Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Montenegro (RATIFICATION: 2006)

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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.

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The Committee notes the observations of the Union of Free Trade Unions of Montenegro (UFTUM) received on 31 August 2021, alleging lack of adequate protection against acts of anti-union discrimination in practice. The Committee requests the Government to provide its comments thereon.

The Committee notes the adoption of the Law on the Representativeness of Trade Unions (2018), the Labour Law (2019), the Rulebook on the Registration of Representative Trade Union Organizations (2019) and the General Collective Agreement (2019), as well as the Government’s indication that there have been no changes in legislative or other measures that significantly affect the application of the Convention. The Government adds that the Committee’s previous comments were presented to the tripartite working group which drafted the Labour Law and were largely respected and that further amendments to the Labour Law are foreseen for which the technical assistance of the Office would be useful.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comment, the Committee requested the Government to pursue its efforts to amend the legislation so as to ensure the provision of sufficiently dissuasive sanctions for acts of anti-union discrimination against union members and officials. The Committee notes the Government’s indication that: (i) section 189 of the new Labour Law prescribes voluntary membership in a trade union or employers’ association and stipulates that no one can be placed in a less favourable position due to membership in such organizations and participation or failure to participate in their activities; (ii) section 7 prohibits direct and indirect discrimination against persons seeking employment, as well as employees, on the ground of, among others, trade union membership; (iii) section 8 details what constitutes direct and indirect discrimination; (iv) section 13 prohibits discrimination on the basis of membership and participation in organizations of employees and employers; and (v) section 209(1)(1) stipulates fines for violations of sections 7, 8 and 13 by a legal entity in the amount of EUR 1’000 to 10’000. The Committee also observes that a fine ranging from EUR 100 to 1,000 shall be imposed on the responsible person in the legal entity for violations of sections 7, 8 and 13 (section 209(2)). It further notes that section 173(5) stipulates that acting as a representative of employees in line with the law does not constitute a justified reason for termination of employment, that section 196 provides protection against anti-union discrimination against trade union representatives during their mandate, as well as six months after its termination, and that section 180(5) stipulates the possibility of reinstatement and compensation in case of illegal dismissal. The Committee notes with satisfaction the adoption of the above provisions. The Committee observes, however, the concerns raised by the UFTUM in this respect, alleging lack of adequate protection against acts of anti-union discrimination in practice, in particular numerous cases of discrimination against trade union representatives and the absence of prosecution of employers. In view of the above, the Committee requests the Government to provide information on the practical application of section 209(1)(1) of the Labour Law concerning anti-union discrimination cases, in particular the type of violations identified, the nature of the remedies and the amount of the fines imposed.

Article 2. Adequate protection against acts of interference. In its previous comment, the Committee requested the Government to take measures to adopt specific legislative provisions prohibiting acts of interference by the employer or employers’ organizations and making express provision for rapid appeal procedures, accompanied with effective and sufficiently dissuasive sanctions. The Committee notes the Government’s statement in this regard that, under section 197(1) of the Labour Law, the employer is obliged to provide employees with the free exercise of trade union rights and that freedom of trade union organization creates positive and negative obligations for the employer towards the trade union: the positive obligation is to provide conditions for trade union work and to sanction all persons who prevent or hinder trade union activities, whereas the negative obligation implies the absence of any administrative or other barriers by the employer that could prevent or hinder the exercise of trade union rights. The Government adds that the Law on the Representativeness of Trade Unions prescribes general conditions for determining the representativeness of trade unions, which include independence from public authorities, employers and political parties, and it clarifies that in order to establish a quality social dialogue, it is essential to ensure the independence of trade unions from public authorities, employers and political parties. While taking due note of the general obligations of the employer vis-à-vis trade unions and the importance of trade union independence invoked by the Government, the Committee observes that the Government does not point to provisions which provide specific protection against acts of interference by employers or employers’ organizations in the establishment, functioning and administration of trade unions, and vice versa, as established in Article 2(2) of the Convention, in particular acts 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. The Committee therefore reiterates its request to the Government to take measures to adopt specific legislative provisions prohibiting acts of interference by the employer or employers’ organizations as established 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 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 indication that many issues previously regulated by the General Collective Agreement (certain rights concerning the employment relationship, salaries, disciplinary responsibilities, termination of the employment contract and conditions for trade union activities) are now governed by the Labour Law and that the General Collective Agreement will thus mainly contain provisions relating to the determination of wages and the calculation of salaries. The Committee observes however the Government’s statement that the General Collective Agreement will also regulate other issues (such as the limitation of overtime work, and increases in annual leave and unpaid leave) in some sectors where branch collective agreements have not been concluded so as to protect the rights of employees (the banking and trade sectors). The Committee further notes that, under section 183 of the revised Labour Law, a general collective agreement defines, in addition to elements for the determination of wages, also the scope of the rights and obligations arising out of employment and that section 184(1) provides for the Government’s participation in the conclusion of a general collective agreement. While emphasizing the importance and relevance of concertation between the Government and the social partners on matters of common interest, the Committee recalls that the Convention tends essentially to promote bipartite negotiation and to limit the participation of public authorities to issues which are broad in scope, such as the formulation of legislation and economic or social policy, or the fixing of the minimum wage rate. The Committee therefore once again requests the Government to take, in consultation with the social partners, the necessary measures to amend the relevant provisions of the Labour Law to ensure that the general collective agreements are concluded in full compliance with the Convention.

