Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Workers with Family Responsibilities Convention, 1981 (No. 156) - Montenegro (Ratification: 2006)

The Committee notes the Government’s first report.

Article 2 of the Convention. Application to all categories of workers. The Committee notes that according to section 2 of Labour Law No. 49/08, various measures provided by the Labour Law apply to employees in the private and public sectors, the employees sent to work abroad, as well as the employed foreign citizens and persons without citizenship working in Montenegro. The Committee also notes the Government’s indication that the measures giving effect to the Convention apply to all branches of economic activity, however, it is not clear if legislation implementing the Convention applies to all categories of workers. The Committee asks the Government to indicate if the legislation implementing the Convention applies to all categories of workers, as provided for under Article 2 of the Convention.

Article 3. National policy. The Committee notes that sections 5, 6 and 7 of the Labour Law define and prohibit direct and indirect discrimination in employment based on a number of grounds, including sex, pregnancy, marital status and family duties. The Committee also notes sections 18–21 of the Law on Gender Equality, No. 46/07, which provide for the adoption of an overall Action Plan for achieving gender equality. According to section 4.5.E. of the Action Plan for the Achievement of Gender Equality in Montenegro (2008–12), reconciliation of professional and family life is one of the goals. The goal is to establish a system in which the reconciliation of professional and family life enables women and men to be professionally active and to participate in public and political life, while at the same time fulfilling their family obligations. The Committee asks the Government to provide information on the implementation of section 4.5.E. of the Action Plan for the Achievement of Gender Equality in Montenegro (2008–12), which sets the goal of establishing the system of reconciling professional and family life, and any other measures taken to promote a sharing of family responsibilities between men and women, as well as the results achieved by such measures.

Article 4. Leave entitlements for men and women workers with family responsibilities. The Committee notes the various measures taken under the Labour Law No. 49/08. In particular, in the case of adoption, one of the adoptive parents of a child under the age of eight has the right to be absent from work for childcare with wage compensation (for up to one year) (section 116). The Committee also notes that one of the parents has the right to be absent from work, without wage compensation, for childcare until the child turns three years of age. However, if the parent stops using this right prior to expiration of the three-year period, he or she is no longer entitled to continue to use it (section 118(1) and (4)). The Committee asks the Government to provide statistical information, disaggregated by sex, on the extent to which men and women workers make use of the leave entitlements under sections 116 and 118 of the Labour Code, respectively, both in the public and private sectors. It also asks the Government to provide information on any measures taken with regard to other immediate family members.

The Committee notes that an employed woman has the right to take maternity leave (up to 365 days) (section 111(1)); however, if she starts working prior to the expiration of that time, she is not entitled to continue to use her maternity leave at a later time (section 111(5)). During the period of maternity leave provided for under section 111(1), a father may use the right to parental leave with wage compensation. However, such right is limited only to cases when a mother abandons the child, dies or is prevented to exercise that right due to other justified reasons, including serving a sentence of imprisonment, and serious illness (section 111(6)). The Committee draws the Government’s attention to the fact that legislation reflecting the assumption that the main responsibility for family care and the household lies with women, thus reinforcing stereotypical attitudes regarding the roles of men and women and existing gender inequality, runs counter to the objectives of the Convention. The Committee therefore considers that the measures taken in favour of workers with family responsibilities must be made available to men and women equally. The Committee asks the Government to indicate any measures taken or envisaged to ensure that such entitlements are available to men and women on an equal footing.

Working time arrangements. The Committee notes that an employed woman during her pregnancy and a woman having a child under three years of age cannot work longer than full-time hours or in night shift (section 110(1)), except an employed woman with a child older than two years of age who can work on night shift with her written consent (section 110(2)). However this right has not been given to employed men with a child under three years of age. In addition, one of the parents of a child having severe development difficulties, or a single parent of a child under seven years of age may work overtime or in night shift only with a written consent (section 110(3)). The Committee also notes that one of the employed parents has the right to work half of the full time hours until the child turns three years of age, if the child needs additional care (section 113(1)); and a parent or adoptive parent with a child with development difficulties is entitled to work half of the full time hours (section 114(1)). The Committee observes that these provisions require additional conditions to be met, such as necessity of additional care or presence of development difficulties, and notes the Government’s indication in this respect that the need for exercising the right to work half of the full working hours is determined by the competent medical commission. The Committee asks the Government to provide information on the practical application of these entitlements, including statistical information, disaggregated by sex, on the number of beneficiaries of the protection against overtime work or night work under section 110, or the right to work half of the full-time hours, under sections 113 and 114 of the Labour Code, respectively. It also asks the Government to provide information on any measures taken or envisaged to ensure that the protection against overtime work or night work under section 110 is available to men and women on an equal footing with family responsibilities.

Social security. The Committee notes that, during the absence from work without wage compensation according to section 118(1) of the Labour Law, an employee must be entitled to health and pension-disability insurance (section 118(2) and (3)). The Committee also notes that the Government’s report does not contain any further information with regard to the measures to take account of the needs of workers with family responsibilities in social security. The Committee asks the Government to provide information on the practical application of section 118(2) and (3) of the Labour Law, as well as any other measures taken or envisaged to take account of the needs of workers with family responsibilities in social security.

Article 5. Childcare and family services and facilities. The Committee notes the Government’s indication that a network of day-care centres has been developed, and that day-care centres for children with developmental disabilities have been established in Bijelo Polje, Niksic, Pljevlja, Herceg Novi, and Ulcinj. The Government also states that preparatory activities for development of facilities in Berane, Cetinje, Bar and Mojkovac are in progress. The Committee asks the Government to provide further information on any measures taken or envisaged to provide adequate childcare and family services and facilities, indicating the progress made in extending coverage of care services and facilities for children without developmental disabilities, and other dependant members of the family, as well as the results achieved thereof.

