Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 387, Octubre 2018

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

1. 35. The Committee last examined this case, in which the complainant denounced the dismissal of a trade union leader, Ms Obradovic, from her employment in the Aluminium Plant Podgorica (KAP), allegedly due to her exercise of trade union activities, at its October 2017 meeting [see 383rd Report, approved by the Governing Body at its 331st Session, paras 61–65]. The complainant also denounced the company’s refusal to allow Ms Obradovic access to the workplace and to trade union premises following her dismissal [see 383rd Report, paras 61–65, approved by the Governing Body]. Noting the amendment to the Law on Bankruptcy subsequently adopted to ensure that workers engaged in companies undergoing bankruptcy will continue to 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, the Committee requested the Government to provide the relevant parts of the Law on Bankruptcy, as amended. With regard to reasonable access to the workplace and union premises, the Committee requested that the complainant and the Government provide information indicating whether Ms Obradovic still holds the position of president of the company trade union and whether, if so, she has been given reasonable access to the workplace and the trade union premises for the exercise of her function.
2. 36. In a communication dated 5 January 2018, the Government provided the relevant part of the amended Law, which states that: “wages and other income of persons referred to in paragraph 3 of this article, shall be determined by the bankruptcy administrator in accordance with the regulations governing the rights on labour and based on labour.” The Committee notes that the amended article refers only to “wages and other income” and does not explicitly address any other labour rights, such as the right to reinstatement for unfair dismissal.
3. 37. The Committee further notes the information provided by the Government that Ms Obradovic brought proceedings before the Commercial Court of Montenegro, seeking to annul the decision of the bankruptcy trustee to terminate her employment. The appeal was rejected, as was the subsequent petition brought by Ms Obradovic before the Appellate Court of Montenegro. The Government informs that, as a result, Ms Obradovic was not reinstated and is no longer an employee of the KAP. With regard to her trade union status, it adds that she is at present registered as a trade union representative for three unions, including the KAP.
4. 38. In a communication dated 6 September 2018, the complainant reports that the Constitutional Court of Montenegro accepted the appeal lodged by Ms Obradovic against the judgments rendered by the lower courts, and remanded the case for retrial. Acting on this decision, the Montenegrin Supreme Court issued a decision setting aside the judgments of both the Appellate and the Commercial Court, remanding the case to the bankruptcy trustee for the KAP for reconsideration. In this respect, the complainant recalled that Ms Obradovic had requested that the bankruptcy trustee set aside the decision to terminate her employment contract on the grounds that the decision constituted retaliation due to her trade union activities.
5. 39. The Committee notes the information submitted by the Government and the complainants on developments in this case. In particular, it welcomes the 26 June 2018 decision of the Supreme Court of Montenegro annulling the judgments of the Appellate Court and the Commercial Court and remanding the case to the bankruptcy trustee for reconsideration. It further welcomes the amendment of 11 August 2016 of the Law on Bankruptcy to provide that claims regarding wages and other income shall be determined by the bankruptcy administrator in accordance with the labour regulations and based on labour. In light of these circumstances, the Committee reiterates its request that the claims of Ms Obradovic be fully reviewed without delay, with a view to ensuring her reinstatement as a primary remedy should the dismissal be found to have been motivated due to her trade union activities or, if reinstatement is not possible for objective and compelling reasons, that she be granted adequate compensation. In addition, and noting the Government’s indication that Ms Obradovic still holds the function of trade union representative, the Committee expects that she will be given reasonable access, without delay, to the workplace and the trade union premises for the exercise of her functions.
6. 40. Noting that the amended Law on Bankruptcy does not appear to address labour rights other than “wages and other income”, the Committee requests the Government to clarify whether the amendments also ensure that the rights of persons engaged in companies undergoing bankruptcy proceedings are covered under the legislation regulating labour rights more generally, including as regards claims of anti-union discrimination, retaliation and unfair dismissal.
7. 41. Noting that almost three years have elapsed since Ms Obradovic’s dismissal, the Committee urges the Government to take steps to implement the Committee’s recommendations without delay.