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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Montenegro (Ratification: 2006)

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Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the Union of Free Trade Unions of Montenegro (UFTUM) received on 31 August 2021, referring to the matters addressed below.

The Committee takes note of the adoption of the Law on Civil Servants and State Employees (2018), the Labour Law (2019), a revised Rulebook on the Registration of Trade Unions (2019) and a Rulebook on the Registration of Representative Trade Union Organizations (2019), as well as the Government’s indication that there have been no legislative changes or other measures that significantly affect the application of the Convention.

Article 3 of the Convention. Right to organize activities in full freedom. In its previous comment, the Committee noted that under section 18 of the Law on Strikes, 2015, the police, employees of state bodies and the public service could organize a strike in a way that would not endanger national security, safety of persons and property, the general interest of citizens or the functioning of government authorities and that in such occupations, minimum services must be ensured. Having noted that it was the prerogative of the state authority responsible for national security to determine whether the organization of a strike endangered the general interest of citizens and functioning of government authorities, the Committee requested the Government to take the necessary measures to amend the Law on Strikes in consultation with the social partners so as to ensure that responsibility for declaring a strike illegal rests with an independent body that has the confidence of the parties involved. The Committee notes the Government’s indication that: (i) in line with section 7, work disruption not organized in accordance with the provisions of the Law on Strikes shall be considered an illegal strike; (ii) section 31 of the Law provides that the employer, the representative association of employers, the representative trade union or the strike committee can initiate a procedure for determining the illegality of a strike or unlawful dismissal, which will be decided upon by the competent court within five days of such a request (this provision applies to any organized strike regardless of the area of activity in which it is organized); and (iii) the assessment under section 18 of whether the organization of a strike for the above employees endangers the general interest of citizens and functioning of government authorities is done by the public authority responsible for national security. While taking due note of this indication, the Committee understands that even if section 18 does not, in its wording, refer to the determination of the legality of a strike (which is regulated by section 31, providing for a judicial determination irrespective of the area of activity in which the strike is organized), section 18 provides for an assessment by a public authority of whether a strike endangers the general interest of citizens and functioning of government authorities and thus, whether it can lawfully take place under section 18 or not. The Committee notes in this regard the observations made by the UFTUM that: (i) at the drafting stage, a representative from the UFTUM warned that section 18 was not sustainable as the National Security Agency was a security intelligence service whose work implied the secrecy of information; (ii) the National Security Agency may declare that a strike endangers the public interest, and is therefore illegal, without prescribed clear criteria, acting in its own discretion and without the possibility of objections from the initiators of the strike; and (iii) the UFTUM submitted an initiative to review the constitutionality of section 18 of the Law on Strikes after its entry into force but has not yet received a response from the Constitutional Court. While noting the Government’s submission that Article 9 of the Convention leaves it to Members States to determine the extent to which the guarantees of the Convention apply to members of the armed forces and the police, the Committee observes that section 18 of the Law on Strikes also regulates the right to strike of employees of state bodies and the public service who are not excluded from the scope of the Convention under Article 9 and who, unless they are engaged in essential services in the strict sense of the term or exercising authority in the name of the State, should benefit from the right to strike. In view of the above, the Committee once again requests the Government to take the necessary measures to amend the Law on Strikes in consultation with the social partners so as to ensure that any determination of whether a strike organized under section 18 endangers the general interest of citizens and functioning of government authorities, and is therefore illegal, is the prerogative of an independent body that has the confidence of the parties involved. The Committee also requests the Government to provide information on the current status of the initiative to review the constitutionality of section 18 filed to the Constitutional Court by the UFTUM.

Article 4. Dissolution and suspension by administrative decision. The Committee previously requested the Government to indicate whether suspensive effect was granted to an appeal, made pursuant to the Law on General Administrative Procedure, of a decision to delete a trade union organization from the register pursuant to section 10(3) of the former Rulebook on the Registration of Trade Union Organizations – deletion if the registration was based on inaccurate data from the applicant or on the application of an unauthorized person (possibility currently also provided under section 12(3) of the revised Rulebook and section 13(3) of the Rulebook on the Registration of Representative Trade Union Organizations). The Committee notes the Government’s indication that an appeal filed against a decision of the Ministry of Labour to delete a union from the register does not have suspensive effect in that it does not delay the execution of the decision. Recalling that the dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities in the activities of organizations and should only take place following a normal judicial procedure which should have the effect of a stay of execution, the Committee requests the Government to take the necessary measures, including any necessary legislative amendments, to ensure that the procedure to delete a trade union organization from the register (pursuant to section 12(3) of the revised Rulebook on the Registration of Trade Unions and section 13(3) of the Rulebook on the Registration of Representative Trade Union Organizations) provides such safeguards.

