Informe provisional - Informe núm. 359, Marzo 2011

1. 904. The complaint is contained in communications dated 11 June 2009 and 1 February 2010, from the New Trade Union of the Radio and Television of Montenegro (RTCG).
2. 905. The Committee has been obliged to postpone its examination of the case on two occasions [see 356th and 357th Reports, paras 6 and 7, respectively]. At its meeting in November 2010 [see 358th Report, para. 5], the Committee issued an urgent appeal to the Government, indicating that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it could present a report on the substance of the case at its next meeting even if the information or observations requested had not been received in due time. To date the Government has sent no observations.
3. 906. 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. 907. In its communications dated 11 June 2009 and 1 February 2010, the New Trade Union of the RTCG explains that it was registered by the Ministry of Labour on 15 March 2007 and counts 107 members out of 650 employees of the enterprise. The complainant organization further explains that its struggles are related not only to its trade union activities, but also to the discovery it had made on the illegal and corrupt activities of the management of the RTCG and the Government with regard to the satellite transmission of public radio and TV programmes.
2. 908. The complainant alleges that in February 2008, the director-general of the enterprise dismissed three trade union leaders of the New Trade Union of the RTCG – Mr Dragan Janjic, President, Ms Mirjana Popovic, member of the Executive Committee, and Mr Miodrag Boskovic, member of the Supervising Committee. The union alleges that, while officially they were dismissed for absenteeism, in reality, they were dismissed on account of their trade union activities. On the date of the complaint, a court case concerning Mr Janjic was still pending.
3. 909. The union also alleges that, under threats and pressure of the management, workers cannot freely exercise their trade union rights. It further alleges that local authorities do not react to the appeals of the union.
4. 910. The complainant further alleges that the management of the undertaking refuses to recognize it, withdrew the check-off facility previously enjoyed by the union; had not provided the union with such facilities as an office, personal computer, Internet or telephone/fax; had never consulted the union with regard to the changes in conditions of employment; does not provide any kind of information to the union and ignores all demands and communications addressed to it by the union; prohibits the union to display its information without prior approval by the director of the undertaking; deprived its members of bonuses given to other workers; and threatens its members with dismissal unless they resign from the union
5. 911. With regard to the refusal to grant certain facilities to the union and the withdrawal of the check-off facility, the union addressed a complaint to the labour inspectorate. The complainant explains that the other, pro-government, trade union enjoys the facilities pursuant to a collective agreement amended in agreement with that union. According to the New Trade Union of the RTCG, while an officer of the Ministry of Labour confirmed that trade unions have a right to facilities, the labour inspector replied that these rights are provided only for the most representative trade union organizations. While the complainant requested the Ministry of Labour and the labour inspectorate to clarify which of the interpretations of the legislation was a correct one, none provided a reply.
6. 912. The complainant indicates that it lodged a complaint against the enterprise before the court of first instance in Podgorica. At the preliminary hearing, the judge requested all unions operating at the enterprise to submit admission forms filed by the members of the union so as to determine the most representative organization. Only the New Trade Union of the RTCG presented 107 legally valid forms. Nevertheless, the judge refused to recognize the union as the most representative and on 16 June 2009, suspended the proceedings so as to allow the complainant to appeal the verdict. This appeal is still pending. The complainant points out that the President of the pro-government trade union, affiliated to the Confederation of Trade Unions of Montenegro (CTUM), declared that his union has 642 members out of 722 employees, and that this information was provided to the court through a legal representative of the management of the enterprise.

