Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 363, Mars 2012

1. 900. The Committee last examined this case on its merits at its March 2011 meeting, when it presented an interim report to the Governing Body [see 359th Report, approved by the Governing Body at its 309th Session (March 2011), paras 904–922].
2. 901. The New Trade Union of the Radio and Television of Montenegro (RTCG) provided additional information in communications dated 20 May 2011, 18 and 23 February 2012.
3. 902. The Government sent its observations in communications dated 12 May 2011 and 19 July 2011.
4. 903. 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. Previous examination of the case

1. 904. In its previous examination of the case, the Committee made the following recommendations [see 359th Report, para. 922]:
   • (a) 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. The Committee strongly urges the Government to be more cooperative in the future.
   • (b) The Committee requests the complainant to provide further details in respect of the alleged anti-union dismissals and urges the Government to institute an independent investigation into these 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.
   • (c) The Committee expects that an independent investigation will be carried out by the Government without delay into the allegations of threats against and pressure on trade union members to withdraw from their union and requests the Government and the complainant to provide detailed information on its outcome.
   • (d) The Committee notes that the issue of the 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.
   • (e) The Committee 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.

B. Additional information submitted by the complainant

1. 905. In its communications dated 20 May 2011, 18 and 23 February 2012, concerning the alleged anti-union dismissals, the complainant indicates that besides the three members of the management of the New Trade Union of the RTCG (Mr Dragan Janjic, former President of the Supervisory Committee of the Union, Ms Mirjana Popovic, member of the Executive Committee, and Mr Miodrag Boskovic, member of the Supervising Committee), Mr Randomir Pajovic, President of the New Trade Union of the RTCG, was also unlawfully dismissed.
2. 906. As regards Mr Pajovic, Mr Janjic and Ms Popovic, the complainant indicates that they were not reinstated in their positions. They were re-engaged in other positions that have nothing to do with their earlier duties. More particularly, Mr Janjic, a radio journalist, was re-engaged as an administrative clerk, a demotion, with a much lower salary. The complainant further indicates that a labour dispute concerning Mr Janjic’s downgrading is now pending before the courts. As regards Mr Pajovic, the complainant adds that the RTCG elected a new director, Mr Rade Vojnodic, on 1 December 2011. Immediately after his nomination, Mr Vojvodic announced he would dismiss 250 employees of the RTCG as redundant. This was approved by the Council, despite the fact that two months earlier, it had accepted the “Strategy of Development of the State Company RTCG from 2011 to 2015”, which established that the RTCG had no redundant employees but that the organizational scheme might be inadequate. Mr Radomir Pajovic was then informed that his job was going to be made redundant and he would be dismissed. On 21 February 2012, Mr Radomir Pajovic was suspended from his position by Mr Vojvodic and a disciplinary procedure was initiated for alleged “gross violation of duties”. According to the complainant, this is aimed directly at preventing the New Trade Union of the RTCG to organize its activities and it is clearly an act of anti-union discrimination.
3. 907. Concerning the allegations of threats against and pressure on trade union members to withdraw from their union, the complainant indicates that Messrs Janjic and Boskovic resigned from the management of the union because of the systematic harassment they were suffering at the workplace and adds that the remaining two members of the Executive Committee, Messrs Zeljko Zugic and Radenko Ivanovic, also intend to withdraw from the trade union activities if this situation continues. Due to this climate of threats and pressure, the union could not elect new management during its assembly that took place on 10 February 2011 since no member wished to assume the trade union’s responsibilities and duties.
4. 908. The complainant further indicates that it initiated a labour dispute before the Municipal Court of Podgorica requesting the Court to order the management of RTCG to return the documentation concerning and belonging to the New Trade Union of the RTCG taken by the management immediately after the dismissals of the members of the union board on 28 February 2008. The complainant indicates that the labour dispute is pending before the Municipal Court of Podgorica.
