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Night Work Convention, 1990 (No. 171) - Montenegro (RATIFICATION: 2016)

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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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The Committee notes the Government’s first report.

Article 3 of the Convention. Measures taken in the fields of safety and maternity protection for all workers performing night work. Further to its comments under the Night Work (Women) Convention (Revised), 1948 (No. 89), regarding the need to review gender-specific prohibitions or restrictions to night work, the Committee notes that the Labour Code still contains provisions which prohibit women from being employed at night in certain circumstances (sections 105 and 110 of the Labour Code). 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 therefore invites the Government to review its national legislation in light of this principle, in consultation with the social partners. In addition, noting that the country is still bound by Convention No. 89 and that the denunciation window for that Convention will be open between 27 February 2021 and 27 February 2022, the Committee encourages the Government to consider its denunciation.

Article 9. Social services. The Committee notes the Government’s indication in its report that all employees have social services secured regardless of the time when they perform their work activities. It recalls that appropriate social services are among the specific measures required by the nature of night work which must be adopted for night workers to protect their health and assist them in meeting their family and social responsibilities (2018 General Survey on working time instruments, paragraph 499). The Committee therefore requests the Government to provide detailed information regarding the social services secured for night workers and, where necessary, for workers performing night work, in accordance with Article 9.