Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - North Macedonia (Ratification: 1991)

Previous comment

The Committee recalls the 2021 observations of the Confederation of Free Trade Unions of Macedonia (KSS), alleging restrictions on the right to strike in the education sector, the failure to transfer to trade unions the dues withheld by the employers, as well as pressure on workers to leave their trade unions. The Committee addresses some of these allegations below and notes that these issues were also raised and discussed during the Direct Contacts Mission (DCM) on the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which took place from 3–6 October 2023, pursuant to a request by the Committee on the Application of Standards in June 2023.

Articles 2 and 9 of the Convention. Scope of application. In its previous comments, the Committee had noted that, pursuant to article 37 of the Constitution, the conditions for exercising the right to union organization in “administrative bodies” (in addition to the police and the armed forces) can be limited by law and that these “administrative bodies” included ministries, other state administration bodies and administrative organizations. The Committee requested the Government to take the necessary measures to amend article 37 of the Constitution to eliminate the possibility for the law to restrict the conditions for the exercise of the right to trade union organization in administrative bodies. The Committee notes the Government’s indication that it will notify the Parliament in case of possible amendments to the Constitution in the future and that the Committee’s comments shall be taken into account. Recalling once again that under the Convention only the armed forces and the police may be subject to limitations concerning the enjoyment of the guarantees provided by the Convention, as well as the need to ensure conformity of national constitutional provisions with the Convention, the Committee urges the Government to take the necessary measures to ensure that article 37 of the Constitution is amended accordingly. The Committee requests the Government to provide information on developments in this regard.

Article 3. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments the Committee had noted that, under the Law on Public Enterprises and the Law on Employees in the Public Sector: (1) employees in the public sector are obliged to provide minimum services in the event of strikes, taking into account the rights and interests of citizens and legal entities; and (2) the head of the respective institution determines the performance of the institutional activities of public interest that are to be maintained during a strike, the manner in which the minimum service will be carried out and the number of employees that will provide services during the strike. In this respect, the Committee had recalled that the maintenance of minimum services in the event of strikes should only be possible in the following situations: (i) in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (ii) other services in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population; (iii) in public services of fundamental importance; and (iv) to ensure the security of facilities and the maintenance of equipment. The Committee had further recalled that minimum services imposed should meet at least two requirements: (i) they must genuinely and exclusively be minimum services, that is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear; and (ii) since this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. The Committee had requested the Government to amend the legislation so as to ensure that the determination of minimum services in public enterprises conformed with the situations described above, and to provide further information concerning such determination in practice (in particular as to the types of activities, and percentage of employees in those activities, that have been affected by a determination of minimum services, as well as the possibility for employee organizations to participate in the definition of minimum services).

The Committee notes the Government’s indication that to regulate the participation of trade union representatives in the definition of minimum services during a strike, the Government and the Trade Union of Workers from the Administration, Judicial Bodies and Citizens’ Associations of the Republic of Macedonia (UPOZ) signed a Branch Collective Agreement for the State Administration Bodies. According to the Government, pursuant to article 35 paragraph 6 of the Collective Agreement, the employer together with the UPOZ President shall agree on the rules to determine the list of public interest activities which cannot be interrupted during a strike, the number of employees who will perform their duties during a strike, as well as the way of providing conditions for the exercise of the right to strike. According to paragraph 7 of the same article, in the absence of an agreement, only the tasks that must not be interrupted during a strike, i.e. the termination of which would cause disproportionate damage to the state, citizens and the employer and which could not be compensated by any additional measure or activity after the end of the strike, will be maintained. The Committee requests the Government to clarify the application in practice of the above-mentioned paragraph 7 on the determination of minimum service in the absence of an agreement by the social partners.It further once again requests the Government to provide information on the types of activities, and percentage of employees in those activities, that have been affected by a determination of minimum services. While welcoming that currently, a Branch Collective Agreement regulates the determination of minimum services in consultation with the relevant trade union, the Committee once again requests the Government to amend the relevant legislation so as to bring it into conformity with the Convention. The Committee requests the Government to provide information on developments in this regard.

The Committee recalls that it had previously requested the Government to amend section 38(7) of the Law on Primary Education and section 25(2) of the Law on Secondary Education, which oblige the school directors to provide for the realization of educational activities by replacing the striking employees when the educational activity is interrupted due to a strike. The Committee notes the Government’s indication that while it has not yet amended the above-mentioned legislation, in practice, these provisions were not referred to during the education strike in April 2022 organized by the Trade Union for Education, Science and Culture and no substitute workers were used. The Committee further notes the Government’s commitment to remove the above provisions during the next amendments to the Law on Primary Education and the Law on Secondary Education. The Committee expects the Government to proceed without further delay to amending theLaw on Primary Education and the Law on Secondary Education, so as to remove the possibility of replacing striking workers and to enable workers in the primary and secondary education sectors to effectively exercise their right to strike. The Committee requests the Government to provide a copy of the amended legal texts once adopted.

Law on Labour Relations. The Committee notes the Government’s indication that the preparation of the new Law on Labour Relations is underway, and that representatives from all trade unions and employers’ associations are involved. The Committee notes from the report of the DCM that under that Law, in order to obtain legal personality, enterprise level trade unions need to obtain an approval from a higher-level union and that this restriction negatively impacts the rights and interests of enterprise level trade unions. The Committee recalls that by virtue of Article 7 of the Convention, the acquisition of legal personality cannot be made subject to conditions of such a character as to restrict the application of Articles 2,3 and 4 of the Convention. The Committee expects that, in the context of the review of the Law on Labour Relations, the Government will take the necessary measures to bring its legislation into conformity with the Convention in line with the preceding comments and requests it to provide information on any developments, including a copy of the revised Law on Labour Relations once adopted.