Caso individual (CAS) - Discusión: 2023, Publicación: 111ª reunión CIT (2023)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Macedonia del Norte (Ratificación : 1991)

Discussion by the Committee

Chairperson – We will now start the second case on our agenda, which is North Macedonia on the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Government representative – After a long period of preparation of the new Law on Labour Relations and after ten public debates that have been carried out across the country, the process is now in the final phase. Before going through the governmental procedure, the draft law will be placed on the electronic national register of regulations, where the public and all the stakeholders will be able to provide their last comments on it.

The draft law was prepared in line with the technical memorandum of the ILO, including the areas of collective bargaining and conclusion of collective agreements. I would like to point out that for the drafting of the law, a broad working group was formed that included representatives from all trade unions regardless of their representativeness. All of them, in this five-year period, were able to contribute to the concept of the draft law, as well as to the conformity of its provisions, in line with their interests. For this process to go as smoothly as possible we received technical assistance from the ILO Office.

We realize that some public enterprises do not act in accordance with the Law on Labour Relations regarding collective bargaining and especially with respect to the legally established protection of trade union representatives and, to this end, we plan to further sensitize the appropriate structures in public enterprises and legal entities. According to the activities planned, the Government plans to work, until the end of 2025, on improving the legal framework for the peaceful resolution of labour disputes as the ILO self-assessment tool, designed for this purpose, highlighted certain weaknesses in several areas of the legislation in this regard. At the same time, special attention will be paid to the area of individual labour disputes, also by further raising awareness about the advantages for both workers and employers in applying this mechanism, taking into account the dismissals of union representatives that can take place.

Also, with the adoption of the new Law on Labour Relations, we plan to have training on its application for labour inspectors and judges, because we consider them as significant in the protection of collective bargaining rights and of trade union representatives. For this, we will again rely on the technical assistance of the ILO that can be obtained.

Finally, in relation to the allegations of the complainant, regarding the Commission for Representativeness and its functioning, the Government’s procedure and information will enable the formation of a new Commission for Representativeness and the adoption of our procedure would make it impossible for a member of the Commission to block its functioning.

Worker members – Convention No. 98 is at the heart of social dialogue in that it enshrines the right to organize and bargain collectively. This Convention recalls the fundamental principle of the need for workers to enjoy adequate protection against all acts of discrimination aimed at undermining freedom of association. It also provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration. However, it has come to our attention that acts of interference in the activities of trade unions have been observed in certain companies, consisting of encouraging certain workers and trade unionists to join another trade union in contravention of the Convention. Article 4 of the Convention provides that measures appropriate to national conditions shall be taken where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. North Macedonia ratified the Convention in 1991. However, we have to note several shortcomings in North Macedonia with regard to the principles enshrined in the Convention, thus raising serious questions as to the conformity of legislation and practice in North Macedonia with the Convention. The Committee of Experts has in the past made 13 observations to the Macedonian Government concerning the application of the Convention, indicating the persistence of the Committee of Experts’ questions about the situation in the country.

The Confederation of Free Trade Unions of Macedonia (KSS), reported a large number of acts of anti-union discrimination in 2021. Numerous dismissals of trade union representatives have been recorded in many sectors. For instance, we were informed of interference by management of a number of companies in mainly state-owned sectors, by pressing workers to change trade union affiliation, to establish a new union, or to stop being active in a trade union. Managers were questioning outcomes of elections and refusing to recognize leaders authorized by trade unions to represent their organization. Check-off facilities of trade union dues were sometimes withdrawn, KSS leaders and members were dismissed or forcibly transferred to other regions far from home.

The court procedures to contest unlawful dismissals of trade union leaders are lengthy and cumbersome, but even when a court rules in favour, the implementation of its decision is not streamlined. However, under the Convention, Member States are under the obligation to take specific measures to ensure the adequate protection of workers against any acts of anti-union discrimination, both at the time of taking up employment and in the course of employment, including at the time of termination of the employment relationship. Such adequate protection is particularly necessary for trade unionists.

