Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 407, Juin 2024

1. 75. The Committee last examined this case (submitted by the Trade Union of United Mineworkers of Bulqiza (SMBB) in July 2020) at its June 2023 meeting and presented an interim report to the Governing Body on that occasion [see 403rd Report, paras 70–97 approved by the Governing Body at its 348th Session].
2. 76. The Government provided its observations in a communication dated 29 April 2024.
3. 77. 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. Previous examination of the case

1. 78. When it last examined the case, in June 2023, the Committee made the following recommendations [see 403rd Report, para. 97]:
   • (a) 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.
   • (b) The Committee requests the Government to carry out an independent investigation into the allegations that trade unionists were temporarily detained, questioned and intimidated by the police and that labour activists were beaten up and imprisoned during a strike organized by the SMBB, and to provide detailed information on the outcome.
   • (c) 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.
   • (d) 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.
   • (e) 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.

B. The Government’s reply

1. 79. In a communication dated 29 April 2024, the Government provides the following information in reply to the Committee’s recommendations.
2. 80. Regarding recommendation (a), the Government indicates that Mr Elton Debreshi and Mr Ali Gjeta, two of the dismissed SMBB leaders, challenged the 26 October 2020 decision by the Commissioner for Protection against Discrimination (CPD), before the Administrative Court of First Instance of Tirana. The Government reports that the Administrative Court of First Instance of Tirana decided, on 18 March 2021, to dismiss their claims. The Government adds that the company also contested the CPD’s decision, before the same Court, which decided on 19 May 2021, to “repeal points 2 and 3 of the CPD’s decision”. The Government specifies that the four dismissed SMBB leaders (namely Mr Elton Debreshi, Mr Beqir Durici, Mr Behar Gjimi, and Mr Ali Gjeta) as well as the CPD and the “State Bar” appealed the above-mentioned administrative decisions. The Government indicates that the appeals are currently under review before the Administrative Court of Appeal of Tirana.
3. 81. In response to recommendation (b), the Government provides information communicated by the General Directorate of the State Police, regarding the police intervention during the strike organized by the SMBB. The General Directorate of the State Police indicates that the police intervened after the enterprise complained about protesters obstructing the access to the Bulqiza mine, thereby preventing essential personnel from entering, which could result in the destruction of the company’s investment. The General Directorate of the State Police indicates that, as the protesters refused to comply with the police requests to cease the blockade, they escorted a total of seven protesters to the Bulqiza police station, where they were charged with “organizing and participating in illegal gathering and protests” under article 262 of the Criminal Code. The General Directorate of the State Police asserts that the police followed the “Rules on the treatment of citizens who are escorted in the police premises” and that the protesters were prosecuted “in a free state” and released after having completed procedural documents, including a form in which none of them alleged any mistreatment.
4. 82. Regarding recommendation (c), the Government provides information communicated by the State Labour and Social Services Inspectorate (hereinafter the “Inspectorate”). The Inspectorate recalls that it investigated each complaint raised by the SMBB and did not find any violations of trade union rights. The Inspectorate further recalls that it found that the dismissals of the SMBB leaders were not discriminatory and highlights that the Administrative Court of First Instance of Tirana reached the same conclusion. The Inspectorate adds that, while Mr Elton Debreshi claimed in 2021 that explosives were planted in his car due to his trade union activities, the Court of First Instance of Dibër found in decision No. 33-2023-80 that the attack was staged by Mr Debreshi and his brother, in an attempt to seek political asylum in Germany or France.
5. 83. In response to recommendation (d), the Government provides information communicated by the enterprise. The enterprise reiterates that, on 10 May 2018, it concluded a collective agreement with the Trade Union Federation of Industrial Workers of Albania (FSPISH), which is currently in force, and will remain so until 30 April 2025. The company asserts that, at the time of signing, the FSPISH was the most representative trade union in the enterprise and that, currently, 70 per cent of its employees are members of the FSPISH.
6. 84. Regarding recommendation (e) the Government indicates that inspections conducted by the Inspectorate in December 2021 at the company revealed no evidence of the SMBB still being active. The Inspectorate further reports that it was unable to contact Mr Elton Debreshi who, according to its information, has left the country. The Inspectorate adds that, out of the 612 workers employed by the enterprise, 514 are members of the FSPISH, and that the members have regularly paid their membership fees.

