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

Convention (n° 156) sur les travailleurs ayant des responsabilités familiales, 1981 - Monténégro (Ratification: 2006)

Article 2 of the Convention. Application to all categories of workers. In its previous request, the Committee had asked the Government to provide information on whether the legislation implementing the Convention applies to all categories of workers, as provided for by the Convention. In its report, the Government confirms that the Labour Law (Law No. 49/08) applies to all workers, both in the public and private sectors (including non-nationals) and that it applies to all branches of economic activity. The Committee recalls that the Convention aims to provide full coverage not only to workers with family responsibilities (men as well as women) currently in employment, but also those seeking to enter or re-enter the workforce or to undergo training for employment. Moreover, it is intended that all workers should be covered, whether in full-time, part-time, temporary or other forms of employment, and whether they are in waged or non-waged employment (General Survey of 1993 on workers with family responsibilities, paragraph 46). Consequently, the Committee asks the Government to provide information on whether the labour legislation exempts from its coverage some groups of workers, such as part-time, temporary or home workers. It also requests the Government to indicate whether the legislation implementing the Convention applies to men and women with family responsibilities seeking to enter or re-enter the workforce or to undergo training for employment.

Article 3. National policy. Previously, the Committee had asked the Government to provide information on the implementation of the Action Plan for the Achievement of Gender Equality in Montenegro 2008–12, which set the goal of establishing the system of reconciling professional and family life, and to indicate, in this respect, the concrete measures taken and the results achieved. In its report, the Government provided a wealth of information on the initiatives taken to promote greater awareness, public understanding and a climate conducive to overcoming existing difficulties for men and women workers with family responsibilities. The Committee asks the Government to provide information on the impact of all the measures taken to enable persons with family responsibilities to work or who wish to work to exercise their right to do so without conflict between their employment and family responsibilities. Noting the adoption of a new Action Plan for Achieving Gender Equality (2013–17), the Committee invites the Government to continue providing information on its efforts to establish a conducive environment for the reconciliation of professional and family life.

Article 4. Leave entitlements for men and women workers with family responsibilities. Noting that the Government’s report does not contain any information in reply to its previous comments, the Committee requests the Government once again to provide information on statistics, disaggregated by sex, related to the extent to which men and women workers make use of the leave entitlements under sections 116 and 118 of the Labour Law, both in the public and private sectors, as well as to indicate any measures taken or envisaged with regard to other immediate family members.

“Maternity” and paternity leave. In its previous comments, the Committee had asked the Government to ensure that “maternity leave” entitlements (365 days), under section 111 of the Labour Law, should be available to men and women on an equal footing. The Committee notes with interest that the Labour Law was amended in 2011 (Law No. 59/11) to regulate, inter alia, parental leave (section 111), wage compensation and the right to return to the same position upon expiry of parental leave (section 111b). Pursuant to Law No. 59/11, parental leave can be used from 45 days to 365 days from the birth of the child by one of the parents for absence from work for the purpose of providing care and nursing a child (section 111(1)–(3)). If a parent starts working prior to expiry of 365 days (but not prior to expiry of 45 days from the birth of the child), the other parent should be entitled to use the remaining part of the parental leave (section 111(5)). The Committee asks the Government to provide information on statistics, disaggregated by sex, on the extent to which men and women workers use of leave entitlements under section 111 of the Labour Law, both in the public and private sectors.

Working-time arrangements. Previously, the Committee had asked the Government to provide information on the implementation of sections 110(1), 113 and 114 of the Labour Law (Law No. 49/08) on working time arrangements. In its report, the Government indicates that the labour inspectorate has not recorded any complaints relating to the protection from overtime work or night work (section 110(1)) or the right to work part time (sections 113 and 114). However, it also indicates that in the context of the current revision of the Labour Law it is being considered to provide protection against overtime work or night work to a male employee if a child is under 3 years of age (section 100(1)) and of extending the right to work part time (sections 113 and 114) to foster parents. The Committee asks the Government to seize the opportunity presented by the current revision of the Labour Law to ensure that these working time arrangements are available to men and women on an equal footing, and to provide information on the progress made in extending the right to work part time to foster parents. It also requests the Government to continue to provide statistics, disaggregated by sex, on the number of beneficiaries of the entitlements provided by sections 100(1), 113 and 114 of the Labour Law.

