Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Montenegro (Ratification: 2006)

The Committee notes the observations of the Union of Free Trade Unions of Montenegro (UFTUM) received on 31 August 2021, referring to the matters addressed below.

The Committee takes note of the adoption of the Law on Civil Servants and State Employees (2018), the Labour Law (2019), a revised Rulebook on the Registration of Trade Unions (2019) and a Rulebook on the Registration of Representative Trade Union Organizations (2019), as well as the Government’s indication that there have been no legislative changes or other measures that significantly affect the application of the Convention.

Article 3 of the Convention. Right to organize activities in full freedom. In its previous comment, the Committee noted that under section 18 of the Law on Strikes, 2015, the police, employees of state bodies and the public service could organize a strike in a way that would not endanger national security, safety of persons and property, the general interest of citizens or the functioning of government authorities and that in such occupations, minimum services must be ensured. Having noted that it was the prerogative of the state authority responsible for national security to determine whether the organization of a strike endangered the general interest of citizens and functioning of government authorities, the Committee requested the Government to take the necessary measures to amend the Law on Strikes in consultation with the social partners so as to ensure that responsibility for declaring a strike illegal rests with an independent body that has the confidence of the parties involved. The Committee notes the Government’s indication that: (i) in line with section 7, work disruption not organized in accordance with the provisions of the Law on Strikes shall be considered an illegal strike; (ii) section 31 of the Law provides that the employer, the representative association of employers, the representative trade union or the strike committee can initiate a procedure for determining the illegality of a strike or unlawful dismissal, which will be decided upon by the competent court within five days of such a request (this provision applies to any organized strike regardless of the area of activity in which it is organized); and (iii) the assessment under section 18 of whether the organization of a strike for the above employees endangers the general interest of citizens and functioning of government authorities is done by the public authority responsible for national security. While taking due note of this indication, the Committee understands that even if section 18 does not, in its wording, refer to the determination of the legality of a strike (which is regulated by section 31, providing for a judicial determination irrespective of the area of activity in which the strike is organized), section 18 provides for an assessment by a public authority of whether a strike endangers the general interest of citizens and functioning of government authorities and thus, whether it can lawfully take place under section 18 or not. The Committee notes in this regard the observations made by the UFTUM that: (i) at the drafting stage, a representative from the UFTUM warned that section 18 was not sustainable as the National Security Agency was a security intelligence service whose work implied the secrecy of information; (ii) the National Security Agency may declare that a strike endangers the public interest, and is therefore illegal, without prescribed clear criteria, acting in its own discretion and without the possibility of objections from the initiators of the strike; and (iii) the UFTUM submitted an initiative to review the constitutionality of section 18 of the Law on Strikes after its entry into force but has not yet received a response from the Constitutional Court. While noting the Government’s submission that Article 9 of the Convention leaves it to Members States to determine the extent to which the guarantees of the Convention apply to members of the armed forces and the police, the Committee observes that section 18 of the Law on Strikes also regulates the right to strike of employees of state bodies and the public service who are not excluded from the scope of the Convention under Article 9 and who, unless they are engaged in essential services in the strict sense of the term or exercising authority in the name of the State, should benefit from the right to strike. In view of the above, the Committee once again requests the Government to take the necessary measures to amend the Law on Strikes in consultation with the social partners so as to ensure that any determination of whether a strike organized under section 18 endangers the general interest of citizens and functioning of government authorities, and is therefore illegal, is the prerogative of an independent body that has the confidence of the parties involved. The Committee also requests the Government to provide information on the current status of the initiative to review the constitutionality of section 18 filed to the Constitutional Court by the UFTUM.

Article 4. Dissolution and suspension by administrative decision. The Committee previously requested the Government to indicate whether suspensive effect was granted to an appeal, made pursuant to the Law on General Administrative Procedure, of a decision to delete a trade union organization from the register pursuant to section 10(3) of the former Rulebook on the Registration of Trade Union Organizations – deletion if the registration was based on inaccurate data from the applicant or on the application of an unauthorized person (possibility currently also provided under section 12(3) of the revised Rulebook and section 13(3) of the Rulebook on the Registration of Representative Trade Union Organizations). The Committee notes the Government’s indication that an appeal filed against a decision of the Ministry of Labour to delete a union from the register does not have suspensive effect in that it does not delay the execution of the decision. Recalling that the dissolution and suspension of trade union organizations constitute extreme forms of interference by the authorities in the activities of organizations and should only take place following a normal judicial procedure which should have the effect of a stay of execution, the Committee requests the Government to take the necessary measures, including any necessary legislative amendments, to ensure that the procedure to delete a trade union organization from the register (pursuant to section 12(3) of the revised Rulebook on the Registration of Trade Unions and section 13(3) of the Rulebook on the Registration of Representative Trade Union Organizations) provides such safeguards.

The Committee further notes that the Government indicates that while the revised Rulebook on the Registration of Trade Unions did not modify the reasons for deletion of a trade union from the register, it introduced a new sub-paragraph stipulating that the procedure for deleting a trade union under section 12(3) (previously section 10(3)) – if the registration was based on inaccurate data from the applicant or on the application of an unauthorized person – can be initiated by a registered trade union (section 13 of the Rulebook on the Registration of Representative Trade Union Organizations provides for the same possibility). The Committee requests the Government to clarify whether the effect of the new sub-paragraph is simply to allow the concerned union to initiate the procedure for deleting it from the register in the previously described circumstances, or whether it enables any registered trade union to request deletion of another union from the register under section 12(3) of the Rulebook and section 13(3) of the Rulebook on the Registration of Representative Trade Union Organizations, and if so, to indicate the grounds for having introduced this possibility.