5. 909. According to the complainant, the General-Director of the RTCG also sued Mr Pajovic and Ms Popovic for alleged slander/defamation and brought criminal charges against Mr Pajovic, President of the Union, for counterfeiting the signatures of new members of the New Trade Union of the RTCG. These disputes are also pending before the courts. The complainant indicates that it will keep the Committee informed about the outcome.
6. 910. In addition, the complainant indicates that the company misused the signatures of ex-union members (Messrs Velibor Rovcanin and Milan Popadic) to weaken the credibility of the New Trade Union of the RTCG.
7. 911. Concerning the withdrawal of the check-off facility previously enjoyed by the union, the complainant indicates that the management of the RTCG formally allowed a 1 per cent check-off of its members’ monthly salary for membership fee. However, the complainant indicates that it had to stop this practice in order to avoid harassment, loss of earnings for its members and their resignation from the union. According to the complainant, some members of the New Trade Union of the RTCG (for example, Mr Rovcanin, as indicated in a letter enclosed with the complaint) seem to have been deprived of bonuses for various months because of their union membership and decided to resign from the union in order to be entitled to this important part of their income. In addition, against the will of the members of the union, the employer deducted twice the trade union membership fee from their salaries, not only for the complainant but also for the other trade union at the enterprise.
8. 912. With regard to the recognition of the complainant organization as representative and the refusal to grant certain facilities to the union, the complainant indicates that the court, in judgment P.br.1734/08 required the enterprise to provide the union with facilities to carry out its activities. However, the enterprise appealed this decision to the Higher Court, which upheld the judgment of the Municipal Court. This decision was then appealed to the Supreme Court which cancelled both abovementioned decisions. The process had to start over again before the Municipal Court of Podgoria and the first hearing took place on 11 May 2011. A subsequent hearing was supposed to take place on 14 June 2011. During the course of these proceedings, the complainant indicates that as regards its appeal of the preliminary decision of the Municipal Court of Podgorica (which did not accept the request that both trade unions at RTCG present their application forms for membership and accepted a statement of the President of the pro-government trade union on its membership at the enterprise, although it had requested the parties to submit admission forms filed by the members of the respective unions) it was rejected. The Municipal Court of Podgorica latterly rendered its decision (judgment P.br.159/11) and decided to withdraw all trade union rights previously enjoyed by the New Trade Union of the RTCG (the judge ordered that the Union’s Office with its inventory be taken away and the New Trade Union of the RTCG pay to the defendant the costs of proceedings, €1,875). The complainant appealed this decision before the High Court of Podgorica and is still awaiting its decision. The complaint adds that the procedures prescribed by the Civil Code of procedures as regards appeals to the Supreme Court were apparently not respected. The complainant further indicates that it has filed a complaint requesting compensation for unpaid union dues for the period 2009–10, causing financial damages to the New Union of the RTCG (Case No. P.br.5708/10). According to the complainant, the court financial expert established that for 30 members of the New Union of the RTCG (out of 88 members in total), the membership fees were deducted from their income and wired to the Trade Union of JP RTCG instead of the New Trade Union of the RTCG. This case is still pending before the courts and the judge is apparently waiting for the outcome of Case No. 159/11 before moving forward. The complainant finally indicates that, in the meantime, the New Trade Union of the RTCG is not invited to attend the meetings of the Board of Directors of the RTCG where the employees’ salaries and personnel movement are discussed, while other trade unions are attending, Similarly, the management of the RTCG ignores all requests coming from the New Trade union of the RTCG and they are neither consulted nor informed of any decision taken by the management. According to the complainant, this whole process serves the employer’s interests not to provide facilities to the union.

