Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Montenegro (Ratification: 2006)

The Committee notes the observations made by the International Trade Union Confederation (ITUC) in a communication received on 4 August 2011, and the Government’s comments thereon.

Article 1 of the Convention. Protection against anti-union discrimination. The Committee previously noted that the new Labour Act enshrines: (i) protection against acts of direct and indirect discrimination of persons seeking employment and employed persons on the ground of membership in trade union organizations (sections 5–10); and (ii) protection against acts of anti-union discrimination of trade union representatives up to six months after termination of trade union activities (section 160). The Committee noted however that section 172, which imposes strong fines for various infringements by employers (including failure to provide employees with free exercise of trade union rights, or the union with conditions for exercising trade union rights), does not provide for fines in cases of acts of discrimination prohibited under sections 5–10 and 160, and requested the Government to take the necessary measures to amend the legislation so as to ensure sufficiently dissuasive sanctions against acts of anti-union discrimination linked to the performance of legitimate trade union activities. In the absence of additional information provided by the Government, the Committee reiterates that the Labour Act neither provides for fines in case of the acts of anti-union discrimination against workers due to their trade union membership (sections 5–10), nor against trade union representatives (section 160). Recalling that legal standards on protection against acts of anti-union discrimination are inadequate if they are not accompanied by sufficiently dissuasive sanctions and effective and expeditious procedures to ensure their application in practice, the Committee requests the Government once again to take the necessary measures to amend the legislation so as to ensure sufficiently dissuasive sanctions – including dissuasive fines – for acts of anti-union discrimination against union members and officials on grounds of trade union membership or legitimate trade union activities.

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. The Committee notes once again sections 154 and 159 of the Labour Act mentioned by the Government as well as the Government’s reference to sections 53 and 54 of the General Collective Agreement of 2014, according to which employers are required to guarantee the respect of the right to participation in trade union activities at the local, national and international levels; the inviolability of trade union funds, property, premises, correspondence and telephone conversations; and the access of media to trade union premises. While noting that the new Labour Act and the General Collective Agreement cover certain acts of interference by the employer, the Committee observes that the provisions do not specifically cover acts of interference designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to place workers’ organizations under the control of employers or employers’ organizations through financial or other means. The Committee requests the Government to take measures to adopt specific legislative provisions prohibiting such acts of interference on the part of the employer or employers’ organizations as defined in Article 2(2) of the Convention and making express provision for rapid appeal procedures, accompanied with effective and sufficiently dissuasive sanctions.

Article 4. Promotion of collective bargaining. The Committee had previously requested the Government to: (i) take the necessary measures to amend sections 149 and 150 of the new Labour Act 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 of employment; and (ii) provide information on any developments regarding the promotion of collective bargaining in the public and private sectors. The Committee notes the information supplied by the Government concerning the seminar on promotion of social dialogue held in March 2014. As to the Government’s reference to the 2011 amendments of sections 149 and 150 of the Labour Act, the Committee observes that the amendments did not address the issues raised in its previous comment, and that the 2014 General Collective Agreement was concluded between the Government, the representative national employers’ association and the representative national trade union organizations and deals, in addition to salary, fringe benefits and other remuneration, with terms of employment such as annual leave and termination of employment.

The Committee once again 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 of employment should take place in a bipartite context and the parties should enjoy full autonomy in this regard. The Committee requests the Government to take the necessary measures to amend sections 149 and 150 of the Labour Act so as to ensure that the Government may solely participate in the negotiation of a general collective agreement that is limited to issues linked to the minimum wage, and that the matters relating to other terms of employment are subject to bipartite collective bargaining between employers and their organizations and workers’ organizations.

Rights of trade unions according to their representativeness. The Committee had previously requested the Government to provide information on the rights of trade unions with no representative status to negotiate on behalf of their members, when there is no union which fulfils the representativeness requirements at the level of the enterprise. The Committee notes the Government’s indication that trade unions without representative status enjoy all rights under the Labour Act; but do not enjoy the rights granted by section 5 of the Act on trade union representativeness including the right to collective bargaining. The Committee observes that section 13 of the latter Act as amended provides that if there are two or more representative trade unions at an appropriate level for which representativeness has been determined under the law, all trade unions shall have the rights referred to in section 5. The Committee further observes that trade unions without representative status do not enjoy the right to collective bargaining but may merge for the purpose of fulfilling the representativeness requirements (section 14 of the Act on trade union representativeness).

Determination of trade union representativeness. As regards the procedure for the determination of representativeness at the enterprise level, the Committee previously noted that sections 15, 17 and 18 of the Act refer to various powers of a certain “director”, for example, the power to establish a commission for determining the representativeness of trade unions and to decide on the representativeness at the proposal of the commission. The Committee had requested the Government to provide information as to the authority that this “director” represents, as well as on the mandate and procedure of the aforesaid commission. The Committee notes that the Government merely cites in its report sections 15–18 as last amended, and provides statistics and a list of representative trade unions at national and branch levels, as well as the number of appeals (three) filed with the board for determining representativeness pursuant to section 18. The Committee requests the Government once again to clarify the term “director” used in these provisions. Noting that section 17 of the Act on trade union representativeness as amended refers to the rules of procedure of the commission, the Committee requests the Government to provide a copy, as well as additional information on the mandate and procedure of the abovementioned board.

Conditions for trade union representativeness. The Committee notes that the condition for trade unions to be able to bargain collectively at branch level is to affiliate a minimum of 15 per cent of the total number of workers employed in the relevant economic sector. The Committee considers that the required percentage could hamper the exercise of collective bargaining and requests the Government to consider reducing the threshold, in consultation with the most representative employers’ and workers’ organizations.

Representativeness of employers’ federations. In its previous comments, the Committee had noted that section 161 of the Labour Act provides that an employers’ federation shall be considered as representative if its members employ a minimum of 25 per cent of employees in the economy of Montenegro and participate in the gross domestic product of Montenegro with a minimum of 25 per cent and that, should no association meet these requirements, employers may make an agreement to participate directly in the conclusion of a collective agreement. The Committee had requested the Government to take measures to either substantially reduce or repeal these minimums. Noting that the Government merely reiterates the above provision, the Committee requests the Government once again to take all necessary measures to either substantially reduce or repeal the minimum requirements established for an employers’ association to be considered as representative, so as to allow for the conclusion of collective agreements by employers and employers’ associations.

In addition, the Committee notes the Rulebook on the manner and procedure for registering employers and determining their representation (No. 34/05) supplied by the Government, and in particular that, according to its section 12, the affiliation of employers’ associations to international or regional employers’ confederations is a prerequisite for them to be considered as being representative at the national level. The Committee considers that, for an employers’ association to be able to negotiate a collective agreement, it should suffice to establish that it is sufficiently representative at the appropriate level, regardless of its international or regional affiliation or non-affiliation. The Committee requests the Government to take measures to amend Rulebook No. 34/05 in this regard.

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 observation.

The Committee is raising other matters in a request addressed directly to the Government.