Article 6. Education for the public. The Committee notes that according to the Action Plan for Gender Equality (2008–12), campaigns will be launched aimed at elimination of cultural and social barriers in order to promote, among fathers, the usage of parental leave for taking care of children. The Committee recalls that Article 6 requires the competent authorities and bodies to take appropriate measures to promote information and education engendering broader public understanding of equality of men and women workers and the problems of workers with family responsibilities, as well as a climate of opinion conducive to overcoming them. The Committee requests the Government to indicate the authorities and bodies responsible for information and education on equality of men and women workers and regarding workers with family responsibilities and to provide detailed and specific information on the action taken by them to promote greater awareness, public understanding and a climate conducive to overcoming existing difficulties for men and women workers with family responsibilities, as well as results achieved by such measures.

Article 7. Integration in the labour force. The Committee notes that section 117(2) of the Labour Law provides that the employer is obliged to assign the employee to adequate positions when he or she has informed the employer of the termination of use of the right to maternity leave or leave due to adoption of a child. The Committee also notes that section 117(3) of the Labour Law provides that a worker who took maternity leave or leave due to adoption is entitled to additional professional training, if there are technological, economic or other changes in the manner of work of the employer. The Committee asks the Government to provide statistical information on the number of employees who return to work after taking maternity leave or leave due to adoption of a child. It also asks the Government to provide information on the practical application, including on the extent to which such training is conducted, and information on who are the beneficiaries of such training. Please also provide information on other measures taken or envisaged to enable male and female workers with family responsibilities to become and remain integrated in the labour force, as well as to re-enter the labour force after an absence due to family responsibilities.

Article 8. Protection against dismissal. The Committee notes that, under the Labour Law, the employer may terminate the employment contract only in the cases listed in section 143. It also notes that the Labour Law provides protection against dismissal or refusal of employment for a pregnant woman, or a female employee who uses the maternity leave (section 108(1)). The protection against dismissal is also provided to a parent who works half time in order to attend to a child with severe development difficulties, a single parent of a child under 7 years of age, or to a parent of a child with severe disability (section 108(2)). It further notes section 108(4) of the Labour Law, which provides that the circumstances referred to in section 108(1) and (2) must not have impact on termination of employment of an employee who concludes a labour contract for a limited period of time. However, the Committee notes that the protection against dismissal is not provided for fathers, adoptive parents or workers with family responsibilities in general, other than those limited cases provided under section 108(2) of the Labour Law. Recalling the sections 5, 6 and 7 of the Labour Law, which provide protection against discrimination based on sex, pregnancy, marital status and family duties, the Committee asks the Government to confirm that the prohibitions of discrimination based on family duties referred to above apply in respect of termination of employment, to indicate the legal remedies in case of discriminatory dismissal, and to provide information on any cases relating to dismissal of workers due to their family responsibilities dealt with by the competent authorities. The Committee also asks the Government to indicate whether any consideration is expressly given to extending, in conformity with the Convention, the protection against dismissal to all workers with family responsibilities, and provide information on any developments in this respect. The Committee further asks the Government to clarify whether protection against dismissal under section 108(1) and (2) applies to fixed term employees.

Article 9. The Committee notes that section 111(7) of the Labour Law refers to the collective agreements in terms of the entitlement to wage compensation during maternity leave. However, the Committee notes that the Government does not provide any information concerning the manner in which the Convention is being applied by means of collective agreements. The Committee asks the Government to supply copies of any provisions in collective bargaining agreements, if available, which would assist workers in reconciling their work and family responsibilities.

Article 10. The Committee notes that Montenegro has apparently not made use of the possibility of applying the Convention in stages.

Article 11. The Committee notes the Government’s indication that social dialogue is conducted in all spheres of social life of importance, among others, both for the position and the rights’ of workers with family responsibilities; accordingly, in the matter of legal regulations, or preparation of laws and regulations, including the Labour Law, the representatives of the employers’ and workers’ organizations are also included in the work of the expert bodies. The Committee requests the Government to provide information on the specific measures taken to promote social dialogue and tripartite cooperation in order to strengthen the laws, measures and policies giving effect to the Convention, and on the manner in which workers’ and employers’ organizations have exercised their right to participate in the design and implementation of such measures, including through collective bargaining and the adoption and implementation of workplace policies on work and family reconciliation.

Parts III to V of the report form. The Committee notes that the Gender Equality Office, which was established in 2003 under the Ministry for Human and Minority Rights, is in charge of gender equality, including monitoring the implementation of international Conventions and adopted standards in the gender equality field, and investigating complaints of citizens about direct or indirect discrimination based on sex. The Committee also notes the Government’s indication that supervision over application of regulations concerning labour relations is conducted by the labour inspectorate under the Ministry of Labour and Social Welfare, and that employed persons can also exercise protection of their rights with the Agency for Amicable Settlement of Labour Disputes and the competent courts. The Government also states that no problems have been identified by the courts regarding the application of the Convention. The Committee asks the Government to provide information on the implementation of the activities by the Gender Equality Office. It also asks the Government to provide information on any related judicial decisions, including termination disputes concerning workers with family responsibilities, and cases of infringement reported to or detected by the labour inspection services, as well as the remedies provided or sanctions imposed.