Representativeness of employers’ federations. In its previous comments, the Committee requested the Government to take measures to either substantially reduce or repeal the minimum requirements for an employers’ federation to be considered as representative (under the current legislation, it must 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). While taking due note of the Government’s indication that the tripartite working group that drafted the Labour Law agreed to retain the current legal provision and that, as a result, the conditions for determining the representativeness of employers’ associations have not been changed (section 198 of the revised Labour Law), the Committee wishes to recall that the requirement of too high a percentage for representativeness to be authorized to engage in collective bargaining may hamper the promotion and development of free and voluntary collective bargaining within the meaning of the Convention. The Committee therefore invites the Government to continue to assess, together with the social partners, whether the current minimum requirements for representativeness of employers’ associations continue to be adapted to the specific characteristics of the country’s industrial relations system, with a view to ensuring the promotion and development of free and voluntary collective bargaining.

The Committee also previously noted that the affiliation of employers’ associations to international or regional employers’ confederations was a prerequisite for them to be considered as being representative at the national level and requested the Government to pursue consultations with the social partners concerned to ensure that the prerequisites for employers’ organizations to bargain at the national level are in line with the Convention. The Committee notes the Government’s indication that, while the Rulebook on the manner and procedure of registration of employers’ associations and detailed criteria for determining the representativeness of authorized employers’ associations (2005) is still in force, further amendments to the Labour Law and the Rulebook should be made in 2022, in particular to create a complete legal basis for the procedure of establishing the representativeness, the manner and the procedure for registration of employers’ associations, as well as detailed criteria for determining their representativeness. Welcoming this information, as well as the Government’s indication that the Committee’s comments will be presented to the tripartite working group so as to achieve full compliance with the Convention, the Committee recalls once again that, for an employers’ association to be able to negotiate a collective agreement, it should be sufficient to establish that it is sufficiently representative at the appropriate level, regardless of its international or regional affiliation or non-affiliation. In line with the above, the Committee requests the Government to take the necessary measures, including in the context of the upcoming Labour Law reform and in consultation with the social partners, to ensure that the prerequisites for employers’ organizations to bargain at the national level are in line with the Convention, in particular with regard to their freedom to affiliate or not to affiliate with international or regional organizations.

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.

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Article 1 of the Convention. Adequate protection against anti-union discrimination. The Committee notes the information provided by the Government, in response to its previous request, that the Law on Strikes of 2015 provides in section 35 for fines on the employer (with the status of a legal entity) from €2,500 to €10,000, in cases of dismissal, suspension, disciplinary proceedings and other measures against employees due to the organization or participation in a strike in accordance with the law. A fine of between €500 and €1,000 shall be imposed on a competent person within a legal entity.

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 the trade union at the level of the individual employer shall be determined by the “Director” at the proposal of the commission for the establishment of trade union representativeness. The commission is to be established by the “Director” and consists of two representatives of the employer, the representative trade union if it exists at the level of that employer and the interested trade union (the trade union that submitted the request for the determination).