The unions also inform about the non-application of collective agreements. The results of collective bargaining do not receive the support of the Government, which does not take the budgetary measures needed to implement these agreements for the public sector, thereby in fact, violating the minimal salary act. In this context, we think it is worth pointing out that the Convention covers all workers and employers and their respective organizations in both the private and public sectors. In true collective bargaining on wages, the parties find the best solutions to mitigate consequences of the Covid, energy and cost of living crises.

Finally, the KSS pointed to the inability of the Commission for Representativeness to rule on its representativeness in the public sector. Although the application was lodged in 2018, the KSS is still faced with the Government’s refusal to recognize its representativeness in the public sector, therefore obstructing the KSS’s full participation in social dialogue and its members’ right to organize collectively, in contravention of the Convention.

The Committee of Experts’ observation also raises the question of the coverage of Macedonian workers by collective bargaining. It appears that the coverage rate is 68.7 per cent in the private sector and 31.35 per cent in the public sector. While not the panacea, the rate of coverage by collective bargaining is a good indicator of the quality of the collective bargaining system applicable in the country. We can only encourage the Government to continue efforts and to take all useful measures to increase the rate of coverage of workers by collective bargaining.

The EU recently adopted a new directive on the promotion of collective bargaining and the adequacy of minimum wages. The directive sets a target of 80 per cent collective bargaining coverage. Below this threshold new Member States will have to put in place an action plan to increase their collective bargaining coverage. As North Macedonia is currently in the process of negotiating its accession to the EU, we can only encourage the Macedonian Government to work as of now, to increase the rate of collective bargaining coverage in the country, in accordance with EU legislation and thus promote development of collective bargaining, as provided for in Article 4 of the Convention. We hope that the EU will support the Government’s efforts to rapidly reach the 80 per cent threshold for collection bargaining coverage.

Research has indicated that countries with highly coordinated collective bargaining, tend to have less inequality in wages, lower and less persistent unemployment and fewer and shorter strikes, than countries where collective bargaining is less established. The low wage exploitative model promoted by North Macedonia has already led to a massive outflow of workers. Nonetheless, instead of improving working conditions, promoting decent salaries and encouraging collective bargaining, the Government is looking to legalize exploitative working environments by making dangerous labour law changes and bypassing national social dialogue mechanisms under pressure from foreign companies. That is not what is expected from the country that adheres to international and European standards. We can, therefore, only encourage the Government to further promote collective bargaining in the country in full compliance with the Convention.

Employer members – We thank the Government of North Macedonia for the information provided in the intervention, of which we have fully taken note. The Employer members stress the importance of States’ compliance with the Convention, which is one of the ten ILO core Conventions. More specifically, we believe that this case is about the essential nurturing of social dialogue, independence of social partners and their ability to exercise the rights provided for in the Convention without interference by the State. This is the first time the case of North Macedonia’s compliance with the Convention is discussed by this Committee. North Macedonia ratified the Convention in 1991. Since then, 13 observations have been issued by the Committee of Experts. This indicates the existence of persistent compliance issues with the obligations set forth in the Convention by the country. The Employer members would like to highlight that the Government has received ILO technical assistance regarding the adoption of the new draft labour law and a special Law on Workers’ and Employers’ Organizations and Collective Bargaining. The Office has provided comments on both.

Before delving into the key issues of this case, let me provide some information on the country’s context. On the political context, presidential elections were held in North Macedonia in spring 2019 and early parliamentary elections in July 2020, which saw the ruling party securing a narrow victory over the main opposition party. Regarding the freedom of association and assembly, such rights are implemented in law by the Constitution. Moreover, the law for citizens’ associations and foundations, which was adopted in 1998 and amended in 2007 and 2009, enables citizens to form and join independent political or civic groups.

Let me now turn to the key issues of this case. The Committee of Experts, in its 2022 observations, identified two main elements of concern regarding North Macedonia’s compliance with the Convention. These issues concern compliance with Article 4 of the Convention.

