TRADE UNION IN THE FACTORY "4TH NOVEMBER" v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska
1. The applicant is the trade union in the “4th November” factory in Bitola. It is represented before the Court by Mr F. Medarski, a lawyer practising in Skopje. 2. The Macedonian Government (“the Government”) are represented by their Agent, Mr K. Bogdanov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 4 November 2008 the applicant union announced that its members would go on strike because of the lack of success of negotiations that had been pending with the employer for some time regarding payment of leave allowance (регрес за годишен одмор) for 2006, the signing of the employer’s collective agreement, and increases in pay. As stated in the announcement, the strike was to begin at 8 a.m. on 6 November 2008 at the workplace and would continue until the applicant union’s demands were met. As stated in the decision to strike, the applicant union undertook to negotiate with the employer before and during the strike, in order to ensure that the workers’ demands were acceded to in a friendly manner. It was also stated that if an agreement was reached between the applicant union and the employer it would be regarded as a collective agreement of the employer. 5. On 13 November 2008 the applicant union and the employer reached an agreement for a 20% pay rise and the payment of a one-off bonus for production workers. According to the agreement, the strike action was suspended (активностите на штрајкот се запираат) and the negotiations were to continue after termination of the “campaign” (apparently a production stage in the factory). 6. In the light of legislative amendments in December 2008 introducing gross salaries, on 5 February 2009 the applicant union asked for the pay rise stipulated in the agreement to be incorporated in the workers’ gross salaries. The same request was made regarding travel and food allowances (трошоци по основ на исхрана и превоз). 7. As established in the subsequent civil proceedings (see below), the employer responded on 9 March 2009, saying that it had fulfilled the wage-related obligations set out in the agreement of 13 November 2008, and that the negotiations on the collective agreement would continue. It also offered an additional 10% pay rise for production workers. 8. The applicant union and the employer then exchanged letters in which they stated their positions regarding the contentious issues. In a letter of 12 March 2009 the employer set out two proposals concerning pay increases, and indicated that the negotiations regarding the collective agreement would continue. 9. By a letter dated 13 March 2009 the applicant union made a final request (a 30% salary increase for production workers and incorporation of the food allowance in the gross salary) and asked the employer to state its position by midday, under the threat of resorting to other statutory measures. 10. In another letter dispatched that day by registered mail (which the employer received on 16 March 2009) the applicant union informed the employer: “... since you refuse to settle the wage dispute, we hereby inform you that the strike action will resume at 7.30 a.m. on 17 March 2009 in the factory. We emphasise that we are ready to negotiate both now and during the strike in order to find a solution (that is acceptable for both parties) ...” 11. By a letter dated 16 March 2009 the employer formulated four proposals regarding a pay rise for production and/or all workers and travel and food allowances, and requested that the applicant union reply by 18 March 2009. The employer stated that its proposals corresponded to its financial capacity at the time. By a letter dated 17 March 2009 the applicant union refused the employer’s offer but expressed its willingness to continue negotiating. In reply, the employer informed the applicant union that by going on strike on 17 March 2009 it had violated the provisional agreement of 13 November 2008. 12. On an unspecified date the employer brought a civil action against the applicant union, asking the courts to declare the strike announced on 16 March 2009 unlawful. 13. In a judgment of 28 April 2009 the Bitola Court of First Instance (“the first-instance court”) allowed the employer’s action and declared the strike announced on 16 March 2009 unlawful. The court held that the strike had not been announced within the time-limits specified in the Collective Agreement for the Agricultural and Food Sector (“the sector collective agreement”), which was binding on the applicant union. Since the applicant union, by submissions of 5 February and 13 March 2009, had made new requests that had not been included in the agreement of 13 November 2008, the court found that the applicant union had gone on strike in contravention of section 236(3) of the Labour Act (“the Act”, see paragraph 21 below) according to which a strike could not begin before any out-of-court settlement proceedings had been brought to an end. 14. On 28 May 2009 the Bitola Court of Appeal allowed an appeal by the applicant union and set aside the lower court’s judgment. It instructed the first-instance court to establish whether the employer had signed the sector collective agreement, which in the court’s opinion was the determining factor as to the applicability of that collective agreement to the dispute between the parties. The lower court was also instructed to establish whether at the material time the negotiations were still pending, and if so whether, in the light of its subsequent requests, the applicant union had been obliged to announce the strike of 16 March 2009. 15. On 25 June 2009 the first-instance court dismissed the employer’s action. Relying on section 236 of the Act, it held that the applicant union had gone on strike on the basis of its decision of 4 November 2008 (see paragraph 4 above), which had not been set aside (вон сила). With that decision, the applicant union had informed the employer about the reasons for the strike and the place and time of the strike. The agreement reached between the parties on 13 November 2008 had been provisional and had concerned only part of the applicant union’s demands (concerning a pay rise for production workers). The employer had started implementing the agreement of 13 November 2008 up to the point when the legislative amendments introducing gross salaries entered into force in December 2008. In view of the applicant union’s requests post-dating the agreement, the court concluded that negotiations between the parties had been pending and that the applicant union had not been required to announce the strike of 16 March 2009. The court also found that the strike could not be regarded as a new strike, but was rather a continuation of the strike announced on 4 November 2008. That negotiations were ongoing was supported by the fact that after the parties had reached the agreement of 13 November 2008 both strikers and non-strikers were regularly at work and production had continued (редовно оделе на работа, редовно се одвивал работниот процес). The court also established that the employer was at the time neither a member of the Union of Employers (Здружение на работодавачи) nor a signatory to the sector collective agreement (the latter accordingly was not binding on the employer at the time). In such circumstances, the court ruled that the strike had been in compliance with the Act, pursuant to which the right to strike could not be restricted because of the requirement for mediation. 