The Committee further notes that the Government indicates that while the revised Rulebook on the Registration of Trade Unions did not modify the reasons for deletion of a trade union from the register, it introduced a new sub-paragraph stipulating that the procedure for deleting a trade union under section 12(3) (previously section 10(3)) – if the registration was based on inaccurate data from the applicant or on the application of an unauthorized person – can be initiated by a registered trade union (section 13 of the Rulebook on the Registration of Representative Trade Union Organizations provides for the same possibility). The Committee requests the Government to clarify whether the effect of the new sub-paragraph is simply to allow the concerned union to initiate the procedure for deleting it from the register in the previously described circumstances, or whether it enables any registered trade union to request deletion of another union from the register under section 12(3) of the Rulebook and section 13(3) of the Rulebook on the Registration of Representative Trade Union Organizations, and if so, to indicate the grounds for having introduced this possibility.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 2 of the Convention. Right of employers and workers to establish organizations of their own choosing without previous authorization. Employers’ organizations. The Committee had previously requested the Government to indicate whether the Law on Strikes of 2015 referred to a specific organization of employers, such as the “Chamber of Commerce” or rather contained a neutral reference to the most representative employers’ organization. The Committee notes with interest that the Law, a copy of which has been provided with the Government’s report, does not refer to a specific organization and instead refers to the representative association of employers (sections 12, 23 and 31 of the Law).

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules. The Committee had previously requested the Government to specify any legislative or other provisions concerning the content of constitutions and rules of employers’ and workers’ organizations. The Committee notes that the Government refers to section 4 of the Rulebook on the registration of trade union organizations, which requires the submission of the statute or rules of the organization and its methods of work but does not prescribe the content of these documents.

Right of workers’ and employers’ organizations to elect their representatives in full freedom. The Committee had previously noted that section 157(2) of the Labour Law provides that a trade union may appoint or elect one trade union representative who will represent it, and requested the Government’s clarification in this respect. The Committee notes the Government’s indication that trade unions are regulated by by-laws that may provide, in addition to one trade union representative who is registered in the Register, for other trade union representatives. The Committee takes due note of this information.

Right to organize activities in full freedom. The Committee notes that section 18 of the Law on Strikes of 2015 provides that police, employees of state bodies and the public service can organize a strike in a way that will not endanger national security, safety of persons and property and the general interest of citizens, as well as the functioning of government authorities. In such occupations, minimum services, as determined by tripartite partners must be ensured (sections 22 and 23). Section 18 also provides that the assessment as to whether the organization of the strike endangers the general interest of citizens and functioning of government authorities shall be given by the state authority responsible for national security, within 24 hours of the announcement of the strike. In this respect, section 19 lists certain activities of public interest the interruption of which could endanger, among others, the general interest of citizens. The Committee notes that the listed services appear to be either essential services in the strict sense of the term or services of fundamental importance. Concerning the assessment by the state authority responsible for national security referred to in section 18, the Committee recalls that the responsibility for declaring a strike illegal should not lie with the Government authorities, but with an independent body that has the confidence of the parties involved. The Committee therefore requests the Government to take the necessary measures to amend the Law on Strikes in consultation with the social partners so as to ensure that responsibility for declaring a strike illegal rests with an independent body that has the confidence of the parties involved.

