Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

Holidays with Pay Convention (Revised), 1970 (No. 132) - Serbia (Ratification: 2000)

The Committee notes that the first report on the application of the Convention only provides information on the Republic of Serbia and does not contain information on the application of the Convention in the Republic of Montenegro. It therefore requests the Government to provide full information also on the application of the Convention in the Republic of Montenegro.

Furthermore, the Committee requests the Government to provide additional information on the application of the Convention in Serbia on the following points.

Article 7, paragraph 2, of the Convention. Advance payment. Section 59 of Labour Code, 2001 states that, employees shall have the right to compensation of earnings that they would have gained during the time of their annual paid holiday. This provision does not specify that the amount due shall be paid to the worker in advance of the holiday, unless otherwise provided in an agreement applicable to the employee and the employer. The Committee requests the Government to indicate how it is ensured, that the compensation of the earnings that an employee would have gained in the month in which he is on annual leave, are paid in advance of the holiday, unless otherwise provided in an agreement applicable to him or her and the employer, as required by this provision of the Convention.

Article 11 and Article 12. Remuneration for holidays not taken. Section 60 of the Labour Code states that if the employee does not use his annual leave through the fault of the employer, the employee is entitled to an indemnity equalling the amount of the compensation of earnings that she/he would have received if he/she had used his/her annual leave. The Committee recalls that compensation is only allowed for outstanding holidays with pay upon termination of employment, as provided for in Article 11 of the Convention.

Furthermore, section 60 appears to contradict section 52(3) of the Labour Code. Section 52(3) in accordance with Article 12 of the Convention does not allow the right to minimum annual holiday with pay to be relinquished by agreements for compensation or otherwise, whereas section 60 appears to allow for compensation if annual leave cannot be taken due to the fault of the employer, in contradiction to section 52(3) and Article 12. The Committee requests the Government to indicate how, in practice and in addition to the provision of section 52, paragraph 3, of the Labour Code, it is ensured that section 60 of the Labour Code cannot be maliciously used to deprive an employee of his annual leave, as indicated in the comment made by the Association of Free and Independent Trade Unions.