Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

The Committee notes the Government’s replies to the comments submitted by the Union of Free Trade Unions of Montenegro dated 7 October 2009, as well as by the International Trade Union Confederation (ITUC) dated 24 August 2010.

The Committee notes that a new Labour Law (O.G. No. 49/08) came into force on 15 August 2008 repealing the previous Labour Laws Nos 43/03 and 25/06. The Committee also notes that a Law on Trade Union Representativeness (O.G. 26/10) was adopted in 2010, that a Law on the Peaceful Resolution of Labour Disputes was adopted in 2007, as well as two Rulebooks on the registration of trade unions. The Committee further notes the translation of Collective Agreement No. 1/2004 forwarded by the Government with its first report. The Committee requests the Government to provide with its next report, a copy of the Law on the Peaceful Resolution of Labour Disputes as well as of the two Rulebooks on the registration of trade unions, and to indicate whether Collective Agreement No. 1/2004 remained in force after the adoption of the new Labour Law.

Article 2 of the Convention. Scope of guarantee of the right to organize. In its previous comment, the Committee had noted that, while article 53 of the Constitution and article 5 of the former Labour Law guarantee the right of employers and employees to establish and join organizations of their own choosing without prior authorization, the term “employees” used in the Law was narrower than the term “workers” used in the Convention. Accordingly, the Committee had requested the Government to provide additional information on the right to organize of certain categories of workers who may not be in a formal employment relationship: (i) self-employed workers; (ii) workers undergoing a period of work probation; (iii) workers under training contracts; (iv) retired workers; (v) senior personnel; and (vi) workers under “special labour agreements” for performing temporary and occasional work or activities outside the employer’s premises. The Committee had also requested the Government to specify the provisions which guarantee the right to organize to: (vii) agricultural workers; (viii) domestic workers; (ix) migrant workers; and (x) minors above the minimum age for admission to employment (15 years), as well as temporary workers in the public sector. The Committee takes due note that the Government indicates in its report that the new Labour Law applies to all employees in the country, unless otherwise specified by a special law. More particularly, the Committee notes that article 2 of the new Labour Law provides that it applies to employees whose employer operates on the national territory, employees working abroad whose employer has its headquarters in the country, as well as employees in state authorities, state administration authorities, local self-government authorities and public services, unless regulated otherwise by a special law; and that article 165 of the new Labour Law addresses self-employed workers.

Right of employers and workers to establish organizations of their own choosing. In its previous comments, the Committee, noting that both article 53 of the Constitution and the former Labour Law referred to the free choice of workers and employers in establishing and joining organizations, had requested the Government to indicate whether any implementing regulation of the Labour Law established a minimum membership requirement. The Committee takes due note that the Government indicates in its report that no instrument prescribes a minimum threshold to establish a trade union or an employers’ organization.

Furthermore, the Committee had requested the Government to replace the references in the former Labour Law to the “Free-Lance Artists’ Union” and to the “Chamber of Commerce” in articles 5(2) and 6(2) of the Law on Strikes, with a neutral reference to the most representative workers’ and employers’ organizations. The Committee notes that the new Labour Law refers to the “representative trade union of artists” (article 150(2)(8)). The Committee requests the Government to replace the reference to the “Chamber of Commerce” in the Law on Strikes with a neutral reference to the most representative employers’ organization.

Right to establish organizations without previous authorization. In its previous comments, the Committee had noted that both article 53 of the Constitution and the former Labour Law indicated that, while organizations may be established without previous approval, they had to be registered with the competent authority following the procedure prescribed by the authority. The Committee notes that the same is provided by article 155 of the new Labour Law. The Committee requests the Government to provide with its next report a copy of any regulation implementing article 155 of the Labour Law as well as information on the procedure and requirements for the registration of employers’ organizations.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules and elect their representatives freely. In its previous comments, the Committee had requested the Government to provide information on the manner in which employers’ and workers’ organizations are guaranteed both: (i) the right to draw up their constitutions and rules without interference from public authorities; and (ii) the right to elect their representatives freely. The Committee notes that articles 157–159 of the new Labour Law provide that the trade union organization shall independently decide on the manner of its representation before the employer; that the employer shall enable the employees to freely exercise their trade union rights and provide trade union organizations with conditions for efficient performance of their activities; and that a collective agreement shall regulate conditions, manner and procedure for professionalizing the work of trade union representatives, in the interest of protecting trade union rights. The Committee requests the Government to provide additional information in its next report on the rights of employers’ and workers’ organizations to both draw up their constitutions and rules and elect their representatives freely, as well as a copy of the collective agreement regulating the work of trade unions’ representatives once adopted.

