SPASESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen
The present application invokes a total of 24 applicants. Their personal details are set out in the annex to this decision. All applicants are Macedonian nationals. All applicants were represented before the Court by Mr B. Šokoski, with the exception of Mrs M. Mirceska and Mrs L. Koneska, who were represented by Mrs M. Kokaroska, both lawyers practising in Prilep. The Macedonian Government (“the Government”) were represented by their Agent, Mrs R. Lazareska Gerovska. The facts of the case, as submitted by the parties, may be summarised as follows. The first, second, third, fourth, eighth and ninth applicants are former employees of the private company P.O., and the remaining applicants of the private company Z.P. (“the former employers”). They all brought civil actions against the former employers claiming payment of employment-related benefits, namely annual-leave allowance (регрес за годишен одмор), food (хранарина) and travelling allowances that they had not received during their employment (“the reference period”). The only exception was that the first, second and third applicants did not claim payment of the travelling allowance. All claims were submitted to the Prilep Court of First Instance. The applicants’ cases were finally decided by the Bitola Court of Appeal with decisions rendered between 20 December 2006 and 11 June 2007. The relevant facts concerning the applicants’ claims, the reference period and the outcome of the domestic proceedings are contained in Tables 1, 2 and 3 below: Article 32 § 5 of the Constitution provides that employees’ rights are regulated by law and collective agreements. Under Article 101 of the Constitution, the Supreme Court is the highest court, providing for the uniform application of laws by courts. Under section 2 of the 1993 Employment Act, employment-related issues were regulated by this Act or other laws and collective agreements. Section 5 of this Act provided that an employer could not take any action or decision restricting employment-related rights regulated by the Constitution, law and collective agreements. Under section 113 § 1 (1) and (2) of the 2005 Employment Act, employees were entitled to food and travelling allowances. Under section 267, proceedings that were pending when this Act entered into force would be completed in accordance with the law valid at the relevant time, unless the present Act was more favourable for the employee. This Act entered into force eight days after it was published in the “Official Gazette of the Republic of Macedonia” on 28 July 2005 (section 273). Under section 35 of the 1995 Courts Act, the plenary session of the Supreme Court could adopt general legal opinions in order to ensure the uniform application of laws by the courts. The opinions were binding for all panels of the Supreme Court. The same provision appears in section 37 §§ 1 (1) and 2 of the 2006 Courts Act. Section 45 of the then valid General Business Collective Agreement provided for annual-leave, food and travelling allowances. Sections 131, 133 and 134 of the Bakery Collective Agreement provided for and specified the amount for annual-leave, food and travelling allowances. Section 51 of the Collective Agreement on the graphic and paper production industry provided for and specified the amount for annualleave, subsistence and travel allowances. (a) On 7 November 2002 the Supreme Court, in proceedings following a legality review request submitted by the public prosecutor, found that the employer in the case was not allowed to restrict the payment of the food allowance. That the allowance had not been paid to the claimant’s colleagues did not mean that he was not entitled to obtain that allowance (Gzz.no.30/2002). (b) On 7 October 2005 the civil department of the Bitola Court of Appeal adopted a “conclusion” according to which, inter alia, if a trade union disagreed with an employer’s decision restricting the payment of the food and annual-leave allowances, courts were required to establish the facts regarding the employer’s financial situation for each business year. (c) On an unspecified date in 2006, a joint opinion of the civil departments of all the Appeal Courts in the respondent State at the time (Skopje, Bitola and Štip) was published in the Judicial Journal (Судиски Информатор). According to this opinion, in case of reduced working hours due to employer’s business losses an employee was entitled to obtain the full amount of the annual-leave allowance. (d) On 17 January 2007 the Supreme Court, in proceedings following a legality review request submitted by the public prosecutor, dismissed a claim for the payment of annual-leave allowance on account of the employer’s business losses in the reference period (Gzz.no.37/2006). The Supreme Court decided likewise in another case where a legality review request had been submitted by the public prosecutor (Gzz.no.152/2006 of 6 June 2007). (e) On 2 March 2007 the civil departments of all three Courts of Appeal adopted a “conclusion” according to which courts were required, in cases concerning the payment of food and annual-leave allowances, to establish facts concerning the employers’ financial situation. (f) In “conclusion” dated 14 March and 4 May 2007, the civil department of the Bitola Court of Appeal stated that after the entry into force of the 2005 Employment Act, courts should accept claims for the payment of the employment-related allowances specified in section 113 of that Act (see above) irrespective of the employer’s financial situation. The only exception was the annual-leave allowance. The applicants submitted copies of several final decisions rendered before June 2005 in which the same first- and second-instance courts had accepted similar claims by the applicants’ colleagues (P.no.394/04; P.no.1244/04; P.no.1373/04; P.no.564/04; P.no.1108/04; P.no.302/04; and P.no.85/03). They further submitted copies of other final decisions adopted after September 2006, the relevant details of which are contained in the table below: Table 4 The Government also submitted copies of other decisions of the domestic courts, including the first- and second-instance courts, adopted after January 2008. All these cases concerned claims for the payment of the same employmentrelated allowances against the former and other employers. In these cases, the courts accepted claims for the payment of food and travelling allowances for reference periods that post-dated the entry into force of the 2005 Employment Act irrespective of the employer’s financial situation at the relevant time. The acceptance of identical claims for reference period that pre-dated the entry into force of that Act was dependent on the employer’s financial situation. This was also the case with claims concerning the payment of the annual-leave allowance, irrespective of the reference period. According to the Government, such practice was in compliance with both the Supreme Court’s decision of 17 January 2007 and the “conclusions” of the Bitola Court of Appeal of March and May 2007 (see above).