B. The Committee’s conclusions

1. 913. The Committee regrets that, despite the time that has elapsed since the complaint was first presented, the Government has not replied to any of the complainant’s allegations, although it has been invited on several occasions, including by means of an urgent appeal, to present its comments and observations on the case. The Committee urgently requests the Government to be more cooperative in the future.
2. 914. Under these circumstances and in accordance with the applicable rules of procedure [see 127th Report, para. 17, approved by the Governing Body at its 184th Session], the Committee finds itself obliged to present a report on the substance of the case without the benefit of the information which it had hoped to receive from the Government.
3. 915. The Committee recalls that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association is to promote respect for this freedom in law and in fact. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating for objective examination detailed replies concerning allegations made against them [see the First Report of the Committee, para. 31].
4. 916. The Committee notes, in this case, the complainant organization, the New Trade Union of the RTCG alleges the refusal of the management of the RTCG to recognize the union as the representative organization of workers, as well as the dismissal of its officers and harassment of its members.
5. 917. The Committee notes the complainant’s indication that the problems it faces with the enterprise management and the Government also relate to the discovery it had made of what it believes to be illegal and corrupt activities of the enterprise management and the Government with regard to the satellite transmission of public radio and TV programmes. The Committee wishes to point out in this respect that its mandate consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 6]. It will therefore not pursue the examination of this aspect of the allegations.
6. 918. With regard to the dismissal of three of the complainant’s trade union leaders (Mr Dragan Janjic, Ms Mirjana Popovic and Mr Miodrag Boskovic), the Committee notes the complainant’s allegation that, contrary to the officially stated reason of absenteeism, trade union leaders were dismissed on account of their trade union activities. The Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions. No person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment. Since inadequate safeguards against acts of anti-union discrimination, in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts [see Digest, op. cit., paras 769, 771 and 773]. Noting the limited information provided by the complainant organization and the lack of the Government’s reply, the Committee requests the New Trade Union of the RTCG to provide more details in respect of the alleged antiunion dismissals and requests the Government to institute an independent investigation into the allegations and provide it with full details as to the outcome. Noting that the complainant indicates that Mr Janjic’s case is still pending, the Committee requests the Government and the complainant to provide information on the final decision rendered by the courts.
7. 919. With regard to the allegations of denial of bonuses to and threats against the members of the complainant organization, pressure to withdraw their union membership, as well as interference with the union’s capacity to exercise its activities in the defence of the workers, the Committee considers that this is a very serious allegation which, if true, would be likely to have a grave effect on the membership of an organization and its representativity. The Committee recalls that acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize. Furthermore, granting bonuses to non-union member staff – even if it is not to all non-union workers – and excluding all workers who are union members from such bonuses during a period of collective conflict constitutes an act of anti-union discrimination contrary to Convention No. 98 [see Digest, op. cit., paras 786–787]. The Committee expects that an independent investigation will be carried out by the Government into the allegations made without delay and requests the Government and the complainant to provide detailed information on its outcome.
8. 920. The Committee notes that the issue of recognition of the complainant organization as representative is currently pending before the court and requests the Government and the complainant to provide information on the outcome.
9. 921. With regard to the facilities of which the complainant organization is allegedly deprived, the Committee recalls that Convention No. 135, ratified by Montenegro, calls on ratifying member States to supply such facilities in the undertaking as may be appropriate in order to enable workers’ representatives to carry out their functions promptly and efficiently, and in such a manner as not to impair the efficient operation of the undertaking concerned [see Digest, op. cit., para. 1098]. The Committee further recalls that, according to Article 4 of that Convention, national laws or regulations, collective agreements, arbitration awards or court decisions may determine the type or types of workers’ representatives which shall be entitled to the protection and facilities provided for in this Convention. Thus, with regard to the alleged refusal by the management of an enterprise to establish communications with the representatives of the trade union, the Committee points out that Paragraph 13 of the Workers’ Representatives Recommendation, 1971 (No. 143), provides that workers’ representatives should be granted without undue delay access to the management of the undertaking and to management representatives empowered to take decisions, as may be necessary for the proper exercise of their functions. The Committee therefore requests the Government to bring the parties – the management of the enterprise and the New Trade Union of the RTCG – together in order to facilitate their reaching an agreement in relation to the facilities to be provided to the representatives of the complainant, bearing in mind the principles above. It requests the Government to keep it informed in this respect.