C. The Committee’s conclusions

1. 85. The Committee recalls that this case concerns allegations of acts of anti-union interference and discrimination, including the dismissal of four SMBB leaders (namely Mr Elton Debreshi, Mr Beqir Durici, Mr Behar Gjimi, and Mr Ali Gjeta) by a company in the mining sector, as well as alleged acts of intimidation and the detention of trade unionists by the police during a strike organized by the SMBB, and the violation of SMBB’s right to collective bargaining both by the Government and the company.
2. 86. With regard to recommendation (a), the Committee recalls that, in a decision of 26 October 2020, the CPD concluded that two of the four SMBB leaders had been dismissed for anti-union reasons. The Committee previously took note of the SMBB’s indications that: (i) the SMBB will appeal that decision with a view to seeking justice for the four leaders; and that (ii) it had also challenged the four dismissals before ordinary courts. The Committee understands from the information provided by the Government that further to appeals filed respectively by the company and by SMBB leaders, the Administrative Court of First Instance of Tirana decided in March and May 2021 to: (i) overturn the CPD’s determination that Mr Beqir Durici and Mr Behar Gjimi had been dismissed due to their trade union affiliation; and (ii) confirm the CPD’s decision to reject the claims of Mr Elton Debreshi and Mr Ali Gjeta. The Committee further notes the Government’s statement that the dismissed SMBB leaders, the CPD and the State Bar have appealed these decisions before the Administrative Court of Appeal of Tirana, which is yet to render a decision. The Committee thus requests the Government to keep it informed of the outcome of the appeals filed against the decisions of the Administrative Court of First Instance of Tirana relating to the decision of 26 October 2020 of the CPD, and to provide copies of the decisions rendered. In light of the information previously provided by the complainant that it has also challenged the dismissals of the SMBB leaders before the ordinary courts, the Committee once again requests the complainant, and the Government, to provide updated information on the status of these cases and copies of any judicial decisions rendered.
3. 87. Regarding recommendation (b), the Committee recalls that it previously took note of the complainant’s allegations that, during a strike organized in 2019 by the SMBB, trade unionists were temporarily detained, questioned, and intimidated by the police, and labour activists were beaten up and imprisoned while participating in it. The Committee notes the Government’s indication that the General Directorate of the State Police investigated the police intervention during the strike and found no evidence of protesters being deprived of their freedom or mistreated. The Government has not, however, provided any information as to the efforts made to establish an independent investigation into the complainant’s allegations. The Committee therefore once again requests the Government to indicate the steps taken to carry out an independent investigation into the allegations that trade unionists were temporarily detained, questioned and intimidated by the police and that labour activists were beaten up and imprisoned during a strike organized by the SMBB, and to provide detailed information on the outcome.
4. 88. With regard to recommendation (c) the Committee recalls that it previously took note of the complainant’s allegations 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. The Committee notes that the Government reiterates that the Inspectorate received complaints from the SMBB and did not find any violations of trade union rights. The Committee notes, however, that the Government has not provided information as to the efforts made to establish an independent investigation into the alleged acts of anti-union interference in this case. The Committee considers that the role of the Government in relation to acts of anti-union discrimination and interference is not confined to mediation and conciliation but also includes, where appropriate, investigation and enforcement in order to ensure effective protection against acts of anti-union discrimination and interference and, in particular, ensure that such acts are identified and remedied, that guilty parties are punished and that such acts do not reoccur in the future [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1161]. Observing the contradictory nature of the Government’s reply and the complainant’s allegations and further noting that the CPD and the State Bar have also appealed the Court of First Instance decision that overturned the finding of discrimination against some union leaders, the Committee considers that an independent investigation into the allegations of anti-union interference by the enterprise would be especially helpful for determining the facts and thus once again requests the Government to take steps in this regard.
5. 89. Regarding recommendations (d) and (e), the Committee recalls that it previously took note of the claimant’s allegations that: (i) the enterprise and the state authorities refuse to recognize the SMBB for collective bargaining purposes, even though the SMBB is the most representative trade union at the enterprise, not the FSPISH; and (ii) the Inspectorate informed the SMBB that the enterprise was entitled to refuse to allow the SMBB’s representatives access to its premises, as only the representatives of trade unions which had signed a collective agreement could meet their members in the workplace. In that regard, 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]. The Committee notes the information provided by the Government regarding the representativity of the FSPISH, as well as the Government’s indication that, in the framework of inspections conducted in December 2021, the Inspectorate found no evidence of the SMBB being still active at the enterprise. While regretting that an independent investigation early on into these allegations might have provided a full picture of the situation at the enterprise so as to enable redress if necessary, the Committee notes that neither the Government nor the complainant have provided information on any judicial procedures undertaken to challenge the most representative nature of the FSPISH. In light of the Government’s indication that the SMBB no longer appears to be active, the Committee requests the complainant to provide updated information in that regard, failing which the Committee will not pursue further its examination of this matter.