Article 4. Dissolution and suspension by administrative decision. The Committee had previously noted that pursuant to section 10(3) of the Rulebook on the registration of trade union organizations, a trade union organization shall be deleted from the register if the registration was based on inaccurate data from the applicant or on the application of an unauthorized person and requested the Government to indicate whether such decisions to cancel trade union registration are taken by an administrative authority, and if so, if an appeal can be lodged against such a decision. The Committee notes the Government’s indication that an appeal against the decision on the deletion of a trade union organization from the register may be made pursuant to the Law on General Administrative Procedure, and an administrative dispute may be initiated against this decision in Administrative Court within 30 days from the date of submission. The Committee requests the Government to indicate if an appeal, made pursuant to the Law on General Administrative Procedure, of a decision to delete a trade union organization from the register (pursuant to section 10(3) of the Rulebook on the registration of trade union organizations), has suspensive effect.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations from the International Organisation of Employers (IOE) received on 1 September 2014. It also notes the observations made by the International Trade Union Confederation (ITUC) in a communication received on 4 August 2011, as well as the Government’s comments thereon.

The Committee further notes the legislative texts provided by the Government in response to the Committee’s request, including copies of the 2007 Act on peaceful resolution of labour disputes, the 2010 Rulebook on the registration of trade unions and the 2010 Rulebook on the registration of representative trade unions. The Committee also notes the General Collective Agreement concluded on 20 March 2014 at the national level, which, according to the Government, repealed Collective Agreement No. 1/2004.

Article 2 of the Convention. Right of employers and workers to establish organizations of their own choosing. The Committee previously requested the Government to replace the references to the “Chamber of Commerce” in sections 5(2) and 6(2) of the Act on strikes with a neutral reference to the most representative employers’ organization. The Committee notes that the Government supplies a more recent version of the 2003 Act on strikes, which refers to the “representative employers’ association of Montenegro” (section 5(2)). The Committee notes, however, the adoption in 2015 of a new Strikes Act (No. 247) repealing the 2003 Act on strikes. The Committee trusts that the references to the most representative employers’ organization in the 2015 Strikes Act remain neutral and requests the Government to indicate the relevant provisions.

Right to establish organizations without previous authorization. The Committee previously noted that both article 53 of the Constitution and section 155 of the new Labour Act indicate that, while organizations may be established without previous approval, they had to be registered with the competent authority following the prescribed procedure, and requested the Government to provide a copy of any regulation implementing section 155 as well as information on the procedure and requirements for the registration of employers’ organizations. The Committee takes note of the registration procedure prescribed in the 2010 Rulebook on the registration of trade unions, as well as of the information provided by the Government on the registration procedure of employers’ associations.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules and elect their representatives freely. The Committee previously requested the Government to provide additional information on the rights of employers’ and workers’ organizations both to draw up their constitutions and rules and to elect their representatives freely, as well as a copy of the collective agreement regulating the work of trade union representatives, once adopted. The Committee notes the provisions of the 2014 General Collective Agreement, which mainly deals with the protection and facilities to be provided to trade union representatives. It also takes note of sections 154 to 159 of the new Labour Act as amended, in particular of section 157(2), which provides that the trade union may appoint or elect one trade union representative that will represent it. The Committee requests the Government to: (i) clarify whether a trade union organization may only appoint or elect one person to act as trade union representative (section 157(2) of the Labour Act); (ii) indicate any legislative or other provisions regulating the election procedure and conditions of eligibility of representatives of employers’ and workers’ organizations; and (iii) specify any legislative or other provisions concerning the content of constitutions and rules of employers’ and workers’ organizations.

Right of workers’ and employers’ organizations to organize their activities. The Committee had previously requested the Government to take measures to amend several provisions establishing a system of compulsory arbitration in the case of labour disputes, including sections 6(3) and 12 of the 2003 Act on strikes and section 69 of Collective Agreement No. 1/2004, and to indicate the restrictions imposed on the right to strike in the “activities of general interest” defined by section 9 of the 2003 Act on strikes. The Committee notes the provisions of the 2007 Act on the peaceful resolution of labour disputes, in particular its section 53 which repeals sections 6 and 12 of the 2003 Act on strikes and related penalties, as well as the Government’s indication that section 69 of Collective Agreement No. 1/2004 has been repealed with the entry into force of the 2014 General Collective Agreement. Noting the adoption of the 2015 Strikes Act, which repeals the 2003 Act on strikes, the Committee requests the Government to provide detailed information on the provisions of the new Act, in particular on those provisions relating to the initiation of dispute resolution procedures and the scope and determination of minimum services.

