The collective contract in itself is not simply a “contract” in the sense of the Civil Code, but a contract of a very special type that differs significantly from ordinary contracts, both in the number of signatory parties and in the object and purpose it carries. It has the characteristics of a statute, the provisions of which regulate, to some extent, the activities of many individuals who may have had little or no participation in its drafting, or even of those who may have opposed it.
Employment contracts in general remain a subject not widely explored by legislation in the Republic of Albania. Many enterprises still use standard, outdated contract templates, where no proper specifications are made for the concrete work, or they contain provisions so general that it makes little difference whether the employment relationship is regulated by a contract or not, thus creating problems in conflict resolution. A similar situation is encountered with the collective employment contract.
Despite being a professional source of labor law, which in the hierarchy of sources defined in Article 11 of the Labor Code stands above the individual employment contract, it is not a concept that has been thoroughly addressed in Albanian doctrine, nor is it in legislation. During the communist period, the concept of professional unions as socio-political organizations of the working class was developed, and the concept of the collective contract was mostly formal. Of the four labor codes adopted during this period, only the first two, that of 1947 and that of 1956, formally and directly provided for the collective employment contract with this name. Slowly, this concept began to develop only with the creation of independent trade unions after the regime change, and has since been in continuous evolution. Previous collective contracts were merely a reflection of the provisions of the Labor Code, bringing no concrete innovation in improving the worker’s position. Nevertheless, this has changed in recent years, albeit not to a satisfactory level.
The potential of the collective contract to improve the worker’s position and to set the lines the employer is obliged to follow, thereby promoting the implementation of fundamental rights and freedoms and restoring the equality of the parties, is considerable. But how well has the power of the collective contract been understood and used in practice?
According to the International Labour Organization, the term collective agreement means: “…all written agreements concerning working conditions and terms of employment concluded between an employer, a group of employers or one or more employers’ organizations on the one hand, and one or more representative workers’ organizations, or, in the absence of such organizations, representatives of the workers duly elected and authorized by them in accordance with national laws and regulations, on the other hand.”
The right to negotiate and to conclude collective agreements is also provided for in the Charter of Fundamental Rights of the European Union, where Article 28 states: “Workers and employers, or their respective organizations, in accordance with Union law and national laws and practices, have the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.”
Other instruments also protect the right to negotiate, including the (revised) European Social Charter. Article 3 enshrines the right to safe and healthy working conditions and provides for consultation with workers and workers’ organizations, while Article 6 guarantees the right to collective bargaining and requires states to promote joint consultations between workers and employers, to encourage voluntary negotiations between employers or employers’ organizations and workers’ organizations, with the aim of regulating working conditions through collective agreements.
In Albanian legislation, the collective contract is addressed in Articles 159-175 of the Labor Code and generally contains provisions on working conditions, minimum wage at enterprise, branch or professional level, wage indexation and increases, bonuses, occupational safety and health, maternity, leave, the content and termination of individual employment contracts, further professional training of workers, union freedoms and rights, rules of cooperation, disciplinary measures, methods of resolving disputes, transportation of workers, benefits in case of accidents, workers’ rights in case of bankruptcy or transfer of workers, membership fee collection, etc., and is concluded according to the procedure sanctioned in Articles 163-165 of the Labor Code by representative organizations.
As a rule, the collective contract may not contain provisions less favorable to the worker than those of laws and by-laws in force, except in cases expressly provided by law. An exception is allowed when, through legal clauses, a different treatment is provided for a public interest, always limited to not infringing fundamental rights and freedoms, and without exceeding the minimum standard set by the European Convention on Human Rights, according to Article 17 of the Constitution of Albania. Nevertheless, it should be noted that it has a direct impact on the individual employment contract. It is important to refer to the collective contract (where applicable) when drafting an individual contract, as a key element of the latter, and to note that it cannot contain provisions less favorable than those of the collective contract.
Another provision concerning the duration or continuity of the collective contract is found in Article 162(2) of the Labor Code, which provides that even if the employer resigns from the signatory organization, he remains bound by the collective contract until its expiration, but not for more than three years. In the event of transfer of the enterprise, its force continues until the end of the agreed period, or, if necessary, until the conclusion of a new contract. This serves as an additional guarantee for the worker.
Based on the specific nature of the collective contract, the signatory parties, in addition to the regulations defined by law, are free to make further arrangements, for example regarding compensation and other conditions of their relationship, through negotiations. In the European model of employment, trade unions play a key role. Negotiations in most states have focused on wage increases, bonuses for working hours, provisions on leave, provisions on termination of employment, measures on equal pay, non-discrimination, decent work, ensuring a balance between private life and work, improvement of well-being and, in some countries, even benefits for workers’ family members. Thus, negotiations extend to areas beyond those that directly affect the place and time spent at work, and all these are reflected and finalized in the signing of the collective employment contract by the employer on the one hand and the workers’ representative organizations on the other.
