Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

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

The Committee notes that the new Labour Code, which entered into force on 23 March 2005, establishes a minimum annual holiday with pay of 20 working days.

Article 7, paragraph 2, of the Convention. Advance payment. The Committee notes the explanations provided by the Government according to which, under section 114 of the Labour Code, workers on annual holiday with pay must receive compensation equivalent to the average of their wages over the previous three months. In its report, the Government also indicates that, under section 110(1) of the Labour Code, wages must be paid no later than at the end of the current month for the previous month. The Committee recalls that, under Article 7, paragraph 2, of the Convention, the remuneration due in respect of annual holiday with pay must be paid to the worker in advance of his holiday, unless otherwise provided in an agreement applicable to him and the employer. It requests the Government to indicate the measures taken or envisaged with a view to bringing the legislation into conformity with this Article of the Convention.

Article 11. Right to holiday in the event of termination of the employment contract. In reply to the Committee’s previous comment, the Government refers to section 76 of the Labour Code which provides that workers who were prevented from enjoying their holiday because of their employer are entitled to compensation equivalent to the average of their wages over the previous three months. The Committee understands that this section does not refer specifically to the case of the termination of the contract of employment but may apply to any situation in which workers are prevented from taking their holiday. Furthermore, it notes that, under section 71 of the Labour Code, employers must provide workers with a certificate indicating the number of holiday days taken in the event of the termination of the employment contract. The Committee recalls that, under Article 11 of the Convention, any worker who has acquired entitlement to holiday and whose employment is terminated, is entitled to the paid holiday due and not taken, compensation in lieu thereof, or the equivalent holiday credit. The Committee requests the Government to indicate the manner in which effect is given to this Article of the Convention.

Article 12. Prohibition to relinquish or forgo the right to an annual holiday with pay. In its report, the Government indicates that an agreement concluded in advance between the worker and the employer for the purpose of compensating the injury suffered as a result of the relinquishment of the annual holiday with pay is considered null and void under sections 9(2), 11 and 68(4) of the Labour Code. However, it indicates that, under sections 75 and 76 of the Labour Code, employers who omit to communicate to workers the dates of their annual holiday with pay or who commit any other error which prevents workers from enjoying their annual holiday with pay must pay compensation to the worker for injury suffered of an amount equivalent to the average of the worker’s wages over the previous three months. Further to its previous comment, the Committee recalls that, under Article 12 of the Convention, any agreement, prior or otherwise, to relinquish the right to the annual holiday with pay or to forego such a holiday, for compensation or otherwise, must be regarded as null and void or prohibited. It requests the Government to take the necessary measures to guarantee the nullity or prohibition of any agreement for such purpose.

Furthermore, the Committee notes the comments made by the Confederation of Autonomous Trade Unions of Serbia (SSSS), dated 19 September 2008, according to which numerous enterprises in the private sector do not apply the rules relating to annual holiday with pay, unlike public institutions and organizations. The SSSS indicates that young workers in particular do not benefit from the minimum annual holiday with pay of 20 days provided for by the legislation and, due to the current employment market situation, they are in a weak position which prevents them from asserting their right to holiday to the employer. In this regard, it indicates that, in order to obtain the employer’s agreement and so as not to disrupt the activity of the enterprise, young workers agree upon reduced holiday periods with their colleagues. The employer may also determine general holiday on a discretionary basis when it considers it appropriate. According to the allegations of the SSSS, non-unionized workers in fact relinquish their right to holiday and employers refrain from making them take holiday. The Committee requests the Government to provide any comments which it would like to make in reply to the comments of the SSSS.

Part V of the report form. Practical application. The Committee notes the statistics provided by the Government concerning violations of the rules relating to annual holiday with pay reported by the inspection services. It requests the Government to continue providing general information on the application of the Convention in practice, in particular statistical data concerning the number of workers covered by the legislation giving effect to the Convention, extracts from reports of the inspection services indicating the number of violations of the rules relating to annual holiday with pay which have been reported and the sanctions imposed in this regard, etc.