Informe provisional - Informe núm. 403, Junio 2023

1. 70. The complaint is contained in communications dated 25 July, 25 August and 15 November 2020 submitted by the Trade Union of United Mineworkers of Bulqiza (SMBB).
2. 71. The Government of Albania transmitted its observations on the allegations in communications dated 14 August, 24 September and 23 November 2020.
3. 72. Albania 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 Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 73. In its communications dated 25 July and 25 August 2020, the complainant alleges that the AlbChrome mining company (hereinafter “the enterprise”) committed acts of anti-union interference and discrimination, including dismissals, against members and leaders of the SMBB. It further alleges that trade unionists and labour activists were detained and intimidated during a strike, and that the enterprise and state authorities denied the SMBB the right to collective bargaining and refused to allow its representatives to access the workplace of its members.
2. 74. The complainant indicates that the SMBB, which was created as a response to decades of neglect and betrayal of workers’ interests by national trade union centres, received legal recognition on 15 October 2019. It states that on 13 November 2019, the general manager and the local management of the enterprise summoned the chairperson of the SMBB, Mr Elton Debreshi, to ask him about the creation of the trade union after the latter opened a Facebook page and announced its formation.
3. 75. The complainant alleges that on 19 November 2019, Mr Debreshi was summoned again, this time to the headquarters of the enterprise, where he was questioned about his absences from work several months earlier. It indicates that on 22 November 2019, the enterprise dismissed Mr Debreshi for ethics violations, invoking an incomplete eight-hour work shift. According to the complainant, the enterprise’s practice had always been that the missing minutes in a shift could be accumulated for any given period and deducted from the worker’s wage. It therefore argues that the missing minutes were an excuse to get rid of Mr Debreshi and intimidate the members of the SMBB.
4. 76. The complainant states that, in response to the dismissal, the enterprise workers went on strike on 25 November 2019 further requesting higher wages and a review of the production targets. It affirms that during the strike: (i) another leader of the SMBB, Mr Beqir Durici, was dismissed for ethics violations on 2 December 2019; (ii) a disciplinary measure was imposed on Mr Behar Gjimi, member of the SMBB’s council, whose work position was changed; (iii) trade unionists were temporarily detained, questioned and intimidated by the police; and (iv) labour activists were beaten up and imprisoned. The complainant indicates that the strike ended on 5 December 2019 after the State Labour and Social Services Inspectorate (hereinafter “the Inspectorate”) promised to investigate the dismissals of Mr Debreshi and Mr Durici.
5. 77. The complainant alleges that after the end of the strike, the enterprise: (i) summoned several trade unionists to its headquarters for being absent from work due to their participation in the strike; (ii) dismissed Mr Gjimi on 20 December 2019; and (iii) dismissed another leader of the SMBB, Mr Ali Gjeta, on 24 December 2019. The complainant informs that it presented another complaint to the Inspectorate in connection with these two dismissals.
6. 78. The complainant states that in a decision of 21 December 2019, the Inspectorate concluded that the dismissals of Mr Debreshi and Mr Durici were not due to their trade union activity. It furthers indicates that, similarly, in a decision of 21 January 2020, the Inspectorate determined that the enterprise had not violated the Labour Code in dismissing Mr Gjimi and Mr Gjeta.
7. 79. The complainant affirms that on 26 December 2019, the SMBB, which was the most representative trade union in the enterprise, submitted an official request to the enterprise and the Ministry of Finance and Economy to negotiate a new collective agreement, as the one in force, which had been negotiated by the Trade Union Federation of Industrial Workers of Albania (FSPISH), was due to expire on 31 January 2020. The complainant states that on 6 January 2020, the official request was sent again to the enterprise, and the latter responded that the collective agreement had been amended on 1 October 2019 and would therefore be in force for an indefinite period, which was eventually confirmed by the Ministry of Finance and Economy.
