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

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

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.