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

The Committee notes the Government’s replies to the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 on the application of the Convention, as well as by the Union of Free Trade Unions of Montenegro dated 7 October 2009 on the proposed draft law on trade union representativeness.

The Committee notes with interest the coming into force on 15 August 2008 of the new Labour Law (O.G. No. 49/08), which repeals Labour Laws Nos 43/03 and 25/06 and provides enhanced protection to trade union representatives, as well as stronger pecuniary sanctions against acts of interference in trade union activities. The Committee also welcomes the adoption of the 2010 Law on Trade Union Representativeness (O.G. 26/10).

Furthermore, the Committee notes 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 also notes the translation of Collective Agreement No. 1/2004 transmitted 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 1 of the Convention. Protection against anti-union discrimination. In its previous comments, the Committee had observed that while the legislation provided protection against anti-union discrimination to workers’ representatives, no explicit protection was provided to workers. The Committee therefore requested the Government to specify the provisions which afford protection to workers against all prejudicial acts by reason of trade union membership or participation in trade union activities, as well as the remedies, sanctions and procedures which apply to such acts.

The Committee notes that the new Labour Law enshrines protection against acts of direct and indirect discrimination on the ground of membership in trade union organizations, vis-à-vis persons seeking employment and employed persons (articles 5–10) and that pursuant to article 10, in cases of alleged acts of discrimination, the person seeking employment or the employed person may initiate a procedure before the court. The Committee welcomes the fact that the new Labour Law extends the protection of the trade union representatives up until six months upon termination of trade union activities (article 160(1)). Finally, the Committee notes that pursuant to article 172(1)(33) of the new Labour Law, strong fines can apply when the employer “fails to provide employees with a free exercise of trade union rights, or fails to provide the trade union with the conditions for exercising trade union rights”. The Committee notes however that article 172(1)(33) does not expressly refer to acts of anti-union discrimination defined in articles 5–10 of the new Labour Law, which are linked to the performance of trade union activities by trade union members who are not trade union representatives.

In light of the above, the Committee recalls that legal standards on the protection against acts of anti-union discrimination are inadequate if they are not coupled with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application in practice (General Survey on freedom of association and collective bargaining, 1994, paragraph 224). The Committee requests the Government to take the necessary measures to amend the legislation so as to ensure sufficiently dissuasive sanctions – including dissuasive fines – against acts of anti-union discrimination linked to the performance of legitimate trade union activities. The Committee requests the Government to provide information thereon in its next report.

Article 2. Protection against interference. In its previous comments, the Committee had noted that there was no explicit provision against acts of interference by employers or employers’ organizations in the establishment, functioning and administration of trade unions and vice versa, nor specific procedures or dissuasive sanctions against such acts. The Committee notes that: (i) article 154 of the new Labour Law stipulates that employees and employers shall be entitled, at their free choice, without prior approval, to establish their organizations and become their members; and (ii) article 159 provides that the employer shall enable the employees to freely exercise their trade union rights and provide the trade union organization with conditions for efficient performance of trade union activities. Furthermore, the Committee welcomes that, pursuant to article 172(33) of the new Labour Law, penalties can be imposed on the enterprise (legal entity), the employer (physical person) as well as the employer–entrepreneur (entity–employer), when the employer fails to provide employees with a free exercise of trade union rights, or fails to provide the trade union with the conditions for exercising trade union rights. The Committee notes that pursuant to article 172, fines are established as follows: the penalty which can be imposed on the enterprise (legal entity) ranges from 10 to 300 times the minimum wage (while under article 148 of the former labour law, this penalty ranged from 50 to 200 times the minimum wage); the penalty which can be imposed on the employer (physical person) ranges from 1.5 to 20 times the minimum wage (10 to 20 times the minimum wage under the former law) and the penalty which can be imposed on the entity–employer ranges from 10 to 200 times the minimum wage (30 to 200 times the minimum wage under the former law).

