The Ministry of Maritime Affairs has no solution to the legal mess that "Luka Bar" has found itself in since the Labor Inspectorate determined that its director Aleksandar Slabidjoreski appointed outside the Labor Law, which is why the company, which is majority state-owned, turned to the ministry for help, and they say that this problem could have been avoided, and that they will support the possible harmonization of the two laws that led to this.
This follows from the response to "Vijesti" from that government department, headed by Filip Radulović (Europe Now Movement), after the Labor Inspectorate concluded that the Labor Law had been violated since Slabiđoreski was appointed as the director of the Port at the proposal of the Government, but without a public competition. In the same way, in the past three months, about twenty directors of other state-owned companies have been appointed due to the start of the application of the new Law on Business Companies, so the Labor Inspectorate's interpretation in this case may also call into question their appointments. The Labor Inspectorate insists that directors must have an employment contract, which means that they were selected in a public competition, as stipulated in the Labor Law, while the new Law on Business Companies stipulates their appointment by the Government.
The opinion of the Ministry of Economic Development, which manages Nick Djelosaj (Albanian Alternative), which "Vijesti" wrote about last week, shows that this department also does not have a strict solution to this issue, because their interpretation suggests that directors who are appointed to head companies in this way can take up that position under the Law on Business Companies, but that they must conclude an employment contract in accordance with the Labor Law, which stipulates a public announcement for that position.
Đeljošaj's office said that the need for amending the regulations should not be prejudged before the situation is viewed from the perspective of both laws and after the positions of the authorities have been considered. The Ministry of Maritime Affairs (MPO) is now saying similarly, but that it will not launch such an initiative, although it says it would support it.
From the Ministry of Labor, Employment and Social Dialogue, headed by Naida Nišić (Europe Now Movement), whose inspection created the confusion between these two laws, has not responded to questions from "Vijesti" for more than a week about this legal issue and possible inconsistency of the laws, as well as whether their assessment applies to dozens of other directors.
They have no jurisdiction to review
The Ministry of Maritime Affairs assumes that all decisions in companies in which the state has majority ownership must be made with full respect for the law, the company's statutes, and the principles of good corporate governance.
According to the information available to them, the decision to appoint members of the Board of Directors of "Port of Bar", including the executive director, was made by the Shareholders' Assembly, at the proposal of the majority shareholder, the Government, in a procedure conducted in accordance with the Law on Business Companies and the Company's Statute.
They believe that the issue of establishing an employment relationship and the obligation to publicly advertise represents a separate labor law aspect whose control is the responsibility of the Labor Inspectorate, and they also say that they do not have the authority to "review or prejudge the findings of the competent inspection body", arguing that legality, transparency and full respect for the jurisdiction of institutions are imperative in their work.
The Port of Bar recently told Vijesti that they had approached the Ministry for assistance and interpretation due to conflicting positions between the company and the Labor Inspectorate. When asked how they responded, the Ministry of Maritime Affairs reiterated that they were not authorized to examine the correctness and legality of individual decisions.
From their responses, however, it appears that "Luka Bar" will not have their direct assistance in resolving this problem, as they told "Vijesti" that if the company "believes that the Labor Inspectorate's decision is not in accordance with the applicable legal order of Montenegro, it has legal remedies available to it under the law."
The problem could have been avoided.
When asked whether the Ministry of Maritime Affairs believes that in this specific case the Law on Companies or the Law on Labor primarily applies, or how it interprets the relationship between these two regulations when it comes to the appointment and employment of the executive director of a state-owned company, they stated that the Law on Companies stipulates that in a unicameral management system, the executive director is a member of the Board of Directors, while the members of the Board are elected by the Shareholders' Assembly.
The Labor Law, they add, on the other hand, regulates the employment status of the executive director and the procedure for establishing an employment relationship. These are, therefore, regulations that regulate different, but interrelated legal relationships.
According to the Ministry, such doubts could have been avoided to a significant extent if, during the preparation and interdepartmental harmonization of the Law on Business Companies, with the participation of all relevant departments, including the department responsible for labor, special attention had been paid to a clear demarcation between the corporate appointment and the employment of the executive director.
"The Ministry of Maritime Affairs is not competent to provide a binding interpretation of the relationship between these two regulations. For the sake of legal certainty and uniform application of the law, this issue needs to be clarified through coordination of the authorities responsible for regulations in the field of business companies and labor relations," they said.
The government department emphasized that they do not have the legal authority to assess whether the Labor Inspectorate's position in a specific case is correct or incorrect, nor will they prejudge the outcome of the procedure.
"Port of Bar", according to them, as an independent legal entity, is obliged to act in accordance with executive decisions of competent authorities or to use legal remedies prescribed by law if it believes that there are reasons for doing so.
The possible impact of the identified irregularities on the status of the executive director or on previously made decisions cannot be assessed in advance, they say, nor can the conclusion be automatically drawn that those decisions are invalid.
"This issue depends on the content and legal effect of the acts adopted in the specific procedure, and it can only be decided by the competent authorities and, in the event of a dispute, by the competent court," the Ministry told "Vijesti".
What do the laws say?
When asked by "Vijesti" whether they had sought, or would seek, an official legal opinion from other competent institutions, such as the Ministry of Labor, the Ministry of Public Administration, or the Ministry of Economic Development, regarding this issue, they replied that "Port of Bar" would do so, "in order to align its further actions with the interpretations of the authorities responsible for the application of the Labor Law and the Law on Business Companies."
Radulović's office notes that this issue is not limited to the "Port of Bar" or to maritime companies, but that the relationship between the corporate appointment of the executive director and his employment status may also be relevant for other companies with a unicameral governance model, and the issue of the obligation to publicly disclose information is particularly relevant for companies with majority state or local ownership.
They assessed that harmonized positions of the competent institutions would contribute to legal certainty and uniform application of regulations in future appointment procedures.
The Ministry of Maritime Affairs told "Vijesti" that the possible need for additional mutual harmonization of the Law on the Management of State-Owned Companies, the Law on Companies and the Labor Law, especially in the part relating to labor status and the obligation of public announcement, should be considered by the departments responsible for those regulations, and they will, they claim, support them.
"The Ministry of Maritime Affairs is currently not planning an independent legislative initiative in areas that are not within its normative jurisdiction, but it will, within its powers, support and actively participate in any initiative that contributes to the removal of legal uncertainties," they told "Vijesti".
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