Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 380, Octubre 2016

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

1. 54. The Committee last examined this case at its March 2014 meeting [see 371st Report, paras 79–88]. The present case concerns the alleged refusal of the management of the Radio and Television of Montenegro to recognize the union as the representative organization of workers, as well as the dismissal of its officers and harassment of its members. During the last examination of this case, the Committee: (i) requested the Government and the complainant to provide the court judgments concerning Mr Janjic and Ms Popovic’s demotion lawsuits as soon as they were handed down, as well as any additional information relating to this matter; (ii) once again urged the Government to institute an independent investigation into the allegations of repeated acts of anti-union discrimination allegedly committed by the company since 2008, including the dismissal of Mr Pajovic, and to keep it informed on the outcome of such inquiry; (iii) requested the Government, should it be found that Mr Pajovic was dismissed due to his exercise of legitimate trade union activities, to take the necessary measures to ensure that he is fully reinstated without loss of pay; or, in the event that the reinstatement is not possible, for objective and compelling reasons, to ensure that the union member concerned is paid adequate compensation; (iv) requested the Government to respond without delay to the additional allegations made by the complainant; and (v) once again urged the Government to intercede with the parties in order to facilitate their reaching a mutually satisfactory agreement in relation to the facilities to be provided to the representatives of the complainant.
2. 55. In a communication dated 19 May 2014, the complainant indicates that: (i) as regards Mr Janjic, the Supreme Court upheld all the lower courts’ decisions declaring the re engagement of the radio journalist as an administrative clerk for a lower salary as lawful; his 2012 appeal to the Constitutional Court on the issue of workplace has still not been decided; on 3 February 2014, Mr Janjic was declared “redundant” even from his administration-related workplace; following appeal, the labour inspection wrote to him on 28 March 2014 that “an Employer representative stated that there is room for rearranging a greater number of employees to the newly opened workplaces, while for about 30 employees there will not be workplaces and they will be declared redundant in the legal procedure”; however, Mr Janjic is so far the only one declared redundant, which clearly implies discrimination on the grounds of trade union activities; (ii) in the case of Mr Pajovic, who had also been re-engaged in a new lower salary position without filing appeal against the decision, had been suspended in February 2012 and dismissed for the second time following allegedly fabricated disciplinary proceedings, and was deliberately not given back his employment booklet without which he could not apply for benefits, the court found that the employer had mailed the employment booklet which failed to be delivered and that Mr Pajovic must pay the trial expenses; since 2012, the Basic Court in Podgorica allegedly invents various reasons for adjourning the trial in which Mr Pajovic seeks to prove that he was illegally fired; (iii) only in the case of Ms Popovic, who had filed an appeal with the Supreme Court against the decision of re-engagement in another position with a lower salary, the employer has recently fully met all her requirements in a private and separate manner; (iv) the management continues to charge employees 1 per cent of their monthly income, including some of the members of the complainant organization, and is wiring it to the pro-government trade union; (v) in addition to the allegedly false criminal charges repeatedly brought by management (for instance the ongoing proceedings against Mr Pajovic for secretly recording and eavesdropping, where attempts are being made to discredit the union president as mentally ill), and several allegedly fabricated disciplinary proceedings (for instance against Mr Janjic due to unjustified absence from work conducted during his sick leave and resulting in temporary salary reduction, a measure that has recently been ruled illegal in court), numerous verbal assaults and physical attacks were committed towards Mr Pajovic and other trade union leaders, some of which were considered minor offences in court, while in other cases Mr Pajovic withdrew the complaint after receiving a written apology from the attackers; and (vi) the union continues to be denied office space and equipment, whereas the pro-government union is being granted all facilities without having a single legally subscribed member; the Government failed to intercede with the parties in this regard.
3. 56. In a communication dated 25 September 2014, the Government forwards information from the labour inspectorate and the Basic Court in Podgorica. The labour inspectorate states that the employer temporarily suspended Mr Pajovic on 17 February 2012 pending completion of the disciplinary proceedings and dismissed him on 16 May 2012 as a disciplinary measure; and that during an inspection in July 2012, the labour inspector had access to a document certifying the delivery of employment booklet No. 01-2912, on 15 June 2012, to Mr Pajovic. The Basic Court in Podgorica indicates that the delay in the judicial proceedings concerning the dismissal of Mr Pajovic is due to the need to hear witnesses and examine evidence from both parties, the fact that the complainant constantly introduces new evidence and witnesses, thus deferring proceedings and the general work overload of judges.
4. 57. As regards the alleged acts of anti-union discrimination, the Committee takes note of the information supplied by the parties concerning the demotion lawsuits and the proceedings related to the employment booklet of Mr Pajovic. However, the Committee regrets that the Government failed to provide information as to the requested institution of an independent investigation into the allegations of repeated acts of anti-union discrimination allegedly committed by the company since 2008, including the second dismissal of Mr Pajovic in 2012. Moreover, the Committee observes with concern the allegation that Mr Janjic, who had previously been dismissed and then re-engaged, was declared redundant on 3 February 2014, and that although, according to the labour inspectorate, 30 redundancies were being envisaged by the employer, Mr Janjic has been the only one made redundant as of the date of the allegation. The Committee again recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom. Protection against anti-union discrimination applies equally to trade union members and former trade union officials as to current trade union leaders [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 775 and 799].
5. 58. The Committee once again urges the Government to institute an independent investigation into the allegations of repeated acts of anti-union discrimination committed by the company since 2008, including the alleged anti-union dismissals of Mr Pajovic in 2012 and of Mr Janjic on 3 February 2014, and to keep it informed on the outcome of such inquiry. Should it be found that a trade union official or member was dismissed due to the exercise of legitimate trade union activities, the Committee requests the Government to take the necessary measures to ensure that he/she is fully reinstated without loss of pay. In the event that the reinstatement is not possible, for objective and compelling reasons, the Committee requests the Government to take the necessary measures to ensure that the trade unionist concerned is paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissals. As regards Mr Pajovic’s second dismissal, the Committee trusts that the proceedings will be concluded without delay and requests the Government to transmit the decision as soon as it is handed down.
6. 59. The Committee regrets that the Government has not provided any information in response to the complainant’s previous allegations of anti-union harassment as requested by the Committee. 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; and that allegations of criminal conduct should not be used to harass trade unionists by reason of their union membership or activities [see Digest, op. cit., paras 41 and 786]. The Committee requests the Government to carry out an independent investigation without delay into these remaining allegations, and provide detailed information on its outcome.