Termination of Employment Convention, 1982 (No. 158) - Serbia (RATIFICATION: 2000)

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Legislative developments. The Committee notes with interest the information provided in the Government’s 2015 and 2016 reports regarding the Law Amending the Labour Law, which entered into force on 29 July 2014, including the specific provisions relevant to the application of the Convention on matters that relate to the duration of fixed-term employment contracts, valid and invalid reasons for termination, as well as procedures prior to termination and court procedures concerning termination of employment. The Government indicates that, pursuant to the amendments of the Labour Law, an employment contract may be concluded for a fixed period of time that is predetermined and for objective reasons; namely a deadline, the performance of a specific task, or the occurrence of a specific event. The employer may conclude one or more contracts of employment for a fixed period of time with the same worker for a maximum period of 24 months, with or without breaks. The Committee requests the Government to provide information on the use of safeguards provided in the Labour Law, as amended, against abusive recourse to contracts of employment for a specified period of time, including relevant court decisions in this regard.

Article 9(2) of the Convention. Burden of proof. The Committee notes that no information has been provided in reply to its previous comments under Article 9 of the Convention. The Committee reiterates its request that the Government provide updated information on the measures taken to give full effect to Article 9 of the Convention. Referring to its previous comments, it also requests the Government to provide further information on the practical application of sections 222–226 of the Code of Civil Procedure in appeals against unjustified termination of employment, especially in relation to the burden of proof, and to indicate whether the worker bears the full burden of proving that the termination was not valid.

Article 11. Period of notice. The Government indicates that, according to section 189(1) of the Labour Law, as amended, an employee whose employment contract has been terminated due to unsatisfactory work performance, or lack of necessary knowledge and skills, is entitled to a notice period to be determined by the collective agreement, work regulations or the employment contract depending on length of insurance coverage, but which may not be shorter than eight or longer than 30 days. According to section 180(a) of the Labour Law, as amended, an employer may terminate the worker’s contract, or impose other measures, if: it has previously given the worker written notice of the deficiencies in the worker’s work; has provided guidance and a reasonable period within which to improve work; and the worker has not improved performance within the period. Referring to Article 11 of the Convention, the Committee recalls that the only exception to the duty to give notice (or compensation in lieu thereof) is in respect of a worker’s serious misconduct. The Committee therefore requests the Government to provide information on the period of notice required to be given to workers whose employment is terminated for reasons connected with his/her conduct, with the exception of serious misconduct. It also requests the Government to provide information on the manner in which amended sections 189(1) and 180(a) of the Labour Law are applied in practice, and to provide copies of relevant court decisions in this regard.

Article 12. Severance allowance and other income protection. The Government indicates that, according to section 191 of the Labour Law, as amended, if the court determines that the employment contract was terminated without legal basis, the court shall, at the request of the worker, order reinstatement and compensation for damages and that corresponding contributions for compulsory social insurance be paid for the period in which the worker did not work. The Committee notes that the information provided by the Government relates to situations in which the employment relationship was unfairly terminated or terminated based on valid grounds, but where the employer failed to follow required procedures. It recalls that Article 12 of the Convention applies to all terminations at the initiative of the employer. The Committee requests the Government to indicate the manner in which Article 12 is given effect with respect to workers whose employment was terminated for a valid reason.

Article 13. Consultations with workers’ representatives. With respect to the procedures prior to or at the time of termination (Article 7), the Government indicates that an employer must provide a written notice of dismissal to the worker concerned. In response, the worker may attach the opinion of the trade union of which the worker is a member and the employer must take into account the union’s views. The Committee notes that no further information has been provided in reply to its previous comments under Article 13 with respect to consultations with workers’ representatives. The Committee refers to its previous comments and requests the Government to provide updated information on the outcome of the measures implemented under the “Redundancy Service Package” of the National Employment Action Plan, as well as to provide information with respect to other means of consultation with workers’ representatives (Article 13(1)(b)), and the manner in which these are applied in practice.

Application of the Convention in practice. The Committee once again requests the Government to provide updated information on the manner in which the Convention is applied in practice, including, for example, copies of court decisions concerning questions of principle relating to the application of the Convention and available statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified terminations, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided upon) and on the number of terminations for economic or similar reasons in the country.