C. The Government’s reply

1. 913. In communications dated 12 May 2011 and 19 July 2011, the Government provides information on the steps of the labour inspection regarding the request of Messrs Boskovic and Janjic and Ms Popovic for the suspension of the execution of the decision on termination of employment. In the case of Mr Boskovic and Ms Popovic, the Government indicates that the Ministry of Health, Labour and Social Welfare denied the complaint. According to the Government, these cases of termination of employment did not occur due to the employees’ trade union activities but due to their unjustified absence from work for seven business days with interruptions during a period of three months. Deciding upon the complaint of Mr Janjic, the Basic Court passed a verdict on 26 March 2010 cancelling as unlawful the termination of employment and committed the defendant to return the plaintiff to the duties and work tasks which he had performed prior to the passing of the decision or to other duties corresponding to his professional qualification, knowledge and capacities. The labour inspectorate conducted another control and ordered the employer to establish the rights arising from employment for Mr Janjic and the employer did so. The Government adds that the re-engagement of Mr Janjic was carried out in accordance with the Labour Law and the Rulebook on Systematization of Working Positions in the enterprise and was not lower than the legally prescribed minimum.
2. 914. As concerns the denial of bonuses to members of the New Trade Union of the RTCG, the Government indicates that there were no individual or collective initiatives to the labour inspection from the employees of RTCG based on intentional reduction of their salaries because of membership in a trade union organization. There were also no reported cases by employees of RTCG that the calculation and payment of salaries was conducted with a direct intent by the employer in order to impose pressure on employees for their engagement in an organization, which would result in discrimination or deterrence of employees from active participation in such organization. The inspection’s supervision determined that the variable part of the salary (bonus) is paid according to the model closely defined at the Director-General meeting. However, the labour inspector stated irregularity, i.e. lack of an act closely defining the method of determining the part of the employee’s salary relating to achieved working results (variable part). In this regard, the labour inspector pointed to the obligation of the council of RTCG, as the authority competent for passing acts, to pass the Rulebook on Salaries within 60 days, in accordance with article 23 of the Collective Agreement with the employer, No. 01-1379 of 9 April 2010.
3. 915. Concerning the withdrawal of the check-off facility previously enjoyed by the union, the Government indicates that the inspection control stated that the authorized person of the employer required from Mr Pajovic, the president of the New Trade Union of RTCG, to submit the list with names of the members so that the employer could, from April 2010, conduct deduction of trade union membership fees from the members of the New Trade Union of RTCG to the gyro account of that trade union organization, which is the duty of the employer in accordance with the General Collective Agreement. In this regard, Mr Pajovic sent a letter to the Director-General of RTCG which stated that the Executive Board of the trade union suspended the obligation of payment of the trade union membership fee, and that they had “sufficient funds for their basic activity” (this letter was provided with the Government’s communication). The Government points out that deduction of the membership fee based on trade union membership is a duty of the employer under article 66 of the General Collective Agreement and the employer must present it through deductions from the net salary per type. No complaint was presented to the labour inspection concerning this issue.
4. 916. As concerns the double deduction from the salaries of employees, so far there has been no case reported to the labour inspection concerning the employer conducting a double deduction from the salaries of employees – members of the New Trade Union of RTCG for the trade union membership fee both for the New Trade Union of RTCG and for the Trade Union of JP RTCG, the other trade union organization.
5. 917. With regard to the refusal to grant certain facilities to the union, the Government indicates that the New Trade Union of RTCG did not raise this with the labour inspection. The Government further indicates that the inspection control stated that the New Trade Union of RTCG is not a representative trade union organization within the employer; the Trade Union of JP RTCG already has this status. Article 5 of the Law on Trade Union Representativeness (Official Gazette of Montenegro, No. 26/10) determines the rights of the representative trade union, and article 19 stipulates, as a special condition for determining representativeness at the workplace, that the trade union consist of a minimum of 20 per cent of the total number of the employees. Therefore, the employer is not obliged to provide the New Trade Union of RTCG, which does not have representativeness at the level of the employer, facilities for its work.

