Decision U.no.227/2006

U.no.227/2006

On the basis of Article 110 of the Constitution of the Republic of Macedonia and Articles 56 and 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 20 June 2007, the Constitutional Court of the Republic of Macedonia passed the following

DECISION

1. The request of Beqiri Ulusi, Arifi Mugni, Huseini Jeton, and Muharem Tadzedin, for the protection of freedoms and rights under Artricle 110 line 3 of the Constitution, which refers to the prohibition of discrimination against citizens on grounds of national or political belonging, IS REJECTED.

2. This decision shall be published in the “Official Gazette of the Republic of Macedonia”.

3. Beqiri Ulusi from the village of Cerkez, Kumanovo, Arifi Mugni from the village of Livada, Struga, Huseini Jeton from Tetovo and Muharemi Tadzedin from Tetovo, filed a request with the Constitutional Court of the Republic of Macedonia for the protection of the freedoms and rights under Article 110 line 3 of the Constitution which refer to the prohibition of discrimination against citizens on grounds of national or political belonging, violated with the Decision on changing and supplementing the Rulebook on internal organisation and systematisation of the jobs of the Public Enterprise for Airport Services (JPAU) “Makedonija” Skopje, adopted by the Board of Directors of JPAU “Makedonija” Skopje, number 02-917/6 of 16.10.2006.

According to the statements in the request, the submitters were employed in the Public Enterprise for Airport Services “Makedonija” Skopje (hereinafter: JPAU “Makedonija” Skopje). The same were members of the political party DUI, and were Albanians by nationality. The said persons were employed indefinitely, while their employment had been made in line with the procedure envisaged in the Law on Working Relations and by previously published announcement, observing the entire procedure stipulated with the positive regulations of the Republic of Macedonia. However, JPAU “Makedonija” Skopje, after the change of the legal acts, with the adoption of the contested provision, repealed a number of jobs in the act for jobs systematisation, among which were the jobs of the submitters of the request, as a result of which the submitters received notice. The submitters believe that with the challenged decision they were discriminated on grounds of national and political belonging, while the challenged decision was contrary to Article 62 and Article 76 of the Law on Working Relations, since the provisions of the Law on Working Relations enumerated the reasons when the worker may have his/her employment terminated, and in no case was the employment terminated upon the will of a political party or a natural person as a representative of the employer. The challenged decision was also contrary to Article 110 of the Constitution of the Republic of Macedonia, since it was not in line with the legal regulations, collective agreements and with the Constitution. The contested decision did not protect the freedoms and rights of the individual and citizen that refer to the freedom of conviction, conscience, thought and public expression of the thought, political association and activity and prohibition of discrimination against citizens on grounds of sex, race, religious, national, social or political belonging.

4. On the basis of the consultative discussion with the submitters of the request held on 9 February 2007, the public hearing held on 3 May 2007, as well as the submitted documentation regarding the case, at its session the Court found that on the basis of a public announcement published in the daily “Nova Makedonija” on 07.06.2006, JPAU “Makedonija” Skopje employed 18 persons, of whom 9 were members of the community of the Albanians while 9 were Macedonians. The submitters of the request are part of the persons who had been taken on after this announcement and are members of the community of the Albanians in the Republic of Macedonia.

The Government of the Republic of Macedonia, at its Fifth closed session held on 26.09.2006, considering the Information about regular employment and employment of persons engaged with a contract in the period from 01.08.2005 to 10.09.2006, inter alia, concluded that the ministries, professional services, administrative organisations, funds, agencies, independent and other state bodies, public enterprises, public institutions and the General Staff of the Army of the Republic of Macedonia, establish the real need for regular employment in the last year and for the persons engaged with a contract/interim employment, with a view, inter alia, termination of the employment of employees to a definite and indefinite time, in cases in which it would be assessed that the character of the jobs being performed by them were not necessary for the successful functioning of the body, whereby account would be taken for consistent application of the Law on Civil Servants, the Law on Working Relations, and other laws and sub-legal acts from the field of working relations.

Given the said conclusion of the Government of the Republic of Macedonia, the Board of Directors of JPAU “Makedonija” Skopje, at its session held on 16 October 2006, made a Decision on changing and supplementing the Rulebook for internal organisation and jobs systematisation of JPAU “Makedonija” Skopje, entered under number 02-907/6, repealing 11 jobs, as follows: in the Head Office of JPAU “Makedonija” Skopje eight jobs (deputy director of JPAU “Makedonija” Skopje, advisor, independent officer for tax calculation, quality and control manager – air traffic, quality and control manager – technical matters, quality and control manager – legal matters and security, quality and control manager – information and electrical matters, and quality and control manager – economic matters); in the Branch “Airport” Skopje – two jobs (deputy director of the Branch “Airport” Skopje and independent officer for ONO) and in the Branch Airport “Ohrid” – one job (deputy director of the Branch Airport “Ohrid”).

