Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the Government’s first report. It also notes the text of the Constitution of Montenegro, the general collective agreement transmitted with the Government’s report, as well as the Criminal Code of Montenegro. The Committee will examine these documents once a translation is available.

Article 2 of the Convention. 1. Scope of guarantee of the right to organize. The Committee notes from the Government’s report that article 53 of the Constitution of Montenegro and section 5 of the Labour Law guarantee the right of employer and employees to establish and join organizations of their own choosing without prior authorization. The Committee notes that the term “employees” is narrower than the term “workers” used in the Convention. It emphasizes that Article 2 of the Convention covers all workers without distinction whatsoever. The Committee requests the Government to provide additional information on the provisions which guarantee the right to organize of certain categories of workers who may not be in a formal employment relationship: self-employed workers; workers undergoing a period of work probation; workers under training contracts; retired workers; senior personnel; and workers under “special labour agreements” for performing temporary and occasional work or activities outside the employer’s premises (sections 141 and 142 of the Labour Law). Furthermore, noting that there is no explicit provision on the scope of the Labour Law, the Committee requests the Government to specify the provisions which guarantee the right to organize to agricultural workers, domestic workers, migrant workers and minors above the minimum age for admission to employment (15 years).

The Committee notes that section 7 of the Labour Law specifies that the provisions of this law apply to employees in public administration bodies or local government units, unless otherwise prescribed in a special law. Section 15 of the Law on Civil Servants and State Employees provides that civil servants and state employees have the right to organize in accordance with general labour regulations. Noting that section 30 of this Law refers to “temporary employment” in the public service, the Committee requests the Government to specify whether individuals under temporary employment in the public service have the right to organize.

2. Right of employers and workers to establish organizations of their own choosing. The Committee notes that article 53 of the Constitution and section 5 of the Labour Law both refer to the free choice of workers and employers in establishing and joining organizations. The Committee requests the Government to provide information on whether any implementing regulation of section 5 of the Labour Law establishes a minimum membership requirement and to forward the relevant legal text.

The Committee notes that section 128(4) of the Labour Law refers to the Free-Lance Artists’ Union by name, while sections 5(2) and 6(2) of the Law on Strikes refers to the “Chamber of Commerce”. The Committee requests the Government to replace these references with a neutral reference to the most representative workers’ and employers’ organizations.

3. Right to establish organizations without previous authorization. The Committee notes that: (i) both article 53 of the Constitution and section 5 of the Labour Law indicate that organizations may be established without previous approval; (ii) article 53 of the Constitution refers to registration of trade unions with the competent authority; and (iii) section 136 of the Labour Law provides that a trade union shall be registered in the trade union registry maintained by the ministry in charge of labour matters and the procedure of registration shall be prescribed by the ministry in question. The Committee requests the Government to provide a copy of any regulation implementing section 136 of the Labour Law. It also requests the Government to provide information on the procedure and requirements for the registration of employers’ organizations.

Article 3. Right of workers’ and employers’ organizations to draw up their constitutions and rules and elect their representatives freely. The Committee notes that there is no information in the Government’s report or the available legislative texts on these issues. The Committee requests the Government to provide information on: (i) the manner in which employers’ and workers’ organizations are guaranteed the right to draw up their constitutions and rules without interference from the public authorities; and (ii) the manner in which employers’ and workers’ organizations are guaranteed the right to elect their representatives freely. It also requests the Government to specify whether foreigners have the right to become trade union officers at least after a reasonable period of residency and to forward any legal texts on all of the above.

Right to strike. 1. Compulsory arbitration. The Committee notes that section 124 of the Labour Law provides that the “[r]esolution of disputes arising during the processes of contracting, implementing, amending and complementing collective agreements shall be submitted to arbitration”. Section 6(3) of the Law on Strikes provides that if a dispute is not resolved within 30 days, the parties must refer it to arbitration, in accordance with the Labour Law. The Committee therefore notes that the law lays down a system where compulsory recourse to binding arbitration makes it possible to prohibit virtually all strikes or end them quickly. This seriously limits the means available to trade unions to further and defend the interests of their members, as well as their right to organize their activities and to formulate their programmes (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 153). The Committee therefore requests the Government to indicate in its next report the measures taken or contemplated to repeal section 124 of the Labour Law and section 6(3) of the Law on Strikes which impose compulsory arbitration on all disputes without distinction. The Committee recalls that compulsory arbitration is acceptable in certain cases which are discussed below.

Section 12(3) of the Law on Strikes provides that in case a dispute in activities of general interest is not resolved by the day announced for the staging of a strike, the parties to the dispute must bring the dispute to arbitration, pursuant to the law or the collective agreement. Activities of general interest are defined in section 9 of the Law on Strikes as activities whose termination, due to their nature, might jeopardize the life and health of the people or cause damage on an enormous scale, and in particular: electric power industry, water supply, transportation, postal and telecommunication services, information dissemination (radio and television), utility services (production and supply of water, garbage collection, production, distribution and supply of energy products, etc.), fire brigade, production of elementary food products, health care and veterinary medicine, education, culture, social care of children, and social welfare; also, activities of special importance for the Republic’s defence and security, as well as activities necessary for conducting international tasks, set by international agreements, as well as activities whose termination, owing to their nature and in terms of this Law, might jeopardize the life and health of the people or cause damage on an enormous scale.

The Committee recalls that compulsory arbitration is acceptable only with the agreement of both parties, in essential services in the strict sense of the term, and for public servants exercising authority in the name of the State. It therefore requests the Government to amend sections 9 and 12(3) of the Law on Strikes concerning compulsory arbitration in activities of general interest, so as to limit the possibility of imposing compulsory arbitration only to essential services in the strict sense of the term and public servants exercising authority in the name of the State.

2. Minimum service. The Committee notes that according to section 10 of the Law on Strikes, a strike in an activity of general interest is subject to the provision of a minimum service. Such minimum service shall be determined under section 10(2) “by the founder, employer’s manager or executive manager who base their decision on the nature of the undertaking, the level of risk for people’s lives and health, and other circumstances which are important for meeting the needs of citizens, employers and other parties”. The Committee also notes that according to section 10(3) when defining the minimum service, the employer may receive the opinion of the employees’ council. Given that under section 4 of the Labour Law, there may be in the same undertaking an employees’ council and a trade union, it would therefore seem that the employer does not receive the opinion of the trade union representative but rather the employees’ representative in determining the minimum service.

Although the Committee considers that in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, the authorities could establish a system of minimum service in services which are of public utility; such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey, op. cit., paragraphs 160–161). The Committee requests the Government to amend section 10 of the Law on Strikes so as to ensure that the minimum service is determined with the participation of the trade union concerned and that in case of disagreement, the matter is decided by an impartial body.

Article 4. Dissolution and suspension by administrative decision. The Committee notes that, according to the Government’s report, there are no provisions on the dissolution of employers’ and workers’ organizations by administrative authority. The Committee requests the Government to specify the conditions under which employers’ and workers’ organizations may be dissolved and to communicate any relevant legal texts.

Article 5. Right of organizations to establish federations and confederations and affiliate with international organizations. The Committee notes from the Government’s report that there are no obstacles to associating with international organizations of workers and employers. It also notes that section 128 of the Labour Law indirectly refers to federations and confederations by addressing the conclusion of collective agreements at the national or branch levels. The Committee requests the Government to specify the provisions explicitly guaranteeing the right of workers’ and employers’ organizations to establish federations and confederations and to affiliate with international organizations.