8. 80. The complainant indicates that in February 2020, the SMBB submitted to the Ministry of Finance and Economy a complaint alleging that the Ministry had legitimized the unlawful amendment process of the collective agreement concluded between the enterprise and the FSPISH. The complainant states, however, that the Ministry responded that it was not competent to rule on issues of process. It also informs that in February and March 2020, it presented complaints to the Inspectorate, alleging multiple violations of the right to freedom of association and collective bargaining by the enterprise.
9. 81. The complainant indicates that in March 2020, the SMBB obtained from the Inspectorate copies of the amended collective agreement and the notarial certificate of the most representative trade union which had been submitted by the FSPISH. It affirms that the certificate lacked key elements to be considered as valid (i.e., a bank statement proving the membership fees), and that the SMBB therefore wrote to the Inspectorate, the Ministry of Finance and Economy, as well as the Regional Employment Office of Dibra and its local office of Bulqiza, to denounce it. The complainant informs that in April 2020, the Inspectorate and the Ministry of Finance and Economy replied to the SMBB that it should take up the issue with the Ministry of Justice.
10. 82. The complainant affirms that in June 2020, the enterprise and the FSPISH announced the conclusion of a new collective agreement, which was negotiated in secrecy and in violation of the legal requirements prior to collective bargaining. In the complainant’s view, these secret negotiations, which are a strategy to prevent any possibility for workers to vote on the most representative trade union, pose a barrier to genuine collective bargaining.
11. 83. Moreover, according to the complainant, the enterprise and the FSPISH, which lacks any legitimacy among workers, have joined forces to destroy the SMBB. It affirms that: (i) when workers started to organize to create the SMBB, the FSPISH provided the enterprise with a list of the people involved in these efforts, who were then given a warning for violation of work discipline; (ii) since the SMBB announced its formation, the enterprise has threatened workers with their jobs if they joined or continued to be members of that union; (iii) these threats have intensified when the SMBB became the majority union and requested to bargain on behalf of all workers, as the enterprise then mobilized its managers to pressure workers into resigning from the SMBB and becoming members of the FSPISH; and (iv) the enterprise denied the SMBB’s requests to apply the check-off system to its members.
12. 84. The complainant also alleges that the enterprise has consistently denied the SMBB’s representatives the right to enter the workplace and meet its members. It indicates that the SMBB sent formal requests to the enterprise to ask for compliance with this legal right but has not received any response. The complainant also informs that the SMBB submitted complaints to the Inspectorate, which responded that only the representatives of the trade union which is signatory to a collective agreement had the right to meet workers at work premises.
13. 85. In its communication dated 15 November 2020, the complainant affirms that, in addition to its complaints to the Inspectorate, the SMBB denounced the acts of anti-union discrimination committed by the enterprise to the Ministry of Finance and Economy, which found the enterprise not guilty. It also states that the SMBB presented a complaint in relation with the dismissals of its four leaders to the Commissioner for Protection against Discrimination (CPD), which concluded on 26 October 2020 that two of the leaders had been dismissed because of their trade union affiliation. The complainant informs that the SMBB will appeal the decision of the CPD until justice is established for the four leaders, and that it also challenged the four dismissals before ordinary courts.

B. The Government’s reply

1. 86. In its communications dated 14 August 2020, 24 September and 23 November 2020, the Government states that the Inspectorate received several complaints from the SMBB, conducted multiple inspections at the enterprise, and did not find any violations of trade union rights. It indicates that the Inspectorate responded to all the claims raised by the SMBB and advised the latter on how to legitimize its actions as a trade union organization.
2. 87. Regarding the dismissal of Mr Debreshi, the Government specifies that, according to the inspection that was carried out: (i) he was dismissed due to repeated disciplinary violations (unjustified absences from work), which were unrelated to his involvement with the SMBB; (ii) the enterprise had not been officially informed of the establishment of the SMBB and of Mr Debreshi’s position as its chairman; and (iii) during the same period, other workers who were not members of the SMBB were also dismissed due to disciplinary violations.
3. 88. With respect to the right to collective bargaining, the Government indicates that on 10 May 2018, the enterprise and the FSPISH concluded a collective agreement which is currently in force. It specifies that the agreement has been submitted to the Ministry of Finance and Economy, and that the procedures stipulated in the Labour Code have been observed for its conclusion. The Government also states that the enterprise employs 657 workers, of which 515 are members of the FSPISH, and that all these members have regularly paid their membership fees.