The Committee notes the Government’s statement that, for the purposes of sections 15, 17 and 18 of the Law on the Representativeness of Trade Unions, the term “Director” refers to the head of a legal entity in which the representativeness of the trade union organization is to be established. The Government further indicates that the working methods of the commissions for the establishment of trade union representativeness are determined by the rules of procedure adopted by each commission and that the Government does not have a role in their adoption and implementation. The Committee considers that the determination of the most representative trade union should always be based on objective and pre established criteria so as to avoid any opportunity for partiality or abuse and that verification of the representative character of a union should be carried out by an independent and impartial body. The Committee requests the Government to take measures, in the context of the development of a new Law on Trade Union Representativeness, to ensure the establishment of an independent and impartial mechanism for determining the representativeness of trade unions at the company level. It also once again requests information on the board to which an appeal can be filed of the Director’s decision concerning trade union representativeness.

Branch level. The Committee previously noted that the condition for trade unions to be able to bargain collectively at the branch level is to affiliate a minimum of 15 per cent of the total number of workers employed in the relevant economic sector and it requested the Government to consider reducing the threshold, in consultation with the most representative employers’ and workers’ organizations. The Committee notes the Government’s statement that, during the drafting of the new Law on the Representativeness of Trade Unions, the Government proposed to decrease this percentage to 10 per cent, but that this proposal was not supported by the social partners.

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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.

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The Committee notes the legislative texts provided by the Government in response to the Committee’s request, including copies of the 2007 Act on peaceful resolution of labour disputes, the 2010 Rulebook on the registration of trade unions, the 2010 Rulebook on the registration of representative trade unions and the 2004 Rulebook on the manner and procedure of registration of general and branch collective agreements. The Committee also notes the General Collective Agreement concluded on 20 March 2014 at national level, which, according to the Government, repealed Collective Agreement No. 1/2004.

Article 1 of the Convention. Protection against anti-union discrimination. With reference to the issues raised in its observations concerning protection against acts of anti-union discrimination, the Committee further notes the Government’s indication that section 23 of the 2003 Act on strikes imposes on employers fines of 50 to 200 times the national minimum wage in cases of dismissal, suspension, disciplinary proceedings and other measures against employees due to the organization or participation in a strike. Noting the adoption of the 2015 Strikes Act, which repeals the 2003 Act on strikes, the Committee requests the Government to specify and provide information on the corresponding provision in the new Strikes Act.

Article 4. Determination of trade union representativeness. As regards the procedure for the determination of representativeness at the enterprise level, the Committee previously noted that sections 15, 17 and 18 of the Act on trade union representativeness refer to various powers of a “director”, for example, the power to establish a commission for determining the representativeness of trade unions and to decide on the representativeness at the proposal of the commission. The Committee had requested the Government to provide information as to the authority that this “director” represents, as well as on the mandate and procedure of the aforesaid commission. The Committee notes that the Government merely cites in its report sections 15–18 as last amended, and provides statistics and a list of representative trade unions at national and branch levels, as well as the number of appeals (three) filed with the board for determining representativeness pursuant to section 18. The Committee requests the Government once again to clarify the term “director” used in these provisions. Noting that section 17 of the Act on trade union representativeness as amended refers to the rules of procedure of the commission, the Committee requests the Government to provide a copy of these rules, as well as additional information on the mandate of the abovementioned commission.

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The Committee notes the observations made by the International Trade Union Confederation (ITUC) in a communication received on 4 August 2011, and the Government’s comments thereon.

Article 1 of the Convention. Protection against anti-union discrimination. The Committee previously noted that the new Labour Act enshrines: (i) 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 (ii) protection against acts of anti-union discrimination of trade union representatives up to six months after termination of trade union activities (section 160). The Committee noted however that section 172, which imposes strong fines for various infringements by employers (including failure to provide employees with free exercise of trade union rights, or the union with conditions for exercising trade union rights), does not provide for fines in cases of acts of discrimination prohibited under sections 5–10 and 160, and requested the Government to take the necessary measures to amend the legislation so as to ensure sufficiently dissuasive sanctions against acts of anti-union discrimination linked to the performance of legitimate trade union activities. In the absence of additional information provided by the Government, the Committee reiterates that the Labour Act neither provides for fines in case of the acts of anti-union discrimination against workers due to their trade union membership (sections 5–10), nor against trade union representatives (section 160). Recalling that legal standards on protection against acts of anti-union discrimination are inadequate if they are not accompanied by sufficiently dissuasive sanctions and effective and expeditious procedures to ensure their application in practice, the Committee requests the Government once again to take the necessary measures to amend the legislation so as to ensure sufficiently dissuasive sanctions – including dissuasive fines – for acts of anti-union discrimination against union members and officials on grounds of trade union membership or legitimate trade union activities.

