Informe definitivo - Informe núm. 373, Octubre 2014

1. 382. The complaint is contained in a communication from the Confederation of Trade Unions of Montenegro (CTUM) and the Trade Union of Financial Organizations, dated 22 February 2013.
2. 383. The Government forwarded its response to the allegations in communications dated 28 May 2013 and 28 March 2014.
3. 384. Montenegro 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 complainants’ allegations

1. 385. In a communication dated 22 February 2013, the complainant organizations, the CTUM and the Trade Union of Financial Organizations of Montenegro, one of its constituent members, state that they submit this complaint to ensure protection against dismissal from work due to trade union activity. Mr Mileta Cmiljanic was discharged as redundant through Decision No. 09-2632/1 of the Central Bank of Montenegro (CBM), dated 3 September 2004, although, as the President/shop steward of the trade union organization in the CBM, he was protected according to the imperative provision of section 140 of the Labour Act of the Republic of Montenegro.
2. 386. The complainants indicate that the fact that Mileta Cmiljanic received the aforementioned decision on 13 September 2004 is undisputable. Mileta Cmiljanic used all legal remedies before the national courts in Montenegro, even the extraordinary legal remedy (request for review), as well as the constitutional appeal submitted to the Constitutional Court of Montenegro.
3. 387. The complainant organizations specify that the request for review filed by Mileta Cmiljanic with the Supreme Court of Montenegro challenged the Decision of the Higher Court of Podgorica No. 2065/08, dated 4 June 2008, by which this appeal had been rejected as ungrounded thus confirming the Decision of the Basic Court of Podgorica No. 622/07 of 2 June 2008. The Supreme Court of Montenegro rejected the request for review as inadmissible by Decision No. 1276/09, dated 21 October 2009. The complainants add that the decision of the Higher Court of Podgorica had rejected Mr Cmiljanic’s appeal as ungrounded stating that in the proceedings before the Court of First Instance it had, allegedly, been established beyond any doubt that the complainant had received the Decision on redundancy No. 09-2632/1, of 3 September 2004, on 13 September 2004, and that the first lawsuit had been lodged belatedly on 1 October 2004, that is after the 15-day deadline granted by the law to the complainant to seek protection of violated rights.
4. 388. The complainants stress that Mileta Cmiljanic submitted the request for review to the Supreme Court of Montenegro in a timely manner, in order to challenge the decision of the Higher Court, underscoring that, in this case, the provision of the substantive law had not been applied, thus neglecting the fact that legal norms should apply to situations in real life. Furthermore, in the request for review, Mileta Cmiljanic stated that the Higher Court had failed to take into consideration that section 120 of the Labour Act applied to this request for protection of the rights of the workers, as the trade union shop steward sought protection directly from the employer. According to the complainant organizations, the Higher Court, as well as the Basic Court, violated fundamental human rights principles by failing to apply the provisions of section 120 of the Labour Act to this specific case. The national courts have failed to take into consideration the fact that the decision on redundancy becomes final only once the decision has been adopted based on the appeal submitted by Mileta Cmiljanic, and this is clearly stated in Decision No. 09-2632/47 of 20 September 2004 issued by the employer, which was received by Mileta Cmiljanic on 21 September 2004. The complainants believe that it is from that moment that the legal right to seek protection before the relevant court starts to run. Besides, with their rulings, these courts have applied in an inappropriate manner the provisions of substantive law, neglecting the fact that section 121 of the Labour Act states that if the employee is not satisfied with the decision based on section 120, she/he has the right to file a case with the responsible court, to seek protection of her/his rights, within 15 days from the date when the decision of the employer becomes effective.
