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 1 of the Convention. Protection against anti-union discrimination. The Committee observes that sections 6, 139(1), 140 and 148(3) of the Labour Law provide protection against anti-union discrimination to workers’ representatives. However, no explicit protection is provided to workers. The Committee recalls that Article 1 of the Convention requires that all workers should be protected against all prejudicial acts by reason of trade union membership or participation in trade union activities (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 210–212). The Committee requests the Government to specify the provisions which afford protection to workers against all prejudicial acts by reason of trade union membership or participation in trade union activities, as well as the remedies, sanctions and procedures which apply to such acts.

Article 2. Protection against interference. 1. The Committee notes that there is no explicit provision against acts of interference by employers or employers’ organizations in the establishment, functioning and administration of trade unions and vice versa, and no specific procedures or dissuasive sanctions in this regard. The Committee recalls that Article 2 provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other. It is important, therefore, that whenever it appears that there is insufficient protection against interference or that such acts do occur in practice, governments take specific action, in particular through legislative means, to ensure that the guarantees provided for in the Convention are respected and to give these provisions the necessary publicity to ensure that they are effective in practice (see General Survey, op. cit, paragraph 234). The Committee requests the Government to indicate the provisions which provide explicit protection against acts of interference by the employer or employers’ organizations in the establishment, functioning and administration of trade unions and vice versa, as well as the rapid procedures and sufficiently dissuasive sanctions which apply to such acts.

2. The Committee notes that the Labour Law envisages the same protection for employees’ representatives who may exist in the workplace parallel to trade union representatives. Section 4 of the Labour Law provides that employees working at a workplace with more than 20 employees have the right to set up an employees’ council, or elect an “authorized employees’ representative” in workplaces with less than 20 employees. The employees’ council shall provide opinions on: the decisions and orders of the employer that affect the employees’ status in accordance with the collective agreement; the promotion of professional rehabilitation, working conditions for elderly employees, disabled persons, women and employed juveniles; as well as decisions on providing for employees that become redundant. According to section 4(4), the mandate, the number and the method of electing the employees’ council is defined in the collective agreement. The Committee requests the Government to indicate the provisions which establish safeguards aimed at ensuring that the presence of employees’ representatives in the workplace may not be used in order to undermine the position or the activities of trade union representatives.

Article 4. Promotion of collective bargaining. 1. The Committee notes that section 131 of the Labour Law defines the parties to a “general collective agreement” as an authorized national trade union, an authorized association of employers and the Government. Section 129 provides that the general collective agreement shall establish the basic elements for defining the minimum wage rate as well as other labour-based and labour-originated rights and obligations. The Committee recalls that Article 4 of the Convention envisages collective bargaining between employers and their organizations and workers’ organizations in a bipartite structure. The Committee considers that while the presence of the Government would be justifiable if the general collective agreement was limited to the establishment of the minimum wage rate, the negotiation of other terms and conditions of employment should take place in a bipartite context and the parties should enjoy full autonomy in this regard. The Committee requests the Government to amend sections 129 and 131 so as to ensure that the participation of the Government in the negotiation of a general collective agreement is limited to the issue of the minimum wage.

2. The Committee notes that section 132(a) of the Labour Law defines an “authorized association of employers” as an association of employers whose members have a minimum of 25 per cent of employees in the economy of the Republic and participate in the gross domestic product of the Republic with a minimum of 25 per cent. Paragraph 4 of section 132(a) provides that should no association meet these requirements, employers can participate directly in the conclusion of an agreement. The Committee notes nevertheless, that the Convention envisages the conclusion of collective agreements either by employers directly, or by organizations of employers. The Committee requests the Government to indicate in its next report the measures taken or contemplated to either substantially reduce or repeal the minimum requirements established for defining an “authorized association of employers” so as to allow for the conclusion of collective agreements by employers and employers’ associations in the manner they consider most appropriate.

3. The Committee notes that section 133 of the Labour Law provides for the registration of the general collective agreement and branch collective agreements with the ministry. Under section 133(4) of the Labour Law, the modalities and method of registration shall be defined by the Ministry of Labour. The Committee requests the Government to transmit any implementing regulation of section 133(4) of the Labour Law on the registration of general and branch collective agreements.

4. The Committee notes furthermore, that section 133(3) of the Labour Law provides that the modalities for the publication of enterprise collective agreements shall be established in the agreements themselves. The Committee requests the Government to provide details on the publication of enterprise agreements in practice.

5. The Committee notes that the Labour Law envisages various facilities and measures to facilitate collective bargaining (sections 62(4), 137(3), 137(4), 138, 139(2), 139(3), 139(5)). The Committee requests the Government to provide statistical data on the number of collective agreements concluded and their coverage.