Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

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

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.