Definitive Report - Report No 344, March 2007

Case No 2454 (Montenegro) - Complaint date: 18-OCT-05 - Closed

Allegations: The complainant alleges that the Ministry of Labour and Social Protection has cancelled the registration of the trade union of the Naval-Technical Overhaul Depot (MTRZ) “Sava Kovacevic” Tivat, which represents civilian staff of the armed forces, a category of workers excluded from the right to organize by the Law on the Army of Yugoslavia and that, as a consequence, these workers do not enjoy the right to bargain collectively

1053. The complaint is contained in a communication dated 18 October 2005 from the Confederation of Trade Unions of Montenegro (CTUM). By a communication dated 4 November 2005, the International Confederation of Trade of Free Trade Unions (ICFTU) associated itself with the complaint.

1. 1054. The Government forwarded its observations in a communication dated 6 September 2006.
2. 1055. Montenegro has neither ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1056. In its communication dated 18 October 2005, the Confederation of Trade Unions of Montenegro (CTUM) alleges that, on 28 July 2005, the Ministry of Labour and Social Protection (hereafter, the Ministry) cancelled the registration of the trade union of the Naval-Technical Overhaul Depot (MTRZ) “Sava Kovacevic” Tivat, representing civilian staff of the armed forces, which had been registered on 20 July 2005. According to the complainant, the decision to cancel the registration was taken once the Ministry had learnt that the union represented civilian staff in the services of the army, covered by the provisions of the Law on the Army of Yugoslavia. Sections 36 and 149 of this Law impose a ban on trade union activities of the civil persons in the Army of Serbia and Montenegro. As a consequence, these workers did not enjoy the right to bargain collectively and were not able to participate in the process of privatization of the establishment, which might entail the dismissal of a majority of workers. The complainant indicates that, on 24 August 2005, a complaint was lodged against the above decision with an administrative tribunal of the Republic of Montenegro.
2. B. The Government’s reply
3. 1057. In its communication dated 6 September 2006, the Government confirms that the trade union of the MTRZ “Sava Kovacevic” Tivat was registered on 20 July 2005. However, by a letter of 21 July 2005, the MTRZ informed the Ministry that this institution was a military institution, the employees of which have the status of civilians in the army service to which the Law on the Army of Yugoslavia is applicable. In view of this new information, the Ministry took a decision to cancel the registration of the trade union.
4. 1058. The Government further informs that the trade union instituted an administrative procedure before the Administrative Court of the Republic of Montenegro. However, on 28 November 2005, the applicants dropped the submitted action and, on 6 December 2005, the Administrative Court issued an order discontinuing the proceeding. Indeed, following the transfer of the property of the MTRZ “Sava Kovacevic” Tivat from the Ministry of Defence and the Army of Serbia and Montenegro to the Republic of Montenegro, the premises are no longer considered to be military property and the trade union of the MTRZ “Sava Kovacevic” Tivat was registered on 28 November 2005.
5. 1059. The Government further points out that, according to Article 9 of Convention No. 87, “the extent to which the guarantees provided for in [the] Convention shall apply to the armed forces and the police shall be determined by national law and regulations”. Therefore, by enforcing the Law on the Army of Yugoslavia and cancelling the trade union’s first registration, the Ministry did not violate freedom of association rights. The Government explains that the Ministry is responsible for applying the existing legislation until it is replaced by a new one or is declared unconstitutional. The Ministry has no competence to assess the constitutionality of legislative provisions. The Government considers that the complainants should have initiated the relevant procedure before the Constitutional Court.
6. 1060. Finally, the Government queries whether the complainant in this case, the CTUM, was competent to submit a complaint to the Committee on Freedom of Association on behalf of the trade union of the MTRZ “Sava Kovacevic” Tivat, which is not its member organization, nor its affiliate.
7. 1061. In view of all of the above, the Government considers that this case should not call for further examination.

C. The Committee’s conclusions

1. 1062. The Committee notes that this case concerns the issue of registration of a trade union of civilian workers in the service of the army. More specifically, the Committee notes that, by its communication dated 18 October 2005, the CTUM alleged that, on 28 July 2005, the Ministry had cancelled the registration of the trade union of MTRZ “Sava Kovacevic” Tivat, which represented civilian staff of the armed forces. The decision to cancel the union registration was taken once the Ministry had learnt that the union represented the civilian persons in the services of the army, covered by the provisions of the Law on the Army of Yugoslavia, sections 36 and 149 of which impose a ban on trade union activities of the civil persons in the Army of Serbia and Montenegro.
2. 1063. The Committee notes that, in its reply, the Government indicates that: (1) the trade union of the MTRZ “Sava Kovacevic” Tivat is neither a member nor an affiliate of the CTUM, the complainant in this case, therefore the receivability of the complaint is questionable; (2) the trade union of the MTRZ “Sava Kovacevic” Tivat was registered on 28 November 2005; and (3) in any case, workers in the army are excluded from the scope of the Conventions. Therefore, the Government considers that this case should not call for further examination.
3. 1064. With regard to the receivability of the complaint, the Committee recalls that its procedures provide that the complaints can be lodged by national workers’ organizations directly interested in the matter. Given that the scope of the right to organize is clearly a matter of interest to a national workers’ confederation, the Committee considers that the complaint from the CTUM was receivable and further recalls that it was supported by an international workers’ organization with consultative status before the ILO (see Special procedures for the examination in the International Labour Organization complaints alleging violations of freedom of association (paragraph 31)).
4. 1065. The Committee notes with satisfaction that the trade union of the MTRZ “Sava Kovacevic” Tivat has now been registered and therefore considers that this case does not call for further examination. With regard to the Government’s comment concerning the restricted scope of Convention No. 87, however, the Committee would recall that civilians working in the services of the army should have the right to form trade unions [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 229].

The Committee's recommendations

1. 1066. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.