Constitutional Court

KO27/21, Applicant: The Supreme Court of the Republic of Kosovo, Constitutional review of Article 94 [Supervision] of Law No. 03/L-212 on Labour

KO27/21, Judgment of 7 December 2022, published on 16 December 2022

Keywords: incidental control, constitutionality of the norm, interference with the competencies of the judiciary, equality before the law, the right to fair trial, judicial protection of rights, admissible referral, Article 94 of the Law on Labour, compatible with the Constitution.

The circumstances of the present case are related to the referral submitted to the Constitutional Court by the Supreme Court, for the constitutional review of Article 94 (Supervision) of the Law on Labor, which, among other things, determines that the supervision of the implementation of the provisions that regulate the employment relationship is done by the Labor Inspectorate. The Supreme Court had a case before it related to a job vacancy for the position of “Educator” in a school in the Municipality of Gjilan, in which case one of the candidates in this vacancy submitted a complaint to the Municipal Directorate for Education in Gjilan, alleging irregularities. in this vacancy. After the rejection of the complaint by the Municipal Directorate for Education, the candidate exercised, in parallel, legal remedies, namely (i) appeal before the Labor Inspectorate, in which case the latter ordered the cancellation of the vacancy in question; as well as (ii) a lawsuit in the Basic Court in Gjilan, which rejected the lawsuit and upheld the decisions of the bodies of the Municipality of Gjilan. As a result, the complainant filed revision with the Supreme Court. The latter suspended the decision-making procedure related to the case before it, referring the case to the Constitutional Court, for the assessment of the compatibility of Article 94 of the Law on Labor with certain constitutional provisions.

More precisely, the Supreme Court, before the Court, claimed that Article 94 of the Law on Labor is not compatible with Articles 3 [Equality Before the Law], 24 [Equality Before the Law], 31 [Right to Fair and Impartial Trial], 49 [Right to Work and Exercise Profession] and 54 [Judicial Protection of Rights] of the Constitution, as the latter, among other things, violates the principle of legal certainty and the legal order of the Republic of Kosovo, as it enables parallel proceedings related to labor disputes before the Labor Inspectorate and before the regular courts related to the same issue, thus resulting in parallel decisions and interference of the Labor Inspectorate with judicial powers, contrary to legal certainty and the constitutional order of the Republic of Kosovo.

The Court, based on the essence of the allegations raised by the referring court, first examined whether in the circumstances of the present case the interference of the Labor Inspectorate was a result of the incompatibility of the norm of the Law on Labor  with the Constitution, or as a result of the interpretation and implementation of the norm in question by the Labor Inspectorate, but also by the regular courts. In this perspective, the Court first referred to the content of Article 94 of the Law on Labor, which stipulates that the supervision of the implementation of the provisions of the Law on Labor, which regulate the employment relationship, safety and protection at work, is done by the Labor Inspectorate on the basis of the Law on the Labor Inspectorate and the Law on Safety at Work. In this context, the Court specified that based on the Law on Labor  and that of the Inspectorate, the scope of the competence of the Labor Inspectorate is completely clear and which, as an inspection body and mechanism of the executive power, supervises the implementation of the provisions of the Law on Labor  which regulate the employment relationship between the employee and the employer and supervise the implementation of the Law on Safety and Health at Work, within the scope defined by the Law on Inspectorate, (i) the implementation of punitive measures (fines) in case of finding  irregularities by the employer; and (ii) reporting these irregularities to the relevant ministry or to any other competent authority. The Labor Inspectorate has no competence to resolve “labor disputes” or those arising from the employment relationship, between the employee and the employer, because based on the applicable laws, such competence clearly belongs to the regular courts.

In this respect, the Court reiterated that unlike the Labor Inspectorate, the Law on Labor defines the judiciary as the only responsible authority in the Republic of Kosovo that resolves “labor disputes” from labor law, between employees and employers. The Court also analyzed the content of Article 78 (Protection of Employees’ Rights) of the Law on Labor, which defines the complaint procedures within the employer, and Article 79 (Protection of an Employee by the Court) of the Law on Labor, which guarantees the right that any employee who considers that the employer’s decision has violated his rights or does not receive an answer from the employer, to initiate a labor dispute in the competent court. The Court emphasized that judicial functions can only be exercised by the courts, according to the principles defined by the Constitution and relevant laws. Moreover, it is clear that the Labor Inspectorate, according to the law, is defined as an executive body established by the Ministry of Labor and Social Welfare, and as such, also within the meaning of the European Convention on Human Rights, namely Article 6 (Right to a fair trial) thereof, does not meet the conditions of either an “independent tribunal” from the executive nor a “court” established by law. Inspection bodies, depending on the nature of the functions they exercise and the institutional status determined by the acts that established them, are part of the executive power and as such cannot exercise functions of a judicial nature. If this were to be done, this would constitute a violation of the principle of separation of powers in violation of the constitutional order of the Republic of Kosovo. Therefore, the Court considered that in the present case, the allegation of interference with the powers of the judiciary by the Labor Inspectorate is not a result of the incompatibility of the content of Article 94 of the Law on Labor with the constitutional norms, but a result of the way of interpretation and implementation of Article 94 of the Law on Labor and the Law on the Labor Inspectorate, by the Labor Inspectorate itself.

Therefore, and based on the clarifications given in the published Judgment, the Court found that Article 94 (Supervision) of the Law on Labor is in compliance with Articles: 3 [Equality Before the Law], 24 [Equality Before the Law], 31 [Right for Fair and Impartial Trial], 49 [Right to Work and Exercise Profession] and 54 [Judicial Protection of Rights] of the Constitution, as and among other things, the latter does not foresee any competence for the Labor Inspectorate to resolve “labor disputes” from the right to work between the employee and the employer, this competence, based on the applicable laws, belongs to the judicial power.