The Employer members would like to point out that, since 2018, social dialogue is being nurtured and developed. However, the Law on Labour Relations is still not fully harmonized and completed despite six years of negotiations and formal dialogue. Concerning this Law, according to the Government’s information, it was finally decided to include the sections relating to the organization of workers and employers, as well as collective bargaining within its framework. We also take note that, according to the Government, the process of preparing this Law will be finalized. However, we believe that it would be advisable that the process of adoption of the new Law on Labour Relations be accelerated and concluded without undue delay.

We ask the Government to take due account of the comments made by the Office and to ensure that the new Labour Law is developed in line with the Convention. We further request the Government to provide information on any progress made in this regard. On the promotion of collective bargaining in practice, the Employer members take note of the sharp rise in the collective bargaining covered between 2019 and 2021. Notably, for the first quarter of 2021, the State Statistical Office reports that the general collective agreement in the private sector covered nearly 450,000 employees, that is 68.7 per cent of the employees in the country. Furthermore, the general collective agreement in the public sector covered almost 205,000 employees, corresponding to 31.3 per cent of the total number of employees in the country.

In light of this information, we request the Government to:

- first, indicate the factors that have led to this increase;

- second, provide information on the provisions regulating the relationship between general and specific collective agreements in private and public sectors; and

- third, continue providing information on the application of the Convention in practice, including statistical data concerning the number of collective agreements concluded in both public and private sectors and the number of workers covered.

Finally, we take note that, according to the Committee of Experts’ observations, the Government is not responding to a series of allegations made by the KSS in 2021 concerning:

- acts of anti-union discrimination including dismissal, against trade union representatives;

- the non-application of collective agreements by the Ministry of Education, as well as;

- the inability of the Commission for Representativeness to decide on the representativeness of the KSS in the public sector.

We request the Government to provide its comments on these allegations.

Worker member, North Macedonia – The implementation of the Convention is very problematic and under attack by the Government and members of Parliament of the ruling majority given that, with fast-track amendments to the labour law, we now have a 72-hour working week in North Macedonia. The Confederation of Macedonia as the only representative trade union and national social partner was not consulted during the adoption of the special law on determining public interest and nominating a strategic partner for implementation of the project for the construction of the pan-European corridors VIII and X, although it is an obligation according to the ILO Convention concerning labour clauses. It is also an obligation for the Government to consult the representatives of the workers and employers. The Federation of Trade Unions of Macedonia (SSM), has not been consulted or familiarized with the proposed amendments to the Law on Labour Relations. These amendments were submitted to Parliament in a fast-tracked procedure even though a new law on labour relations has been under negotiation for more than five years. During these five years of negotiations, these proposals and fast-track amendments were not considered nor mentioned by the Government

This only indicates to us that the entire negotiation process is fractured and not conducted on honest and correct grounds. But the views of the unions involved in the civil sector and the scientific community in the country are not respected at all, with a single goal to satisfy a foreign consortium to determine not only the situation of the workers but the entire state. Last year, SSM, together with the construction union, SJB, launched an initiative regarding the provisions of the 72-hour working week. For the construction of corridor VIII, this provision was ruled as unconstitutional and illegal by the Constitutional Court of Macedonia.

Section 12 of the Law on determining public interest in nominating a strategic partner for the implementation of the projects of the construction of the infrastructure corridor VIII was denied by the Constitutional Court. SSM and SJP submitted an amendment request to the Minister of Parliament, which was rejected. This was extremely unfair to the workers. A certain group of ministers of Parliament who were worried about the decision of the Constitutional Court in order to avoid the position of the constitutional court proposed the arrangement of such a provision in the Law on Labour Relations labour law relation by which workers will now work 72 hours on average per week, which is a 50 per cent increase in working time with overtime, compared to the current law on working hours of 40 hours per week, eight hours per day. This discredits the Constitution, the laws, collective agreements, decisions of the Constitutional Court, international labour standards, the working time Convention, EU directives and other international documents; it directly violates decent working hours and decent jobs, as one of the greatest benefits of our civilization. At the same time, we use the opportunity to inform you that the Constitutional Court reached decision N4/2022. It did not initiate a procedure for the violation of the constitutionality of the law, amendments and supplements of the Law on Labour Relations.

