Comments adopted by the CEACR: Serbia

Repetition

Article 1 of the Convention. Information on national policies, laws and regulations. The Committee notes the entering into force on 1 August 2009 of the Law on Foreigners 2008 which regulates the entry, movement and stay of foreigners in the territory, and the Law on Employment and Unemployment Insurance that regulates, inter alia, the employment of nationals abroad (sections 95 to 100). The Committee further notes from the Government’s report that the draft Law on Employment of Foreign Citizens, which will replace the Law on Conditions for Employment of Foreign Citizens, as last amended by 2005, was submitted to Parliament in 2012 and has not been adopted yet. The Committee notes the Migration Management Strategy adopted in July 2009 which defines the elements of the migration policy and establishes the institutional framework for its implementation. The Strategy aims at establishing and implementing mechanisms for a comprehensive and consistent monitoring of migration flows; harmonizing migration management with EU standards; and protecting the rights of migrants and creating the conditions for their social inclusion. The Committee requests the Government to continue to provide information on any legislative developments regarding labour emigration and immigration, including on the adoption and the content of the Law on Employment of Foreign Citizens. The Committee also asks the Government to provide information on the measures taken to implement the Migration Management Strategy of 2009, including with respect to the protection of migrant workers’ rights and, in particular, women migrant workers.

Migration flows and bilateral or special agreements. The Committee notes from the Government’s report that the number of work permits issued to foreigners who have temporary residence from 2009 to 2011 was stable, ranging from 2,490 to 2,573, and the permits were mainly issued to nationals from China (catering and trade), the Russian Federation (oil industry and banking), Bosnia and Herzegovina and the former Yugoslav Republic of Macedonia (construction, mining and agriculture), Croatia (offices and stores), Greece (banking and trade), Romania (agriculture), and Germany (industry and banking). With respect to emigration, the Committee understands from the data provided by the Government that in 2011, 511 “agency workers” were employed abroad mainly in the United States. The Committee also notes that, in accordance with section 100 of the Law on Employment and Unemployment Insurance, the National Employment Service (NES) and the employment agencies shall submit to the Ministry notifications on individuals to be employed abroad, including their number, prior to their departure. The Committee requests the Government to continue to supply statistical information, disaggregated by sex, sector of employment and type of residence permit (temporary or permanent), on the number of workers from Serbia employed abroad as well as on the number of foreign workers employed in Serbia.

Articles 2 and 3. Free information services for migrant workers and misleading propaganda. The Committee notes the Government’s indication that seven Migrant Service Centres have been established in various regions within the framework of the NES and they are responsible for providing information, advice and guidance to migrants, potential migrants and returnees under the readmission agreement, and thus reduce the risk of irregular migration. The Committee further notes that the NES and the 56 employment agencies currently conducting activities in Serbia provide information on employment opportunities and working and living conditions abroad as well as rights and obligations at work and rights upon return to work in the country. Noting the Government’s indication that the activities of the NES and the employment agencies are supervised by the Ministry of Economy and Regional Development, the Committee requests the Government to provide information on the measures taken to monitor the information services provided by these bodies as well as the measures taken, including penalties, against misleading propaganda relating to emigration and immigration. Please also provide information on any measures taken or envisaged to combat trafficking in persons, including in cooperation with the governments of other member States. Please indicate whether there exist specific information services targeting women migrant workers and their families.

Article 6. Equality of treatment. The Committee notes that the Government refers to the Law on Employment and Unemployment Insurance that provides for equal treatment of persons employed abroad (section 97). It also refers to the Labour Law that applies to foreign workers “unless otherwise specified” (section 2(3)) and prohibits direct or indirect discrimination on the basis of sex, origin, language, race, colour, age, pregnancy, health, disability, national origin, religion, marital status, family responsibilities, sexual orientation, political or other opinions, social origin, property, membership of a political organization or a trade union, or any other personal characteristics (section 18). The Committee requests the Government to specify any exceptions under section 2(3) of the Labour Law which would authorize different treatment of migrant workers with respect to the matters enumerated in Article 6(1)(a)–(d). Furthermore, noting that the list of prohibited grounds of discrimination includes “national origin” and refers to “any other personal characteristic”, the Committee requests the Government to provide full information on the measures taken to ensure that in practice no less favourable treatment is being applied to migrant workers lawfully residing in the country, including those employed with a “work permit for employment” or “work permit for special cases of employment”, than that which applies to nationals with respect to terms and conditions of work, including remuneration, membership of trade unions, accommodation, as well as concerning social security, taxes and access to legal proceedings, in accordance with Article 6(1)(a) to (d) of the Convention. Please provide information on any cases of unequal treatment of migrant workers brought to the attention of labour inspectors or any other competent authorities or detected by them, including on the sanctions imposed and the remedies provided.

Article 8. Maintenance of residence in the event of incapacity for work. The Committee recalls that security of residence for permanent migrants and members of their families in the case of ill health or injury constitutes one of the most important provisions of the instrument, and is concerned that, in cases where this is not effectively applied, permanently resident migrants may thus find themselves living under the constant threat of repatriation (see General Survey on migrant workers, 1999, paragraph 608). The Committee notes that the Government’s report contains no information in reply to its previous comments in this respect and therefore it remains unclear whether the provisions of Article 8 of the Convention are applied. The Committee asks the Government to indicate the legal provisions regulating the situation of migrant workers and their family members admitted to Serbia on a permanent basis when the migrants are unable to follow their occupation by reason of illness contracted or injury sustained subsequent to entry, and to specify the measures taken to ensure that the right of residency of permanent migrants is effectively maintained in the event of incapacity for work.

Parts III to V of the report form. Practical application and enforcement. The Committee refers to its comments on the Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143).

Repetition

Article 3 of the Convention. National policy. The Committee previously requested information on the practical application of the Law on Gender Equality of 2009 with respect to promoting an equitable sharing of family responsibilities between men and women. The Committee notes that, in its report, the Government indicates that the principal legislative measures for the protection of workers with family responsibilities, in addition to the Law on Gender Equality (Law No. 104/09), are set forth in the Rulebook on the Content and Manner of Submission of the Plan of Measures for Elimination or Mitigation of Unequal Gender Representation and the Annual Report on its Implementation (Law No. 89/10). The Government adds that a gender equality index was developed in February 2016 and gender-responsive budgeting introduced by the Budget System Law in December 2015. In addition, within the context of a new Strategy for Gender Equality 2016–20 and its Action Plan for the period 2016–18, the Government plans to adopt measures enabling equal participation of parents in family responsibilities (objective 2.1). Noting the adoption of a new Action Plan for Achieving Gender Equality (2013–17), the Committee invites the Government to provide information on the practical measures taken to implement the Plan, in particular to enable men and women with family responsibilities to work, or for those who wish to work, to exercise their right to do so without conflict between their work and family responsibilities, and the results achieved.

Article 4. Leave entitlements. Recalling the importance of gathering information that would allow both the Government and the Committee to appreciate the progress made and difficulties encountered in the application of the Convention, the Committee encourages the Government to take the necessary steps to compile statistics, disaggregated by sex, on the extent to which employees with family responsibilities make use of the leave entitlements and reduced working hours, including under sections 77 and 91–100 of the Labour Code.

Maternity leave. The Committee recalls that the father of a child is entitled to “maternity” leave (three months after childbirth) under sections 94(3) and 94a(1) and (2) of the Labour Code only if the mother dies, abandons a child, or is prevented from caring for the child due to other justified reasons, or if she is unemployed (section 94(5) and 94a(4)). It takes due note of the Government’s indication that the right to “maternity” leave is primarily provided to women with the aim of facilitating their physical recovery from childbirth and that, after the three months, pursuant to section 94(4) and (6), it is for the parents to decide who will use the remaining leave for nursing a child (nine months). The Committee asks the Government to provide statistics, disaggregated by sex, on the number of employees who make use of the entitlements relating to “maternity” leave, and the entitlements relating to leave for nursing a child, of the Labour Code.

Article 5. Childcare and family services and facilities. Noting that the Government’s report does not contain any information in reply to its previous comments concerning measures taken or envisaged to assist workers with family responsibilities with childcare and family services and facilities, the Committee once again asks the Government to provide information on: (i) the number and nature of community childcare and family services and facilities available to men and women workers with family responsibilities; and (ii) the number of workers with family responsibilities who avail themselves of childcare and family services, disaggregated by sex.

Article 6. Information and education. Noting that the Government’s report does not contain any information in reply to its previous comments, the Committee once again asks the Government to indicate the authorities and bodies responsible for the promotion of information and education on equality between men and women workers and workers with family responsibilities, and to provide specific information on the action taken to promote greater awareness, public understanding and a climate conducive to overcoming existing difficulties for men and women workers with family responsibilities.

Article 7. Integration in the labour market. The Committee previously asked the Government to indicate the extent to which workers with family responsibilities benefit from the programmes for additional education and training or from any measures taken under the National Employment Strategy 2011–20 (No. 37/11). It had also asked the Government to provide statistics on the number of employees who have returned to work after taking “maternity” leave or leave for childcare. In its report, the Government indicates that, in the context of the National Employment Strategy and National Action Plan for Employment for 2015 (No. 101/14 and 54/15), women’s employment is promoted through equal opportunity policies and measures. According to the National Employment Service, the active employment policy measures in 2015 targeted 150,953 unemployed persons, of which 79,631 or 52.75 per cent were women, and 5,013 of them were involved in education and training programs. However, workers with family responsibilities were not beneficiaries of education and training programmes or any other active employment policies. With regard to statistics relating to employees who have returned to work after taking “maternity” leave or leave for childcare, the Government indicates that no data exist as the employer has no obligation to provide such information to the Ministry of Labour. Taking due note of the information provided by the Government, the Committee wishes to recall the importance of gathering statistical information that would allow both the Government and the Committee to appreciate the progress made and difficulties encountered in the application of the Convention. Consequently, the Committee encourages the Government to indicate the extent to which workers with family responsibilities, particularly women, benefit in practice from the programmes for additional education and training, or from any measures taken under the National Employment Strategy (2011–20). It also invites the Government to consider, jointly with the social partners, how it can gather statistical information on the number of employees who return to work after taking “maternity” leave or leave for childcare.

Article 9. Collective agreements. The Committee recalls that it had asked the Government to provide information on the practical application of the provisions in the special collective agreements (at the company level) aimed at assisting workers in reconciling their work and family responsibilities. The Government indicates in its report that, in accordance with the Law on Amendments to the Labour Law (Law No. 75/14), which entered into force on 29 July 2014, all collective agreements ceased to have effect on 29 January 2015. It also indicates that most of the new collective agreements regulate paid leave in specific situations, including childbirth, adoption of a child, serious illness of a close family member, or unpaid leave, including care for a sick family member. In addition, some collective agreements provide that an employed pregnant woman, an employed parent with a child under 3 years of age, or a self-supporting parent with a child not older than 7 years of age or with a child with a serious disability, may work overtime and/or at night only with their consent in writing. The Government also indicates that collective agreements concluded at the company level do not need to be registered with the Ministry of Labour, Employment, Veteran and Social Policy and, therefore, no data exist. The Committee asks the Government to provide samples of collective agreements, which contain equality provisions that could assist workers in reconciling their work and family responsibilities, as well as information on cases dealt with by the labour inspectorate and/or judiciary related to the practical application of those provisions.

Article 11. Cooperation with employers’ and workers’ organizations. Noting that the Government has not provided information on the specific measures taken, including by the Social-economic Council, to promote social dialogue and tripartite cooperation in order to strengthen the laws, measures and policies giving effect to the Convention, the Committee reiterates its request to the Government to provide such information. It also asks the Government to provide information on the manner in which workers’ and employers’ organizations have exercised their right to participate in the design and implementation of such measures.