Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Termination of Employment Convention, 1982 (No. 158) - Montenegro (Ratification: 2006)

Observations from the International Organisation of Employers (IOE). The Committee notes the communication of August 2014 whereby the International Organisation of Employers (IOE) included Montenegro in its observations concerning the application of the Convention.

Application of the Convention in practice. The Committee notes the detailed information provided on the activities of the Agency for the Peaceful Settlement of Labour Disputes. It notes in particular that parties have addressed the Agency on a wide range of termination of employment issues, including on the failure to submit medical certificates during maternity leave, unexcused absence from work for several days in a row, abuse of sick leave, violation of working discipline, and other issues. The Government indicates that the Agency positively solved such disputes in many cases. The Committee invites the Government to continue to provide information on the manner in which the Convention is applied in practice, including, for example, information on the activities of the Agency for the Peaceful Settlement of Labour Disputes and of the courts (such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided) and on the number of terminations for economic or similar reasons.

Article 2(3). Adequate safeguards. The Committee notes that parties have addressed the Agency for the Peaceful Settlement of Labour Disputes on the occasion of fictitious termination of employment, that is, in situations where following the expiry of the employment contract, the employer does not extend the contract, but instead decides to refer the employee to a temporary employment agency. The previous employer subsequently obtains the services of that employee, but now as the “user enterprise”. The Government indicates that the result of this action, allowed by the Labour Law, is confusion among employees who have addressed the Agency, because they continue to work with the same employer, performing the same work and under the same conditions, virtually without interruption, whereas in fact they are employed by a temporary employment agency. The Committee invites the Government to provide information on the measures envisaged to ensure that safeguards against abusive recourse to contracts of employment for a specified period of time are implemented (see in this connection Paragraph 3 of the Termination of Employment Recommendation, 1982 (No. 166)).

Article 2(4) and (6) of the Convention. Exclusions. The Government indicates in its report that the number of foreign workers being employed for seasonal jobs in Montenegro has been constantly increasing in recent years. The Committee notes in this regard that 14,516 work permits for the employment of foreigners were issued in 2010; 19,455 in 2011; 20,650 in 2012; and 22,492 in 2013. The Government adds that the new Law on Foreigners, which is being prepared, provides for a single procedure of issuing work and residence permits. The Committee invites the Government to continue to provide information on the number of workers excluded from the protection afforded by the Convention, including foreign workers with temporary residence in Montenegro, and the extent to which effect has been given or is proposed to be given to the Convention in respect of such workers.

Article 11. Serious misconduct. The Government again refers to section 143 of the Labour Law and indicates that the labour inspection has no power to review the legality of cases where a worker was dismissed due to his or her serious misconduct. Separate records in which workers were dismissed for that reason are not kept. The Government adds that reviewing the legality of such a termination is the exclusive right of the competent court. The Committee invites the Government to provide examples of court rulings concerning serious misconduct.