Article 2. Protection against interference. In its previous comments, the Committee had 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 sections 154 and 159 of the Labour Act mentioned by the Government as well as the Government’s reference to sections 53 and 54 of the General Collective Agreement of 2014, according to which employers are required to guarantee the respect of the right to participation in trade union activities at the local, national and international levels; the inviolability of trade union funds, property, premises, correspondence and telephone conversations; and the access of media to trade union premises. While noting that the new Labour Act and the General Collective Agreement cover certain acts of interference by the employer, the Committee 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. The Committee requests the Government to take measures to adopt specific legislative provisions prohibiting such 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. The Committee had previously requested the Government to: (i) take the necessary measures to amend sections 149 and 150 of the new Labour Act so as to ensure that the Government may participate in the negotiation of a general collective agreement on issues linked to the minimum wage – as it is enabled now – but not on the matters linked to the terms of employment; and (ii) provide information on any developments regarding the promotion of collective bargaining in the public and private sectors. The Committee notes the information supplied by the Government concerning the seminar on promotion of social dialogue held in March 2014. As to the Government’s reference to the 2011 amendments of sections 149 and 150 of the Labour Act, the Committee observes that the amendments did not address the issues raised in its previous comment, and that the 2014 General Collective Agreement was concluded between the Government, the representative national employers’ association and the representative national trade union organizations and deals, in addition to salary, fringe benefits and other remuneration, with terms of employment such as annual leave and termination of employment.

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 and that, while the presence of the Government would be justifiable if the general collective agreement was limited to the establishment of the minimum wage rate, the negotiation of the other terms of employment should take place in a bipartite context and the parties should enjoy full autonomy in this regard. The Committee requests the Government to take the necessary measures to amend sections 149 and 150 of the Labour Act so as to ensure that the Government may solely participate in the negotiation of a general collective agreement that is limited to issues linked to the minimum wage, and that the matters relating to other terms of employment are subject to bipartite collective bargaining between employers and their organizations and workers’ organizations.

Rights of trade unions according to their representativeness. The Committee had previously requested the Government to provide information on the rights of trade unions with no representative status to negotiate on behalf of their members, when there is no union which fulfils the representativeness requirements at the level of the enterprise. The Committee notes the Government’s indication that trade unions without representative status enjoy all rights under the Labour Act; but do not enjoy the rights granted by section 5 of the Act on trade union representativeness including the right to collective bargaining. The Committee observes that section 13 of the latter Act as amended provides that if there are two or more representative trade unions at an appropriate level for which representativeness has been determined under the law, all trade unions shall have the rights referred to in section 5. The Committee further observes that trade unions without representative status do not enjoy the right to collective bargaining but may merge for the purpose of fulfilling the representativeness requirements (section 14 of the Act on trade union representativeness).

Determination of trade union representativeness. As regards the procedure for the determination of representativeness at the enterprise level, the Committee previously noted that sections 15, 17 and 18 of the Act refer to various powers of a certain “director”, for example, the power to establish a commission for determining the representativeness of trade unions and to decide on the representativeness at the proposal of the commission. The Committee had requested the Government to provide information as to the authority that this “director” represents, as well as on the mandate and procedure of the aforesaid commission. The Committee notes that the Government merely cites in its report sections 15–18 as last amended, and provides statistics and a list of representative trade unions at national and branch levels, as well as the number of appeals (three) filed with the board for determining representativeness pursuant to section 18. The Committee requests the Government once again to clarify the term “director” used in these provisions. Noting that section 17 of the Act on trade union representativeness as amended refers to the rules of procedure of the commission, the Committee requests the Government to provide a copy, as well as additional information on the mandate and procedure of the abovementioned board.

Conditions for trade union representativeness. The Committee notes that the condition for trade unions to be able to bargain collectively at branch level is to affiliate a minimum of 15 per cent of the total number of workers employed in the relevant economic sector. The Committee considers that the required percentage could hamper the exercise of collective bargaining and requests the Government to consider reducing the threshold, in consultation with the most representative employers’ and workers’ organizations.

