Effect given to the recommendations of the committee and the Governing Body - Report No 389, June 2019

Case No 3140 (Montenegro) - Complaint date: 07-JUL-15 - Closed

Effect given to the recommendations of the committee and the Governing Body

1. 49. The Committee last examined this case, in which the complainant denounced the dismissal of a trade union leader, Ms Obradovic, from her employment in the Aluminium Plant Podgorica (the aluminium company), allegedly due to her exercise of trade union activities and the refusal to let her enter trade union premises after her dismissal, at its October 2018 meeting [see 387th Report, paras 35–41, approved by the Governing Body at its 334th Session]. On that occasion, welcoming the decision of the Supreme Court of Montenegro annulling the judgments of the lower courts and remanding the case of Ms Obradovic to the bankruptcy trustee for consideration, the Committee reiterated its request that the claims of Ms Obradovic be fully reviewed without delay, with a view to ensuring her reinstatement as a primary remedy should the dismissal be found to have been motivated by her trade union activities or, if reinstatement was not possible for objective and compelling reasons, that she be granted adequate compensation. Given that Ms Obradovic still held the function of trade union representative, the Committee expressed its expectation that she would be given reasonable access, without delay, to the workplace and the trade union premises for the exercise of her functions. Finally, noting that the amended Law on Bankruptcy did not appear to address labour rights other than “wages and other income”, the Committee requested the Government to clarify whether the amendments also ensure that the rights of persons engaged in companies undergoing bankruptcy proceedings are covered under the legislation regulating labour rights more generally, including as regards claims of anti-union discrimination, retaliation and unfair dismissal.
2. 50. In its communication dated 2 November 2018, the complainant informs that following the Supreme Court’s annulment of the judgments of the Commercial Court and the Appellate Court in June 2018, the case of Ms Obradovic was returned to the bankruptcy administrator for redecision and Ms Obradovic requested the bankruptcy judge in charge of the case to annul the administrator’s illegal decision concerning the termination of her labour contract due to her trade union activities. According to the complainant, the re-examination of the case created an assumption that the Government would finally comply with the Committee’s recommendations; however, in the process of redecision in the first instance, the bankruptcy administrator made the same decision as previously, disregarding the Committee’s recommendations, even though these had been pointed out by Ms Obradovic’s lawyer. The complainant therefore requests the Committee to urge the Government to comply with the Committee’s earlier recommendations in this case and to protect Ms Obradovic from the anti-union discrimination and long-standing injustice and consequences she has been suffering.
3. 51. In a communication dated 28 February 2019, the Government informs about the developments in the case of Ms Obradovic: (i) in April 2018, the Constitutional Court of Montenegro upheld the constitutional appeal of Ms Obradovic, abolishing the verdict of the Supreme Court from December 2015 and returning the case to that court for re-trial; (ii) in June 2018, the Supreme Court issued a decision abolishing the judgments of the Commercial Court and the Appellate Court and ordered that the action of Ms Obradovic is to be deemed a complaint against the March 2015 decision of the bankruptcy administrator; (iii) on 3 September 2018, the Commercial Court rejected as ungrounded the appeal of Ms Obradovic against the decision of the bankruptcy administrator; (iv) Ms Obradovic lodged an appeal in a timely fashion against that decision but on 10 December 2018, the Appellate Court upheld the decision of the Commercial Court and rejected the appeal as unfounded; (v) according to the Appellate Court, the termination of employment of Ms Obradovic had been done in accordance with the terms of her contract (fixed-term contract extended at the latest until the sale of the company’s property, which took place in June 2014) and in line with the Bankruptcy Law and the Labour Law; allegations that it was based on trade union activities did not arise from the case file and no evidence was provided to sustain such allegations; furthermore, Ms Obradovic was not deprived of the right to remedy and could challenge the bankruptcy administrator’s decision; and Ms Obradovic’s referral to the Committee’s recommendations cannot be significant in the proceedings before the court because its decisions are made on the basis of the Constitution, the laws and the ratified and published international treaties; (vi) the court proceedings on the complaint of Ms Obradovic against the action of the bankruptcy administrator were thus validly terminated; and (vii) since the entire property of the bankruptcy debtor (the aluminium company) had been sold to another enterprise, the bankruptcy administrator has no possibility to provide Ms Obradovic with access to trade union premises for trade union activities.
