Rapport définitif - Rapport No. 335, Novembre 2004

187. The complaint is contained in a communication from the Council of Employers’ Organizations (KOP) dated 11 May 2004.

1. 188. The Government replied in a communication dated 29 June 2004.
2. 189. 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. 190. In its communication dated 11 May 2004, the Council of Employers’ Organizations (KOP) alleges that the Ministry of Labour and Social Affairs of Albania interfered in its activities by trying to set up and actively supporting a competing organization which uses the same name, thus creating confusion among the members in violation of Articles 2, 3, 4 and 8 of Convention No. 87.
2. 191. The complainant adds that it was founded on 17 November 2000 and that at present, it has 11 organizations as members. At the general assembly of January 2004, a new council and steering committee were elected and new statutes were approved. The new appointments and changes in the statutes were notified to the Ministry of Labour and Social Affairs by letter of January 2004, in accordance with the Labour Code. The new president and council met with the Minister of Labour and Social Affairs. The complainant adds that KOP has been, since 2000, represented in the Tripartite National Council of Labour by four delegates as the main employers’ organization.
3. 192. The complainant alleges that after the general assembly of January 2004, the new council decided to officially register KOP as a confederation at the Court of Justice although its 11 constituent members had already been registered and were considered as representative by the Ministry of Labour. In order to register as a confederation, it had to present a reference letter of the Ministry of Labour and Social Affairs. However, the Ministry of Labour and Social Affairs initially refused to provide such letter and after two months of insisting, provided a letter which indicated that KOP was registered at the Ministry of Labour and Social Affairs as a grouping of six organizations and that afterwards, the regional councils of KOP-Tirana, KOP-Fier and KOP-Gjirokaster were created. Finally, the letter indicated that the right to establish KOP pertained only to Mr. Vladimir Koka, i.e. the president of KOP-Tirana who had been involved in efforts to set up a new KOP. The complainant attaches the letter dated 8 March 2004 to the complaint.
4. 193. The complainant indicates that it rejected such letter as untrue and proposed instead another reference letter which read as follows: “The founding documents of KOP, as an umbrella organization of six employers’ organizations, have been deposited at the Ministry of Labour and Social Affairs since 2000. Now KOP is enlarged with five more organizations and has deposited new documents. We support KOP’s request to obtain legal recognition as a legal person, as a confederation.” According to the complainant, this letter was not accepted by the Ministry; one ministry official even refused to meet a delegation of the complainant.
5. 194. In the meantime, according to the complainant, the Tirana Court of Justice gave legal recognition to a new KOP as a confederation of regional councils of employers of Albania. Immediately, a high official of the Ministry deleted the KOP which existed on the records since 2000 and replaced it with the new KOP. In the meantime, the Court of Justice of Tirana had informed the complainant organization that the process of its registration had been cancelled. The complainant’s president, Ms. Shefikat Ngjela, met with an official of the Ministry of Labour and Social Affairs who declared that the Ministry had received the registration of the new KOP and would respect it. The complainant notes that as a result, the first KOP does not exist any more for the Ministry of Labour and Social Affairs.
6. 195. As for the new KOP, the complainant alleges that it has been founded by two regional organizations, namely, KOP-Tirana and KOP-Gjirokaster. The registration of the new KOP at the Court of Justice has been requested by KOP-Tirana, chaired by Mr. Vladimir Koka.
7. 196. The complainant expresses the view that the behaviour of the Ministry of Labour and Social Affairs, especially the issuance of a reference letter declaring that the right to establish KOP organizations pertains only to Mr. Vladimir Koka, is an interference and impairment of the guarantees provided in Articles 3 and 8 of Convention No. 87. The complainant therefore asks the Committee to take the appropriate initiatives so that the Ministry of Labour and Social Affairs will stop interfering in the activities of the KOP and employers’ organizations in general. The complainant also requests that the Government issue a reference letter which corresponds to the reality so that the old KOP can be registered in conformity with the law of Albania. Finally, it requests the Government to continue the good relations it had with KOP in the past.