16. On an appeal by the employer, on 7 September 2009 the Bitola Court of Appeal overturned the first-instance court’s judgment and declared the strike announced on 16 March 2009 unlawful. The court held that: “The court considers that after the agreement (of 13 November 2008) had been concluded and the [employer] had satisfied part of [the applicant’s] requests, negotiations were still pending, which is not disputed between the parties. In view of the above-cited provision (section 236 of the Act), the requirement for mediation cannot restrict the right to strike if such a requirement is specified by this law or before the end of any out-of-court settlement proceedings agreed upon by the parties. This court considers that the strike of 17 March 2009 is unlawful because mediation and negotiations ... are still pending. (The applicant union) submitted new requests that had not been specified in the agreement [of 13 November 2008] ... [The applicant union], without giving any reply, refused the new proposals made [by the employer] and continued the strike, despite the employer’s willingness to fulfil the requests that were not part of the agreement. Instead of considering the four proposals made by the employer and providing an explanation for refusing each of them, [the applicant union] unilaterally informed the employer on 16 March 2009 that the strike would continue. This means that while the negotiations were pending it went unilaterally into a new strike, in contravention of section 236(3) of the Labour Act. In view of the foregoing, the court allows [the employer’s] appeal ... and prohibits (забрани) the [the applicant union’s] strike announced on 16 March 2009 as contrary to the Labour Act, all the more so since the negotiating team of [the applicant union] suggested to [the employer], with the notification of 17 March 2009, that negotiations should continue.” 17. On 18 December 2009 the employer claimed compensation for pecuniary loss allegedly sustained as a result of the strike by the applicant union which had lasted from 17 March to 17 October 2009. The applicant union denied that the employer had sustained any damage, alleging that workers who had gone on strike had been replaced. In such circumstances, there had been no adverse effects and “the campaign had ended successfully”. 18. In the observations on the admissibility and merits of the application, the Government informed that on 26 November 2010 the first-instance court allowed the employer’s claim and ordered the applicant union, under section 242(2) of the Act (see paragraph 21 below), to pay 7,341.326 Macedonian denars (MKD) with interest in respect of “pecuniary damage caused by the unlawful strike held between 17 March and 17 October 2009.” The court relied on an expert report, according to which there had been “two campaigns for the production of raw sugar” during the strike, and the employer had sustained damage in view of increased energy costs. In the absence of an appeal by the applicant union, this judgment became final on 31 December 2010. 19. The applicant union submitted a list of twenty-five employees who were members of the applicant union and who had been dismissed from work owing to their participation in the strike. In this connection, it submitted court judgments in which the dismissal of an employee had been confirmed at the first and second levels of jurisdiction. By judgments of 29 February and 30 May 2012 the Supreme Court overturned the dismissal of two of the employees named in that list (Рев.бр.898/2010 and Рев.бр.83/2011). The parties did not submit any further information in this respect. 20. The relevant provision of the Constitution reads as follows: The rights of employees and their status are regulated by law and collective agreements. The right to strike is guaranteed. The law may restrict the conditions for the exercise of the right to strike in the armed forces, the police and administrative bodies.” 21. The relevant provisions of the Labour Act read as follows: (1) The employer and the employee can decide that an individual or collective labour dispute is settled by a conciliation council (мировен совет) composed of three members, of which one member is appointed by the employer and one by the employee and they jointly appoint the remaining member ... (1) A collective agreement may specify that collective labour disputes are settled by arbitration. (2) The collective agreement specifies the composition, procedure and other relevant issues for the arbitration process. (3) If the employer and the employee agree that a dispute is to be settled by arbitration, the judgment of the arbitration is final and binding for both parties. (4) The judgment of the arbitration is not subject to judicial review. A collective agreement can be general for the whole State, specific for a particular (economic) sector, or individual, for a particular employer. (1) At the State level there are: 1) business general collective agreements and 2) public-sector general collective agreements. (1) A general collective agreement is directly applicable and is binding on employers who are members of the union of employers, signatories to the collective agreement, or who have joined that union subsequently. (2) A sector collective agreement is directly applicable and is binding on employers who are members of the union of employers, signatories to the collective agreement, or who have joined that union subsequently. (1) A collective agreement is binding on all persons who have entered into it and on all who, at the relevant time, were or have subsequently become members of the unions which had entered into the collective agreement. (2) A collective agreement is also binding on all persons who have entered into it and on all who have subsequently become members of the unions which had signed up to it ... Rights and obligations during strikes Section 236 (1) A trade union and its federations may announce and go on strike