In relation to the initiative of the Chamber of Commerce concerning Sunday as a non-working day, the unions provided as a workers’ right, from January 2022 and the Constitutional Court decided that the Law on Labour Relations prescribes a favourable solution with a significant impact on the material and social position in the realization of rights of workers.

In relation to the non-working days in the week and the compensations for work on Sundays and holidays, the Government and members of Parliament want to satisfy one foreign employer consortium for business interests, against the lives and health of the workers, which for the unions is illogical, inhumane, extremely unprincipled and contrary to the interests of workers. We pointed out to the Government and the ministers of Parliament that 1 May is marked precisely as a sign of respect for the victims of the strike that took place from 1 May to 4 May in 1886 in Chicago, which was organized in order to introduce an eight-hour working day. With the proposals for the amendments and supplements to the Law on Labour Relations after a short procedure without social dialogue, without consultation, a small group of ministers of Parliament managed to trample the fundamental rights to decent working hours and decent work which dated back to 1886 and put the Macedonian workers back by 157 years.

In the name of solidarity and humanity, we must not allow these amendments to the Law on Labour Relations to prevail. This inhuman provision will take human lives and we have no lives to spare. This is also contrary to our Constitution, under which the workers cannot waive their rights to daily, weekly and annual rest days because this is a fundamental constitutional right that workers must enjoy.

To put salt on an open wound, these amendments to the labour legislation passed in Parliament in a fast-track procedure and the Government put an EU flag on them to ensure they passed even though the European Commission and the EU delegation in North Macedonia openly criticized the Government and were against this flag because there are no EU values in the provisions of the law.

We must not allow anyone to play with the lives and health of workers. SSM and the SJB will therefore use all the mechanisms at their disposal to preserve decent working time, which is a pillar of workers’ rights that has to apply to the Macedonian workers as it applies to EU workers.

At the same time, the Government and Ministry of Labour enacted the regulation that bans the signing of collective agreements with the public sector without exclusive written consent from the Minister of Finance. This is contrary to the labour law, the Constitution of North Macedonia and the ILO Conventions enacted in Macedonia.

Regarding the wage agreements made through the collective agreement, we have been in open negotiations for four years to find a new collective agreement for the workers in the public sector. Since those negotiations started, the Government has increased the salary of every public official in the country by 78 per cent or, to be precise, more than €1,000 per month for public officials, and it still refuses to increase the salaries of the public sector workers.

As the Worker members already stated in their opening statements, we are facing an exodus of public sector workers, who are going to the private sector and into the EU countries.

Interpretation from German: Worker member, Germany – With a distinct sense of unease, we have been monitoring a number of recent events taking place in the Republic of North Macedonia, including the freedom of association and the right to collective bargaining. The Committee of Experts’, in its report, quite rightly calls for the new labour law to be adapted in line with the Convention and to enshrine the rights therein. After five years without any significant progress being made in the reform process, at the end of last month, all of a sudden, profound changes were introduced to the labour legislation, which went in the wrong direction and have caused us grave concerns.

Amendments passed by Parliament on 25 May 2023 allow exceptions to national legislation on maximum working hours, provided they affect the, so-called and unspecified, “national interest”. The timing and the rushed nature of this reform suggest that this is to accelerate the completion of the motorway project by a joint venture with the United States-and Turkey. These construction projects are a key element in the planning of the transport community between the EU and the western Balkan countries. The North Macedonian infrastructure project aims to bring the regions between the Black Sea and the Adriatic Sea closer.