Representativeness of employers’ federations. In its previous comments, the Committee had noted that section 161 of the Labour Act 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 had requested the Government to take measures to either substantially reduce or repeal these minimums. Noting that the Government merely reiterates the above provision, the Committee requests the Government once again to take all necessary measures to either substantially reduce or repeal the minimum requirements established for an employers’ association to be considered as representative, so as to allow for the conclusion of collective agreements by employers and employers’ associations.

In addition, the Committee notes the Rulebook on the manner and procedure for registering employers and determining their representation (No. 34/05) supplied by the Government, and in particular that, according to its section 12, 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. The Committee considers 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 requests the Government to take measures to amend Rulebook No. 34/05 in this regard.

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.

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The Committee notes the Government’s replies to the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 24 August 2010 on the application of the Convention, as well as by the Union of Free Trade Unions of Montenegro dated 7 October 2009 on the proposed draft law on trade union representativeness.

The Committee notes with interest the coming into force on 15 August 2008 of the new Labour Law (O.G. No. 49/08), which repeals Labour Laws Nos 43/03 and 25/06 and provides enhanced protection to trade union representatives, as well as stronger pecuniary sanctions against acts of interference in trade union activities. The Committee also welcomes the adoption of the 2010 Law on Trade Union Representativeness (O.G. 26/10).

Furthermore, the Committee notes that a Law on the Peaceful Resolution of Labour Disputes was adopted in 2007, as well as two Rulebooks on the registration of trade unions. The Committee also notes the translation of Collective Agreement No. 1/2004 transmitted by the Government with its first report. The Committee requests the Government to provide with its next report, a copy of the Law on the Peaceful Resolution of Labour Disputes, as well as of the two Rulebooks on the registration of trade unions, and to indicate whether Collective Agreement No. 1/2004 remained in force after the adoption of the new Labour Law.

Article 1 of the Convention. Protection against anti-union discrimination. In its previous comments, the Committee had observed that while the legislation provided protection against anti-union discrimination to workers’ representatives, no explicit protection was provided to workers. The Committee therefore requested the Government to specify the provisions which afford protection to workers against all prejudicial acts by reason of trade union membership or participation in trade union activities, as well as the remedies, sanctions and procedures which apply to such acts.

The Committee notes that the new Labour Law enshrines protection against acts of direct and indirect discrimination on the ground of membership in trade union organizations, vis-à-vis persons seeking employment and employed persons (articles 5–10) and that pursuant to article 10, in cases of alleged acts of discrimination, the person seeking employment or the employed person may initiate a procedure before the court. The Committee welcomes the fact that the new Labour Law extends the protection of the trade union representatives up until six months upon termination of trade union activities (article 160(1)). Finally, the Committee notes that pursuant to article 172(1)(33) of the new Labour Law, strong fines can apply when the employer “fails to provide employees with a free exercise of trade union rights, or fails to provide the trade union with the conditions for exercising trade union rights”. The Committee notes however that article 172(1)(33) does not expressly refer to acts of anti-union discrimination defined in articles 5–10 of the new Labour Law, which are linked to the performance of trade union activities by trade union members who are not trade union representatives.

In light of the above, the Committee recalls that legal standards on the protection against acts of anti-union discrimination are inadequate if they are not coupled with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application in practice (General Survey on freedom of association and collective bargaining, 1994, paragraph 224). The Committee requests the Government to take the necessary measures to amend the legislation so as to ensure sufficiently dissuasive sanctions – including dissuasive fines – against acts of anti-union discrimination linked to the performance of legitimate trade union activities. The Committee requests the Government to provide information thereon in its next report.

Article 2. Protection against interference. In its previous comments, the Committee had 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, nor specific procedures or dissuasive sanctions against such acts. The Committee notes that: (i) article 154 of the new Labour Law stipulates that employees and employers shall be entitled, at their free choice, without prior approval, to establish their organizations and become their members; and (ii) article 159 provides that the employer shall enable the employees to freely exercise their trade union rights and provide the trade union organization with conditions for efficient performance of trade union activities. Furthermore, the Committee welcomes that, pursuant to article 172(33) of the new Labour Law, penalties can be imposed on the enterprise (legal entity), the employer (physical person) as well as the employer–entrepreneur (entity–employer), when the employer fails to provide employees with a free exercise of trade union rights, or fails to provide the trade union with the conditions for exercising trade union rights. The Committee notes that pursuant to article 172, fines are established as follows: the penalty which can be imposed on the enterprise (legal entity) ranges from 10 to 300 times the minimum wage (while under article 148 of the former labour law, this penalty ranged from 50 to 200 times the minimum wage); the penalty which can be imposed on the employer (physical person) ranges from 1.5 to 20 times the minimum wage (10 to 20 times the minimum wage under the former law) and the penalty which can be imposed on the entity–employer ranges from 10 to 200 times the minimum wage (30 to 200 times the minimum wage under the former law).