Article 4. Dissolution and suspension by administrative decision. The Committee previously requested the Government to specify the conditions under which employers’ and workers’ organizations may be dissolved, and in particular to provide a copy of the procedure prescribed by the Ministry under section 155(3) of the new Labour Act; information on the authority entitled to take the decision referred to in section 10(1) of the 2010 Rulebook on the registration of trade union organizations (No. 33/10); and information on the possibilities of appeal against a refusal to register. The Committee notes the provisions of Rulebook No. 33/10 as well as the Government’s indications in this regard, according to which: (i) if the application for registration is deficient and the trade union fails to rectify the deficiencies within 15 days, it shall be deemed that the trade union withdrew the application (section 5); (ii) the trade union organization shall be deleted from the register if a decision was made on the dissolution of the trade union organization (section 10(1)), if a final court decision prohibited a trade union organization in accordance with the law (section 10(2)), or if, on the date of a final decision in the administrative procedure, registration is based on inaccurate data from the applicant or on the application of an unauthorized person (section 10(3)); and (iii) in the case of erasure of a trade union from the register, a decision is being issued against which the party has the right to institute court proceedings (section 11). The Committee requests the Government to clarify whether the decisions referred to in section 10(1) and (3) of the Rulebook, which entail the union’s deletion from the register, are taken by an administrative authority. It also requests the Government to provide information on the possibilities of appeal against a refusal to register, and on the suspensive effects of both this appeal and the appeal against deletion from the register.

Direct Request (CEACR) - adopted 2010, published 100th ILC session (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.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s first report. It also notes the text of the Constitution of Montenegro, the general collective agreement transmitted with the Government’s report, as well as the Criminal Code of Montenegro. The Committee will examine these documents once a translation is available.

Article 2 of the Convention. 1. Scope of guarantee of the right to organize. The Committee notes from the Government’s report that article 53 of the Constitution of Montenegro and section 5 of the Labour Law guarantee the right of employer and employees to establish and join organizations of their own choosing without prior authorization. The Committee notes that the term “employees” is narrower than the term “workers” used in the Convention. It emphasizes that Article 2 of the Convention covers all workers without distinction whatsoever. The Committee requests the Government to provide additional information on the provisions which guarantee the right to organize of certain categories of workers who may not be in a formal employment relationship: self-employed workers; workers undergoing a period of work probation; workers under training contracts; retired workers; senior personnel; and workers under “special labour agreements” for performing temporary and occasional work or activities outside the employer’s premises (sections 141 and 142 of the Labour Law). Furthermore, noting that there is no explicit provision on the scope of the Labour Law, the Committee requests the Government to specify the provisions which guarantee the right to organize to agricultural workers, domestic workers, migrant workers and minors above the minimum age for admission to employment (15 years).

The Committee notes that section 7 of the Labour Law specifies that the provisions of this law apply to employees in public administration bodies or local government units, unless otherwise prescribed in a special law. Section 15 of the Law on Civil Servants and State Employees provides that civil servants and state employees have the right to organize in accordance with general labour regulations. Noting that section 30 of this Law refers to “temporary employment” in the public service, the Committee requests the Government to specify whether individuals under temporary employment in the public service have the right to organize.

2. Right of employers and workers to establish organizations of their own choosing. The Committee notes that article 53 of the Constitution and section 5 of the Labour Law both refer to the free choice of workers and employers in establishing and joining organizations. The Committee requests the Government to provide information on whether any implementing regulation of section 5 of the Labour Law establishes a minimum membership requirement and to forward the relevant legal text.

The Committee notes that section 128(4) of the Labour Law refers to the Free-Lance Artists’ Union by name, while sections 5(2) and 6(2) of the Law on Strikes refers to the “Chamber of Commerce”. The Committee requests the Government to replace these references with a neutral reference to the most representative workers’ and employers’ organizations.

3. Right to establish organizations without previous authorization. The Committee notes that: (i) both article 53 of the Constitution and section 5 of the Labour Law indicate that organizations may be established without previous approval; (ii) article 53 of the Constitution refers to registration of trade unions with the competent authority; and (iii) section 136 of the Labour Law provides that a trade union shall be registered in the trade union registry maintained by the ministry in charge of labour matters and the procedure of registration shall be prescribed by the ministry in question. The Committee requests the Government to provide a copy of any regulation implementing section 136 of the Labour Law. It also requests the Government to provide 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. The Committee notes that there is no information in the Government’s report or the available legislative texts on these issues. The Committee requests the Government to provide information on: (i) the manner in which employers’ and workers’ organizations are guaranteed the right to draw up their constitutions and rules without interference from the public authorities; and (ii) the manner in which employers’ and workers’ organizations are guaranteed the right to elect their representatives freely. It also requests the Government to specify whether foreigners have the right to become trade union officers at least after a reasonable period of residency and to forward any legal texts on all of the above.