8. B. The Government’s reply
9. 197. In a communication dated 29 June 2004, the Government indicates that it is keenly interested in developing a fruitful relationship with the social partners and has taken all the appropriate legislative, institutional and administrative measures to guarantee freedom of association as well as the independence of professional organizations in the absence of interference. The Government indicates that in 2000, six employers’ organizations which had already obtained legal recognition decided to cooperate and be represented together under the name of Council of Employers’ Organizations. The grouping of these organizations had not obtained specific legal recognition.
10. 198. In 2003, KOP-Tirana was established with a specific legal recognition as a member of the Council of Employers’ Organizations. However, by the end of 2003, there were disagreements between two groups within KOP due to delays in convening the national conference. The group represented by Ms. Shefikat Ngjela aimed to create a KOP confederation grouping together several professional organizations. It therefore addressed to the Court a request to this effect which was rejected on the basis of article 176 of the Labour Code according to which, two or more organizations have the right to establish federations and two or more federations have the right to establish a confederation.
11. 199. The other group represented by Mr. Anesti Decka and Mr. Vladimir Koka, undertook the initiative to establish the regional employers’ organizations and opened KO-Gjirokaster, KOP-Fier, KOP-Elbasan, based on relevant court decisions. These organizations together with KOP-Tirana, established two KOP federations based on a court’s decision. The two federations led to the establishment of the KOP confederation based on a court’s decision.
12. 200. The Government notes that the Ministry of Labour and Social Affairs considered the allegations as an internal conflict of KOP and chose to maintain its impartiality and at the same time encourage the parties to find an agreement. The Government further explains that the Court addressed to the Ministry of Labour and Social Affairs a mere request to confirm whether an organization which had brought an application before it appeared on the Ministry’s records under that name. The Ministry responded to the Court’s request in a proper and neutral way. The Ministry never gave any recommendation letter to any of the parties so as not to influence the Court’s decision.
13. 201. The Government finally emphasizes its commitment to find the best solution to the dispute and to strengthen its relationship and collaboration with the social partners.

C. The Committee’s conclusions

1. 202. The Committee observes that the complainant alleges that the Government interfered in its activities by trying to set up and actively supporting a competing organization which uses the same name, thus leading to the refusal of its registration as a confederation by the Tirana Court of Justice and the granting of registration to the new organization. In the Committee’s view, however, this case is one of conflict between two rival executive committees of the same organization. It relates to allegations of government interference in the conflict by favouring one executive committee to another; as a result, the executive committee allegedly favoured by the Government obtained registration of the KOP as a confederation, to the detriment of the other committee (the complainant).
2. 203. The Committee notes that the KOP was founded on 17 November 2000 as a council of six employers’ organizations, without requesting legal recognition. According to the complainant, the KOP has functioned regularly since then and its membership has been enlarged with five more organizations. The complainant further alleges that during the general assembly of January 2004, the KOP elected a new council and steering committee, and approved new statutes; these appointments and changes were notified to the Ministry of Labour and Social Affairs and the new president and council met with the Minister. The complainant states that it decided to request its registration as a confederation at the Court of Justice after the general assembly of January 2004. To this end, it asked a reference letter from the Ministry of Labour and Social Affairs as requested by the Court. However, the Ministry provided a letter that seemed to favour another executive committee which had also sought registration of KOP as a confederation before the Court of Justice. As a result, the complainant’s request for registration was turned down and the rival executive committee obtained registration of KOP as a confederation.