The Committee notes however that while the new Labour Law covers certain acts of interference by the employer, global protection of workers’ and employers’ organizations against acts of interference, by each other, in their establishment, functioning or administration, as prescribed by Article 2 of the Convention, is not made explicit in the legislation (see General Survey, op. cit., paragraph 228). The Committee recalls that the relevant legislation should explicitly lay down these substantive provisions as well as appeals and sanctions (General Survey, op. cit, paragraph 232). The Committee requests the Government to take the necessary measures to amend its legislation so as to provide explicit protection against acts of interference by the employer or employers’ organizations, in particular in the establishment, functioning and administration of trade unions and vice versa,  and to provide information on any progress made thereon in its next report.

Finally, the Committee had requested the Government to indicate the provisions which establish safeguards to ensure that the presence of employees’ representatives in the workplace may not be used to undermine the position or activities of trade union representatives. The Committee takes due note that the Government indicates in its report that the new Labour Law now only refers to trade union organizations as the structure for organizing employees and that under article 14(5) of the new Labour Law, employees’ representatives can only be consulted by the employer when there is no established trade union.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had noted that the legislation defined the parties to a “general collective agreement” as an authorized national trade union, an authorized association of employers and the Government. It also noted that the general collective agreement shall establish the basic elements for defining the minimum wage rate, as well as other labour-based and labour-originated rights and obligations. The Committee notes that the new Labour Law – including its provisions on collective bargaining – applies to employees of the public sector and state administration (article 2(2)); that pursuant to article 150(1), a general collective agreement shall be concluded by the representative trade union organization, the representative association of employers and the Government; that pursuant to article 149(1), general collective agreements shall regulate, inter alia, the minimum wage in the economy and the public sector, as well as the scope of work-based rights and responsibilities; and that pursuant to article 148(1) collective agreements may be concluded as general, branch-level and employer-level (individual) agreements. The Committee recalls that Article 4 of the Convention envisages collective bargaining between employers and their organizations and workers’ organizations in a bipartite structure and that, while the presence of the Government would be justifiable if the general collective agreement was limited to the establishment of the minimum wage rate, the negotiation of the other terms and conditions of employment should take place in a bipartite context and the parties should enjoy full autonomy in this regard. The Committee further recalls that the principle of voluntary negotiation of collective agreements, and thus the autonomy of the bargaining partners, is an essential element of Article 4; that the choice of the most appropriate bargaining level should be left to the partners themselves since they are in the best position to decide (General Survey, op. cit, paragraphs 248–250). In light of the abovementioned principles, the Committee requests the Government to:

(i)    take the necessary measures to amend articles 149 and 150 of the new Labour Law so as to ensure that the Government may participate in the negotiation of a general collective agreement on issues linked to the minimum wage – as it is enabled now – but not on the matters linked to the terms and conditions of employment; and

(ii)   provide information in its next report on any developments regarding the promotion of collective bargaining in the public and private sectors is (e.g. training and information activities, seminars with the social partners, etc.).

Trade union representativeness. The Committee notes that pursuant to article 5 of the 2010 Law on Trade Union Representativeness, the rights of representative trade unions include, inter alia, the right to conclude collective agreements, to participate in solving collective labour disputes, to participate in the work of the Social Council and other tripartite and multipartite bodies, as well as other rights granted by special laws; and that pursuant to article 14 of the Law, if no trade union fulfils the representativeness requirement, trade unions may conclude an agreement on merger for the purpose of fulfilling that requirement. The Committee recalls that a distinction between the most representative trade unions and other trade union organizations should not result in the most representative organizations being granted privileges extending beyond that of priority in representation for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies; in other words, this distinction should not have the effect of depriving trade union organizations that are not recognized as being among the most representative of the essential means for defending the occupational interests of their members for organizing their administration and activities and formulating their programmes (General Survey, op. cit., paragraph 239). The Committee requests the Government to provide information in its next report on the rights of trade unions with no representative status to negotiate on behalf of their members, when there is no trade union which fulfils the representativeness requirements at the level of the enterprise.