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The Committee notes the Government’s report received in September 2013 and the observations made by the Union of Employers of Serbia, the Confederation of Autonomous Trade Unions of Serbia (CATUS) and the Trade Union Confederation “Nezavisnost”. In its report, the Government provides statistical information that shows that between June 2011 and June 2013 a total of 6,219 redundancies were handled under a “Redundancy Programme for Streamlining, Restructuring and Pre-Privatisation”. In reply to the Committee’s comments, the Government indicates that the Employment Department, which is tasked with handling employment-related activities, has no information about court rulings regarding the implementation of the Convention. In its observations, the CATUS highlights the long duration of proceedings in cases of labour disputes, which is the reason why it is advocating the adoption of new legislation to govern labour courts. The Committee notes that the Union of Employers of Serbia considers that the Labour Code should introduce flexible patterns of employment in addition to the fine tuning of the reasons for lawful termination of an employment contract. The Committee reiterates that it would welcome examining in the Government’s next report relevant court decisions on the reasons for termination of employment as they become available. The Government is also invited to supply statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination (Article 4 of the Convention), the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided), as well as the statistics on the number of terminations for economic or similar reasons (Part V of the report form).

Article 9(2) of the Convention. Burden of proof. The Committee reiterates its previous comments and invites the Government to provide further information on the practical application of sections 222–226 of the Code of Civil Procedure in appeals against unjustified termination of employment demonstrating that the worker does not have to bear alone the burden of proving that termination was not valid.

Article 11. Period of notice. In its report, the Government reiterates that the Labour Law establishes a notice period of between one and three months. Employees are entitled to severance pay and unemployment compensation from the National Employment Service (NES). The Committee understands that the notice period does not apply if the termination is due to non-performance or violation of discipline in the workplace. The Labour Law stipulates that in such cases, an employee is entitled to respond to the employer’s written warning within five days, after which the employer may terminate their employment. The Committee also notes that in the event of minor non-performance or violation of discipline in the workplace, the employer may only inform an employee that his or her employment will be terminated without further warning if the same or a similar violation is repeated. The Committee recalls that the only exception to the right to give notice (or compensation in lieu thereof) is in respect of an employee’s serious misconduct. The Committee therefore once again asks the Government to bring the Labour Law in line with the requirements of Article 11 of the Convention.

Article 12. Severance allowance and other income protection. In its previous comments, the Committee invited the Government to ensure that the Labour Law applies to all terminations at the initiative of the employer, except those due to the employee’s serious misconduct. The Committee notes that the Law on Employment and Unemployment Insurance (last amended in July 2009) stipulates that unemployed people are entitled to compensation if, inter alia, the contract is terminated due to technological, economic or organizational changes, if the need for carrying out a certain job ceases or the workload decreases. The Law also stipulates that unemployed people are entitled to compensation if the contract is terminated because the employee fails to perform at work or lacks the knowledge and competencies required to fulfil work tasks. The Committee notes that while able to exercise the right to compensation, the unemployed person is entitled to health, pension and disability insurance. The Committee also notes that the Government established a “Redundancy Programme for Streamlining, Restructuring and Pre-Privatisation” that regulates access to severance pay in excess of that set by the Labour Law. This Programme covers businesses in restructuring and undergoing preparations for being privatized, enterprises established to employ persons with disabilities, public enterprises that are being restructured or streamlined, public enterprises established in disadvantaged areas and local authorities that are being streamlined. The Committee notes that the Labour Law stipulates that unemployed people are entitled to compensation in specified cases and that the “Redundancy Programme for Streamlining, Restructuring and Pre-Privatisation” also provides income protection to those workers concerned. The Committee recalls that Article 12 of the Convention applies to all terminations at the initiative of the employer, except those due to the employee’s serious misconduct and would welcome examining further information on the measures taken to ensure full effect to Article 12 of the Convention.

Article 13. Consultations with workers’ representatives. The Committee notes that the National Employment Action Plan 2013 includes a “Redundancy Service Package” and that as part of this package, the NES registers workers recently made redundant, assesses their employability, sets their individual employment plans and determines which measures are the most suitable for activating them and increasing their employability. Another aspect of this package is including redundant employees into active employment policy programmes and measures, primarily training activities. The “Nezavisnost” points out that the National Employment Action Plan 2013 envisages mostly passive employment measures and that the National Employment Service lacks funds for re-training and additional training of employees to enable them to find jobs or become self employed, as well as funding for active employment policy measures. The Committee invites the Government to provide information in its next report on the outcomes of the measures implemented under the “Redundancy Service Package” and other means of consultations with workers’ representatives (Article 13(1)(b)).