in order to protect the economic and social rights of their members, in accordance with the law. (2) The employer or the employers’ federation shall be notified in writing about the strike ... (3) The strike cannot begin before negotiations (постапка за помирување) have ended, as provided for by law. The requirement for negotiations cannot restrict the right to strike if such a requirement is specified by law or before [the end of] any out-of-court settlement proceedings agreed upon by the parties ... (5) Any notice announcing a strike must contain information about the reasons for the strike and the place and the time of the strike. (6) The strike must be organised in a manner that will not impair or disturb the work routine of workers not participating in the strike and [in a manner] that will not restrict access to the workplace by workers and persons in authority.” (1) The employer and the association of employers may ask the competent court to declare unlawful a strike that has been organised contrary to the statutory provisions. (2) The employer can seek compensation for damage sustained by a strike organised contrary to the law. 22. The Government submitted copy of the general business collective agreement of 23 June 2006 (together with an accord extending its validity until 14 June 2009, Official Journal no.78/2008). The relevant provisions of the 2006 general business collective agreement (Official Journal no. 41/2006) were as follows: Disputes that cannot be settled through negotiations can be settled by means of mediation or arbitration. Mediation is a process in which an independent third person appointed by the parties to the dispute assists them in settling the dispute. Arbitration is dispute resolution by a third person who is appointed by the parties to the dispute and who resolves the dispute by making a decision. Individual and collective disputes can be settled out of court or by a special conciliation council. An out-of-court settlement is set in motion by a proposal from any party to the dispute, which is to be submitted up to five days after the dispute; in the proposal the appellant must describe the nature of the dispute. The other party is required to reply within three days of receiving the proposal. Each party to the dispute appoints one member of the conciliation council. They jointly appoint the third member of the conciliation council from among the candidates on the list of mediators ... Parties are required to complete the out-of-court settlement proceedings within fifteen days of the submission of the proposal for an out-of-court settlement ... In a collective labour dispute any party to the dispute can seek settlement by means of arbitration up to eight days after the beginning of the dispute or after termination of the out-of-court settlement proceedings. One or more arbiters can be included in the arbitration. Parties to the disputes jointly appoint the arbiter(s) from the list of arbiters ... The decision of the arbiter is final and binding on the parties concerned. Arbitration proceedings are to be completed within fifteen days.” 23. The Government also provided a copy of the 2009 general business collective agreement (Official Journal no. 88/2009), which contained identical rules on out-of-court settlement of labour disputes to those in the 2006 collective agreement. 24. On the basis of an application by the Federation of Trade Unions (Сојуз на синдикати), on 10 May 2006 the Constitutional Court rejected as unconstitutional the part of section 236(3) of the Act which provides that a strike cannot begin before negotiations have ended, as provided for by law and “a decision of the Minister for Labour (и акт на Министерот надлежен за работите од областа на трудот)”. Relying on international materials and the constitutional provisions cited above (see paragraphs 20, 25 and 26), the Constitutional Court stated that: “The court considers that the disputed provision introduced, in principle, a requirement of prior exhaustion of out-of-court settlement proceedings before resorting to a strike, as a means of protection of economic and social rights ... According to the court ... strikes and mediation in labour-related matters are closely linked, given the fact that friendly settlement of labour disputes (мирно решавање на работните спорови) can have, in certain cases, a preventive effect in that they avoid strikes being held, and if a strike has already begun it is a means to achieve an out-of-court settlement of a particular dispute. The court therefore considers that it is ... decisive that both issues (strike and mediation) concern labour issues, which, as provided for in Article 32 § 5 of the Constitution, are to be regulated by law and collective agreements. They cannot be regulated by a decision of the Minister ...” 25. Article 6 of the European Social Charter reads as follows: With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake: 1. to promote joint consultation between workers and employers; 2. to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers’ organisations and workers’ organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; 3. to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: 4. the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.” 26. Article 8 of the International Covenant on Economic, Social and Cultural Rights reads as follows: 1. The States Parties to the present Covenant undertake to ensure ... (d) the right to strike, provided that it is exercised in conformity with the laws of the particular country.” 27. Relevant provisions of this report read as follows: Paragraph 4 - Collective action ... Procedural requirements pertaining to collective action The trade union which has called the strike must notify the employer against whom it is directed, specifying the reasons for the strike, the place where it is to be held, and the date and time of the strike’s commencement. A strike cannot take place before the completion of the conciliation/mediation procedures. The Committee asks whether there are any other procedural requirements that must be fulfilled before a lawful strike can take place, such as ballot requirements. ... Conclusion Pending receipt of the information requested the Committee defers its conclusion.” 28. Relevant provisions of this report read as follows: “Concerning procedural requirements that must be fulfilled before a lawful strike can take place, the Committee notes that no other requirements than the ones mentioned in the previous conclusion are to be fulfilled. ... Conclusion Pending receipt of the information requested, the Committee concludes that the situation in “the former Yugoslav Republic of Macedonia” is in conformity with Article 6 § 4 of the Charter.”