Furthermore, as regards the procedure for the determination of trade union representativeness at the enterprise level, the Committee notes that articles 15, 17 and 18 of the Law refer to the various powers of the “director”. The Committee requests the Government to provide information in its next report on the authority which this “director” represents, on the rules concerning its appointment and on whether this system enjoys the confidence of the social partners.

Finally, the Committee notes that article 15 of the Law provides that the director sets up a commission for the establishment of trade union representativeness, which shall consist of two representatives from each of the following: employer, representative trade union, if it exists at the level of that employer, and the interested trade union. The Committee requests the Government to provide additional information in its next report on the mandate and procedure of the tripartite commission in charge of establishing trade union representativeness, and to indicate whether the social partners have questioned the decisions taken by this commission.

Employers’ organizations. In its previous comments, the Committee had noted that the former Labour Law defined an “authorized association of employers” as an association of employers whose members have a minimum of 25 per cent of employees in the economy of the Republic and participate in the gross domestic product of the Republic with a minimum of 25 per cent and that, should no association meet these requirements, employers can participate directly in the conclusion of an agreement. The Committee had requested the Government to take measures to either substantially reduce or repeal the minimum requirements established for defining an “authorized association of employers” so as to allow for the conclusion of collective agreements by employers and employers’ associations in the manner they consider most appropriate. The Committee notes that article 161 of the new Labour Law provides the same definition of the employers’ organizations authorized to conclude general collective agreements. The Committee further notes that the Government indicates in its report that no problems were encountered in practice with these criteria, that only one employers’ association has been registered so far and that no further requests have been submitted. The Committee reiterates its request to the Government to take the necessary measures to either substantially reduce or repeal the minimum requirements established for authorizing an employers’ association to register with the Ministry, so as to allow for the conclusion of collective agreements by employers and employers’ associations in the manner they consider most appropriate.

In addition, the Committee notes that the Government indicates in its report on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that the affiliation of employers’ organizations to international organizations is a prerequisite for them to be considered as being representative at the national level, pursuant to article 12 of the Rulebook on the manner and procedure for registering employers and determining their representation (No. 34/05). The Committee requests the Government to provide a copy of the Rulebook No. 34/05 with its next report.

Registration of collective agreements. In its previous comments, the Committee had noted that the legislation provided for the registration of general and branch collective agreements with the Ministry and that the modalities and method of registration shall be defined by the Ministry. The Committee notes that article 151 of the new Labour Law reiterates that general and branch collective agreements shall be registered with the Ministry, following the procedure established by the Ministry, and that the Ministry shall adopt the regulations for the implementation of the new Labour Law within 12 months from the date of coming into effect of the Law (article 178). The Committee requests the Government to provide with its next report a copy of the implementing regulations of article 151 of the Labour Law.

Furthermore, the Committee had noted that pursuant to the legislation, the modalities for the publication of enterprise collective agreements shall be established in the agreements themselves. The Committee notes that the same is provided by article 151(4) of the new Labour Law. It also notes that the Government indicates in its report that this provision does not, in practice, raise problems of application.

Finally, in its previous comments, the Committee, noting that the legislation envisaged various facilities and measures to facilitate collective bargaining, had requested the Government to provide statistical data on the number of collective agreements concluded and their coverage. The Committee notes that the Government indicates in its report that 17 branch collective agreements have been concluded so far, that the list of the sectors covered by these agreements is attached to the report, that amendments to 14 other branch collective agreements have been registered and that since the collective agreements concluded directly with the employer do not have to be registered with the Ministry, no data is available on these agreements.

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 request.

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The Committee notes the Government’s first report. It also notes the text of the Constitution of Montenegro, the general collective agreement transmitted with the Government’s report, as well as the Criminal Code of Montenegro. The Committee will examine these documents once a translation is available.

Article 1 of the Convention. Protection against anti-union discrimination. The Committee observes that sections 6, 139(1), 140 and 148(3) of the Labour Law provide protection against anti-union discrimination to workers’ representatives. However, no explicit protection is provided to workers. The Committee recalls that Article 1 of the Convention requires that all workers should be protected against all prejudicial acts by reason of trade union membership or participation in trade union activities (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 210–212). The Committee requests the Government to specify the provisions which afford protection to workers against all prejudicial acts by reason of trade union membership or participation in trade union activities, as well as the remedies, sanctions and procedures which apply to such acts.

