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Holidays with Pay Convention (Revised), 1970 (No. 132) - Montenegro (RATIFICATION: 2006)

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CMNT_TITLE

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 132 (annual holidays with pay) and 171 (night work) together.

The Committee notes the observations of the Union of Free Trade Unions of Montenegro (UFTUM) on the application of Convention No. 132, received on 31 August 2021.

Article 3 of Convention No. 132. Right to annual paid holiday. The Committee notes the observations of the UFTUM, alleging that employees in companies going through bankruptcy proceedings have been deprived of their right to annual leave, due to competent institutions’ interpretation of section 79 of the Bankruptcy Law, amended in 2016, and considered not to apply to bankruptcy proceedings initiated before the amendment. The Committee requests the Government to provide its comments in this respect.

Article 7(2). Payment of holiday pay in advance. Following its previous comments on this matter, the Committee notes the Government’s indication in its report regarding the deadlines in place for the payment of wages to the employee, pursuant to section 105 of the Labour Law. The Committee takes note of this information, which addresses its previous request.

Article 11. Right to annual holiday in case of termination of the employment contract. With regard to its previous comments, the Committee notes that the Government refers to section 86 of the Labour Law, providing for the employee’s right to paid annual leave, or financial compensation, in case of employment termination. The Committee observes that section 86 of the Labour Law refers to termination of employment as a situation where a labour contract is terminated due to transfer to another employer. The Committee requests the Government to indicate how it is ensured that, in cases of termination other than for transfer to another employer, an employee can receive a holiday with pay, proportionate to the length of service for which they have not received such a holiday, compensation in lieu thereof, or the equivalent holiday credit.

Article 3 of Convention No. 171. Measures taken in the fields of safety and maternity protection for all workers performing night work. Specific measures for night workers. The Committee notes that section 105 of the Labour Code, prohibiting women from being employed at night under certain circumstances, has now been repealed by the new Labour Law. It nevertheless notes that the prohibition on women with children under three years of age to engage in night work, is still reflected in section 125(2) and (3) of the new Labour Law. The Committee recalls that protective measures applicable to women’s employment at night which go beyond maternity protection and are based on stereotyped perceptions regarding women’s professional abilities and role in society, violate the principle of equality of opportunity and treatment between men and women (2018 General Survey on working time instruments, paragraph 545).

The Committee also notes that section 70(3) of this Labour Law provides that employees who work at night for at least three hours of their daily working time have a right to special protection, in accordance with the regulations on occupational safety and health. In this regard, the Government indicates in its report that regulations pursuant to section 70(3) of the Labour Law have yet to be adopted. The Committee requests the Government to indicate whether it intends to adopt measures for night workers’ protection, including specific regulations, as required by Article 3 of the Convention. In addition, the Committee requests the Government to review its national legislation in light of the principle of non-discrimination, in consultation with the social partners. Noting that the country is still bound by Convention No. 89 and that the denunciation window for that Convention is still open (27 February 2021 to 27 February 2022), the Committee encourages the Government to consider its denunciation.

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Article 3(1) of the Convention. Duration of annual holiday with pay. The Committee notes the latest amendments that were introduced to the Labour Law in 2011 (Official Gazette No. 59/2011 of 14 December 2011), in particular section 65(1) which now provides for an annual paid leave of not less than 20 working days.

Article 7(2). Payment of holiday pay in advance. The Committee notes the Government’s reference to section 82 of the Labour Law and section 21 of the General Collective Agreement which provide that an employee is entitled to 100 per cent of his/her remuneration in cash, during his/her annual paid holidays. However, as the Committee has pointed out in its previous comment, there is no provision specifying that the holiday remuneration must be paid in advance, as required by Article 7(2). The Committee therefore once again requests the Government to take appropriate steps in order to give full effect to this requirement of the Convention.

Article 11. Right to annual holiday in case of termination of the employment contract. The Committee notes that section 70 of the Labour Law provides for the right to an annual holiday for an employee whose contract of employment has been terminated due to a transfer to another employer or due to retirement. The Committee also notes that section 71(1) provides that an employee who did not use the right to an annual holiday or used it partially due to an employer’s fault is entitled to compensation for damage. The Committee wishes to recall, in this respect, that Article 11 seeks to guarantee that holiday rights are acquired irrespective of the grounds on which the employment relationship may have been terminated. The Committee therefore requests once again the Government to clarify how it is ensured, in law and in practice, that an employed person receives in all cases of termination of employment – and not just in the case of termination due to retirement, transfer to another employer, or an employer’s fault – a holiday with pay proportionate to the length of service, or monetary compensation, or holiday credit, as prescribed by Article 11 of the Convention.

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The Committee notes the first report on the application of the Convention and wishes to draw the Government’s attention to the following points.

Article 7, paragraph 2, of the Convention. Payment of holiday pay in advance. The Committee notes the Government’s reference to section 25(2) of the Labour Law (Official Gazette No. 43/03), as well as to sections 21 and 22 of the General Collective Agreement (Official Gazette No. 1/04), all of which guarantee the worker’s right to receive his/her normal or average remuneration in respect of the full period of the annual holiday but do not cover the date of payment. The Committee recalls that Article 7(2) of the Convention requires the holiday remuneration to be paid in advance, unless otherwise provided for in an agreement applicable to the worker and the employer. The Committee therefore requests the Government to indicate the measures taken or envisaged with a view to bringing the legislation into conformity with this Article of the Convention. It would also appreciate receiving a copy of the General Collective Agreement of 2004.

Article 11. Right to annual holiday in case of termination of the employment contract. The Committee notes that section 60(1) and (3) of the Labour Law provides that workers must make use of any holiday days due and not taken in the event their contract is terminated because they change jobs or retire. It also notes that under section 61(2) of the Labour Law, workers who are prevented from enjoying their annual holiday due to the employer’s fault are entitled to compensation. Noting that the scope of these provisions is limited to specific cases of termination (retirement, employer’s fault), the Committee requests the Government to clarify how it is ensured in law and practice that holiday rights are acquired rights irrespective of the reason for which the employment is terminated and may take the form of either paid leave, or corresponding monetary compensation, or equivalent holiday credit, as prescribed by this Article of the Convention.

Article 12. Prohibition to relinquish or forgo the right to annual holidays with pay. The Committee notes section 61(1) of the Labour Law which provides that employees cannot relinquish their right to annual leave nor can they be deprived of that right. However, section 61(2) of the Labour Law appears to allow for compensation if annual leave cannot be taken due to the fault of the employer, in contradiction to section 61(1) and Article 12 of the Convention which allows compensation only for outstanding holidays with pay upon termination of employment. The Committee therefore requests the Government to explain how it is ensured in practice that section 61(2) of the Labour Law cannot be used to deprive an employee of his/her annual leave.

Part V of the report form. Application in practice. The Committee would be grateful if the Government would provide up to date information on the manner in which the Convention is applied in practice, including statistics on the number of workers covered by the relevant legislation, extracts from reports of the labour inspection services showing the number of violations observed and sanctions imposed, copies of relevant collective agreements, etc.