Right to strike. 1. Compulsory arbitration. The Committee notes that section 124 of the Labour Law provides that the “[r]esolution of disputes arising during the processes of contracting, implementing, amending and complementing collective agreements shall be submitted to arbitration”. Section 6(3) of the Law on Strikes provides that if a dispute is not resolved within 30 days, the parties must refer it to arbitration, in accordance with the Labour Law. The Committee therefore notes that the law lays down a system where compulsory recourse to binding arbitration makes it possible to prohibit virtually all strikes or end them quickly. This seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 153). The Committee therefore requests the Government to indicate in its next report the measures taken or contemplated to repeal section 124 of the Labour Law and section 6(3) of the Law on Strikes which impose compulsory arbitration on all disputes without distinction. The Committee recalls that compulsory arbitration is acceptable in certain cases which are discussed below.

Section 12(3) of the Law on Strikes provides that in case a dispute in activities of general interest is not resolved by the day announced for the staging of a strike, the parties to the dispute must bring the dispute to arbitration, pursuant to the law or the collective agreement. Activities of general interest are defined in section 9 of the Law on Strikes as activities whose termination, due to their nature, might jeopardize the life and health of the people or cause damage on an enormous scale, and in particular: electric power industry, water supply, transportation, postal and telecommunication services, information dissemination (radio and television), utility services (production and supply of water, garbage collection, production, distribution and supply of energy products, etc.), fire brigade, production of elementary food products, health care and veterinary medicine, education, culture, social care of children, and social welfare; also, activities of special importance for the Republic’s defence and security, as well as activities necessary for conducting international tasks, set by international agreements, as well as activities whose termination, owing to their nature and in terms of this Law, might jeopardize the life and health of the people or cause damage on an enormous scale.

The Committee recalls that compulsory arbitration is acceptable only with the agreement of both parties, in essential services in the strict sense of the term, and for public servants exercising authority in the name of the State. It therefore requests the Government to amend sections 9 and 12(3) of the Law on Strikes concerning compulsory arbitration in activities of general interest, so as to limit the possibility of imposing compulsory arbitration only to essential services in the strict sense of the term and public servants exercising authority in the name of the State.

2. Minimum service. The Committee notes that according to section 10 of the Law on Strikes, a strike in an activity of general interest is subject to the provision of a minimum service. Such minimum service shall be determined under section 10(2) “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 also notes that according to section 10(3) when defining the minimum service, the employer may receive the opinion of the employees’ council. Given that under section 4 of the Labour Law, there may be in the same undertaking an employees’ council and a trade union, it would therefore seem that the employer does not receive the opinion of the trade union representative but rather the employees’ representative in determining the minimum service.

Although the Committee considers that in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, the authorities could establish a system of minimum service in services which are of public utility; such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey, op. cit., paragraphs 160–161). The Committee requests the Government to amend section 10 of the Law on Strikes so as to ensure that the minimum service is determined with the participation of the trade union concerned and that in case of disagreement, the matter is decided by an impartial body.

Article 4. Dissolution and suspension by administrative decision. The Committee notes that, according to the Government’s report, there are no provisions on the dissolution of employers’ and workers’ organizations by administrative authority. The Committee requests the Government to specify the conditions under which employers’ and workers’ organizations may be dissolved and to communicate any relevant legal texts.

Article 5. Right of organizations to establish federations and confederations and affiliate with international organizations. The Committee notes from the Government’s report that there are no obstacles to associating with international organizations of workers and employers. It also notes that section 128 of the Labour Law indirectly refers to federations and confederations by addressing the conclusion of collective agreements at the national or branch levels. The Committee requests the Government to specify the provisions explicitly guaranteeing the right of workers’ and employers’ organizations to establish federations and confederations and to affiliate with international organizations.