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

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

COVID-19 pandemic. Termination of employment. The Committee invites the Government to provide information in its next report on the impact of the global COVID-19 pandemic on the application of the Convention.

Article 2(3) of the Convention. Adequate safeguards. In its previous comments, the Committee noted the practice of “fictitious” termination of employment contracts, in which, following the expiration of an employee’s contract of employment, the employer declines to extend it, instead referring the employee to a temporary employment agency, who in turn hires out the services of the employee to the same employer (now characterized as a “user enterprise”). In its prior report, the Government indicated that this practice was giving rise to confusion among employees who brought claims before the Agency for the Peaceful Resolution of Labour Disputes. The Government reports that the new Labour Act (“the 2020 Act”) introduced by Law No. 74/2019, entered into force in Montenegro on 8 January 2020, and that it takes into account the Committee's previous comments on the protection of workers employed by temporary employment agencies. The Committee notes with interest the provisions set out in section 51(4), subsections 2 through 4 of the new Labour Act, which prohibit agreements between the temporary employment agency and the user enterprise for the assignment of employees where they entail: assigning an employee to perform jobs which were declared redundant in the previous six months; assigning an employee who has already been engaged by the user enterprise under an assignment agreement for a period of 24 months; and assigning an employee who has been employed by the user enterprise over the past 24 months. The Government adds that, pursuant to this provision, if such an employee is assigned to a user enterprise after working for the same enterprise (as the former employer) for a period of 24 months, the employee would be entitled to conclude an employment contract with the employer for an indefinite period. The Committee requests the Government to provide information on the manner in which the provisions of the new Labour Act are applied, and their impact on the practice of fictitious terminations as well as on claims brought before the Agency for the Peaceful Resolution of Labour Disputes and the courts.

Article 2(4) and (6). Exclusions. The Committee recalls that foreign workers with temporary residence in Montenegro were previously excluded from coverage under the Convention, pursuant to the Act on the Employment and Work of Foreign Citizens, 2008. It notes in this regard that the 2008 Act was repealed by the Act on Employment and Work of Foreigners, 2016. The Government reports that the 2020 Labour Act applies to all employees, including foreign citizens and stateless persons working with an employer in Montenegro (section 2) and prohibits direct and indirect discrimination on all grounds, including on the basis of nationality (section 7). The Committee welcomes the provisions in the new Labour Act ensuring that all employees, including foreign citizens, enjoy equal protection against unjustified dismissal.

Article 11. Serious misconduct. In response to the Committee’s previous request, the Government indicates that, in the past two years, Montenegrin courts have examined 26 cases reviewing the legality of dismissals for serious misconduct. The Committee notes the Government’s indication that it plans to implement a new judiciary information system (ISP), to replace the existing system (PRIS) to enable the identification of specific types of disputes and thereby improve data collection as well as reporting on the application of international labour standards. Noting that the judicial order referred to by the Government is not attached in its report, the Committee reiterates its request that the Government provide copies of judicial decisions addressing the legality of terminations for serious misconduct.

Application of the Convention in practice. The Committee notes the updated information provided by the Government on the activities of the Agency for the Peaceful Settlement of Labour Disputes. The Government indicates that, in the period from 1 July 2016 to 1 July 2019, 419 claims alleging illegal termination of employment were brought before the Agency. The Committee notes that the majority of the claims – 89 per cent – were resolved by agreement of the parties, 2 per cent of the claims were withdrawn and 9 per cent were suspended. The Committee notes that the dispute settlement procedures provided by the Agency are generally completed in 45 to 65 days. The Committee requests the Government to continue to provide detailed updated information on the manner in which the Convention is applied in practice, including on the number of terminations for economic or similar reasons, the type and number of claims brought before the courts as well as before the Agency for the Peaceful Settlement of Labour Disputes relating to the principles set out in the Convention and their outcomes.

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

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.

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

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.

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the Government’s first report on the application of the Convention, received in November 2011. It also notes the amendments to the Labour Law adopted in November 2011 and the English version of the consolidated Labour Law kindly supplied by the Government to the ILO Office in Budapest. The Committee invites the Government to provide information on the manner in which the Convention is applied in practice, including, for example, available statistics on the activities of the Agency for 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 (Parts IV and V of the report form). The Committee would also welcome receiving further clarification with respect to the application of the Convention, as detailed below.

Article 2(4) and (6) of the Convention. Exclusions. The Government indicates that foreigners with temporary residence in Montenegro who are employed for a specified period of time, in accordance with the Law on employment and work of foreigners, are exempted from the scope of the Convention. The Committee invites the Government to provide in its next report information on the number of workers excluded from the protection afforded by the Convention and any changes that may have occurred in law and practice regarding foreign workers with temporary residence in Montenegro.

Article 11. Serious misconduct. The Committee notes that, according to section 143 of the Labour Law, the employer may not respect the period of notice in case of the worker’s failure to comply with the employment obligations or the impossibility to continue working with the worker due to his/her conduct. The Committee invites the Government to provide information on cases where the worker was found guilty of serious misconduct.

[The Government is asked to reply in detail to the present comments in 2014.]

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the communication from the New Trade Union of Radio and Television of Montenegro regarding the Convention, received in October 2009. The Committee also notes that the communication was forwarded to the Government in December 2009. The communication deals with a single employment termination case. The Committee invites the Government to provide the court decision on this case, or any other relevant court decisions giving effect to the provisions of the Convention, in its first report due in 2011, in accordance with article 22 of the ILO Constitution.