Observation (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 4 of the Convention. Collective bargaining. In its previous comments, the Committee had requested the Government to take the necessary steps to amend sections 212, 213 and 219 of the Labour Relations Law (2005) so as to: (i) lower the 33 per cent representation requirement imposed on trade unions and employers (or their organizations) for collective bargaining purposes at all levels; (ii) adopt legislative provisions regulating the procedure for determining the most representative organization, based on objective and pre-established criteria; and (iii) adopt legislative provisions regulating the procedure for establishing the negotiation board (the members of which are appointed by trade unions) when no trade union organization represents 33 per cent of employees or no employers’ organization meets the same requirement.

In this regard, the Committee notes that the Government indicates in its report that, within the process of harmonization of its labour legislation with that of the European Union, and in accordance with the recommendations of the ILO, it has made significant changes and amendments to the Law on Labour Relations. The Committee further notes the law changing and amending the Law on Labour Relations (Official Gazette, No. 130/2009):

(i) Representativeness of a trade union and procedure for establishing the negotiation body when no trade union organization represents 20 per cent of employees. The Committee notes that sections 211 of the Law on Labour Relations now provides that the representativeness of a trade union or an organization of employers is determined for the purposes of participation in tripartite social partnership bodies and tripartite delegations of the social partners at the national level; for the participation in the collective bargaining at the public sector level, and within the private sector, at national level, industrial level and employer level. The criteria for determining the representativeness are defined in sections 212 and 213 of the Law on Labour Relations. The Committee notes that collective bargaining is possible for the trade unions representing 20 per cent of the employees at the level it wishes to bargain, except at the state level where the trade union must represent 10 per cent of the labour force.

In addition, in its previous comments, the Committee had requested the Government to adopt legislative provisions regulating the procedure for establishing the negotiation board (the members of which are appointed by trade unions) when no trade union organization represents 20 per cent of employees or no employers’ organization meets the same requirement (section 219 and 221 of the Law on Labour Relations). The Committee notes that no information was provided in this regard by the Government. Given that the 20 per cent threshold could be difficult to obtain in certain sectors and in large enterprises and taking into consideration the principle set out in section 4 of the Convention concerning the promotion of free and voluntary collective bargaining, the Committee requests the Government to adopt legislative provisions regulating the procedure for establishing the negotiation board (the members of which are appointed by trade unions) when no trade union organization represents 20 per cent of employees or no employers’ organization meets the same requirement.

(ii) Procedure for determining the most representative organization. The Committee notes with interest that new articles laying down the procedure and the competent body establishing the representativeness have been added to the Law on Labour Relations: Body competent for Establishment of Representativeness (213-a); Composition and manner of operation of the Commission (213-b; tripartite); Application for establishment of representativeness (213-c); Procedure upon application and appeal (213-d); Re-assessment of the representativeness (213-e); and Publication of the decision (213-f). The Committee further notes that the mode of operation of the Commission is laid down by the Rules of Procedures of the Commission. In this regard, the Committee requests the Government to provide a copy of the Rules of Procedures of the Commission with its next report.

As concerns the application for establishment of representativeness, the Committee notes that section 213-c provides that the application to the Commission for establishment of representativeness to bargain collectively shall be filed by a trade union at a higher level. The Committee recalls that the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and, consequently, the level of negotiation should not be imposed by law. The Committee requests the Government to indicate if
section 213-c allows trade unions at enterprise level or industry level to apply for the establishment of representativeness.

The Committee also notes that section 205 of Law on Labour Relations, as amended by law changing and amending Law on Labour Relations (Official Gazette, No. 130/2009) provides that General Collective Agreement in the private sector (area of the economy) and public sector shall apply directly and are mandatory for the employers and employees of the respective sectors. The Committee requests the Government to clarify, in its next report, if the General Collective Agreement for economy and the General Collective Agreement for public sector can only be concluded by the most representative trade union organizations at the state level.

Comments made by the International Trade Union Confederation (ITUC) and the Federation of Trade Unions of Macedonia (CCM). The Committee notes the comments made by the ITUC in a communication dated 24 August 2010. These comments concern problems already examined by the Committee. The Committee also notes the comments made by the CCM in a communication dated 2 October 2008 concerning the lack of social dialogue that occurred during the process of the labour law reform. The Committee requests the Government to provide its observations thereon.