Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 400, Octubre 2022

Caso núm. 3404 (Serbia) - Fecha de presentación de la queja:: 02-MAR-21 - En seguimiento

Allegations: The complainant alleges that, as a result of several acts of anti-union interference, it lost the majority of its members to another union supported by the employer and was eventually deprived of its status of representative trade union, which prevented it from exercising its right to bargain collectively. The complainant also alleges the employer committed acts of anti-union discrimination against some of its members

1. 652. The complaint is contained in communications dated 14 December 2020 and 2 April 2021 submitted by the Trade Union of Workers – National Bank of Serbia.
2. 653. The Government of Serbia transmitted its observations on the allegations in communications dated 30 March and 31 December 2022.
3. 654. Serbia has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 655. In its communication dated 14 December 2020, the complainant alleges that after it filed an initiative for entering into a collective agreement with the National Bank of Serbia (hereinafter “NBS”) as the sole representative trade union on 31 May 2013, the employer, through several of its departments and certain employees working at the Institute for Manufacturing Banknotes and Coins (hereinafter “IMBC”), used the Trade Union Organization of Independent Trade Unions of the National Bank of Serbia (hereinafter “TUOITUNBS”) to obstruct its work in order to avoid collective bargaining.
2. 656. The complainant indicates that the NBS, which is the central bank of Serbia, is regulated by the Law on the National Bank of Serbia, but that the provisions of the Labour Law apply to any matters not regulated thereunder. The complainant states that when the TUOITUNBS was founded in September 2011, it consisted of up to 20 employees of the IMBC, which is a specialized organization within the NBS. The complainant alleges that it was then established within the whole NBS with the logistic support of the employer.
3. 657. The complainant alleges that the Governor of the NBS attended an electoral meeting of the TUOITUNBS on 5 July 2013 and that she is a member of that union, although forbidden from being a member pursuant to the Law on the National Bank of Serbia. Similarly, the complainant affirms that the Deputy Head of the General Affairs Department of the NBS is a member of the TUOITUNBS. It also denounces that Mr Vladeta Cuk, who was the Secretary General of the TUOITUNBS from 5 July 2013 to the second half of 2018, acted as the employer’s representative in labour disputes with employees while also acting as a representative of the TUOITUNBS in court disputes alongside the employer.
4. 658. According to the complainant, perfidious sabotage was conducted by the Human Resources Department of the NBS, which gave new hires automatic membership in the TUOITUNBS upon signing their employment contracts, while either omitting to inform them of the existence of the complainant or advising them that it was not desirable to join it. The complainant therefore argues that their employment was conditioned on them joining the TUOITUNBS.
5. 659. The complainant also alleges that in the second half of 2013, it was sabotaged by an associated group of people, who registered its members from the branches of Novi Sad, Kragujevac, Belgrade and Uzice as members of the TUOITUNBS. It states that the Human Resources Department was not allowed to make such changes, and that its requests for information as to why no salary deductions for union dues were made in the above-mentioned branches were left unanswered. Furthermore, the complainant affirms that some of its members were pressured into cancelling their membership and joining the TUOITUNBS by representatives of the latter who had been appointed as their superiors.
6. 660. Moreover, the complainant alleges that even though section 223 of the Labour Law provides that the representativeness of a trade union shall be established by the employer in the presence of interested trade unions, it never received notice of the procedure for granting representativeness to the TUOITUNBS, nor the decision by which it was granted on 11 September 2013. It therefore states that it was never able to assess the fulfilment of all prescribed conditions for the operation of the TUOITUNBS within the NBS. The complainant also points out that no information on the representativeness or status of the TUOITUNBS was published on the website of the NBS at that time.