Also, at the same session the Board of Directors of JPAU “Makedonija” Skopje made a Decision on changing and supplementing the Rulebook for internal organisation and jobs systematisation of JPAU “Makedonija” Skopje, entered under number 02-907/5, approving to introduce two jobs (assistant director for organisation and assistant director for operational-technical matters) in the Head Office of JPAU “Makedonija” Skopje, and approving organisational change in the Branch Airport Skopje and establishing (levelling-harmonising) the jobs in this Branch.

The Union Board at JPAU “Makedonija” Skopje communicated an opinion to the director of JPAU “Makedonija” Skopje, number 02-903/5 of 30.10.2006, informing him that at the session held on 16 October 2006, support was given to the changes and supplements to the Rulebook for internal organisation and jobs systematisation and to the notification of the director about the ideas and goals of the same, with an observation that the entire solution to the economic situation within the enterprise required to draft a new systematisation act, in which first of all the required number of jobs and professionalism of the employees would be represented.

The director of JPAU “Makedonija” Skopje, on the basis of Article 62 paragraph 1 item 5, Article 63, Article 76 paragraph 1 item 3, Article 86, Article 88 paragraph 2, Article 92, Article 97, and Article 255 paragraph 3 of the Law on Working Relations (“Official Gazette of the Republic of Macedonia”, no. 62/2005), Article 33 paragraph 1 item 4, Article 34, Article 36, Article 37, Article 38 paragraph 1 item 3, Article 55, Article 59, and Article 132 paragraph 3 of the Collective Agreement of JPAU “Makedonija” Skopje (of 14 April 2006) and on the basis of the Decision on changing and supplementing the Rulebook for internal organisation and jobs systematisation of JPAU “Makedonija” Skopje, number 02-907/6 of 16 October 2006, on 1 November 2006 took decisions on cancelling the employment contract due to business reasons for the workers: Beqiri Ulusi, Arifi Mugni, Huseini Jeton, Muharemi Tadzedin, Blaze Filipovski, Jani Kardula, Krste Vejlanovski, Magdalena Vladimirova, milorad Klimovski and Aleksandar Cepeljugin. In the explanation of the decision it is noted that as a result of the changes that occurred for business reasons, and on the basis of the changes and supplements to the systematisation of JPAU “Makedonija” Skopje, the jobs in which the said workers had performed their working tasks were abrogated, so that the need for the workers to an indefinite time to work on those three jobs terminated. Thereby it was taken into consideration that there was no possibility for them to be assigned to other jobs, that is, to be offered a new changed employment contract, for a reason that there was no justified need for that given the over-employment in the enterprise, so the business activity seen from the aspect of economy, profitability and successfulness in the work would be threatened.

The workers Beqiri Ulusi, Arifi Mugni, Huseini Jeton, Muharemi Tadzedin, Marija Vladimirova, Milorad klimovski, Krste Veljanoski and Aleksandar Cepeljugin filed timely complaints with the Board of Directors of the enterprise against the decisions on cancelling the employment contract due to business reasons. At its sessions held on 14 November 2006 and 5 December 2006, the Board of Directors rejected the filed complaints as unfounded.

The persons Beqiri Ulusi, Arifi Mugni, Huseini Jeton and Muharemi Tadzedin initiated working disputes on the ground of the decisions on cancelling their employment contracts due to business reasons, upon which the procedures are pending.

According to the Notification of the Ombudsman, communicated to the Constitutional Court in a stage of preliminary proceeding, the persons Beqiri Ulusi, Arifi Mugni, Huseini Jeton and Muharemi Tadzedin filed individual petitions to the Ombudsman for the protection of their rights on grounds of employment, in which they noted that the decision of the head for termination of their employment contained elements of discrimination against national origin. Following the consideration of the petitions and the documentation enclosed, the Ombudsman initiated a procedure in the course of which made a direct insight into the documentation of JPAU “Makedonija” Skopje and talked to the head of the enterprise. In the thus conducted procedure, the Ombudsman concluded that the Board of Directors of the enterprise had rejected the complaints of the submitters of the petitions against the contested decision of the head of the enterprise, whereby the decisions became final and enforceable, and given that the Ombudsman has no power whatsoever to change or repeal such decisions, the submitters were advised that they might realise further protection of their rights from the field of employment in a procedure before a competent court by filing a lawsuit in a legally defined time limit, and if their right would be recognised with an effective and enforceable decision of the competent court, while the employer JPAU “Makedonija” Skopje fails to implement them voluntarily, they might address the Ombudsman again with a petition, who would undertake all measures and activities within his/her powers to have their employment rights exercised. Concomitantly, the Ombudsman pointed to the submitters of the petitions that in the function of protection of their rights on grounds of protection against discrimination, they could also address the Constitutional Court of the Republic of Macedonia, which in line with the provision of Article 110 of the Constitution of the Republic of Macedonia, protects the freedoms and rights of the individual and citizen also in view of the prohibition against discrimination on grounds of sex, race, religious, national, social and political belonging.