4. 89. The Government points out that, according to section 182 of the Labour Code, any trade union which has been recognized as a legal person may address the court for the protection of the interests of members. The Government states, however, that despite its suggestion to pursue the judicial route, the SMBB has preferred to present complaints before various other institutions.

C. The Committee’s conclusions

1. 90. The Committee notes that the complainant alleges acts of anti-union interference and discrimination, including the dismissal of four leaders of the SMBB, by an enterprise in the mining sector. It further notes that the complainant affirms that trade unionists and labour activists were detained and intimidated by the police during a strike, and that, although the SMBB was the most representative trade union, the enterprise and state authorities refused to recognize it for collective bargaining purposes and prevented its leaders from accessing the workplace of its members. The Committee notes that the Government, for its part, provides information on the results of the labour inspections conducted by the Inspectorate and refutes the claim that the SMBB is the most representative trade union in the enterprise.
2. 91. As regards the alleged acts of anti-union discrimination, the Committee notes that the complainant states that: (i) the SMBB received legal recognition on 15 October 2019 and less than two months later, the enterprise dismissed its chairman, Mr Elton Debreshi, for ethics violations; (ii) in the midst of a strike conducted by the SMBB from 25 November to 5 December 2019, the enterprise dismissed another of its leader, Mr Beqir Durici, and changed the position of a member of its council, Mr Behar Gjimi; (iii) after the strike, the enterprise dismissed Mr Gjimi, as well as another leader of the SMBB, Mr Ali Gjeta; (iv) the SMBB presented several complaints in relation with the dismissals before the Inspectorate and the Ministry of Finance and Economy, which both ruled in favour of the enterprise; (v) the SMBB submitted a complaint to the CPD, which, in a decision of 26 October 2020, ruled that two of the four leaders had been dismissed due to their trade union affiliation; (vi) the SMBB will appeal that decision with a view to seeking justice for the four leaders; and (vii) the SMBB also challenged the four dismissals before ordinary courts. The Committee also notes that the Government indicates that the Inspectorate conducted multiple inspections at the enterprise in relation with the complaints submitted by the SMBB and did not identify any violations of trade union rights. It notes, however, that the Government does not deny that the CPD determined that two of the four SMBB leaders had been dismissed for anti-union reasons. The Committee recalls that the dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1104]. The Committee requests the Government to keep it informed of the outcome of the appeal presented by the SMBB against the decision of 26 October 2020 of the CPD and of any resulting measures of redress or sanctions. In light of the information provided by the complainant that it has also challenged these dismissals before the ordinary courts, the Committee requests the complainant to provide updated information on the status of these cases and copies of any judicial decisions rendered.
3. 92. With respect to the strike that was organized by the SMBB, the Committee notes that, according to the complainant, trade unionists were temporarily detained, questioned and intimidated by the police, and labour activists were beaten up and imprisoned while participating in it. Noting with concern that the Government does not respond to these allegations, the Committee recalls that measures depriving trade unionists of their freedom on grounds related to their trade union activity, even where they are merely summoned or questioned for a short period, constitute an obstacle to the exercise of trade union rights [see Compilation, para. 122]. It also recalls that a free and independent trade union movement can only develop in a climate free of violence, threats and pressure, and it is for the Government to guarantee that trade union rights can develop normally [see Compilation, para. 87]. The Committee requests the Government to carry out an independent investigation into these allegations and provide detailed information on the outcome.
4. 93. Regarding the alleged acts of anti-union interference, the Committee notes that the complainant affirms that: (i) the enterprise and the FSPISH have colluded to undermine the SMBB; (ii) workers were threatened with dismissal if they joined or continued to be members of the SMBB; (iii) when the SMBB became the majority union, its members were pressured by their managers to resign their membership and join the FSPISH; and (iv) the enterprise refused to apply the check-off system to the members of the SMBB. Noting with concern that the Government does not reply to these allegations, the Committee recalls the fundamental principle of workers being able to join organizations of their own choosing and of the enterprise not interfering in favour of a trade union [see Compilation, para. 1190]. It further recalls that direct threat and intimidation of members of a workers’ organization and forcing them into committing themselves to sever their ties with the organization under the threat of termination constitutes a denial of these workers’ freedom of association rights [see Compilation, para. 1100]. The Committee requests the Government to conduct without delay an independent inquiry into the allegations of anti-union interference by the enterprise and to ensure that corrective measures and sufficiently dissuasive sanctions are imposed against any act of interference identified. The Committee requests the Government to keep it informed of any developments in this respect.
5. 94. As regards the alleged refusal of the enterprise and state authorities to recognize the SMBB for collective bargaining purposes, the Committee notes that the complainant states that: (i) in December 2019, the SMBB, which was the most representative trade union, presented a request to the enterprise and the Ministry of Finance and Economy to negotiate a new collective agreement since the one which had been concluded with the FSPISH was due to expire on 31 January 2020, but the enterprise and the Ministry responded that this agreement was amended in October 2019 and would be in force for an indefinite period; (ii) the notarial certificate of the most representative union submitted by the FSPISH is invalid, as it does not include essential elements such as a bank statement proving the membership fees; (iii) the SMBB denounced the situation to the Inspectorate, the Ministry of Finance and Economy, as well as the Regional Employment Office of Dibra and its local office of Bulqiza, but the Inspectorate and the Ministry responded that the issue should be taken up with the Ministry of Justice; (iv) in June 2020, a new collective agreement was concluded between the enterprise and the FSPISH; and (v) that agreement was negotiated secretly and in violation of the legal requirements prior to collective bargaining, which is part of a strategy to prevent workers from voting on the most representative union and hinder genuine collective bargaining. The Committee further notes that the Government, for its part, indicates that: (i) a collective agreement which was concluded in May 2018 between the enterprise and the FSPISH is still in force; (ii) 515 of the 657 workers employed by the enterprise are members of the FSPISH and they have regularly paid their members fees; and (iii) despite its suggestion that the SMBB pursue the judicial route to protect the interests of its members, the union has opted to address other institutions.
6. 95. The Committee takes note of the contradictory information provided by the complainant and the Government concerning the collective agreement currently in force in the enterprise, as well as the representativity of the SMBB and the FSPISH. While noting that it does not have sufficient information to determine which trade union organization is the most representative at the moment, the Committee recalls that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible, and if the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer’s recognition of that union for collective bargaining purposes [see Compilation, para. 1366]. Noting from the information provided by the parties that the judicial authorities appear to be the appropriate channel for challenging the most representative status of the FSPISH, the Committee requests the Government and the complainant to inform it of any judicial procedures undertaken in this regard and their outcome. The Committee expects that the question of the representativeness status of the SMBB and the FSPISH at the enterprise will be clarified without delay either through judicial procedures or other means and requests the Government to provide detailed information in this regard and to furnish precise and updated information on the representative nature of the two organizations.
7. 96. With respect to the allegations that the enterprise refused to allow the SMBB’s representatives to access its premises, the Committee notes that, according to the complainant, the situation was denounced to the Inspectorate, which informed the SMBB that only the representatives of trade unions which had signed a collective agreement could meet their members in the workplace. Noting that the Government does not address these allegations, the Committee recalls that, for the right to organize to be meaningful, the relevant workers’ organizations should be able to further and defend the interests of their members, by enjoying such facilities as may be necessary for the proper exercise of their functions as workers’ representatives, including access to the workplace of trade union members [see Compilation, para. 1594]. It further recalls that trade union representatives who are not employed in the undertaking but whose trade union has members employed therein should be granted access to the undertaking and that the granting of such facilities should not impair the efficient operation of the undertaking concerned [see Compilation, para. 1593]. The Committee requests the Government to take the necessary measures to ensure that the representatives of the SMBB have access to the workplace of its members in the performance of their duties. The Committee requests the Government to keep it informed in this regard.