Termination of Employment Convention, 1982 (No. 158) - North Macedonia (RATIFICATION: 1991)

CMNT_TITLE

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.

CMNT_TITLE

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Repetition

Application of the Convention in practice. The Committee notes the Government’s brief report indicating that there were no changes to the national legislation during the reporting period. In its previous comments, the Committee noted the Government’s indication that the Labour Relations Act was amended in 2013 and that a dispute resolution system for labour matters performed by external licensed conciliators and arbitrators was established through amendments made in 2014 to the Law on Peaceful Resolution of Labour Disputes in order to allow for the protection of employment rights without having to rely on lengthy court proceedings. The Committee therefore reiterates its request that the Government provide 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 available statistics on the activities of the bodies of appeal. It also requests the Government to provide information on 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.

Article 2(2) of the Convention. Exclusions. In its previous comments, the Committee noted the exception contained in section 95(10) of the Labour Relations Act for contracts of employment in public administration bodies. The Committee once again requests the Government to provide information on whether the terms and conditions of employment of workers in public administration bodies provide protection that is at least equivalent to that afforded under the Convention.

Article 5. Invalid reasons for termination. The Committee reiterates its request that the Government provide information regarding the application of this provision of the Convention, including examples of judicial decisions examining the reasons for termination.

Articles 13 and 14. Termination of employment for economic, technological, structural or similar reasons. In its previous comments, the Committee noted the information provided by the Government regarding the number of recorded dismissals due to bankruptcy or liquidation of an enterprise from 2011 to 2013, and that the number of recorded dismissals due to technological or similar changes decreased during the same time period. The Committee once again 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.

CMNT_TITLE

Application of the Convention in practice. The Committee notes the Government’s brief report indicating that there were no changes to the national legislation during the reporting period. In its previous comments, the Committee noted the Government’s indication that the Labour Relations Act was amended in 2013 and that a dispute resolution system for labour matters performed by external licensed conciliators and arbitrators was established through amendments made in 2014 to the Law on Peaceful Resolution of Labour Disputes in order to allow for the protection of employment rights without having to rely on lengthy court proceedings. The Committee therefore reiterates its request that the Government provide 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 available statistics on the activities of the bodies of appeal. It also requests the Government to provide information on 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.

Article 2(2) of the Convention. Exclusions. In its previous comments, the Committee noted the exception contained in section 95(10) of the Labour Relations Act for contracts of employment in public administration bodies. The Committee once again requests the Government to provide information on whether the terms and conditions of employment of workers in public administration bodies provide protection that is at least equivalent to that afforded under the Convention.

Article 5. Invalid reasons for termination. The Committee reiterates its request that the Government provide information regarding the application of this provision of the Convention, including examples of judicial decisions examining the reasons for termination.

Articles 13 and 14. Termination of employment for economic, technological, structural or similar reasons. In its previous comments, the Committee noted the information provided by the Government regarding the number of recorded dismissals due to bankruptcy or liquidation of an enterprise from 2011 to 2013, and that the number of recorded dismissals due to technological or similar changes decreased during the same time period. The Committee once again 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.

CMNT_TITLE

The Committee notes the communication of August 2014, whereby the International Organisation of Employers (IOE) included the former Yugoslav Republic of Macedonia in its observations concerning the application of the Convention.

Application of the Convention in practice. The Government indicates in its report that the Labour Relations Act was amended in 2013 and that a dispute resolution system for labour matters performed by external licensed conciliators and arbitrators was established, by way of amendments made in 2014 to the Law on Peaceful Resolution of Labour Disputes in order to allow for the protection of employment rights without having to rely on lengthy court proceedings. The Government further indicates that the annual average number of labour disputes recorded is 10,000; however, the outcome, remedy awarded and average time of labour disputes are not recorded by the courts. The Committee notes the references made to court decisions, including a 2010 Supreme Court decision which annulled a decision to dismiss a worker based on invalid reasons for termination and ordered the reinstatement of the worker concerned as well as legal costs. The Committee also notes that the number of recorded dismissals decreased from 9,930 in 2011 and 10,118 in 2012 to 8,751 in 2013. The Committee requests the Government to continue to provide information on the manner in which the Convention is applied in practice, including recent court decisions concerning questions of principle relating to the application of the Convention and available statistics on the activities of the bodies of appeal. It also invites the Government to provide further information on alternative dispute resolution mechanisms for resolving labour disputes in regards to termination of employment, including the dispute resolution system performed by conciliators and arbitrators.

Exclusions. In reply to the previous comments regarding section 95(10) of the Labour Relations Act concerning collective lay-offs resulting from the “termination of activities of an institution due to a court decision” and concerning fixed-term employment contracts, the Government indicates that these exceptions are based on the fact that, in their specific circumstances, a consultation process is not necessary. The Committee notes that these two exceptions do not constitute termination at the initiative of the employer and accordingly the Convention does not apply to these forms of termination. The Committee notes that section 95(10) of the Labour Relations Act also contains an exception for contracts of employment in public administration bodies. The Committee therefore requests the Government to provide information on whether the terms and conditions of employment of workers in public administration bodies provide protection that is at least equivalent to the protection afforded under the Convention.

Article 5. Invalid reasons for termination. The Committee notes with interest that an amendment to the Labour Relations Act introduced the enjoyment of unpaid parental leave, which may be used by an employee following the expiration of approved leave for pregnancy, childbirth and parenthood, among the invalid reasons for termination of employment. The Committee requests the Government to continue to provide information concerning this provision of the Convention, including judicial decisions examining invalid reasons for termination.