5. Under Article 110 lines 1 and 2 of the Constitution of the Republic of Macedonia, the Constitutional Court decides on the conformity of laws with the Constitution and on the conformity of other regulations and collective agreements with the Constitution and laws, while under line 3 the Constitutional Court protects the freedoms and rights of the individual and citizen relating to the freedom of conviction, conscience, thought and public expression of thought, political association and activity as well as to the prohibition of discrimination against citizens on grounds of sex, race, religious, national, social and political belonging.

Under Article 51 of the Rules of Procedure of the Constitutional Court of the Republic of Macedonia, each citizen considering that an individual act or action has violated his/her right or freedom as defined in Article 110 line 3 of the Constitution of the Republic of Macedonia, may request protection from the Constitutional Court within 2 months from the date of delivery of a final or enforceable individual act, that is, from the date of learning about the undertaking of an action with which the violation was made, but not later than 5 years from the date of its undertaking. Under Article 52 of the Rules of Procedures the request must contain the reasons for which protection is asked for, the acts or actions with which they are violated, the facts and evidence on which the request is based, as well as other data necessary for the decision-making of the Constitutional Court.

Given the competence of the Constitutional Court defined in Article 110 line 3 of the Constitution, the Constitutional Court assessed that in this concrete case the question whether the submitters of the request had been discriminated due to their national or party belonging should be established by means of establishing the circumstances regarding whether the national and party belonging of the persons had been a ground for changing the rulebook for jobs systematisation in the public enterprise, that is, for abrogation of the jobs in which they had been assigned and for termination of their employment, as noted in the request.

In view of the statements regarding the discrimination of the submitters of the requests on grounds of national belonging, the Court appraised the fact that another six other employees in the enterprise, among whom five Macedonians and one member of the community of the Vlachs in the Republic of Macedonia had been given notice, in addition to the submitters of the request, who are members of the community of the Albanians in the Republic of Macedonia. This fact, according to the Court, speaks sufficiently that what cannot be accepted is the claim that the national belonging of the submitters of the request had been a criterion when changing the act on jobs systematisation in the enterprise in the sense of abrogating certain jobs, that is, that national belonging had been the reason for discrimination of the submitters of the request.

In view of the statements regarding the political discrimination of the submitters of the request, the key question put before the Court was whether the competent bodies of JPAU “Makedonija” Skopje at the time of adopting the contested decision knew or could know about the political and party affiliation of the submitters of the request and whether they were led by that knowledge when adopting the decision. In response to this question the submitters of the request failed to present before the Court any evidence that their political and party affiliation was publicly manifested or presented in the enterprise, from where a conclusion could be drawn that such data had been known to the director and to the members of the Board of Directors of the enterprise. On the contrary, they only stated assumptions that according to them there was informal information or some notion about their political and party affiliation which the director could be acquainted with, whereby they stated that they had had no personal contact or any other contact with him in order to familiarise him with these circumstances. In this sense, the Court took into consideration the statement of the representative of the public enterprise, given in the public hearing before the Court, according to which there are records kept in the public enterprise of the employees based on their age, education, and specialist’s training, and as of 2002 records are kept also based on their national structure. However, records of the employees based on party or political affiliation had not been and was not kept in the enterprise.

Hence, according to the Court, the existence of informal information or some notion in that sense which the director and the members of the Board of Directors of the enterprise could have regarding the political and party affiliation of the submitters of the request are not sufficiently substantiated arguments that they had known objectively about those circumstances and had been led by the same when abrogating the jobs in the enterprise. Given that it cannot be confirmed that the director and the members of the Board of Directors of the enterprise were in a position to know the political and party affiliation of the submitters of the request, according to the Court it is difficult to claim that the abrogation of the jobs in the Rulebook for the jobs systematisation is based on the political and party affiliation of the employees. Moreover, the Decision making the changes in the rulebook for the jobs systematisation abrogates jobs in all structures of the enterprise and the same does not contain concrete names or other data about the employees that are assigned to the jobs being abrogated. In this sense, at the public hearing the representative of the public enterprise, afterwards confirming with a written petition request, pointed that pursuant to the Law on Changing and Supplementing the Law on Public Enterprises (“Official Gazette of the Republic of Macedonia”, no.49/2006), the function deputy director is abrogated in the public enterprises. In that sense also in the Rulebook for the jobs systematisation in JPAU “Makedonija” Skopje the contested Decision abrogates the jobs for deputies to the director (three jobs in total), including the job deputy director of the Branch “Airport” Ohrid, at which was assigned one of the submitters of the request, which is another proof that the abrogation of the jobs should not be brought into relation with the party affiliation of the employees assigned in these positions.