During the legislative process, the trade unions were not substantially involved. The well-established system of tripartite social dialogue, through the Economic and Social Council, has been circumvented by the Government. This is all the more serious because of the fundamental interference in labour law. The new legislation would make it possible in theory for a 72-hour working week, which affects workers in the construction sector. This would call into question the 170-year-old eight-hour working day, which was historically fought and enshrined. We also see that the EU has a responsibility here with these infrastructure projects. They must ensure that there is fair trade union participation. These projects must, under no circumstances, lead to a weakening of fundamental labour laws.

In the case at hand, we see the consequences of the omnipresent shortage of skilled labour. In North Macedonia there is a shortage of 10,000 skilled labourers every year. This is due to the large-scale emigration to the EU Member States and the unsatisfactory working conditions are often pinpointed as a reason for the emigration. A weakening of the rules on the maximum working time also represents a further weakening of labour law.

Furthermore, the EU and its Member States as well as North Macedonia, have a duty to develop a socially responsible workforce policy. We fully support the trade unions in North Macedonia to enjoy their rights in full.

Worker member, Belgium – As a workers’ representative from a country where different trade union organizations coexist, I would like to express my concern at the anti-union discrimination by public officials and public institutions in North Macedonia, in violation of the Convention.

The request for representation of the KSS has been pending before the authorities for several years. De facto, this request has been rejected. The trade union has therefore been refused full participation in national social dialogue, prevented from participating in the economic and social policymaking process, and deprived of the opportunity to represent the interests and promote the rights of its members within national tripartite bodies.

In addition, it has been clearly established that the management of a number of mainly state-owned enterprises have put pressure on workers to change the union they belong to, form a new union or end their activity in a union. Managers have questioned election results. They have refused to recognize leaders authorized by unions to represent their organizations. Mechanisms for the deduction of trade union dues have sometimes been withdrawn. KSS leaders and members have been dismissed or forcibly transferred to other regions, far from their homes. These measures have led to a drastic reduction in the number of KSS members.

It is very concerning that this is happening with the Government’s blessing, as it relates mainly to public enterprises. The information provided by the KSS to the Committee of Experts contains very clear examples of all this interference.

We expect the Government to create the conditions for workers to join or not join any trade union of their free choice, without using coercion and without establishing preferential conditions. We also expect that appropriate inquiries are led into the cases of interference and discrimination, and that the penalties imposed on the perpetrators of this interference will dissuade such behaviour in the public or private sector. Lastly, we expect that the Government will not hamper the participation of the KSS in the national social dialogue by manipulating the procedures for the certification of representativeness.

Government representative – I have some additional explanation regarding the procedure of giving the representativeness certification for KSS. In fact, the Commission for Representativeness has ruled in accordance with the procedure of determining the representative unions for the national territory of the Republic of Macedonia, including for the public sector. According to the decision from December 2021, SSM, which is a federation of trade unions, gained the representativeness on the territory of the Republic of Macedonia for the public sector. Previously, KSS had this certification. So, it lost its certification the same year that they submitted their allegations. They can submit a new request when it is time for that according to the law. The amendments to the Law on Labour Relations only concern work on projects of strategic national importance established by law. The exceptions from the legally set framework for full working time or weekly working time or overtime which are allowed are only for projects of strategic and national importance, which is established by law. This means that these provisions could not be in place when this is not confirmed by law, which, you will agree, is really harder to establish just in any case. Work over 40-hours per week is considered overtime with mandatory consent of the worker and with respect to the provisions for daily and weekly rest according to the law.

Employer members – The Employer members thank the various speakers who took the floor, notably the Government of North Macedonia for the interventions and detailed information provided. The Employer members reiterate the importance of states’ compliance with the Convention, which is one of the ten ILO core Conventions.

In light of today’s discussion, the Employer members recommend that the Government, firstly, provides information on any progress on the new Law on Labour Relations; second, indicates the factors that have led to the rise in the collective bargaining coverage between 2019 and 2021; and third, provide information on the provisions regulating the relationship between general and specific collective agreements in the private and public sector. Finally, the Government should provide further comments as to allegations of acts of anti-union discrimination, the non-application of collective agreements by the Ministry of Education and the inability of the Commission for Representativeness to decide on the representativeness of the KSS in the public sector.