D. The Committee’s conclusions

1. 918. The Committee recalls that this case concerns allegations that the management of the RTCG refused to recognize the New Trade Union of RTCG as the representative organization of the workers, as well as the dismissal of its officers and harassment of its members.
2. 919. As regards the alleged anti-union dismissals, the Committee notes that according to the complainant, Mr Pajovic, President of the New Trade Union of the RTCG, was also unlawfully dismissed. As regards Mr Pajovic, Mr Janjic and Ms Popovic, the Committee notes that, according to the complainant, they were not reinstated in their positions, but were rather re-engaged in other positions that have nothing to do with their earlier duties. The Committee further notes that on 21 February 2012, Radomir Pajovic was suspended from his position by the new director and a disciplinary procedure was initiated for alleged “gross violation of duties”. According to the complainant, this is aimed directly at preventing the New Trade Union of the RTCG to organize its activities and it is clearly an act of anti-union discrimination. According to the Government, the termination of employment of Mr Boskovic and Ms Popovic did not occur due to their trade union activities but due to their unjustified absence from work for seven business days with interruptions during a period of three months. As regards Mr Janjic, a radio journalist, the Committee notes that he was re engaged as an administrative clerk, a demotion according to the complainant, with a much lower salary, while the Government states that his re engagement was carried out in accordance with the Labour Law and the Rulebook on Systematization of Working Positions in the enterprise and his wage was not lower than the legally prescribed minimum. The Committee recalls that when trade union leaders are dismissed and then reinstated a few days later, the dismissal of the trade union leaders by reasons of union membership or activities could amount to intimidation aimed at preventing the free exercise of their trade union functions. Moreover, if the post occupied by the worker has been eliminated, she or he should be reinstated in a comparable post if the dismissal constituted an act of anti-union discrimination [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras  810 and 847]. In view of the recent suspension and disciplinary proceedings initiated against Mr Pajovic, President of the New Trade Union of the RTCG, who had previously been dismissed but was then re-engaged, the Committee once again urges the Government to institute an independent investigation into the allegations that these workers were dismissed or suspended for anti-union reasons, and provide full details as to the outcome. Noting that the complainant indicates that Mr Janjic’s downgrading case is now pending before the courts, the Committee requests the Government and the complainant to provide the court judgement as soon as it is handed down as well as any additional information relating to this matter. In the meantime, the Committee requests the Government to ensure that Mr Janjic is maintained in his position pending the final court judgment.
3. 920. In its previous examination of the case, the Committee noted 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 considered that this was 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 notes that according to the complainant, this anti-union harassment continues. In particular, the complainant alleges that more recently, due to this intimidating climate: members resigned from the union, the union could not elect a new board, criminal proceedings have been taken against union members, the union was forced to stop the check-off facilities in order to avoid harassment of its members, members of the complainant’s organization did not receive bonuses, the company misused ex-union members’ signatures to weaken the credibility of the union, the employer carried out a double deduction from the salaries of members of the New Trade Union of RTCG for the union membership fee both for the New Trade Union of RTCG and for the Trade Union of JP RTCG, the other trade union organization in the enterprise, and the employer refuses to return the documentation concerning and belonging to the complainant, taken by the management immediately after the dismissals of the members of the union board of 28 February 2008. The Government indicates that no individual or collective cases were reported to the labour inspection concerning any of these issues. 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. 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. 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 773, 786 and 787]. The Committee requests the complainant to provide more information concerning the allegations of threats against, and pressure on trade union members to withdraw from their union and urges the Government to carry out an independent investigation without delay into these serious allegations, it requests the Government to provide detailed information on the outcome.
4. 921. Concerning the recognition of the complainant organization as representative and the refusal to grant certain facilities to the union, the Committee notes that the complainant indicates that the court has rendered a judgment (P.br.1734/08) where it required the enterprise to provide the union with facilities to carry out its activities. However, this decision was appealed by the enterprise to the Higher Court, which upheld the judgment of the Municipal Court. This decision was appealed to the Supreme Court which cancelled both abovementioned decisions. The process had to start over again before the Municipal Court of Podgorica. During the course of these proceedings, the complainant appealed the preliminary decision of the Municipal Court of Podgorica (which did not accept the request that both trade unions at RTCG present their application forms for membership and accepted a statement of the President of the pro-government trade union on its membership at the enterprise, although it has requested the parties to submit admission forms files by the members of the respective unions) but it was rejected. The Municipal court of Podgorica latterly rendered its decision and decided to withdraw all trade union rights previously enjoyed by the New Trade union of the RTCG. The complainant appealed this latest decision (P.br. 159/11) before the High Court of Podgorica and is still awaiting its decision. The complainant further indicates that it has filed a complaint requesting compensation for unpaid union dues for the period 2009–10 (Case No. P.br. 5708/10). This case is still pending before the courts and the judge is apparently waiting for the outcome of Case No. 159/11 before moving forward. The Committee notes that according to the Government, since the New Trade Union of RTCG is not a representative trade union within the employer, the latter should not be obliged to provide facilities for its work (articles 5 and 19 of the Law on Trade Union Representativeness). The Committee once again 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. Observing that this matter would appear to also be linked to the other allegations in this case concerning anti-union discrimination and harassment and the question of trade union representativeness, the Committee requests the Government to provide information on the outcome of the proceedings pending before the court. In the meantime, the Committee once again 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.