3. 204. The Committee takes note of the registration of KOP as an employers’ confederation. It also notes that as indicated by the Government, this registration took place in the context of disagreements between two groups within KOP. In particular, one group was represented by Ms. Shefikat Ngjela. This group, which is the complainant in this case and apparently constitutes the executive committee elected during the general assembly of January 2004, aimed to create a KOP confederation grouping together several professional organizations. It therefore addressed to the Court a request to this effect. However, its request was rejected by the Court on the basis of article 176 of the Labour Code, apparently because the group was composed only of primary organizations and not by federations, so as to form a confederation. The Committee also notes that another group led by Mr. Vladimir Koka who is the president of a regional KOP organization, took the initiative to establish other regional KOP organizations thus setting up KOP-Gjirokaster, KOP-Fier, KOP-Elbasan, based on relevant court decisions. These organizations along with KOP-Tirana established two KOP federations which led to the establishment of the KOP confederation in accordance with the Court’s decision.
4. 205. The Committee takes note furthermore of the Government’s statement that this is an internal matter on which it maintained an impartial position, encouraging the two parties to find an agreement, and that it did not provide any reference letter to the parties but simply answered a request by the Court of Justice for information on whether the organization in question appeared on the Ministry’s records under that name. The Committee observes in this respect, that in the letter dated 8 March 2004, which has been attached to the complaint, the Ministry of Labour and Social Affairs indicates the following to the Court of Justice:
5. In reply to your letter No. 1772 of 17.02.04, concerning the request for confirmation on our behalf of the other acts carried out by the parties which have requested registration before you, we inform you of the following:
6. 1. Some employers’ organizations decided, by signing an agreement among them, to be represented collectively as the Council of Employers’ Organizations (KOP) headed by Ms. Shefikat Ngjela, without legal recognition.
7. 2. Besides KOP-Tirana which has been registered as a legal person, KOP-Fier, KOP-Elbasan and KOP-Gjirokaster have deposited documents such as the statute, the legal recognition, the constitutive act, and have been registered with the Ministry. We have been informed that procedures are under way for the creation of other organizations with a view to creating a confederation in conformity with the law. Among the initiators for the creation of KOP in accordance with the law is Mr. Vladimir Koka.
8. Thank you for your collaboration.
9. 206. The Committee is of the view that the two executive committees are not treated on an entirely equal basis in the abovementioned letter. The facts indicated in paragraph 1 of the letter with regard to the complainant executive committee are rather vague. The organization is presented as a group of “some” employers’ organizations without any reference to its member organizations or to the five new members which had allegedly joined it in the meantime. In addition to this, the reference to the complainant ends with the phrase “without legal recognition”. On the contrary, paragraph 2 concerning the other executive committee makes reference to specific names and documents alluding not only to actual facts but also to information concerning the upcoming registration of additional regional organizations. The reference to this executive committee ends with the phrase “with a view to creating a confederation in conformity with the law”. Finally, the phrase concerning Mr. Koka at the end of paragraph 2 could reasonably create the impression that he is one of the persons who have the legal right to create further KOP organizations, to the exclusion of other parties.
10. 207. Thus, the Committee is of the view that the letter sent by the Ministry of Labour and Social Affairs to the Court of Justice could potentially influence the decision of the Court as to which party may have a stronger claim to establish a confederation. Without questioning the actual registration of KOP as a confederation, the Committee notes that the abovementioned letter might have implicitly influenced the related but distinct issue of KOP’s leadership, which should be normally resolved by recourse to a judicial authority without any government interference, taking into account the will of the members. The Committee also notes that the will of the members seems to have been recently expressed in the elections which took place during KOP’s general assembly of January 2004. The Committee recalls that when two executive committees each proclaim themselves to be the legitimate one, the dispute should be settled by the judicial authority or an independent arbitrator and not by the administrative authority. In the case of internal dissention within one and the same [employers’] federation, by virtue of Article 3 of Convention No. 87, the only obligation of the Government is to refrain from any interference which would restrict the right of the workers’ and employers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes, and to refrain from any interference which would impede the lawful exercise of that right [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 966 and 970]. The Committee therefore considers that it should be up to the Court to decide the question of the leadership and representation of KOP, taking into account the result of the elections which took place during the general assembly of KOP in January 2004, and requests the Government to refrain from any action which could give rise to interference in this framework.