At the public hearing, upon a question of the Court, the submitters of the request confirmed that in the enterprise there were other members of the political party DUI who were working, and had been admitted on the job in the same announcement when the submitters of the request had been employed, but they continued working, that is, their jobs had not been abrogated, which in the assessment of the Court is another argument in favour of the claim that the abrogation of these positions was due to business reasons, and not due to party reasons.

In this sense the Court appraised the fact which was submitted upon the Court’s request by the representative of the public enterprise, according to which JPAU “Makedonija”, after the adoption of the challenged decision, has not made any other changes in the act for the jobs systematisation, as well as the fact that after the notices given to the submitters of the request, in the public enterprise, on the basis of a public announcement published in the newspaper “Vecer” on 29.12.2006, appropriate professional cadres (computer specialists, car mechanics) were employed, in which announcement neither of the submitters of the request had applied.

The point of the submitters of the request that the percentage representation of the Albanians in the enterprise has decreased with their notices and does not correspond with the provisions for an appropriate and equitable representation of the members of the communities according to the Ohrid Framework Agreement, according to the Court by itself is not an argument about a violation of an individual right from the working relations field. Namely, the noted point, if true, that is, if is the result of the structural reforms in the enterprise, may be a reason to call upon the competent in the enterprise and in the bodies of state power to take appropriate measures to ensure the appropriate and equitable representation of the citizens belonging to all the communities in the bodies of state power and other public institutions at all levels, as a fundamental value of the constitutional order of the Republic of Macedonia. However, the protection of the freedoms and rights of the individual and citizen defined in Article 110 line 3 of the Constitution, before the Constitutional Court of the Republic of Macedonia may be requested only if the same have been violated by an individual act or action.

In this sense, the Court appraised the statement by the Deputy Ombudsman, given at the public hearing before the Court, according to which the Ombudsman, acting upon a submitted petition by the submitters of the request, within the frameworks of the competences of the Ombudsman defined in the Constitution and the Law on the Ombudsman, where special attention is paid to the protection of the principles of non-discrimination and appropriate and equitable representation of the members of the communities, in this case did not find the existence of such discrimination.

The statements of the submitters of the request that there is a violation of the procedure for giving notice, in the sense that, instead of having been given a notice after the abrogation of the jobs in which they had been assigned until then, the same could have been assigned to other positions according to the rulebook for the jobs systematisation in the enterprise, enter the sphere of working relations governed by law and collective agreement. The protection of the rights from the field of working relations is ensured before the regular courts, which was known to the submitters of the request, given that the same stated that had initiated appropriate proceedings before the competent court. In this sense, the Constitutional Court is not competent to appraise the legality of the procedure for giving notice to the employment contracts.

On the basis of the analysis from the public hearing and the consultative discussion, as well as the established legal and actual facts of the case, the Court assessed that it is the right of the enterprise to decide on the implementation of economic and structural changes and to take measures for mitigating the consequences from those changes, among which abrogation of positions which according to the character of the tasks, are not necessary for the successful functioning of the enterprise. The adoption of the challenged decision on changing and supplementing the Rulebook for jobs systematisation in the enterprise is part of the manner and procedure for the realisation of such policy of the enterprise, while the notices of the employees who were found in the jobs that were abrogated are given in the function of operationalisation of the Decision.

Given that no evidence was presented before the Court pointing that the abrogation of the positions in the systematisation of the enterprise, and consequently the notices for the employment contract, was the result of national or party motives, the Court considers that in this concrete case the termination of employment of the submitters of the request may not be regarded as a case of discrimination on grounds of national and political belonging.

6. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

7. The Court passed the present decision with the majority votes, in the following composition: the President of the Court Mr Mahmut Jusufi, and the judges: Mrs Liljana Ingilizova-Ristova, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, and Mr Igor Spirovski.

U.no.227/2006
20 June 2007
S k o p j e

PRESIDENT
of the Constitutional Court of
the Republic of Macedonia
Mahmut Jusufi

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