5. 389. The complainant organizations indicate that, in both the request for review and the constitutional appeal, it was emphasized that Mileta Cmiljanic, trade union shop steward, could not be proclaimed redundant during his trade union mandate, based on section 140 of the Labour Act. The Supreme Court rejected the request for review as impermissible, thus neglecting the fact that this case involves violation of human rights. In view of the above, the complainants consider that the national courts have violated the provisions of articles 19, 20 and 62 of the Constitution of Montenegro, as they have failed to provide protection of rights guaranteed to trade union representatives. The national courts have violated the constitutionally granted rights: right to protection; right to legal remedy; right to work and right to trade union organizing; and freedom of trade union association. The national courts, including the Supreme Court, failed to recognize that the universal right to court protection cannot be limited or denied and that this protection is granted by article 19 of the Constitution of Montenegro.
6. 390. The complainants add that national courts have neglected Article 1 of the ILO’s Workers’ Representatives Convention, 1971 (No. 135), which states that all workers’ representatives enjoy effective protection against any act prejudicial to them, including dismissal, as well as article 7 of the Universal Declaration of Human Rights, according to which all are equal before the law and are entitled, without any discrimination, to equal protection of the law. The complainant organizations therefore believe that the authorities in Montenegro have violated the aforementioned international documents, and that Mileta Cmiljanic should be able to achieve full protection of his right to trade union association and trade union activism. With reference to other documents enclosed in support of the complaint, the complainants further indicate that, pursuant to Article 35 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Mileta Cmiljanic has exhausted all national legal remedies and has lodged a complaint with the European Court of Human Rights.

B. The Government’s reply

1. 391. In its communication dated 28 May 2013 and 28 March 2014, the Government states that freedom of association is a constitutional and legal right. Article 53 of the Constitution of Montenegro guarantees freedom of political, trade union and other association and action, without the approval of the registration with the competent authority. According to section 154 of the Labour Act, employees and employers have the right to freely form their own organizations and to join them, without previous authorization and under the conditions specified in the statute and rules of the relevant organization.
2. 392. The Government further indicates that section 160 of the Labour Act provides that trade union representatives, while exercising trade union functions and six months upon their cessation, may not be held responsible in relation to trade union activities, declared redundant, reassigned to another position with the same or another employer or otherwise placed in a less favourable position, as long as he acts in accordance with the law and the collective agreement. In addition, it is stipulated that an employer may not place a trade union representative or employees’ representative in a more or less favourable position due to membership in a trade union or trade union activities. As mentioned above, the employer cannot put trade union representatives in a less favourable position only because of their union membership or trade union activities. The Government stresses that, consequently, trade union representatives, or representatives of employees, are protected from dismissal only in relation to trade union membership or activities. In its view, if it happens that there is no longer a need for the work of the employees who act as trade union representatives, they face the same situation and share the same fate as other employees who have become redundant.
3. 393. In its communication dated 28 March 2014, the Government forwarded the response of the CBM, former employer of Mileta Cmiljanic. Accordingly, the following instruments were adopted under the Central Bank of Montenegro Act (Official Gazette of the Republic Montenegro Nos 52/00, 53/00 and 41/01) in order to realize the functions of the CBM as stipulated in the Act: the Rulebook on the internal organization of the Central Bank (No. 0101-52/1-2003 of 14 August 2003); the decision on dissolution of organizational units for performing payment transactions in the CBM (Official Gazette of the Republic of Montenegro No. 67/03 of 15 December 2003); the Rulebook on systematization of workplaces in the CBM (No. 0101-213/3-8 of 4 March 2004 and No. 0101-213/5-5-2004 of 23 April 2004); and the Programme on restructuring changes in the CBM (No. 0101 213/10-10 of 13 August 2004).
4. 394. The Central Bank indicates that, after assigning employees according to the Rulebook on systematization of workplaces in the CBM, it was found, by Decision No. 09-2632/1 of 3 September 2004, that there was no longer need for the work of 59 employees who were thus made redundant; among them, under Decision No. 49, was also Mileta Cmiljanic, senior adviser. The rights of employees, conditions and deadlines for the termination of work and data on qualification and age structure were further regulated by the Programme on realization of the rights of employees made redundant in the CBM (No. 09-2632/2 of 3 September 2004), in accordance with sections 115 and 116 of the Labour Act (Official Gazette of the Republic of Montenegro No. 43/03).