[The Government is asked to reply in detail to the present comments in 2015.]

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The Committee notes the Government’s report received in September 2011, which includes comments by the Trade Union Confederation Nezavisnost and the Association of Independent Trade Unions of Serbia. Nezavisnost indicates that the Government’s report contains insufficient information on the national practice on termination of employment. It further indicates that during 2009, the employment of as many as 5,000 employees was terminated, as a result of the global financial and economic crisis. Nezavisnost and the Association of Independent Trade Unions of Serbia refer to irregularities such as: lack of warning prior to terminations; failure to respect the period of notice in the employment contract; non-compliance with provisions regulating termination of employment of workers’ representatives; and failure of pay due compensation upon termination of employment. Nezavisnost stresses that, due to the high costs of litigation, the majority of workers have limited access to justice and, consequently, many of them fail to receive financial compensation they may be entitled to following unlawful employment termination. It also alleges that, notwithstanding judicial reforms, labour disputes last three to four years before reaching a final judgement. In this regard, the Association of Independent Trade Unions of Serbia specifies that many decisions of the Constitutional Court indicate that the unreasonable length of unjustified employment termination procedures constitutes a breach of the right to trial within a reasonable time. The Committee invites the Government to supply extracts of important court decisions on the reasons for termination of employment, statistics on the activities of the bodies of appeal (such as the number of appeals against unjustified termination (Article 4 of the Convention), the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided), as well as statistics on the number of terminations for economic or similar reasons (Part V of the report form).

Article 9(2) of the Convention. Burden of proof. In reply to the 2006 direct request, the Government listed the provisions of the Code of Civil Procedure on the presentation of evidence in court proceedings, which also apply to labour disputes. Section 223 of the Code establishes that if the court cannot establish a particular fact based on the evidence presented, it shall apply the burden of proof principle. According to this principle, a party wishing to assert a right shall prove the facts on which her/his claim is based, unless otherwise provided by law. A party who alleges the nullity of a right shall prove the facts on which she/he bases her/his allegation, unless otherwise provided by law. The Committee invites the Government to provide further information on the practical application of sections 222–226 of the Code of Civil Procedure in appeals against unjustified termination of employment demonstrating that the worker does not have to bear alone the burden of proving that termination was not valid.

Article 11. Period of notice. In its previous comments, the Committee noted that, although the programme enacted by the employer to manage redundancies pursuant to sections 153 and 155 of the Labour Law may determine the deadline within which the employer shall give notice of dismissal to the employee, the national provisions do not impose an obligation to give notice (or pay compensation in lieu thereof), nor stipulate the minimum period of such notice. It further noted that the Labour Law provides a one-to-three month notice period for terminations due to the employees’ “failure to perform or lack of knowledge or skills”, but does not require the employer to give notice to employees who breached their duty obligations or failed to adhere to work discipline in circumstances where the misconduct is not serious. In its comments, Nezavisnost stresses that it is essential to stipulate a reasonable period of notice or an appropriate compensation in lieu thereof to ensure conformity with Article 11 of the Convention. The Committee again recalls that, under Article 11 of the Convention, a worker is entitled to a reasonable period of notice (or compensation in lieu thereof), the only exception being the employee’s serious misconduct. The Committee again requests the Government to bring the Labour Law in line with the requirements of Article 11 and to provide for a reasonable period of notice (or compensation in lieu thereof) in respect of all terminations of employment at the initiative of the employer, except those terminations based on the serious misconduct of the employee.

Article 12. Severance allowance and other income protection. In reply to the 2006 direct request, the Government states that it will take the Committee’s remarks into consideration in the process of developing the draft Labour Law. In its previous comments, the Committee noted that an employee, whose employment contract is terminated due to technological, economic or organizational changes, is entitled to a severance allowance and other income protection (section 160 of the Labour Law). It further noted that, by virtue of section 109 of the Law on Employment and Insurance in Case of Unemployment, the employee is entitled to compensation in specified cases, including termination for failure to achieve the envisaged results or inability to work. The Committee recalls that Article 12 of the Convention applies to all terminations at the initiative of the employer, except for those due to the employee’s serious misconduct. The Committee requests the Government to provide information on measures taken towards ensuring conformity between its national legislation and Article 12 of the Convention by providing either for a severance allowance contemplated in Article 12(1)(a), or the benefits contemplated in Article 12(1)(b).