Social security. Noting the absence of information with regard to the practical application of section 118(2) and (3) of the Labour Law (entitlements to health and disability insurance during unpaid leave) as well as on any other measures taken or envisaged to take into account the social security needs of workers with family responsibilities, the Committee reiterates its request to provide such information.

Article 5. Childcare and family services and facilities. The Committee recalls that it had asked the Government to provide information on the measures taken or envisaged to assist workers with family responsibilities with childcare and family services and facilities. It had, in particular, asked the Government to indicate the progress made in extending coverage of care services and facilities for children without disabilities and other dependent members of the family. In its report, the Government indicates that pre-school programmes have been considerably extended, both in public kindergartens (17,169 enrolled children in the 2015–16 school year) and private schools (14 accreditations). The schooling system also provides for extended stay at school as well as morning kindergartens. Pursuant to the Law on Primary Education (section 17), only the provision of “morning kindergartens” for first grade children is compulsory. The Government additionally indicates that numerous services and facilities have been established to assist workers with dependent members of their family other than children, such as day-care centres for youth with disabilities and special needs (11 municipalities), day-care centres for the elderly and supported housing (two in Danilovgrad and three in Niksic), residential homes for the elderly (two in Risan and Bjelo Polje) and the “Support for the elderly at home” service (16 municipalities). Noting that the schools are only required to establish morning kindergartens for first grade children, the Committee asks the Government to indicate how the schooling system accommodates other than first grade children with the aim of assisting parents in reconciling work and family responsibilities. Regarding dependent members of workers with family responsibilities other than children, the Committee asks the Government to indicate the impact of the “Support for the elderly at home” programme and other measures taken in that regard.

Article 6. Information and education. Previously, the Committee requested the Government to indicate the action taken and the results achieved by the authorities responsible for information and education which engender wider public understanding of the principle of gender equality and of the problems of workers with family responsibilities. The Government indicates that various measures were undertaken in this respect within the framework of the Action Plan for Achieving Gender Equality (GAP) 2013–17, such as media campaigns with the aim of promoting the concept of sharing family responsibilities. The Government also indicates that the new Action Plan for Achieving Gender Equality (APAGE) 2017–21 and its implementation plan for the period 2017–18 were adopted, with a view to introducing a gender equality policy in media, culture and sport (Objective 6). In terms of legislative measures, the 2015 amendments to the Law on Gender Equality, regulate the use of gender-sensitive language (section 13a) and mandatory gender training for all employees (section 13b). While welcoming the information provided, the Committee asks the Government to indicate the authorities responsible for information and education regarding issues concerning workers with family responsibilities. It further asks the Government to provide information on the concrete measures taken or envisaged, and the results achieved, including under the Action Plan for Achieving Gender Equality (2017–21), to promote a broader public understanding of various aspects of employment of workers with family responsibilities.

Article 7. Integration in the labour force. The Committee recalls that after taking parental leave or leave due to adoption of a child, an employee has the right to be adequately reassigned (section 117(2)) and benefit from additional training if changes were introduced to his or her job (section 117(3)). It had asked the Government to provide statistics on the number of employees who had been reassigned and retrained after taking parental or adoption leave, as well as information on any other measures assisting workers with family responsibilities to reintegrate in the labour force. The Government indicates that no cases were reported to the labour inspectorate concerning the right to additional professional training (section 117(3)), and that the labour inspectorate has intervened in several cases concerning the reassignment of an employee (section 117(2)), in which it examined whether the legal requirements for the reassignment in terms of education, work experience and skills were met. The Committee once again asks the Government to provide statistics, disaggregated by sex, relating to employees who after taking parental leave or leave due to adoption of a child have been reassigned and/or additionally trained. It also requests the Government to provide information on any other measures taken or envisaged to enable workers with family responsibilities to become, remain or re-enter into the labour market.