7. 661. The complainant states that it lost practically half of its members upon submitting its initiative for collective bargaining to the employer, which largely contributed to the deterioration of the working conditions of the employees, as the regulation of employment relationships is now based on kinship and interest grouping. The complainant informs that out of the 1,300 members that it had in August 2012, only 250 remain.
8. 662. The complainant indicates that it filed several complaints with the Ministry of Labour against the employer’s lobbying and discrimination, to which it received no response. It further indicates that on 9 February 2019, it filed a criminal complaint against an organized anonymous group on reasonable doubt that 24 criminal offences, including discrimination, were committed against it, but has not received any response.
9. 663. In its communication dated 2 April 2021, the complainant reiterates the information that was previously submitted. It also informs that the TUOITUNBS was originally established in the IMBC by the Autonomous Trade Union of Employees in Banks, Insurance Companies and Other Financial Organizations of Serbia (SS BOFOS), which is an umbrella union of bank employees, insurance companies and other financial organizations in Serbia. It argues that the employees of the NBS who are not deployed in the IMBC cannot be part of the TUOITUNBS. The complainant also states that SS BOFOS, as a third party, is prohibited by law to influence the decision-making bodies of the NBS, and that the employees of the NBS cannot associate with employees of the financial sector since they are performing tasks of supervision over their employers.
10. 664. The complainant states that on 13 August 2018, the NBS established again that the TUOITUNBS met the requirements for representativeness provided by sections 218 and 219 of the Labour Law (that is: is set up and active on the basis of principles of freedom of trade union organization and activity; is independent from public bodies and employers; is funded mostly from membership fees and own sources; and its membership comprises no less than 15 per cent of the total number of employees with the employer). It indicates that the NBS also determined that the complainant did not meet these criteria due to an insufficient number of affiliates, after which the employer therefore terminated their negotiations for a collective agreement.
11. 665. The complainant indicates that it appealed the above-mentioned decisions before the High Court of Belgrade, which confirmed them on 16 December 2020. It further indicates that it requested the Board for Determining Representativeness of Trade Unions and Associations of Employers of the Ministry of Labour to determine its representativeness and to establish that the TUOITUNBS was not a representative union within the NBS, but on 27 January 2021, the Board rejected the first request and refused to act upon the second.
12. 666. Moreover, the complainant alleges acts of anti-union discrimination by the employer. In this regard, it states that a member of its negotiating team for the collective bargaining procedure, Mr Vladimir Rabrenovic, was prevented from entering a building of the NBS for seven years, and that a decision of the High Court of Belgrade established that there had been discriminatory treatment. The complainant further alleges that during the collective bargaining procedure, one of its affiliates, Ms Vesna Spasenovic, was mobbed by her supervisor, which affected her employment status. It indicates that the dispute ended after a peaceful settlement was reached.
13. 667. The complainant also affirms that its President, Mr Blazo Knezevic, is deployed in shift mode on the exit ramp of the underground garage in the NBS's building in Slavija, lost his time off for union work, and is prevented from meeting other members during working hours.