Article 2. Protection against interference. 1. The Committee notes that there is no explicit provision against acts of interference by employers or employers’ organizations in the establishment, functioning and administration of trade unions and vice versa, and no specific procedures or dissuasive sanctions in this regard. The Committee recalls that Article 2 provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other. It is important, therefore, that whenever it appears that there is insufficient protection against interference or that such acts do occur in practice, governments take specific action, in particular through legislative means, to ensure that the guarantees provided for in the Convention are respected and to give these provisions the necessary publicity to ensure that they are effective in practice (see General Survey, op. cit, paragraph 234). The Committee requests the Government to indicate the provisions which provide explicit protection against acts of interference by the employer or employers’ organizations in the establishment, functioning and administration of trade unions and vice versa, as well as the rapid procedures and sufficiently dissuasive sanctions which apply to such acts.

2. The Committee notes that the Labour Law envisages the same protection for employees’ representatives who may exist in the workplace parallel to trade union representatives. Section 4 of the Labour Law provides that employees working at a workplace with more than 20 employees have the right to set up an employees’ council, or elect an “authorized employees’ representative” in workplaces with less than 20 employees. The employees’ council shall provide opinions on: the decisions and orders of the employer that affect the employees’ status in accordance with the collective agreement; the promotion of professional rehabilitation, working conditions for elderly employees, disabled persons, women and employed juveniles; as well as decisions on providing for employees that become redundant. According to section 4(4), the mandate, the number and the method of electing the employees’ council is defined in the collective agreement. The Committee requests the Government to indicate the provisions which establish safeguards aimed at ensuring that the presence of employees’ representatives in the workplace may not be used in order to undermine the position or the activities of trade union representatives.

Article 4. Promotion of collective bargaining. 1. The Committee notes that section 131 of the Labour Law defines the parties to a “general collective agreement” as an authorized national trade union, an authorized association of employers and the Government. Section 129 provides that the general collective agreement shall establish the basic elements for defining the minimum wage rate as well as other labour-based and labour-originated rights and obligations. The Committee recalls that Article 4 of the Convention envisages collective bargaining between employers and their organizations and workers’ organizations in a bipartite structure. The Committee considers that while the presence of the Government would be justifiable if the general collective agreement was limited to the establishment of the minimum wage rate, the negotiation of other terms and conditions of employment should take place in a bipartite context and the parties should enjoy full autonomy in this regard. The Committee requests the Government to amend sections 129 and 131 so as to ensure that the participation of the Government in the negotiation of a general collective agreement is limited to the issue of the minimum wage.

2. The Committee notes that section 132(a) of the Labour Law defines an “authorized association of employers” as an association of employers whose members have a minimum of 25 per cent of employees in the economy of the Republic and participate in the gross domestic product of the Republic with a minimum of 25 per cent. Paragraph 4 of section 132(a) provides that should no association meet these requirements, employers can participate directly in the conclusion of an agreement. The Committee notes nevertheless, that the Convention envisages the conclusion of collective agreements either by employers directly, or by organizations of employers. The Committee requests the Government to indicate in its next report the measures taken or contemplated to either substantially reduce or repeal the minimum requirements established for defining an “authorized association of employers” so as to allow for the conclusion of collective agreements by employers and employers’ associations in the manner they consider most appropriate.

3. The Committee notes that section 133 of the Labour Law provides for the registration of the general collective agreement and branch collective agreements with the ministry. Under section 133(4) of the Labour Law, the modalities and method of registration shall be defined by the Ministry of Labour. The Committee requests the Government to transmit any implementing regulation of section 133(4) of the Labour Law on the registration of general and branch collective agreements.

4. The Committee notes furthermore, that section 133(3) of the Labour Law provides that the modalities for the publication of enterprise collective agreements shall be established in the agreements themselves. The Committee requests the Government to provide details on the publication of enterprise agreements in practice.

5. The Committee notes that the Labour Law envisages various facilities and measures to facilitate collective bargaining (sections 62(4), 137(3), 137(4), 138, 139(2), 139(3), 139(5)). The Committee requests the Government to provide statistical data on the number of collective agreements concluded and their coverage.