Demande directe (CEACR) - adoptée 2020, publiée 109ème session CIT (2021)

Convention (n° 158) sur le licenciement, 1982 - Macédoine du Nord (Ratification: 1991)

Autre commentaire sur C158

Demande directe

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Article 2(2) of the Convention. Exclusions. For a number of years, the Committee has been requesting the Government, in relation to the exception contained in section 95(2) of the Labour Relations Act, to provide information on whether the terms and conditions of employment of workers in public administration bodies provide them with protection that is at least equivalent to that afforded under the Convention. The Government has once again provided no response to the Committee’s previous comments in this regard. The Committee therefore reiterates its request that the Government provide information on whether the terms and conditions of employment of workers in public administration bodies provide them with protection that is at least equivalent to that afforded under the Convention.

Articles 4 and 11. Valid reasons for termination of employment. Period of notice. The Committee notes with interest that, in June 2018, amendments were introduced to the Labour Relations Act, which further define the procedure of termination due to the capacity or the conduct of the worker (“personal reasons of the employee”). Section 73 of the Law as amended requires that, prior to the termination of the employment contract due to the capacity or the conduct of the worker, an employer must provide the employee with a warning that his or her conduct or capacity to perform the job is such that the employee risks being dismissed. The Government adds that these amendments replaced the previous formulation, which was unclear and confusing, thereby facilitating the application of the provision. The Government further indicates that section 76(2) (as amended) establishes that the termination of employment due to reasons of an economic, organizational, technological, structural or similar nature by the employer (business reasons), should be based on, among other criteria, the need for more efficient work performance; the type and significance of the job; the length of service and other criteria outlined in a collective agreement. Section 76(2) further provides for certain protections for persons with disabilities, single parents and parents of children with special needs whose employment is terminated on the basis of their specific conditions. With regard to the termination of the employment contract at the initiative of the worker, the Government indicates that section 88 (as amended) establishes a minimum notice period of one month with a written warning. In addition, section 76(2) provides that it is not considered termination by the worker when any of the circumstances established in section 100 occur, such as failure of the employer to provide work for more than three months or to provide occupational safety for the worker after he/she requested it; non-payment of salary; or the employer is abusive and violent towards the worker. The Committee requests the Government to provide examples of the application of the abovementioned legislative amendments of 2019 regarding the valid reason for termination of employment due to the capacity or the conduct of the worker as well as the protections provided under section 76(2) of the Labour Relations Act, including copies of the leading judicial decisions.

Article 5. Invalid reasons for termination. For a number of years, the Government has been requested to provide information regarding the application of this provision of the Convention. The Committee notes that the Government has once again provided no response in this regard. The Committee therefore reiterates its request that the Government provide updated detailed information regarding the application of this provision of the Convention, including examples of judicial decisions examining the reasons for termination.

Article 7. Procedure prior to or at the time of termination. The Committee notes that section 80 (as amended) sets out that the employer, prior to the termination, should has provided the necessary working conditions and has given the worker appropriate instructions and a written warning. Furthermore, the employee must be provided with the opportunity to rectify the problem in a reasonable period of time of no less than 15 days after the day of receipt of the warning as defined in a collective agreement. The Committee notes, however, that the provision does not include the opportunity of the worker to defend themselves against the allegations made prior to termination. The Committee requests the Government to provide information on the application of the abovementioned legislative amendments of 2019 with regard to procedure prior to or at the time of termination. It further requests the Government to indicate the manner in which it is ensured the workers’ opportunity to defend themselves against the allegations made prior to termination.

Articles 13 and 14. Termination of employment for economic, technological, structural or similar reasons. The Committee notes the Government’s indication that section 96(3) (as amended) stipulates that “if the employer terminates the employment contract for business reasons, he may not employ another worker for the same work, with the same vocational training and profession, for a period of two years from the termination of employment.” In accordance with section 96(4), if, before the end of the pointed-out period, a need for carrying out the same work arises, the worker whose employment was terminated should have priority for employment. The Government indicates that the reasoning behind these amendments is preventing cases of abuses by the employer and providing additional protection to the worker by giving him/her a priority for employment in case the need for carrying out the same work arises. The Committee further notes that, following the amendment of section 97, the amount of the severance allowance was increased, depending on years of employment completed, ranging from a severance allowance of one net salary for up to five years of employment to up to seven net salaries where the worker has completed over 25 years of employment. Finally, the Committee welcomes the statistical information provided by the Government concerning the number of terminations of employments that took place between 2014 and November of 2019 on the grounds of liquidation; structural, technical and economic reasons; and bankruptcy. The Committee requests the Government to provide information evaluating the impact of the 2019 legislative amendments, in terms of maintaining and creating employment. The Committee further requests the Government to continue to provide practical information relevant to the application of these provisions of the Convention, including available statistics on the number of terminations for economic or similar reasons.

Application of the Convention in practice. In reply to the Committee’s previous comments, the Government refers to the establishment of a tripartite committee responsible for issuing and revoking licences of conciliators and arbitrators operating in the new dispute resolution system. Moreover, measures were adopted to promote recourse to the new system and support its proper functioning, including launching media campaigns raising awareness of the new system in September 2016 and March 2017, establishing a registry of conciliators and arbitrators, and developing a software application to provide administrative and technical support to the system. The Government reports that between 2015 and 2017, the tripartite committee for issuing and revoking the licences of conciliators and arbitrators held 12 sessions and issued 59 licences. It adds that, between 2016 and 2019, four procedures related to collective labour disputes were initiated, three of which concerned individual labour disputes. The Committee further notes the Government’s indication that courts do not classify labour disputes according to the grounds of the lawsuit and that no record is being kept of the duration or outcome of such labour disputes, or the type of legal remedies granted. The Committee requests the Government to continue to provide detailed updated information on the manner in which the Convention is applied in practice, including examples of recent court decisions concerning questions of principle relating to the application of the Convention and, if available, statistics on the activities of the bodies of appeal. It also requests the Government to continue to provide information on the application of alternative dispute resolution mechanisms for resolving labour disputes in regard to termination of employment, including the dispute resolution system for labour matters carried out by conciliators and arbitrators.