; (ii) under the authorizations of article 32 of the Bankruptcy Law, the bankruptcy trustee issued a decision which deemed ineffective all general acts or ordinances of the enterprise; (iii) according to the Bankruptcy Law, the trustee may at any stage of the bankruptcy proceeding terminate a labour contract ex lege, regardless of the general protective clause under the Labour Law and the Collective Agreement, the decision being final; (iv) in accordance with the Bankruptcy Law, the trustee terminated more than 600 employment contracts of persons who, after the opening of the bankruptcy were temporarily employed, including Ms Obradovic, whose work engagement was no longer required in the course of the bankruptcy proceedings; (v) the exclusive criterion for the termination of employment was the cessation of the need for further engagement of an individual, and not union activities; (vi) the Bankruptcy Law is lex specialis regulating bankruptcy proceedings in an imperative manner (section 7(1) of the Bankruptcy Law); (vii) trade union activities in bankruptcy do not enjoy special protection; (viii) the bankruptcy proceedings are under the authority of the Commercial Court and any pressure on the bankruptcy authorities under the pretext of alleged discrimination against Ms Obradovic constitutes impermissible interference with the judicial process; (ix) in accordance with section 20 of the Bankruptcy Law, any person who has a legal interest in it, may submit within five days of learning of it, an objection to the court (bankruptcy judge) against any action carried out by the bankruptcy trustee or to the Court of Appeal to contest a bankruptcy judge’s decision; (x) Ms Obradovic initiated proceedings before the Commercial Court of Montenegro in order to assess the legality of the decision on the termination of her employment contract; and (xi) all persons whose employment contracts were terminated in the course of the bankruptcy exercised one of the rights under the social programme, choosing either severance pay or retirement, including Ms Obradovic who met the required conditions and is entitled to a pension.
4. 391. Finally, the Committee notes the judgment of the Commercial Court of Montenegro dated 24 July 2015, in which the Court rejected the complaint of Ms Obradovic requesting to annul the decision of the bankruptcy trustee on the termination of her employment contract. The Committee observes that, while Ms Obradovic claimed before the Court that the decision on the termination of her contract was taken solely as a revolt against her trade union activities, the company asserted that the reason for her dismissal was the fact that her employment was no longer needed and the minimization of the costs of the bankruptcy proceedings but not redundancy or any other reasons, and that 12 other employment contracts were also terminated in the same sector. The Committee further notes the Court’s summary of the company’s arguments: (i) after the opening of the bankruptcy on 8 July 2013, employment contracts of all employees were terminated and the employees were subsequently reinstated on a temporary basis, including Ms Obradovic, who was employed until her dismissal on 31 March 2015; (ii) since she did not use the legal means stipulated in the Bankruptcy Law to contest the decision on the termination of her employment contract (objection to the bankruptcy judge) but instead those under the Labour Law, her complaint before the Commercial Court of Montenegro is unauthorized; and (iii) neither the Bankruptcy Law nor positive national legislation require the employer to protect the rights of trade union activists and their representatives to a greater extent than those of other employees. The Committee also notes the Court’s reasoning: (i) bankruptcy proceedings are imperatively governed by the Bankruptcy Law, which determines the conditions and modalities concerning the termination of employment of employees working for the debtor in bankruptcy proceedings; and (ii) the Bankruptcy Law does not allow for a complaint to be filed against the decisions of the bankruptcy trustee but, in accordance with section 23.1.6, only an objection can be filed with the bankruptcy judge, and, in line with section 19, an appeal to the competent court against the decision in the bankruptcy proceedings can be made within eight days. The Committee notes the Court’s conclusion that the complaint for annulment of the decision of the bankruptcy trustee on the termination of employment of Ms Obradovic is unauthorized and must be rejected and observes that since the complaint was rejected on procedural grounds, the Commercial Court did not address the allegations of anti-union dismissal.
5. 392. In this regard, the Committee wishes to draw attention to the Workers’ Representatives Convention, 1971 (No. 135) and Recommendation (No. 143), 1971, in which it is expressly established that workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers’ representatives or on union membership, or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 800]. The Committee also wishes to emphasize the advisability of giving priority to workers’ representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection [see Digest, op. cit., para. 833]. The Committee considers that these principles are also relevant with regard to bankruptcy proceedings, where the enterprise continues to operate.
6. 393. The Committee expresses its deep concern that the allegations of anti-union dismissal in this case were never addressed by the Government. The labour inspectorate was not able to examine this matter purportedly due to the pending bankruptcy proceedings, while appeal to the Commercial Court was rejected on procedural grounds which included a consideration that there is no requirement to protect workers’ representatives beyond that of regular employees. The Committee further notes that the bankruptcy proceedings began in 2013 and led to all workers being placed on temporary contracts, that Ms Obradovic and 12 other workers were dismissed in 2015 due, according to the company, to the cessation of the need for their further engagement, and that the company has not responded to the allegation that the replacement of Ms Obradovic was immediately hired. The Committee further expresses its concern that, despite very serious allegations of the anti-union nature of her dismissal, no case has been made by the company to rebut directly the specific claims made.
7. 394. In light of the above principles and the circumstances in this case, in which the enterprise continues to operate, the Committee considers that efforts should have been made to retain the workers’ representative – in this case Ms Obradovic – in employment. The Committee therefore 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. If reinstatement is not possible, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals [see Digest, op. cit., para. 845]. The Committee requests the Government to keep it informed of any developments in this regard.
8. 395. Concerning access to trade union premises, the Committee notes the complainant’s indication that when Ms Obradovic tried to enter the premises of the union on 30 April 2015 in her capacity as President of the trade union (a function which the union mandated her to continue to perform even after her dismissal and until the resolution of the court dispute relative to the legality of her dismissal), private security at the entrance of the plant did not allow her to enter the building. The Committee notes that, as indicated by the complainant, Ms Obradovic addressed a written request to the management to provide her with access to the premises of the trade union from 7 a.m. to 3 p.m. every working day until the final judgment in the abovementioned case but that the company management refused the request stating that Ms Obradovic was no longer an employee and could thus not have access to the premises of the trade union which are located on the private property of the enterprise. The Committee also observes that, in August 2015, the UFTUM appealed to the Montenegrin Ombudsman to allow Ms Obradovic to enter the company buildings in order to enable her to perform her duties as President of the trade union but that Ms Obradovic has not yet been able to enter the trade union premises. The Committee regrets that the Government does not provide any comments on the alleged refusal of the management to allow Ms Obradovic to enter the trade union premises and expresses its concern that, if true, this could support the complainant’s allegation that her dismissal was motivated by her trade union activity. Recalling that workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representative function [see Digest, op. cit., para. 1104], 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.