Furthermore, the Committee had requested the Government to specify whether foreigners have the right to become trade union officers at least after a reasonable period of residency. The Committee takes due note that the Government indicates in its report that pursuant to article 2(3) of the new Labour Law, foreign workers and national workers are treated on an equal basis.

Right to strike. Compulsory arbitration. In its previous comments, the Committee had requested the Government to amend article 124 of the Labour Law which established a system of compulsory arbitration in the case of labour disputes, as well as article 6(3) of the Law on Strikes which provided that, if a dispute is not resolved within 30 days, the parties must refer it to arbitration. The Committee had also noted that, pursuant to article 12(3) of the Law on Strikes, as regards activities of general interest (listed in article 9), if the dispute was not resolved by the day set for beginning the strike, the parties to the dispute shall submit it to the arbitration authority.

The Committee notes that: (i) the new Labour Law does not establish a system of compulsory arbitration in the case of collective labour disputes but sets up a “reconciliation” procedure (article 121); (ii) the Government indicates in its report that article 12 of the Law on Strikes has been repealed; (iii) pursuant to article 69 of the Collective Agreement No. 1/2004, collective labour disputes shall be submitted to arbitration; and (iv) a Law on the Peaceful Resolution of Labour Disputes was adopted in 2007. The Committee recalls that compulsory arbitration to end a collective labour dispute and strike situations is only acceptable if it is at the request of both parties involved in a dispute, or in cases where the strike may be restricted, or even banned, that is in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, that is the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Taking into account that article 12 of the Law on Strikes has been repealed, the Committee requests the Government in its next report to:

(i)    indicate whether article 6(3) of the Law on Strikes and article 69 of Collective Agreement No. 1/2004 which impose compulsory arbitration have also been repealed and, if not, to take the necessary measures to ensure the conformity of the legislation with the abovementioned principle;

(ii)   indicate whether article 9 of the Law on Strikes remained in force after the annulment of article 12 of the same law and, if it is the case, to indicate the restrictions which can be imposed on the right to strike in the activities of general interest defined by this provision; and

(iii)  provide a copy of the Law on the Peaceful Resolution of Labour Disputes.

Minimum service. In its previous comment, the Committee had noted that, according to article 10(2) of the Law on Strikes, a strike in an activity of general interest is subject to the provision of a minimum service, which shall be determined “by the founder, employer’s manager or executive manager who base their decision on the nature of the undertaking, the level of risk for people’s lives and health, and other circumstances which are important for meeting the needs of citizens, employers and other parties”. The Committee had also noted that pursuant to article 10(3), when defining the minimum service, the employer may receive the opinion of the employees’ council. The Committee, noting that there may be in the same undertaking an employees’ council and a trade union, had requested the Government to amend the Law on Strikes so as to ensure that the minimum service is also determined with the participation of the trade union concerned. The Committee takes due note that the new Labour Law does not refer anymore to employees’ councils, but only to trade union organizations; that the Government indicates in its report that article 10 of the Law on Strikes has been amended, and that article 10(4) now provides that, when determining the minimum service, the employer “shall be obliged to obtain an opinion from the competent body of the authorized trade union organization or more than half of the employees of the employer”. 

Article 4. Dissolution and suspension by administrative decision. In its previous comments, the Committee had noted that there were no provisions on the dissolution of employers’ and workers’ organizations by the administrative authority and had requested the Government to specify the conditions under which employers’ and workers’ organizations may be dissolved. The Committee notes that pursuant to article 155(3) of the new Labour Law, the procedure for deletion from the Register shall be prescribed by the Ministry. The Committee further notes that the Government indicates in its report that a resolution will be taken by the Ministry of Work and Social Welfare in this regard. It also notes that, pursuant to article 10 of the Rulebook on the registration of trade union organizations (No. 33/10), a trade union can be cancelled from the Register if: (i) a decision is taken on the termination of the work of a trade union; or (ii) a valid court decision prohibits the work of trade union; or (iii) the entry into the Register was based on incorrect data. The Committee requests the Government to provide with its next report: (i) a copy of Rulebook No. 33/10 and of the decision of the Minister once adopted; (ii) information on the authority entitled to take the decision referred to by article 10(1) of the Rulebook; and (iii) information on the possibilities of appeal against a refusal to register, as well as on the suspensive effect of the appeal procedure.

Article 5. Right of organizations to establish federations and confederations and affiliate with international organizations. In its previous comments, the Committee had requested the Government to specify the provisions that explicitly guarantee the right of workers’ and employers’ organizations to establish federations and confederations and to affiliate with international organizations. The Committee takes due note that the Government indicates in its report that there is no such provision in the national legislation, but that this right is guaranteed, since Article 5 of the Convention has a direct effect in the national law.