The Committee notes however that while the new Labour Law covers certain acts of interference by the employer, global protection of workers’ and employers’ organizations against acts of interference, by each other, in their establishment, functioning or administration, as prescribed by Article 2 of the Convention, is not made explicit in the legislation (see General Survey, op. cit., paragraph 228). The Committee recalls that the relevant legislation should explicitly lay down these substantive provisions as well as appeals and sanctions (General Survey, op. cit, paragraph 232). The Committee requests the Government to take the necessary measures to amend its legislation so as to provide explicit protection against acts of interference by the employer or employers’ organizations, in particular in the establishment, functioning and administration of trade unions and vice versa,  and to provide information on any progress made thereon in its next report.

Finally, the Committee had requested the Government to indicate the provisions which establish safeguards to ensure that the presence of employees’ representatives in the workplace may not be used to undermine the position or activities of trade union representatives. The Committee takes due note that the Government indicates in its report that the new Labour Law now only refers to trade union organizations as the structure for organizing employees and that under article 14(5) of the new Labour Law, employees’ representatives can only be consulted by the employer when there is no established trade union.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had noted that the legislation defined the parties to a “general collective agreement” as an authorized national trade union, an authorized association of employers and the Government. It also noted that the general collective agreement shall establish the basic elements for defining the minimum wage rate, as well as other labour-based and labour-originated rights and obligations. The Committee notes that the new Labour Law – including its provisions on collective bargaining – applies to employees of the public sector and state administration (article 2(2)); that pursuant to article 150(1), a general collective agreement shall be concluded by the representative trade union organization, the representative association of employers and the Government; that pursuant to article 149(1), general collective agreements shall regulate, inter alia, the minimum wage in the economy and the public sector, as well as the scope of work-based rights and responsibilities; and that pursuant to article 148(1) collective agreements may be concluded as general, branch-level and employer-level (individual) agreements. The Committee recalls that Article 4 of the Convention envisages collective bargaining between employers and their organizations and workers’ organizations in a bipartite structure and that, while the presence of the Government would be justifiable if the general collective agreement was limited to the establishment of the minimum wage rate, the negotiation of the other terms and conditions of employment should take place in a bipartite context and the parties should enjoy full autonomy in this regard. The Committee further recalls that the principle of voluntary negotiation of collective agreements, and thus the autonomy of the bargaining partners, is an essential element of Article 4; that the choice of the most appropriate bargaining level should be left to the partners themselves since they are in the best position to decide (General Survey, op. cit, paragraphs 248–250). In light of the abovementioned principles, the Committee requests the Government to:

(i)    take the necessary measures to amend articles 149 and 150 of the new Labour Law so as to ensure that the Government may participate in the negotiation of a general collective agreement on issues linked to the minimum wage – as it is enabled now – but not on the matters linked to the terms and conditions of employment; and

(ii)   provide information in its next report on any developments regarding the promotion of collective bargaining in the public and private sectors is (e.g. training and information activities, seminars with the social partners, etc.).

Trade union representativeness. The Committee notes that pursuant to article 5 of the 2010 Law on Trade Union Representativeness, the rights of representative trade unions include, inter alia, the right to conclude collective agreements, to participate in solving collective labour disputes, to participate in the work of the Social Council and other tripartite and multipartite bodies, as well as other rights granted by special laws; and that pursuant to article 14 of the Law, if no trade union fulfils the representativeness requirement, trade unions may conclude an agreement on merger for the purpose of fulfilling that requirement. The Committee recalls that a distinction between the most representative trade unions and other trade union organizations should not result in the most representative organizations being granted privileges extending beyond that of priority in representation for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies; in other words, this distinction should not have the effect of depriving trade union organizations that are not recognized as being among the most representative of the essential means for defending the occupational interests of their members for organizing their administration and activities and formulating their programmes (General Survey, op. cit., paragraph 239). The Committee requests the Government to provide information in its next report on the rights of trade unions with no representative status to negotiate on behalf of their members, when there is no trade union which fulfils the representativeness requirements at the level of the enterprise.