Articles 13 and 14. Termination of employment for economic, technological, structural or similar reasons. The Committee notes that the number of recorded dismissals due to the bankruptcy or liquidation of an enterprise was 3,396 workers in 2011, 2,765 in 2012 and 3,421 in 2013. It also notes that the number of recorded dismissals due to technological or similar changes decreased from 5,198 workers in 2011 to 3,790 in 2013. The Committee requests the Government to continue to provide practical information on these provisions of the Convention, including available statistics on the number of terminations for economic or similar reasons.

CMNT_TITLE

The Committee notes the Government’s report received in September 2011 in response to its previous direct request, including a copy of the Labour Relations Act as amended until December 2010. It also notes that section 77(3) of the Labour Relations Act provides that sick leave does not constitute a valid reason for dismissal as long as absence for illness or injury is justified by a certificate, which can be delivered either by the general practitioner or by the Health Insurance Fund depending on leave duration (Article 6 of the Convention). It further notes that, by virtue of section 93 of the Labour Relations Act, an employee must exercise the right to appeal against dismissal within eight days from the date of receiving notice of termination of employment (Article 8(3)). The Government also indicates that about 9,700 cases of labour disputes were reported in 2010, almost 67 per cent of which were resolved, while approximately 5,300 appeals were processed. Nevertheless, the courts do not keep separate records indicating the number of disputes specifically based on termination of employment. The Committee therefore invites the Government to provide further information on the manner in which the Convention is applied in practice, including recent court decisions and relevant data, such as the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided (Parts IV and V of the report form).

Exclusions. The Government reports that there are no exceptions in the application of the Convention for the categories of persons listed in Article 2(2) of the Convention. The Committee also notes the Government’s statement indicating that it does not believe there is any reason for excluding those persons from the scope of the Convention. The Committee invites the Government to explain in its next report the nature and the reasons for the exclusions contained in section 95(10) of the Labour Relations Act and to give examples of such collective lay-offs.

Invalid reasons for termination. The Government refers to section 77(3) of the Labour Relations Act which stipulates that approved leave due to illness or injury, pregnancy, birth, parenthood and care for a family member are invalid reasons for dismissing an employee. The Committee notes with interest the ban on discrimination stipulated in section 6(1) of the Labour Relations Act. The Committee invites the Government to provide in its next report examples of judicial decisions prohibiting employment termination on the grounds listed in Article 5 of the Convention.

Articles 13 and 14. Termination of employment for economic, technological, structural or similar reasons. The Committee notes that section 95(1) of the Labour Relations Act considers that terminations of at least 20 employees in a period of 90 days are due to business reasons (Article 13(2)). The Government indicates that this number of the workforce is deemed sufficiently precise but that it might be further defined in future collective agreements. The Committee also notes that, according to section 95(8) of the Labour Relations Act, employers shall notify the authorities (the service competent for mediation) at least 30 days before the reaching of its decision on collective dismissals (Article 14(3)). The Committee invites the Government to provide in its next report available statistics on the number of terminations for economic or similar reasons.

[The Government is asked to reply in detail to the present comments in 2014.]

CMNT_TITLE

The Committee notes the Government’s report on the application of the Convention, received in December 2009. The Government indicates that effect is given to the Convention under the Labour Relations Act and the Employment and Unemployment Insurance Act. The Committee invites the Government to provide in its next report any general information available on the manner in which the Convention is applied in practice, including recent court decisions (Parts IV and V of the report form) and, in particular, on the extent to which courts have examined the employer’s reasons for termination related to the operational requirements of the undertaking (Article 9(3) of the Convention). It would also welcome receiving further clarification with respect to the application of some provisions of the Convention, as detailed below.

Exclusions. The Government refers in its report to different employment contracts such as: “seasonal work”; “part-time employment contract”; “part-time employment contract concluded with several employers”; “employment contract for working at home”; “employment contract with housekeepers”; and “employment contract with managerial staff”. The Committee invites the Government to indicate in its next report the relevant provisions of the Labour Relations Act defining employment contracts which might be covered by Article 2(2), of the Convention. It also asks the Government to indicate whether the Government intends any of these categories to constitute an exclusion contemplated under Article 2(4) and (5), and to provide the relevant information required under paragraph 6.

Invalid reasons for termination. The Committee invites the Government to provide in its next report more information on the statutory basis or judicial decisions prohibiting employment termination on the grounds listed in Article 5(d) of the Convention.

Article 6. Temporary absence from work due to illness or injury. The Committee notes that section 77(3) of the Labour Relations Act specifies that approved absence from work due to disease or injury constitutes an unfounded reason for termination. The Committee invites the Government to indicate in its next report the extent to which medical certification is required as a proof of the employee’s temporary absence being due to illness or injury, and what limitations, if any, have been placed on temporary absence from work.

Article 8(3). Procedure of appeal. The Committee invites the Government to indicate whether the employee’s right to appeal is limited by any time period.

Articles 13 and 14. Termination of employment for economic, technological, structural or similar reasons. The Committee invites the Government to provide in its next report available statistics on the number of terminations for economic or similar reasons. It also invites the Government to indicate if the statutory threshold of “a larger number of employees” in section 95 of the Labour Relations Act has been further defined in regulations or court decisions (Article 13(2)). Please also indicate the minimum period of notification to the competent authority prior to termination, as requested by Article 14(3) of the Convention.