Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

The Committee notes the observations of the Union of Free Trade Unions of Montenegro (UFTUM) received on 31 August 2021, alleging lack of adequate protection against acts of anti-union discrimination in practice. The Committee requests the Government to provide its comments thereon.

The Committee notes the adoption of the Law on the Representativeness of Trade Unions (2018), the Labour Law (2019), the Rulebook on the Registration of Representative Trade Union Organizations (2019) and the General Collective Agreement (2019), as well as the Government’s indication that there have been no changes in legislative or other measures that significantly affect the application of the Convention. The Government adds that the Committee’s previous comments were presented to the tripartite working group which drafted the Labour Law and were largely respected and that further amendments to the Labour Law are foreseen for which the technical assistance of the Office would be useful.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comment, the Committee requested the Government to pursue its efforts to amend the legislation so as to ensure the provision of sufficiently dissuasive sanctions for acts of anti-union discrimination against union members and officials. The Committee notes the Government’s indication that: (i) section 189 of the new Labour Law prescribes voluntary membership in a trade union or employers’ association and stipulates that no one can be placed in a less favourable position due to membership in such organizations and participation or failure to participate in their activities; (ii) section 7 prohibits direct and indirect discrimination against persons seeking employment, as well as employees, on the ground of, among others, trade union membership; (iii) section 8 details what constitutes direct and indirect discrimination; (iv) section 13 prohibits discrimination on the basis of membership and participation in organizations of employees and employers; and (v) section 209(1)(1) stipulates fines for violations of sections 7, 8 and 13 by a legal entity in the amount of EUR 1’000 to 10’000. The Committee also observes that a fine ranging from EUR 100 to 1,000 shall be imposed on the responsible person in the legal entity for violations of sections 7, 8 and 13 (section 209(2)). It further notes that section 173(5) stipulates that acting as a representative of employees in line with the law does not constitute a justified reason for termination of employment, that section 196 provides protection against anti-union discrimination against trade union representatives during their mandate, as well as six months after its termination, and that section 180(5) stipulates the possibility of reinstatement and compensation in case of illegal dismissal. The Committee notes with satisfaction the adoption of the above provisions. The Committee observes, however, the concerns raised by the UFTUM in this respect, alleging lack of adequate protection against acts of anti-union discrimination in practice, in particular numerous cases of discrimination against trade union representatives and the absence of prosecution of employers. In view of the above, the Committee requests the Government to provide information on the practical application of section 209(1)(1) of the Labour Law concerning anti-union discrimination cases, in particular the type of violations identified, the nature of the remedies and the amount of the fines imposed.