Furthermore, as regards the procedure for the determination of trade union representativeness at the enterprise level, the Committee notes that articles 15, 17 and 18 of the Law refer to the various powers of the “director”. The Committee requests the Government to provide information in its next report on the authority which this “director” represents, on the rules concerning its appointment and on whether this system enjoys the confidence of the social partners.

Finally, the Committee notes that article 15 of the Law provides that the director sets up a commission for the establishment of trade union representativeness, which shall consist of two representatives from each of the following: employer, representative trade union, if it exists at the level of that employer, and the interested trade union. The Committee requests the Government to provide additional information in its next report on the mandate and procedure of the tripartite commission in charge of establishing trade union representativeness, and to indicate whether the social partners have questioned the decisions taken by this commission.

Employers’ organizations. In its previous comments, the Committee had noted that the former Labour Law defined an “authorized association of employers” as an association of employers whose members have a minimum of 25 per cent of employees in the economy of the Republic and participate in the gross domestic product of the Republic with a minimum of 25 per cent and that, should no association meet these requirements, employers can participate directly in the conclusion of an agreement. The Committee had requested the Government to take measures to either substantially reduce or repeal the minimum requirements established for defining an “authorized association of employers” so as to allow for the conclusion of collective agreements by employers and employers’ associations in the manner they consider most appropriate. The Committee notes that article 161 of the new Labour Law provides the same definition of the employers’ organizations authorized to conclude general collective agreements. The Committee further notes that the Government indicates in its report that no problems were encountered in practice with these criteria, that only one employers’ association has been registered so far and that no further requests have been submitted. The Committee reiterates its request to the Government to take the necessary measures to either substantially reduce or repeal the minimum requirements established for authorizing an employers’ association to register with the Ministry, so as to allow for the conclusion of collective agreements by employers and employers’ associations in the manner they consider most appropriate.

In addition, the Committee notes that the Government indicates in its report on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that the affiliation of employers’ organizations to international organizations is a prerequisite for them to be considered as being representative at the national level, pursuant to article 12 of the Rulebook on the manner and procedure for registering employers and determining their representation (No. 34/05). The Committee requests the Government to provide a copy of the Rulebook No. 34/05 with its next report.

Registration of collective agreements. In its previous comments, the Committee had noted that the legislation provided for the registration of general and branch collective agreements with the Ministry and that the modalities and method of registration shall be defined by the Ministry. The Committee notes that article 151 of the new Labour Law reiterates that general and branch collective agreements shall be registered with the Ministry, following the procedure established by the Ministry, and that the Ministry shall adopt the regulations for the implementation of the new Labour Law within 12 months from the date of coming into effect of the Law (article 178). The Committee requests the Government to provide with its next report a copy of the implementing regulations of article 151 of the Labour Law.

Furthermore, the Committee had noted that pursuant to the legislation, the modalities for the publication of enterprise collective agreements shall be established in the agreements themselves. The Committee notes that the same is provided by article 151(4) of the new Labour Law. It also notes that the Government indicates in its report that this provision does not, in practice, raise problems of application.

Finally, in its previous comments, the Committee, noting that the legislation envisaged various facilities and measures to facilitate collective bargaining, had requested the Government to provide statistical data on the number of collective agreements concluded and their coverage. The Committee notes that the Government indicates in its report that 17 branch collective agreements have been concluded so far, that the list of the sectors covered by these agreements is attached to the report, that amendments to 14 other branch collective agreements have been registered and that since the collective agreements concluded directly with the employer do not have to be registered with the Ministry, no data is available on these agreements.

The Committee reminds the Government that the technical assistance of the Office remains at its disposal, if it so wishes, as regards the legal issues raised in this request.