Demande directe (CEACR) - adoptée 2021, publiée 110ème session CIT (2022)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Monténégro (Ratification: 2006)

Autre commentaire sur C098

Observation

Demande directe

2021
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Article 4. Promotion of collective bargaining. Determination of trade union representativeness. Company level. The Committee previously noted that section 15 of the Law on the Representativeness of Trade Unions provides that the representativeness of a trade union at the level of the individual employer shall be determined by the “Director” (the head of the enterprise in which the representativeness of the trade union organization is to be established) at the proposal of the commission for the establishment of trade union representativeness and requested the Government to take measures to ensure the establishment of an independent and impartial mechanism for determining the representativeness of trade unions at the company level, as well as to provide information on the board to which an appeal can be filed of the Director’s decision. The Committee notes that the Government reiterates that upon submission of a request to the employer to determine the representativeness of a trade union, the “Director” forms a commission (composed of two representatives of: the employer, the representative trade union at the employer, if it exists, and the interested trade union), which makes a proposal by a majority vote of its members, on the basis of which the “Director” or the employer shall issue a decision concerning trade union representativeness. The Government further informs that if the interested trade union considers that the decision was not made in accordance with the law it can file a complaint to the Representative Trade Union Board (formed by the Minister and composed of two representatives of: the Government, representative trade unions and representative associations of employers, appointed for four years and renewable), which decides by a majority vote and submits its proposal to the Minister in charge of labour affairs who makes a decision on the complaint. An administrative dispute may also be initiated before a competent court on the decision made by the Minister. The Committee understands from the above that the procedure, as previously assessed by the Committee, has not been fundamentally modified in that the initial decision on representativeness of a trade union is the prerogative of the “Director” and not of an independent and impartial mechanism (sections 18-20 of the revised Law on Representativeness). It also observes that an appeal to the competent court can only take place after the Representative Trade Union Board has issued a proposal on the complaint and has submitted it to the Minister in charge of labour affairs, who adopts an administrative decision in this regard (sections 21–23). The Committee recalls in this regard that the determination of the representative character of a union should be carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties, and without political interference. The Committee therefore requests the Government to take the necessary measures to revise the procedure in line with the above, ensuring in particular that, if the initial decision on trade union representativeness is taken by the labour administration, an appeal is immediately possible through a rapid and effective procedure before an independent and impartial body, such as a competent court.

Conditions for trade union representativeness. Political affiliation of union representatives. The Committee notes that under section 9(1)(2) of the Law on the Representativeness of Trade Unions, one of the conditions for a trade union to be considered as representative at any level is its independence from state bodies, employers and political parties and that section 9(2) stipulates that if a trade union representative is a member of a political party body or is a candidate on the electoral list of a political party, the condition of independence is not fulfilled. The Committee understands that while section 9 does not disqualify persons from trade union office due to their political affiliation, it does stipulate that political affiliation or political candidacy of a trade union representative may prevent the concerned trade union from attaining the status of representativeness as a result of not fulfilling the condition of independence. While emphasizing the importance of trade union independence, the Committee considers that conditioning the recognition of trade union representativeness as a whole on the requirement that none of its representatives are members of a political party body or candidates on electoral lists may run counter to the principles of non-interference and promotion of collective bargaining under both the Convention and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87). In line with the above, the Committee requests the Government to consider removing section 9(2) and 9(3)(2) of the Law on the Representativeness of Trade Unions to ensure that membership of a trade union representative in a political party body or candidacy on an electoral list does not put into question the independence of the union as a whole and does not prevent it from attaining the status of representativeness and obtaining the related rights.

Bipartite negotiations. The Committee notes that section 184 of the Law on Representativeness regulates the parties to collective bargaining and provides for tripartite bargaining with the participation of the Government in several instances of negotiation of branch agreements in the public sector, including with respect to companies founded by the State or where the State or the local self-government have majority ownership (section 184(2)(b)). While recognizing the capacity of State authorities to determine the representatives of public entities participating in negotiations relating to the terms and conditions of employment within the latter, the Committee recalls that the Convention applies to all branches of economic activity, including to public enterprises, and that it essentially tends to promote bipartite negotiations, namely between employers and employers’ organizations, on the one hand, and workers’ organizations, on the other. In view of the above, the Committee requests the Government to take the necessary measures to ensure that, in general, negotiations of collective agreements are carried out in a bipartite context, including in public enterprises.

Collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements concluded and in force, specifying the different levels at which they were concluded (at the level of the enterprise, sectoral or national collective agreements) and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.