4. 52. The Government further states that the Bankruptcy Law is lex specialis that applies in an imperative manner in situations of bankruptcy, that is, a permanent inability to pay or indebtedness. Bankruptcy proceedings are court proceedings conducted by the competent court and the bodies engaged are the bankruptcy judge, the bankruptcy administrator and a board of creditors. A bankruptcy procedure, once initiated, terminates the employment contracts concluded by the debtor with the employees, which means that the employment of all employees is terminated by force of law. However, the bankruptcy administrator, with the consent of the bankruptcy judge, may hire the necessary number of persons for the completion of the commenced business or to carry out the bankruptcy proceedings, as in the case of Ms Obradovic.
5. 53. With regard to the interpretation of section 79(4) of the Bankruptcy Law (now section 29(4)), the Government clarifies that in the 2011 Bankruptcy Law, this provision stipulated that the earnings and wages of persons engaged in bankruptcy proceedings shall be determined by the bankruptcy administrator after obtaining the opinion of the board of creditors, with the consent of the bankruptcy judge. Since this provision had only standardized the issue of earnings during bankruptcy proceedings and did not fully regulate the labour status of employees, legislative amendments were initiated. The Law on Changes and Amendments to the Bankruptcy Law, 2016 amended the relevant provision to regulate the labour status of persons engaged in bankruptcy proceedings by prescribing that when it comes to the level of earnings, but also other rights based on employment of a person for the completion of commenced business, or in order to carry out bankruptcy proceedings, such rights shall be established by the bankruptcy administrator in accordance with the law governing employment rights. According to the Government, the amendment thus equalled the status of these persons with all employees in Montenegro and rounded off their protection in relation to employment rights.
6. 54. With regard to the developments in the case concerning Ms Obradovic, the Committee observes from the information and documents submitted by the Government and the complainant that following the Supreme Court’s June 2018 annulment of the judgments of the lower courts, the complaint of Ms Obradovic was again reviewed by the Commercial Court and the Appellate Court in September and December 2018, respectively, but both entities again found her complaint unfounded. In particular, the Committee notes that the Appellate Court considered that the termination of her employment had been done in line with the Bankruptcy Law and the Labour Law, as well as in accordance with the terms of her contract (a fixed-term contract extended at the latest until the sale of the company’s property, which took place in June 2014) and that the allegations that the termination of her employment contract was based on her exercise of trade union functions was ungrounded, since this did not arise from the case file and no evidence was provided to sustain such allegations. Finally, the Committee notes the Appellate Court’s assertion that Ms Obradovic was not deprived of the right to remedy and was able to challenge the bankruptcy administrator’s decision. While the outcome of the judicial proceedings at the national level seems to indicate that the termination of employment of Ms Obradovic was not based on her functions as a trade union representative, but rather as a result of her fixed-term contract that came to an end with the sale of the company’s property. Recalling that the Committee has emphasized the advisability of giving priority to workers’ representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1157], the Committee considers that such an approach is also relevant with regard to bankruptcy proceedings, especially where the production continues. The Committee trusts that the Government will ensure that any future bankruptcy proceedings are conducted in line with the above.
7. 55. As regards access to trade union premises, the Committee regrets that the Government does not provide details as to the measures taken to ensure such access for Ms Obradovic and observes that it is simply stated, in one of the documents submitted, that since the entire property of the aluminium company had been sold to another enterprise, the bankruptcy administrator has no possibility of providing her with access to trade union premises for the exercise of trade union activities. While taking due note of the above, the Committee recalls that workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representation function [see Compilation, op. cit., para. 1591] and expects the Government to take all necessary measures to ensure that Ms Obradovic, for the duration of her role as trade union representative, is given reasonable access to trade union premises for the exercise of her functions.
8. 56. Concerning the interpretation of the Bankruptcy Law, the Committee notes the clarification provided by the Government and understands from the information submitted that the Bankruptcy Law is applied as lex specialis in situations of bankruptcy, but that following the 2016 amendment, the labour rights of workers engaged for the completion of commenced business or to carry out bankruptcy proceedings are determined by the bankruptcy administrator in line with the relevant labour laws and regulations.