Worker members – In the first place, I would like to thank the Government of North Macedonia for the information provided. I would also express my appreciation for the fact that the workers’ representative from North Macedonia was there to take the floor and we regret the fact that no employer from North Macedonia has taken this opportunity to inform the Committee on their respective views.

The situation in North Macedonia continues to be of concern to the Worker members. There are still many indications of serious breaches of the Convention. Numerous acts of anti-union discrimination have been reported by the KSS. In response to these shortcomings, the Government will have to ensure that workers are adequately protected against all acts of discrimination aimed at undermining workers’ freedom of association. It is also useful to remind the Government that it must ensure the implementation of rapid and effective procedures, as well as effective and sufficiently dissuasive sanctions that ensure the practical application of the protections provided against acts of anti-union discrimination.

We have received reports of interference in the organization of trade unions. It is important for the Government to ensure that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other, or each other’s agents or members in their establishment, functioning or administration.

We ask the Government to provide all relevant information to the Committee of Experts concerning the provisions on the organization of workers and employers, as well as on collective bargaining which have been included in the new Law on Labour Relations, and to indicate to what extent these provisions resolved the shortcomings discussed and the status of this legislation, as well as any other legal acts that were not at the ILO’s disposal. We also invite the Government to actively promote the results of collective bargaining by respecting the agreements reached between social partners in both the private and public sectors, and by taking all measures to implement the results of collective bargaining. The Government should also ensure that the procedures for recognizing the representativeness of the KSS in the public sector are activated as soon as possible, in accordance with national legislation, in order to ensure the full participation of the KSS in social dialogue and guarantee the right of its members to organize collectively.

We also invite the Government to continue its efforts to promote collective bargaining in the country, in particular by adopting measures that will further increase the rate of coverage of workers by collective bargaining. We also invite the Government to communicate to the Committee of Experts the factors that have led to the increase in the rate of coverage by collective bargaining, as well as information on the provisions regulating the relationship between general and specific collective agreements in the private and public sectors.

We also invite the Government to continue to provide the Committee of Experts with information on the application of the Convention in practice including statistical data on the number of collective agreements concluded in public and private sectors and the number of workers covered.

Finally, in order to implement all these recommendations, we invite the Government of North Macedonia to avail itself of ILO technical assistance and to accept a direct contacts mission in order to give full effect to these recommendations

Conclusions of the Committee

The Committee took note of oral information provided by the Government and the discussion that followed.

The Committee noted with concern the multiple acts of anti-union discrimination reported in the country.

Taking into account the discussion, the Committee urges the Government, in consultation with the social partners, to take effective and time-bound measures to:

- ensure that workers enjoy their rights under the Convention and are protected against acts of anti-union discrimination;

- ensure that workers’ and employers’ organizations enjoy adequate protection against any external acts of interference in their establishment, functioning or administration;

- ensure that existing and prospective legislation is in conformity with the Convention; respect the collective agreements reached between social partners, in both the private and public sectors, and take appropriate measures to implement their results;

- ensure the proper functioning of the Commission for representativeness so that the procedures for recognizing the Confederation of Free Trade Unions of Macedonia (KSS) in the public sector are activated as soon as possible in accordance with national legislation. This is in order to ensure the full participation of the KSS in social dialogue and to guarantee the right of its members to organize collectively;

- communicate to the Committee of Experts the factors that have led to the increase in the rate of coverage by collective bargaining, as well as information on the provisions regulating the relationship between general and specific collective agreements in private and public sectors;

- continue to provide the Committee of Experts with information on the application of the Convention in practice, including statistical data on the number of collective agreements concluded in public and private sectors and the number of workers covered.

The Committee invites the Government to avail itself of ILO technical assistance to ensure full compliance with its obligations under the Convention in law and practice.

The Committee invites the Government to accept a direct contacts mission in order to best support the Government and social partners to implement these recommendations.