Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

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

Article 2(3) of the Convention. Adequate safeguards. In its previous comments, the Committee noted that parties had addressed the Agency for the Peaceful Resolution of Labour Disputes with regard to “fictitious” termination of employment contracts, a practice in which, following the expiration of the employment contract, the employer declines to extend the contract, instead referring the employee to a temporary employment agency who in turn hires out the services of the employee to the same employer (now a “user enterprise”). The Government indicated that this practice, allowed under the Labour Law, gives rise to confusion among employees who bring disputes before the Agency. While the employees continue to work with the same employer, performing the same work under the same conditions, virtually without interruption, in fact they are no longer employed by the employer, but rather by a temporary employment agency. The Committee therefore invited the Government to provide information on the safeguards against abusive recourse to contracts of employment for a specified period of time. In its response, the Government provides information regarding the Rulebook on the conditions, manner and procedure for granting and revoking licences, indicating that these are issued by the Ministry of Labour and Social Welfare. The Ministry may revoke the agency’s licence if it determines that the temporary employment agency is not performing the activity for which it was established, or does not comply with the requirements of the Rulebook. The Committee notes the Government’s indication that, from 2012 to 2015, 18 temporary employment agency licences were granted. During the same period, no temporary employment agency licences were revoked. It further notes that a revision of the Labour Law which addresses, inter alia, temporary employment agencies, is being undertaken by a tripartite working group, with ILO assistance. Referring to its previous comments, the Committee once again requests the Government to provide information on the measures taken or envisaged to ensure that adequate safeguards exist against recourse to contracts of employment for a specified period of time, the aim of which is to avoid the protection resulting from the Convention (see in this connection Paragraph 3 of the Termination of Employment Recommendation, 1982 (No. 166)), particularly as regards the situation of workers who, following the expiry of their employment contract, are referred to temporary employment agencies, but continue to perform the same or similar work for their former employer.

Article 2(4) and (6). Exclusions. The Committee notes the continued increase in the number of foreign workers being employed for temporary work in Montenegro. The Government indicates that 23,061 work permits for foreigners were issued by the Employment Agency of Montenegro in 2014. From 1 April 2015, when the Law on Foreigners entered into force, through 31 December 2015, 8,429 temporary work and residence permits were issued to foreigners. Pursuant to the Law, the Ministry of the Interior is now charged with issuing such permits. Noting that foreign workers with temporary residence in Montenegro are excluded from coverage under the Convention, the Committee requests the Government to provide information on the nature and extent of protection from unjustified dismissal afforded to such workers.

Article 11. Serious misconduct. The Committee recalls the Government’s indication in its previous report that labour inspectors have no power to review the legality of dismissals for serious conduct, and that reviewing the legality of a termination for serious misconduct is the exclusive right of the competent court. Noting that the Government’s report contains no information in response to its previous comments, the Committee reiterates its request that the Government provide examples of judicial decisions addressing terminations for serious misconduct.

Application of the Convention in practice. The Committee notes the information provided by the Government on the activities of the Agency for the Peaceful Settlement of Labour Disputes. The Government indicates that 586 claims relating to illegal termination of employment were brought before the Agency, and that the majority – 65.7 per cent – were resolved by consent of the parties. The Committee notes that the dispute settlement procedures provided by the Agency generally last 40 to 60 days, whereas court proceedings take an average of 555 days. The Government indicates that from 1 January to 30 June 2016, six complaints for termination of employment were lodged with the courts. The Committee requests the Government to continue to provide updated information on the manner in which the Convention is applied in practice, including on the number of terminations for economic or similar reasons.