Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

1. The Committee notes the Government’s report received in reply to its 2005 direct request. In particular, it notes the Government’s statement that the provisions of the Convention apply to all branches of the economy and to all employed persons (Article 2, paragraph 1, of the Convention). It once again requests the Government to supply information on the manner of its application, particularly important court decisions on the reasons for termination and on the number of terminations for economic or similar reasons in which the National Employment Service has intervened (Articles 4 and 14 of the Convention).

2. Burden of proof. The Government indicates in its report on Article 9 of the Convention that the Lawsuit Law (Official Gazette of RS, No. 125/04) applies to labour disputes and requires both parties to present facts and proof on which their complaint is based. The Government also refers to the Amicable Resolution of Labour Disputes Law in this regard. The Committee requests the Government to supply it with the relevant provisions of the Lawsuit Law and a copy of the Amicable Resolution of Disputes Law, including extracts of the relevant court decisions on this matter.

3. Period of notice. The Government states in its report that, according to the Labour Law, the programme enacted by the employer under sections 153 and 155 of the Labour Law to resolve the problem of surplus employees due to technological, economic or organizational changes shall, inter alia, determine the deadline within which the employer shall give notice of dismissal to the employee. Although the programme contemplated in sections 153 and 155 of the Labour Law may require the employer to determine the deadline within which the employer must give the notice of dismissal, the national provisions do not impose an obligation to give notice (or pay compensation in lieu thereof) nor stipulate the minimum period of such notice. The Committee recalls that, under Article 11 of the Convention, a worker is entitled to a reasonable period of notice (or compensation in lieu thereof) unless the employee is guilty of serious misconduct. The Government also states in its report that the Labour Law provides a notice period of between one and three months for terminations due to an employees’ “failure to perform or lack of knowledge or skills”. The Government also indicates that the Labour Law does not require an employer to give notice to employees who have breached an employment duty or failed to adhere to work discipline. The Committee recalls that the only exception to the right to give notice (or compensation in lieu thereof) is in respect of an employee’s serious misconduct. The Committee accordingly calls on the Government to bring the Labour Law into line with the requirements of Article 11 and to provide for a reasonable period of notice (or compensation in lieu thereof) in respect of all terminations at the initiative of the employer, except those terminations based on the serious misconduct of the employee.

4. Severance allowance and other income protection. The Government indicates in its report that an employee whose employer terminates an employment contract because the employee’s services are not needed due to technological, economic or organizational changes, is entitled to a severance allowance, as well as compensation, a pension, disability insurance and health care (section 160 of the Labour Law). The Government also indicates that, under the terms of section 109 of the Law on Employment and Insurance in Case of Unemployment, the employee is entitled to compensation in specified cases, including termination for failure to achieve the envisaged results or inability to work. The Committee recalls that under Article 12 of the Convention the worker is entitled on termination to either a severance allowance or social security benefits. This obligation applies to all terminations at the initiative of the employer, except for serious misconduct (Article 12, paragraph 3). The Committee requests the Government to bring its Labour Law into line with Article 12 and to provide either for a severance allowance contemplated in
Article 12, paragraph 1(a), or the benefits contemplated in Article 12, paragraph 1(b).

5. Consultations with workers’ representatives. The Committee notes the indications provided by the Government in its report and would appreciate receiving practical information on the consultations held by the National Employment Service with workers’ representatives on the measures taken to avert or minimize terminations of employment and to mitigate the adverse effects of any terminations on the workers concerned, such as finding alternative employment (Article 13, paragraph 1(b)).