5. 395. The Central Bank adds that, for the purposes of timely information about changes within the Central Bank, the Programme on realization of the rights of employees made redundant in the CBM was delivered, in line with section 115(3) of the Labour Act, to Mr Mileta Cmiljanic who was, at that time, President of the Single Trade Union of Workers of the Payment Unit of the Bank.
6. 396. Furthermore, the Central Bank states that, since it was unable to offer alternative employment to the redundant workers, neither within the Bank nor with another employer, the Central Bank provided funds for the payment of severance pay, according to the Programme on realization of the rights of employees whose work is no longer needed in the CBM and available financial resources. Consequently, Mr Cmiljanic received the amount of 12 average salaries (calculated on the basis of the national average salary in the month preceding the termination of his employment).
7. 397. In view of the above, and in accordance with the Programme on realization of the rights of the employees made redundant in the CBM, Mr Mileta Cmiljanic was made redundant and his employment was terminated on the day of the payment of his severance pay.

C. The Committee’s conclusions

1. 398. The Committee notes that, in the present case, the complainants denounce the dismissal by the CBM of the trade union leader Mr Mileta Cmiljanic during his mandate as the President of the Single Trade Union of Workers of the Payment Unit of the Bank.
2. 399. The Committee notes the complainants’ allegations that: (i) Mileta Cmiljanic, then President of the trade union in the CBM, was discharged through the Bank’s Decision on redundancy No. 09-2632/1, dated 3 September 2004, and received on 13 September 2004, contrary to the Labour Act provision concerning the protection of trade union representatives; (ii) Mr Cmiljanic exhausted all legal remedies before the national courts in Montenegro, even the request for review before the Supreme Court of Montenegro, as well as the constitutional appeal submitted to the Constitutional Court of Montenegro; (iii) the Supreme Court rejected the request for review challenging the Decision of the Higher Court of Podgorica No. 2065/08, dated 4 June 2009, as inadmissible by Decision No. 1276/09, dated 21 October 2009; (iv) the decision of the Higher Court of Podgorica had rejected Mr Cmiljanic’s appeal as ungrounded stating that in the first instance proceedings the Basic Court had, allegedly, established on 2 June 2008 beyond any doubt that, since the complainants had received the decision on redundancy on 13 September 2004, the first lawsuit had been lodged belatedly on 1 October 2004 (that is after the 15 day deadline granted by law); (v) the courts have failed to apply the substantive law, thus neglecting the fact that this case involves violation of human rights including trade union rights; (vi) the courts have failed to apply the provisions of the Labour Act concerning protection of rights of the employees with the employer, according to which the decision on redundancy becomes final once the employer decides on the employee’s challenge of that decision; (vii) this is clearly stated in Decision No. 09-2632/47 of 20 September 2004 issued by the Bank and received by Mileta Cmiljanic on 21 September 2004, and it is from that moment that the legal right to seek protection before the relevant court starts to run; and (viii) according to the Labour Act, if the employee is not satisfied with the employer’s decision, she/he has the right to file a case with the responsible court, to seek protection of her/his rights, within 15 days from the date when the employer’s decision becomes effective.