Article 13. Consultations with workers’ representatives. The Government indicates that the National Employment Service through an operational expert team cooperates with employers and other concerned stakeholders, such as representatives of territorial autonomy and local self-government, in reorganization, restructuring or privatization processes. This team is also in charge of proposing measures aimed at preventing or reducing the number of redundancies. The Committee invites the Government to provide further information on the consultations held by the National Employment Service with workers’ representatives on the measures taken to avert or minimize terminations of employment and to mitigate the adverse effects of any terminations on the workers concerned, such as finding alternative employment (Article 13(1)(b)).

[The Government is requested to reply in detail to the present comments in 2013.]

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1. The Committee notes the Government’s report received in reply to its 2005 direct request. In particular, it notes the Government’s statement that the provisions of the Convention apply to all branches of the economy and to all employed persons (Article 2, paragraph 1, of the Convention). It once again requests the Government to supply information on the manner of its application, particularly important court decisions on the reasons for termination and on the number of terminations for economic or similar reasons in which the National Employment Service has intervened (Articles 4 and 14 of the Convention).

2. Burden of proof. The Government indicates in its report on Article 9 of the Convention that the Lawsuit Law (Official Gazette of RS, No. 125/04) applies to labour disputes and requires both parties to present facts and proof on which their complaint is based. The Government also refers to the Amicable Resolution of Labour Disputes Law in this regard. The Committee requests the Government to supply it with the relevant provisions of the Lawsuit Law and a copy of the Amicable Resolution of Disputes Law, including extracts of the relevant court decisions on this matter.

3. Period of notice. The Government states in its report that, according to the Labour Law, the programme enacted by the employer under sections 153 and 155 of the Labour Law to resolve the problem of surplus employees due to technological, economic or organizational changes shall, inter alia, determine the deadline within which the employer shall give notice of dismissal to the employee. Although the programme contemplated in sections 153 and 155 of the Labour Law may require the employer to determine the deadline within which the employer must give the notice of dismissal, the national provisions do not impose an obligation to give notice (or pay compensation in lieu thereof) nor stipulate the minimum period of such notice. The Committee recalls that, under Article 11 of the Convention, a worker is entitled to a reasonable period of notice (or compensation in lieu thereof) unless the employee is guilty of serious misconduct. The Government also states in its report that the Labour Law provides a notice period of between one and three months for terminations due to an employees’ “failure to perform or lack of knowledge or skills”. The Government also indicates that the Labour Law does not require an employer to give notice to employees who have breached an employment duty or failed to adhere to work discipline. The Committee recalls that the only exception to the right to give notice (or compensation in lieu thereof) is in respect of an employee’s serious misconduct. The Committee accordingly calls on the Government to bring the Labour Law into line with the requirements of Article 11 and to provide for a reasonable period of notice (or compensation in lieu thereof) in respect of all terminations at the initiative of the employer, except those terminations based on the serious misconduct of the employee.

4. Severance allowance and other income protection. The Government indicates in its report that an employee whose employer terminates an employment contract because the employee’s services are not needed due to technological, economic or organizational changes, is entitled to a severance allowance, as well as compensation, a pension, disability insurance and health care (section 160 of the Labour Law). The Government also indicates that, under the terms of section 109 of the Law on Employment and Insurance in Case of Unemployment, the employee is entitled to compensation in specified cases, including termination for failure to achieve the envisaged results or inability to work. The Committee recalls that under Article 12 of the Convention the worker is entitled on termination to either a severance allowance or social security benefits. This obligation applies to all terminations at the initiative of the employer, except for serious misconduct (Article 12, paragraph 3). The Committee requests the Government to bring its Labour Law into line with Article 12 and to provide either for a severance allowance contemplated in
Article 12, paragraph 1(a), or the benefits contemplated in Article 12, paragraph 1(b).