B. The Government’s reply

1. 668. In its communication dated 30 March 2022, the Government provides the observations of the NBS, which rejects the allegations. The NBS indicates that there are two organized trade unions within it, the TUOITUNBS and Trade Union of Workers – National Bank of Serbia (hereinafter “TUW–NBS”), but that only the TUOITUNBS is representative.
2. 669. The NBS states that the complainant’s claims that the TUOITUNBS was organized by the employer’s representatives are incorrect and malicious, as the NBS has no right to restrict freedom of association or prohibit trade union pluralism. According to the NBS, the fact that its employees decided to join the TUOITUNBS is exclusively the result of the latter’s activity to attract them to membership through its policy and actions, as all employees are free to join any of the unions.
3. 670. The NBS indicates that the presence of its Governor at the TUOITUNBS’s founding assembly was merely courteous and due to protocol. It insists that she is not a member of any trade union organization and has never been. With respect to Mr Cuk, it believes that the question of whether she performed the duties of a legal representative of the NBS in labour disputes is irrelevant and points out that similar duties are performed by Ms Vesna Spasenovic, who is a prominent representative of the TUW–NBS.
4. 671. The NBS also emphasizes that it does not pressure any employees, including its new hires, regarding membership in the TUOITUNBS, as they are free to choose and possibly join any of the unions. Moreover, it explains that its new employees are not provided with notices or statements on any trade union organization, since they can obtain such information within the NBS’s internal web platform, where on the same page there is information on both the TUW– NBS and the TUOITUNBS.
5. 672. Furthermore, the NBS denies the alleged illegal registration of members of the TUOITUNBS in the branches of Belgrade, Uzice, Novi Sad and Kragujevac, indicating that its Directorate for Human Resources and Organizational Affairs acted exclusively on the basis of the signed membership applications or withdrawal notices that were submitted by trade union members and deducted union dues accordingly.
6. 673. The NBS also denies any influence of its management on the establishment and operation of the TUOITUNBS. It argues that the fact that some members of the TUOITUNBS perform managerial duties in the NBS is not relevant, as employees cannot be restricted from membership in any trade union organization, nor does their membership in trade union organizations limit their professional promotions.
7. 674. Moreover, the NBS refutes the allegation that it denied information to the TUW–NBS during the first determination of the representativeness of the TUOITUNBS. The NBS indicates that the decision of 11 September 2013 was published on its notice board and was therefore available to all employees. It further indicates that the President of the TUW–NBS acknowledged the existence of the other representative union in a letter sent to the Governor of the NBS on 29 April 2015 and called for cooperation between the two trade unions in the collective bargaining procedure in a letter sent to the TUOITUNBS on 25 September 2017.
8. 675. The NBS also states that the allegations that it tried to obstruct the collective bargaining procedure are untrue and unfounded. It indicates that the negotiations for concluding a collective agreement were initiated separately by both the representative unions and affirms that it approached them seriously and in good faith by appointing a negotiating committee. According to the NBS, a total of 12 negotiating meetings were held, with representatives of the TUW–NBS not attending three negotiating meetings (out of 11 to which they were invited while the trade union was representative). It stresses that it did not differentiate between the TUW– NBS and the TUOITUNBS, but always encouraged them to cooperate and act together in the interest of the employees that they represent.
9. 676. The NBS indicates however that on 13 August 2018, it was determined through the procedure prescribed by the Labour Code that the TUW–NBS had lost its representativeness and that the TUOITUNBS, with 1,064 members out of a total of 2,333 employees in the NBS, was the only representative trade union. It explains that with the loss of its representativeness, the TUW– NBS also lost the opportunity to be a signatory of a collective agreement, in accordance with section 248 of the Labour Law. The NBS therefore argues that this distinction was justified and there was no discriminatory behaviour on its part.
10. 677. The NBS informs that the TUW–NBS has so far initiated four disputes against it before the courts of general jurisdiction, namely: (i) Case No. P1. 116/18, in which the High Court in Belgrade, in a decision dated 16 December 2020, rejected as unfounded all claims, including with respect to the annulment of the decisions on the representativeness of the TUW–NBS and the TUOITUNBS; (ii) Case No. P1. 12/19, in which the High Court of Belgrade issued a final decision rejecting in its entirety the request for declaration of a collective agreement; (iii) Case No. P1. 143/19, in which the First Basic Court of Belgrade rejected a claim for annulment of a decision by which the President of the TUW–NBS was deprived of the right to 64.5 hours of paid union work per month due to the insufficient number of trade union members; and (iv) Case No. P1. 128/19, in which the High Court in Belgrade is currently pre-examining the admissibility of a lawsuit alleging discriminatory behaviour by the NBS and 35 persons.
11. 678. The NBS also indicates that the TUW–NBS initiated a procedure to determine its representativeness before the Board for Determining the Representativeness of Trade Unions and Associations of Employers of the Ministry of Labour which, in a decision dated 27 January 2021, rejected the request after establishing that the TUW–NBS had failed to submit evidence on meeting the representativeness criteria.
12. 679. In its communication dated 30 March 2022, the Government transmits additional observations from the NBS, in which it indicates, with respect to the court verdict which established discriminatory treatment in relation with Mr Rabrenovic, that the verdict does not have any connection with his trade union engagement or the TUW–NBS. It explains that Mr Rabrenovic was allowed to enter the building all the time, but with the issuance of a special identification card because he worked in another business facility. The NBS informs that it appealed the decision before the Supreme Court of Cassation, but nevertheless fully complied with it and adjusted its technical standards. Regarding the alleged mobbing of Ms Spasenovic, the NBS denies that she was ever discriminated against or abused, and stresses that the agreement that was concluded did not acknowledge that discrimination had occurred.
13. 680. With respect to the allegations concerning Mr Knezevic, the NBS explains that he performs work at the workplace of the officer for physical and technical security and fire protection, and that he is deployed according to the Rulebook on systematization jobs in the NBS. The NBS also indicates that he lost his right to paid union work when the TUW–NBS lost its representative status, in accordance with the Labour Law