3. 400. The Committee notes the Government’s view that, in accordance with section 160 of the Labour Act, trade union representatives are protected from dismissal only in relation to trade union membership or activities, and if it happens that there is no longer need for the work of the employees who act as trade union representatives, they face the same situation and share the same fate as other employees who become redundant. The Committee also notes the indications of the CBM, former employer of Mileta Cmiljanic, that: (i) for the purpose of fulfilling the functions stipulated in the Central Bank of Montenegro Act, the Bank adopted the Rulebook on the internal organization of the Central Bank of 14 August 2003, the decision on dissolution of organizational units for performing payment transactions in the CBM of 15 December 2003, the Rulebook on systematization of workplaces in the CBM of 4 March and 23 April 2004 and the Programme on restructuring changes in the Central Bank of 13 August 2004; (ii) after assigning employees according to the above Rulebook, it was found, by Decision No. 09-2632/1 of 3 September 2004, that there was no longer need for the work of 59 employees who were thus made redundant, including, under Decision No. 49, Mileta Cmiljanic, senior adviser; (iii) the rights of employees, conditions, deadlines for the termination of work and data on qualification and age structure were regulated by the Programme on realization of the rights of employees made redundant in the CBM (No. 09-2632/2 of 3 September 2004) in accordance with sections 115 and 116 of the Labour Act, which was delivered to union President Mr Cmiljanic for the purposes of timely information about changes within the Bank; (iv) unable to offer alternative employment to the redundant workers, the Central Bank provided funds for the payment of severance pay, according to the above programme and available financial resources; (v) Mr Cmiljanic received the amount of 12 national average salaries; and (vi) his employment was terminated on the day of the payment of his severance pay.
4. 401. The Committee understands that there were two sets of judicial proceedings initiated by Mr Cmiljanic, one requesting the revocation of the Central Bank Decision on redundancy (No. 09-2632/1), dated 3 September 2004, and subsequently one requesting the revocation of the Central Bank Decision on termination of employment (No. 09-2632/133), dated 6 December 2004 (enclosed with the complaint). Both complaints were based on section 160 of the Labour Code which provides that a trade union representative, during the performance of trade union activities and six months upon termination of trade union activities, shall not be held accountable with respect to performance of trade union activities, declared as redundant, assigned to another job position with the same or other employer with respect to performance of trade union activities, or placed in another manner, in a less favourable position, if he acts in accordance with the law and the collective agreement.
5. 402. As regards the first set of judicial proceedings, the Committee notes that the lawsuit filed on 1 October 2004 was dismissed on 2 June 2008 without examination of the merits as inadmissible for failure to observe the statutory period of 15 days for the lodging of the lawsuit against the decision of 13 September 2004, and that the appeal and request for review were subsequently rejected as inadmissible by the Higher Court of Podgorica and the Supreme Court. In this respect, the Committee observes that, according to the complainant, sections 119 and 120 of the Labour Act were applicable, which means that the 15-day statutory period did not start to run on 13 September 2004 but rather on 21 September 2004 (following Mr Cmiljanic’s challenge of the decision and the confirmation of the decision by the Bank on 20 September 2004), and that the lawsuit filed on 1 October 2004 was thus lodged on time.
6. 403. As regards the second set of judicial proceedings, the Committee notes that the lawsuit was dismissed as unfounded by the Basic Court on 21 December 2009. The Committee observes in particular that, when examining the merits, the court found that the Central Bank had decided to dissolve all organizational units for performing payment transactions in the Central Bank, which implied the cessation of work of all the payment units, the termination of employment of all the employees of those units and the takeover of their activities by commercial banks.
7. 404. While observing that the complaint itself was submitted over two years after the final court decision, the Committee nevertheless regrets the excessive period of time that has elapsed in both judicial proceedings until the issuance of the first instance decision (almost four years in the first proceeding, and five years in the second). The Committee generally recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 826]. The Committee expects that the Government will take all necessary measures to ensure respect of this principle in the future.
8. 405. Leaving aside the procedural question as to whether or not Mr Cmiljanic has ultimately failed to observe the statutory period, the Committee, turning to the allegation in the present case of dismissal due to trade union activity, observes that the restructuring programme of the CBM, which had been planned and announced well in advance, affected, owing to the suppression of an important function of the Bank (performance of payment transactions), the totality of the employees (59 in number) of the abolished payment units, irrespective of their trade union membership or activities. The information at its disposal does therefore not allow the Committee to conclude that the Central Bank’s motive for the decision to dismiss Mr Cmiljanic was linked with his trade union office and thus contrary to freedom of association principles. In these circumstances, the Committee will not pursue its examination of these allegations.