5. Consultations with workers’ representatives. The Committee notes the indications provided by the Government in its report and would appreciate receiving practical information on the consultations held by the National Employment Service with workers’ representatives on the measures taken to avert or minimize terminations of employment and to mitigate the adverse effects of any terminations on the workers concerned, such as finding alternative employment (Article 13, paragraph 1(b)).

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1. The Committee notes the report provided on the application of the Convention by the Republic of Serbia for the period ending in July 2003. It further notes the comments received by the World Confederation of Labour (WCL) and the Confederation of Autonomous Trade Unions of Serbia (CATUS), which were forwarded to the Government in January 2004. The Committee requests the Government to provide in its next report information on the application of the Convention in the Republic of Montenegro.

2. Republic of Serbia. Referring to the Labour Law in force in 2003, CATUS expressed concern over the application of the provisions of the Convention concerning valid reasons for termination, the prohibition of termination in case of absence from work during maternity leave, the procedures prior to termination, the burden of proof regarding the existence of a valid reason for termination, the period of notice and the information and consultation of workers’ representatives in case of termination of employment for economic reasons. The Committee has noted that a new Labour Law was adopted by the Republic of Serbia in March 2005. In the light of the additional information which the Government is invited to provide regarding the current request, the Committee will examine further the conformity of the legislation and practice with the provisions of the Convention and may formulate new comments accordingly.

3. Article 2, paragraph 2, of the Convention. Although it does not appear from the legislation examined, the Government stated in its report that national regulations are not applied to employees concerned with termination of work due to technological, economic or organizational needs. The Government is invited to indicate whether any categories of employed persons have been excluded under Article 2, paragraph 2, from the application of any of the provisions of the Convention.

4. Article 4. The Committee notes that section 179 of the 2005 Labour Law enumerates cases of "just cause" that terminate the contract of labour for reasons connected with the worker’s abilities or the employer’s needs. It invites the Government to provide information on how the provisions of the 2005 Labour Law are applied in practice, supplying copies of the leading decisions taken in their application.

5. Article 6, paragraph 2. Please indicate how "temporary absence from work" is defined and the extent to which medical certification is required for the purpose of a temporary absence from work because of illness or injury, and what limitations, if any, have been placed on the recourse to temporary absence from work.

6. Article 7. Please indicate the manner in which the right to defend themselves prior to termination is ensured for all workers, as required by this provision of the Convention.

7. Article 9, paragraph 2. The Committee notes that there is no indication in the legislation to who has to discharge the burden of proof in an appeal against dismissal. It recalls that under paragraph 2 of Article 9, the burden of proof must be either shared or carried by the employer, but should not be borne alone by the worker. It requests the Government to indicate if it has been left to the courts to decide who has to discharge the burden of proof in an appeal against dismissal and, if so, to supply the relevant decisions.

8. Article 12. The Committee notes that section 158 of the 2005 Labour Law stipulates that the employer shall award a severance pay to employees whose contracts have been terminated on the grounds of section 179(9), due to technological, economic or organizational changes causing redundancy. It asks the Government to provide information on the effect given to Article 12, paragraph 1, for the other cases of termination of employment and the other information required by the report form in relation with paragraphs 2 and 3.

9. Article 13. The Committee notes the concerns by CATUS over the fact that the rights of the workers’ representatives are limited only to the right to give their opinion instead of the right to information and consultation, as these rights would give more opportunities to influence the redundancy process. It further notes that before enacting a program of termination, the employer is obliged to share information with the representative trade union (sections 154 and 155 of the 2005 Labour Law). Section 155 enumerates the relevant information that is to be provided. It would appreciate receiving further information about how long before the contemplated terminations, the relevant information has to be provided to the workers’ representatives (paragraph 1(a)). Please also indicate how in practice the workers’ representatives have the opportunity for consultation on measures to be taken to avert or to minimize the terminations and measures to mitigate the adverse effects of any terminations on the workers concerned such as finding alternative employment (paragraph 1(b)).

10. Practical application. The Committee notes that the number of dismissals in 2002 was 4,185 and 90,000 persons received unemployment benefit through the National Employment Service. It would appreciate continuing to receive information on the manner in which the Convention is applied in practice, including information on the activities of the courts and arbitrators and the number of terminations for economic or similar reasons in which the national employment agencies have intervened (Article 14).