C. The Committee’s conclusions

1. 681. The Committee notes that, in the present case, the complainant alleges that after it filed an initiative for entering into a collective agreement with the NBS, the latter committed several acts of anti-union interference in its capacity as employer with the aim of increasing the representativeness of another union, the TUOITUNBS, as a result of which the complainant lost hundreds of members, as well as its status of representative trade union, and was therefore unable to continue the collective bargaining procedure. It further notes that the complainant alleges that some of its members were subjected to acts of anti-union discrimination by the employer. The Committee notes that the Government, for its part, submits the observations of the NBS, which denies most of the allegations against it.
2. 682. With respect to the formation of the TUOITUNBS within the IMBC, the Committee notes that the complainant indicates that the union was created in 2011 by the SS BOFOS, which is an umbrella union in the financial sector. The Committee notes that, according to the complainant: (i) only employees who are deployed in the IMBC should be part of the TUOITUNBS; and (ii) the employees of the NBS cannot associate with a third party which represents employees over whom they perform tasks of supervision. The Committee observes that both these points concern the alleged anti-union interference carried out by the employer to facilitate the installation of the TUOITUNBS within the whole NBS after the TUW–NBS filed an initiative for entering into a collective agreement on 31 May 2013. In this regard, the Committee notes that the complainant states that: (i) the Governor of the NBS is a member of the TUOITUNBS and attended its electoral meeting on 5 July 2013; (ii) the Deputy Head of the General Affairs Department of the NBS is also a member of the TUOITUNBS; (iii) Mr Vladeta Cuk, who was the Secretary General of the TUOITUNBS from 5 July 2013 to the second half of 2018, acted as the employer’s representative in labour disputes with employees during the same period; (iv) the Human Resources Department of the NBS automatically registered its new hires as members of the TUOITUNBS; (v) an associated group of people registered the affiliates of the TUW– NBS from the branches of Novi Sad, Kragujevac, Belgrade and Uzice as members of the TUOITUNBS; (vi) representatives of the TUOITUNBS were appointed as the superiors of certain members of the TUW–NBS and pressured the latter into cancelling their membership and joining the TUOITUNBS; (vii) the TUW–NBS was never informed of the procedure for granting representativeness to the TUOITUNBS, nor of the decision by which it was granted on 11 September 2013; (viii) the TUW– NBS, whose membership decreased from 1,300 members in 2012 to 250, lost its status of representative trade union on 13 August 2018, which means that it is no longer allowed to bargain collectively with the NBS; and (ix) the TUW–NBS filed several complaints with the Ministry of Labour alleging lobbying and discrimination by the employer, as well as a criminal complaint alleging that it was the subject of 24 criminal offences, including discrimination, by an organized anonymous group.
3. 683. The Committee further notes that the NBS, in response to these allegations, states that: (i) they are false, as its employees decided to join the TUOITUNBS exclusively because of that union’s policy and actions; (ii) its Governor has never been a member of the TUOITUNBS and her presence at its founding assembly was merely courtesy and due to protocol; (iii) the fact that certain members of the TUOITUNBS perform managerial duties in the NBS is not relevant, as they cannot be restricted from trade union membership; (iv) the question of whether Mr Cuk acted as a legal representative of the NBS in labour disputes is also irrelevant; (v) its employees, including its new hires, are not pressured and are free to join any of the unions; (vi) no illegal registration occurred with respect to the branches of Belgrade, Uzice, Novi Sad and Kragujevac, as its Directorate for Human Resources and Organizational Affairs only acted based on signed membership applications or withdrawal notices that were submitted by trade union members; (vii) the TUW–NBS was not denied information regarding the first determination of the representativeness of the TUOITUNBS, as the decision of 11 September 2013 was published on the NBS’s notice board; (viii) the TUW–NBS acknowledged the existence of two unions at the workplace in a communication of 2015 sent to the NBS and called for their cooperation in the collective bargaining procedure in a communication of 2017 sent to the TUOITUNBS; (ix) the NBS did not obstruct the collective bargaining procedure, as it negotiated in good faith with both trade unions until the TUW–NBS lost its representativeness; and (x) the High Court in Belgrade is currently pre-examining the admissibility of the criminal complaint that was presented by the TUW–NBS.
