OPINION

The opinion was issued in the proceedings regarding the complaint of AA, the head of the Department for Enhancement, Development and Supervision of Library Activities in the City Library in …, filed against the Trade Union Organization of the City Library in … and the Union of Independent Trade Unions of the City of … and of Municipalities – Trade Union of Cultural Workers …, due to discrimination based on not belonging to a trade union organization. In the complaint, it was stated that the Trade Union Organization of the City Library in …, as a representative union in the City Library, with the support of the Union of Independent Trade Unions of the City of … and of Municipalities – Trade Union of Cultural Workers …, prevented AA from being a candidate for a member of the management board of the City library in … from the ranks of employees by making the candidacy of members for the management and supervisory board of the library from the rank of employees conditional on membership in the Trade Union Organization. In the statements of both unions, it was specified that the Rules on the work of the trade union organization establish that the nomination, recording and selection of candidates for members of the management and supervisory board is carried out in the same way and according to the same rules that are applied for the election of the president and bodies of the Trade Union Organization, which are regulated by these rules. The Statute of the Union of Independent Trade Unions of Serbia, as the highest act of the trade union, with which all acts of trade union organizations must be harmonized, explicitly states in Article 46 that the right of a trade union member to be elected to the trade union bodies is acquired one year after joining an independent trade union. Electoral rules were also applied during the election of members of the management and supervisory boards of the library. Also, in the statement, it was specified that, in accordance with the Rules on the work of the trade union organization, the members of the management and supervisory board who were appointed at the proposal of the representative trade union are obliged to convey and represent the decisions, proposals and other positions of the trade union body, and it is not clear how someone who is not a member of the union and does not attend union meetings, would be aware of these decisions and represent them in the management and supervisory board. The statement further specified that the question arises as to whether someone who is not a member of the union knows the acts of the union and its higher bodies that he would represent and whether that person would even have an interest in protecting the interests of the union, as someone who is a member of the union and is well acquainted with these acts would do. During the procedure, the Commissioner concluded that the facts and evidence offered by the Trade Union Organization of the City Library in … and the Union of Independent Trade Unions of the City of … and of Municipalities – Trade Union of Cultural Workers … do not provide a basis for the conclusion that preventing AA from being candidate for a member of the management board of the City Library in … from the ranks of employees is based on legitimate and justified reasons. Namely, the Law on Culture stipulates that if the founder of the institution is the Republic of Serbia, an autonomous province, i.e. a unit of local self-government, at most one third of the members of the management board are appointed from the ranks of employees of the institution, at the proposal of the institution’s representative trade union, i.e. at most one third of the members of the supervisory are appointed from the ranks of employees of the institution, on the proposal of the representative trade union of the institution. The Special Collective Agreement for Cultural Institutions Founded by the Republic of Serbia, an autonomous province i.e. a unit of local self-government stipulates that the procedure for proposing members of the management board and supervisory board from the ranks of employees is conducted by the representative union at the employer. The Labor Law defines that an employee, in the sense of this law, is a natural person who is employed by an employer. Since the Law on Culture, the Law on Labor and the Special Collective Agreement for Cultural Institutions – acts of greater legal force than the statutes or rules of the trade union, do not set any other condition for the selection of members of the management and supervisory board from the ranks of employees, the statement of the trade union in which they refer to the provisions of the Statute of the Union of Independent Trade Unions of Serbia and the Rules of the library trade union organization, which refer to the election of trade union organization bodies, could not be acknowledged. By literal application of the rules for the election of union bodies to the election of members of the management and supervisory board from the ranks of employees, AA and all employees who are not members of the representative union, i.e. the Library Trade Union Organization, were excluded from the nomination procedure. The Commissioner therefore issued the opinion that the Trade Union Organization of the City Library in …, as the representative union in the City Library and the Union of Independent Trade Unions of the City of … and of Municipalities – Trade Union of Cultural Workers… discriminated against AA because, due to the fact that she was not a member of the Trade Union organization, they prevented her from being nominated in the process of nominating members of the management and supervisory board from the ranks of employees, thereby violating the provisions of Article 6 in connection with Articles 16 and 25 of the Law on Prohibition of Discrimination. The Trade Union Organization of the City Library in … and the Union of Independent Trade Unions of the City of … and of Municipalities – Trade Union of Cultural Workers…were recommended, when interpreting the regulations that apply to the election of members of the management and supervisory board from the ranks of employees in the future, to interpret them in accordance with anti-discrimination regulations, so that they do not prevent employees who are not members of the trade union from being candidates for a member of the administrative or supervisory board of the institution, as well as to inform the Director of the institution with the Commissioner’s opinion in order to take measures within their jurisdiction.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković