Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

1. The Committee notes the report provided on the application of the Convention by the Republic of Serbia for the period ending in July 2003. It further notes the comments received by the World Confederation of Labour (WCL) and the Confederation of Autonomous Trade Unions of Serbia (CATUS), which were forwarded to the Government in January 2004. The Committee requests the Government to provide in its next report information on the application of the Convention in the Republic of Montenegro.

2. Republic of Serbia. Referring to the Labour Law in force in 2003, CATUS expressed concern over the application of the provisions of the Convention concerning valid reasons for termination, the prohibition of termination in case of absence from work during maternity leave, the procedures prior to termination, the burden of proof regarding the existence of a valid reason for termination, the period of notice and the information and consultation of workers’ representatives in case of termination of employment for economic reasons. The Committee has noted that a new Labour Law was adopted by the Republic of Serbia in March 2005. In the light of the additional information which the Government is invited to provide regarding the current request, the Committee will examine further the conformity of the legislation and practice with the provisions of the Convention and may formulate new comments accordingly.

3. Article 2, paragraph 2, of the Convention. Although it does not appear from the legislation examined, the Government stated in its report that national regulations are not applied to employees concerned with termination of work due to technological, economic or organizational needs. The Government is invited to indicate whether any categories of employed persons have been excluded under Article 2, paragraph 2, from the application of any of the provisions of the Convention.

4. Article 4. The Committee notes that section 179 of the 2005 Labour Law enumerates cases of "just cause" that terminate the contract of labour for reasons connected with the worker’s abilities or the employer’s needs. It invites the Government to provide information on how the provisions of the 2005 Labour Law are applied in practice, supplying copies of the leading decisions taken in their application.

5. Article 6, paragraph 2. Please indicate how "temporary absence from work" is defined and the extent to which medical certification is required for the purpose of a temporary absence from work because of illness or injury, and what limitations, if any, have been placed on the recourse to temporary absence from work.

6. Article 7. Please indicate the manner in which the right to defend themselves prior to termination is ensured for all workers, as required by this provision of the Convention.

7. Article 9, paragraph 2. The Committee notes that there is no indication in the legislation to who has to discharge the burden of proof in an appeal against dismissal. It recalls that under paragraph 2 of Article 9, the burden of proof must be either shared or carried by the employer, but should not be borne alone by the worker. It requests the Government to indicate if it has been left to the courts to decide who has to discharge the burden of proof in an appeal against dismissal and, if so, to supply the relevant decisions.

8. Article 12. The Committee notes that section 158 of the 2005 Labour Law stipulates that the employer shall award a severance pay to employees whose contracts have been terminated on the grounds of section 179(9), due to technological, economic or organizational changes causing redundancy. It asks the Government to provide information on the effect given to Article 12, paragraph 1, for the other cases of termination of employment and the other information required by the report form in relation with paragraphs 2 and 3.

9. Article 13. The Committee notes the concerns by CATUS over the fact that the rights of the workers’ representatives are limited only to the right to give their opinion instead of the right to information and consultation, as these rights would give more opportunities to influence the redundancy process. It further notes that before enacting a program of termination, the employer is obliged to share information with the representative trade union (sections 154 and 155 of the 2005 Labour Law). Section 155 enumerates the relevant information that is to be provided. It would appreciate receiving further information about how long before the contemplated terminations, the relevant information has to be provided to the workers’ representatives (paragraph 1(a)). Please also indicate how in practice the workers’ representatives have the opportunity for consultation on measures to be taken to avert or to minimize the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment (paragraph 1(b)).

10. Practical application. The Committee notes that the number of dismissals in 2002 was 4,185 and 90,000 persons received unemployment benefit through the National Employment Service. It would appreciate continuing to receive information on the manner in which the Convention is applied in practice, including information on the activities of the courts and arbitrators and the number of terminations for economic or similar reasons in which the national employment agencies have intervened (Article 14).