4. 684. The Committee observes that the NBS admits that its Governor attended the founding assembly of the TUOITUNBS shortly after the TUW–NBS filed an initiative to bargain collectively, and considers it irrelevant that its Deputy Head of its General Affairs Department is a member of the TUOITUNBS and that the Secretary General of the TUOITUNBS, who was elected at the above-mentioned assembly, acted as the employer’s representative in labour disputes with employees during her mandate. The Committee recalls the importance it attaches to protection being ensured against acts of interference by the employers designed to promote the establishment of workers’ organizations under the domination of the employer. It further recalls the importance of ensuring the independence of the parties in collective bargaining and stresses that negotiations should not be conducted on behalf of employees or their organizations by bargaining representatives appointed by, or under the domination of, employers or their organizations [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, paras 1215 and 1214].
5. 685. The Committee also notes the contradictory information provided by the complainant and the NBS with respect to the alleged automatic registration of new employees as members of the TUOITUNBS, the alleged illegal transfer of the TUW–NBS’s members from the branches of Novi Sad, Kragujevac, Belgrade and Uzice to the TUOITUNBS, and the alleged pressures exercised on certain members of the TUW–NBS to join the TUOITUNBS. In this regard, the Committee recalls that workers shall have the right to join organizations of their own choosing without any interference from the employer [see Compilation, para. 1189]. The Committee requests the Government to institute an independent investigation without delay into the allegations of anti-union interference by the NBS and, if acts of interference are identified, to ensure that corrective measures and sufficiently dissuasive sanctions can be taken. The Committee requests the Government to keep it informed of any developments in this regard and to provide information on the outcome of the complaints filed with the Ministry of Labour and the criminal complaint that is being examined by the High Court of Belgrade.
6. 686. With respect to the alleged acts of anti-union discrimination against members of the TUW–NBS during the collective bargaining procedure, the Committee notes that, according to the complainant: (i) the High Court of Belgrade established that Mr Vladimir Rabrenovic, who was prevented from entering a building of the NBS for seven years, had been subjected to discriminatory treatment; and (ii) a dispute involving Ms Vesna Spasenovic, who was mobbed by her supervisor and saw her employment status affected, ended after a peaceful settlement was reached. The Committee further notes that the NBS states in this regard that: (i) it fully complied with the court verdict concerning Mr Rabrenovic by adjusting its technical standards, even though the verdict was not related to his trade union engagement and has been appealed before the Supreme Court of Cassation; and (ii) Ms Spasenovic was never discriminated against or abused, and no acknowledgement of that was made in the agreement that was reached between the parties. The Committee recalls that no person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present [see Compilation, para. 1074]. Duly noting the NBS’s indication that the judicial decision issued regarding Mr Rabrenovic was fully complied with, as well as the information provided regarding the settlement reached with Ms Spasenovic, the Committee will not pursue its examination of this aspect of the case.
7. 687. The Committee also notes that the complainant alleges that its President, Mr Blazo Knezevic, lost his time off for union work and is prevented from meeting its affiliates during working hours. It notes that the NBS, for its part, indicates that Mr Knezevic lost his right to paid union work as a result of the TUW–NBS’s loss of its representative status, in conformity with the Labour Law, and that this decision was confirmed by the First Basic Court of Belgrade. The Committee observes however that the NBS does not reply to the allegation that Mr Knezevic is prevented from meeting the members of TUW–NBS during his working hours. In this regard, it recalls that the right to hold meetings is essential for workers’ organizations to be able to pursue their activities and it is for employers and workers’ organizations to agree on the modalities for exercising this right [see Compilation, para. 1585]. The Committee invites the Government to encourage dialogue between the parties with a view to finding a mutually agreeable solution to this aspect of the dispute.

The Committee’s recommendation

1. 688. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee requests the Government to institute an independent investigation without delay into the allegations of anti-union interference by the NBS and, if acts of interference are identified, to ensure that corrective measures and sufficiently dissuasive sanctions can be taken. The Committee requests the Government to keep it informed of any developments in this regard and to provide information on the outcome of the complaints filed with the Ministry of Labour and the criminal complaint that is being examined by the High Court of Belgrade.