no. 07-00-645/2019-02 date: 31.1.2020.

OPINION

The opinion was issued in the procedure regarding the complaint of the AA union of the Institute for Psychophysiological Disorders and Speech Pathology, filed against the acting Director of the Institute for Psychophysiological Disorders and Speech Pathology, due to discrimination on grounds of membership in a trade union organization. The complaint states that the discrimination against the AA union of the Institute and its members is reflected in the fact that the acting director prevented the AA union of the Institute from participating in the negotiations for concluding a collective agreement with the employer, despite the fact that the AA union of the Institute representativeness with the employer has been duly established, while at the same time another representative union with the employer was allowed to participate in negotiations for concluding this collective agreement. According to the statement of the acting Director of the Institute for Psychophysiological Disorders and Speech Pathology, the provisions of the Special Collective Agreement for Health Institutions founded by the Republic of Serbia, an autonomous province and a unit of local self-government, prescribe the employer’s obligations to the representative union in the institution that belongs to the representative union in the field of health care in the Republic of Serbia, and that, as it is not a signatory of the said Special Collective Agreement, the AA health union of Serbia did not participate in the negotiations for concluding a collective agreement with the employer. As it was pointed out in the statement, the Special Collective Agreement for Health Institutions founded by the Republic of Serbia, an autonomous province and a unit of local self-government directly applies to the rights, obligations and responsibilities of all employees in the Institute, and the complaint that the acting director of the Institute discriminated on the basis of the trade union affiliation of the AA trade union of the Institute and its members employeed in the Institute was not grounded. During the procedure, the Commissioner stated that the facts and evidence offered by the acting director of the Institute for Psychophysiological Disorders and Speech Pathology do not provide sufficient grounds for concluding that preventing the AA union of the Institute from participating in negotiations for concluding a collective agreement with the employer was based on objective and justified reasons. Namely, the Labor Law stipulates that the collective agreement with the employer, in case of public companies, and associations of capital founded by a public company and public services, is concluded by the founder, i.e. the body authorized by the founder, the representative trade union with the employer and the employer. The provisions of the Labor Law also prescribe the formation of a negotiating committee, whose members are determined by trade unions, if several representative unions participate in concluding the collective agreement, as well as the duty of participants in concluding the collective agreement to negotiate. The mentioned legal provisions, the fact that the decision of the Institute for Psychophysiological Disorders and Speech Pathology determined the representativeness of the AA trade union of the Institute, as well as the representativeness of another trade union with the employer, indicate that the acting director of the Institute for Psychophysiological Disorders and Speech Pathology did not have the legal possibility or justification to prevent the participation of the AA union of the Institute in the negotiations for concluding a collective agreement with the employer. In this regard, the allegations in the statement that the AA union of the Institute is not a signatory of the Special Collective Agreement for Health Institutions founded by the Republic of Serbia, an autonomous province and a unit of local self-government, were not relevant for making a decision in this case, since provisions of the Labor Law unequivocally determine the right of the representative union to take part in negotiations for concluding a collective agreement with the employer, that is, to conclude specified collective agreement. Labor Law – an act of higher legal force than a special collective agreement or bylaw, recognizes representative unions with the employer as mandatory participants in negotiations for concluding a collective agreement with the employer, and does not set any other conditions for their participation. Therefore, the reason for the non-participation of the AA union of the Institute in the negotiations for concluding a collective agreement with the employer, which the acting the director of the Institute gave in her statement, could not be accepted. The Commissioner issued the opinion that the acting director of the Institute for Psychophysiological Disorders and Speech Pathology, by preventing the AA union of the Institute for Psychophysiological Disorders and Speech Pathology from participating in concluding a collective agreement with the employer, discriminated against members of this union, thus violating Article 6 in conjunction with Articles 16 and 25 of the Law on Prohibition of Discrimination. The acting Director of the Institute for Psychophysiological Disorders and Speech Pathology was recommended to take all necessary measures in order to eliminate the consequences of discriminatory treatment of members of the AA union of the Institute for Psychophysiological Disorders and Speech Pathology, and not to violate in the future provisions of anti-discrimination regulations while performing activities within her competence.

COMMISSIONER FOR THE PROTECTION OF EQUALITY 
Brankica Jankovic