Article 2. Adequate protection against acts of interference. In its previous comment, the Committee requested the Government to take measures to adopt specific legislative provisions prohibiting acts of interference by the employer or employers’ organizations and making express provision for rapid appeal procedures, accompanied with effective and sufficiently dissuasive sanctions. The Committee notes the Government’s statement in this regard that, under section 197(1) of the Labour Law, the employer is obliged to provide employees with the free exercise of trade union rights and that freedom of trade union organization creates positive and negative obligations for the employer towards the trade union: the positive obligation is to provide conditions for trade union work and to sanction all persons who prevent or hinder trade union activities, whereas the negative obligation implies the absence of any administrative or other barriers by the employer that could prevent or hinder the exercise of trade union rights. The Government adds that the Law on the Representativeness of Trade Unions prescribes general conditions for determining the representativeness of trade unions, which include independence from public authorities, employers and political parties, and it clarifies that in order to establish a quality social dialogue, it is essential to ensure the independence of trade unions from public authorities, employers and political parties. While taking due note of the general obligations of the employer vis-à-vis trade unions and the importance of trade union independence invoked by the Government, the Committee observes that the Government does not point to provisions which provide specific protection against acts of interference by employers or employers’ organizations in the establishment, functioning and administration of trade unions, and vice versa, as established in Article 2(2) of the Convention, in particular acts 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 therefore reiterates its request to the Government to take measures to adopt specific legislative provisions prohibiting acts of interference by the employer or employers’ organizations as established 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. General Collective Agreement. The Committee previously requested the Government to take measures to amend sections 149 and 150 of the Labour Law so as to ensure that the Government may only participate in the negotiation of a general collective agreement on issues linked to the minimum wage and that matters relating to other terms of employment are subject only to bipartite collective bargaining between employers and their organizations and workers’ organizations. The Committee notes the Government’s indication that many issues previously regulated by the General Collective Agreement (certain rights concerning the employment relationship, salaries, disciplinary responsibilities, termination of the employment contract and conditions for trade union activities) are now governed by the Labour Law and that the General Collective Agreement will thus mainly contain provisions relating to the determination of wages and the calculation of salaries. The Committee observes however the Government’s statement that the General Collective Agreement will also regulate other issues (such as the limitation of overtime work, and increases in annual leave and unpaid leave) in some sectors where branch collective agreements have not been concluded so as to protect the rights of employees (the banking and trade sectors). The Committee further notes that, under section 183 of the revised Labour Law, a general collective agreement defines, in addition to elements for the determination of wages, also the scope of the rights and obligations arising out of employment and that section 184(1) provides for the Government’s participation in the conclusion of a general collective agreement. While emphasizing the importance and relevance of concertation between the Government and the social partners on matters of common interest, the Committee recalls that the Convention tends essentially to promote bipartite negotiation and to limit the participation of public authorities to issues which are broad in scope, such as the formulation of legislation and economic or social policy, or the fixing of the minimum wage rate. The Committee therefore once again requests the Government to take, in consultation with the social partners, the necessary measures to amend the relevant provisions of the Labour Law to ensure that the general collective agreements are concluded in full compliance with the Convention.

Representativeness of employers’ federations. In its previous comments, the Committee requested the Government to take measures to either substantially reduce or repeal the minimum requirements for an employers’ federation to be considered as representative (under the current legislation, it must 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). While taking due note of the Government’s indication that the tripartite working group that drafted the Labour Law agreed to retain the current legal provision and that, as a result, the conditions for determining the representativeness of employers’ associations have not been changed (section 198 of the revised Labour Law), the Committee wishes to recall that the requirement of too high a percentage for representativeness to be authorized to engage in collective bargaining may hamper the promotion and development of free and voluntary collective bargaining within the meaning of the Convention. The Committee therefore invites the Government to continue to assess, together with the social partners, whether the current minimum requirements for representativeness of employers’ associations continue to be adapted to the specific characteristics of the country’s industrial relations system, with a view to ensuring the promotion and development of free and voluntary collective bargaining.

The Committee also previously noted that the affiliation of employers’ associations to international or regional employers’ confederations was a prerequisite for them to be considered as being representative at the national level and requested the Government to pursue consultations with the social partners concerned to ensure that the prerequisites for employers’ organizations to bargain at the national level are in line with the Convention. The Committee notes the Government’s indication that, while the Rulebook on the manner and procedure of registration of employers’ associations and detailed criteria for determining the representativeness of authorized employers’ associations (2005) is still in force, further amendments to the Labour Law and the Rulebook should be made in 2022, in particular to create a complete legal basis for the procedure of establishing the representativeness, the manner and the procedure for registration of employers’ associations, as well as detailed criteria for determining their representativeness. Welcoming this information, as well as the Government’s indication that the Committee’s comments will be presented to the tripartite working group so as to achieve full compliance with the Convention, the Committee recalls once again that, for an employers’ association to be able to negotiate a collective agreement, it should be sufficient to establish that it is sufficiently representative at the appropriate level, regardless of its international or regional affiliation or non-affiliation. In line with the above, the Committee requests the Government to take the necessary measures, including in the context of the upcoming Labour Law reform and in consultation with the social partners, to ensure that the prerequisites for employers’ organizations to bargain at the national level are in line with the Convention, in particular with regard to their freedom to affiliate or not to affiliate with international or regional organizations.

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.