Observation (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2017 and the Government’s reply thereto. It recalls that the issues raised by the ITUC were examined by the Committee on Freedom of Association (CFA) in Case No. 3140 in March 2016 (Report No. 377) and that the case is currently in follow-up by the CFA. The Committee also notes the observations of the Montenegrin Employer Federation (MEF) and the International Organisation of Employers (IOE) received on 30 November 2017.

Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee previously noted that while the Labour Law provides protection against acts of direct and indirect discrimination of persons seeking employment and employed persons on the ground of membership in trade union organizations (sections 5–10) and protection against acts of anti-union discrimination of trade union representatives up to six months after termination of trade union activities (section 160), it did not provide for fines in case of infringement of these provisions. The Committee notes the Government’s statement that its work programme foresees the adoption of a new Law on the Representativeness of Trade Unions by the end of 2017. The Government indicates that the draft of this Law was drawn up within a working group composed of representatives of the Ministry of Labour and Social Welfare and the social partners, particularly the Union of Employers of Montenegro, the Union of Free Trade Unions of Montenegro and the Confederation of Trade Unions of Montenegro. The Government indicates that this new Law will provide sanctions, including appropriate fines, regarding acts of anti-union discrimination against trade union members and officials based on trade union membership or legitimate union activities. Further noting the Government’s indication that the drafting of a new Labour Law is ongoing, the Committee requests the Government to pursue its efforts to amend the legislation so as to ensure the provision of sufficiently dissuasive sanctions – including dissuasive fines – for acts of anti-union discrimination against union members and officials on the grounds of trade union membership or legitimate trade union activities. It requests the Government to provide a copy of the new Law on the Representativeness of Trade Unions, once adopted.

Article 2. Adequate protection against interference. In its previous comments, the Committee noted that there was no explicit provision against acts of interference by employers or employers’ organizations in the establishment, functioning and administration of trade unions and vice versa. The Committee notes once again that the Government refers to sections 154 and 159 of the Labour Law, which provide that employees and employers shall be entitled, at their free choice, without prior approval, to establish their organizations and become members (section 154) and that the employer shall enable employees to freely exercise their trade union rights and provide the trade union organization with conditions for efficient performance of trade union activities (section 159). The Government further refers to section 172(33) of the Labour Law, which provides for a financial penalty if the employer fails to provide employees with the free exercise of trade union rights, or fails to provide the trade union with the conditions for exercising trade union rights. The Committee once again observes that the provisions do not specifically cover acts of interference designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to place workers’ organizations under the control of employers or employers’ organizations through financial or other means. Noting the Government’s indication that there is an ongoing labour law reform, the Committee once again requests the Government to take measures to adopt specific legislative provisions prohibiting acts of interference on the part of the employer or employers’ organizations as defined in Article 2(2) of the Convention and making express provision for rapid appeal procedures, accompanied with effective and sufficiently dissuasive sanctions.

Article 4. Promotion of collective bargaining. General Collective Agreement. The Committee previously requested the Government to take measures to amend sections 149 and 150 of the Labour Law, specifying the general collective agreement shall be signed between the representative trade union organization, a relevant body of the representative employers’ federation and the Government, so as to ensure that the Government may only participate in the negotiation of a general collective agreement on issues linked to the minimum wage, (and that matters relating to other terms of employment are subject only to bipartite collective bargaining between employers and their organizations and workers’ organizations.) The Committee notes the Government’s statement that the drafting of a new Labour Law is ongoing, and that in that context, the representatives of the social partners agreed that the Government should participate in the negotiations on the conclusion of the General Collective Agreement. The Committee also notes that the General Collective Agreement covers both the public and private sectors. The Committee once again recalls that Article 4 of the Convention envisages collective bargaining between employers and their organizations and workers’ organizations in a bipartite structure. As a consequence, the participation of the Government would be justifiable if it is limited: (i) to the establishment of the minimum wage rate; and (ii) to its capacity as an employer with respect to public sector workers, whereas the negotiation of the other terms of employment should take place in a bipartite context with the parties enjoying full autonomy in this regard. The Committee requests the Government to provide further information on the consultations undertaken with respect to the involvement of the Government in the negotiation of the General Collective Agreement, as well as to provide a copy of the new Labour Law, once adopted.

Representativeness of employers’ federations. In its previous comments, the Committee noted that section 161 of the Labour Law provides that an employers’ federation shall be considered as representative if its members employ a minimum of 25 per cent of employees in the economy of Montenegro and participate in the gross domestic product of Montenegro with a minimum of 25 per cent and that, should no association meet these requirements, employers may make an agreement to participate directly in the conclusion of a collective agreement. The Committee requested the Government to take measures to either substantially reduce or repeal these minimums. The Committee notes the Government’s statement that the drafting of the new Labour Law is ongoing, and that the recommendations of the Committee will be presented to the social partners within the working group.

The Committee also notes that the MEF and the IOE consider that the established thresholds are adequate to define the representativeness of an employers’ organization. The organizations further indicate that: (i) a company can decide to affiliate to one or more employers’ organizations, meaning that the 25 per cent threshold should not be read in a horizontal manner and that more than four employers’ organizations can be established in the country; and (ii) there is one representative employers’ organization in the country – (the MEF) as well as a number of other business organizations. Taking due note of the Government’s reply and the indications of the MEF and the IOE, the Committee requests the Government to provide information on the consultations undertaken with the social partners in the context of the elaboration of the Labour Law on the minimum requirements established for an employers’ association to be considered as representative.

The Committee previously noted that pursuant to section 12 of the Rulebook on the manner and procedure for registering employers and determining their representation (No. 34/05), the affiliation of employers’ associations to international or regional employers’ confederations is a prerequisite for them to be considered as being representative at the national level, and it requested that measures be taken to amend the Rulebook. In this respect, the Committee notes the Government’s statement that, following the adoption of the new Labour Law, new regulations will be drafted, and the Committee’s recommendation will be taken into account in that context. In this respect, the Committee notes the statement of the MEF and the IOE that this requirement is necessary to avoid the establishment of a multiplicity of non-independent employers’ organizations, and that it is only a prerequisite concerning participation in national tripartite social dialogue institutions, national tripartite bodies, or to participate in international meetings. The IOE and the MEF highlight that organizations like the IOE do not award exclusive membership rights and, in various countries, it has different employers’ organizations as a member. Recalling that for an employers’ association to be able to negotiate a collective agreement, it should suffice to establish that it is sufficiently representative at the appropriate level, regardless of its international or regional affiliation or non-affiliation, the Committee invites the Government to pursue, in the context of the current labour law reform, the consultations with the social partners covered so as to ensure that the prerequisites for employers’ organizations to bargain at the national level are in line with the Convention.

The Committee reminds the Government that the technical assistance of the Office remains at its disposal, if it so wishes, as regards the legal issues raised in this observation.

The Committee is raising other matters in a request addressed directly to the Government.