Article 8. Protection against dismissal. In its previous request, the Committee had asked the Government to confirm that the prohibitions of discrimination based on family duties (sections 5, 6 and 7 of the Labour Law) apply in respect of termination of employment. It had also asked the Government to indicate whether considerations had been given to explicitly extend, in conformity with the Convention, the protection against dismissal to all workers with family responsibilities. In its reply, the Government indicates that the Law of 24 November 2011 to amend and supplement the Labour Law (Law No. 59/11) adds new provisions to section 143 (termination of employment by the employer), which explicitly define “maternity leave”, parental leave, absence from work for child care and absence from work due to special child care as non-justified grounds for termination of an employment contract (section 143(a)(2), as amended). With regard to the Committee’s request for clarifications on the scope of application of section 108(2), the Government confirms that protection against dismissal of a parent who works part time in order to care for a child with severe development difficulties, or as the single parent of a child under 7 years of age, or as the parent of a child with severe disability, applies only to permanent employees (section 108(6), as amended). In addition, section 108 was further amended in 2011 to explicitly provide that during absence from work for the purpose of nursing a child and parental leave an employer may not terminate the employee's contract of employment (section 108(3), as amended). Regarding protection against dismissal or refusal of employment of a pregnant woman, or of a woman employee who uses maternity leave, section 108 was further amended in order to establish that if the fixed-term contract of employment expires while a woman employee is on maternity leave, the term of employment according to the fixed-term contract shall be extended until expiry of the maternity leave (section 108(4), as amended). The Committee notes that, as several cases involved dismissal of pregnant women during their fixed-term employment contracts, the Government indicated that the Law will be amended in order to provide protection of women during pregnancy irrespective of the duration of an employment contract. The Committee notes with interest the legislative developments related to protection against dismissal. Noting that section 108(2) applies only to permanent employees, the Committee asks the Government to indicate how the protection against dismissal is provided to a worker who has concluded a fixed-term contract of employment. It also asks the Government to clarify whether the protection against dismissal under section 108(3) applies to fixed-term employees. The Committee further asks the Government to provide information on any cases relating to dismissal of workers due to their family responsibilities dealt with by the competent authorities.

Article 9. Collective agreements. The Committee recalls that section 111(7) of the Labour Law (Law No. 49/08) refers to collective agreements in terms of the entitlement to wage compensation during maternity leave, and had asked the Government to provide any information concerning the manner in which the Convention is being applied by means of collective agreements. The Committee notes that the Law of 24 November 2011 to amend and supplement the Labour Law (Law No. 59/11) extends wage compensation to both “maternity” leave and parental leave (section 111(b)), and defines it as the amount of salary he/she would earn if at work, in accordance with the law and collective agreement (section 111(b)(1)). In its report, the Government indicates that section 10 of the General Collective Agreement of 20March 2014 (No. 14/14) provides employees with paid leave (up to seven working days during a calendar year) in specific situations, including birth of a child, care of a child who has a disability and serious illness of an immediate family member. The Committee also notes that the Government provides information in its report on the Branch Collective Agreement for Administration and Justice and the Branch Collective Agreement for Agriculture, Food and Tobacco Industry and Water Management, without concrete indications of the provisions that assist workers in reconciling their work and family responsibilities. The Committee asks the Government to indicate specific measures taken to promote, in cooperation with workers’ and employers’ organizations, the insertion of provision on equality of treatment between men and women workers and workers with family responsibilities in collective agreements, including with regard to wage compensation during parental and “maternity” leave, and provide samples of collective agreements which contain provisions that assist workers in reconciling their work and family responsibilities.

Article 11. Participation of employers’ and workers’ organizations. While noting the Government’s indication that the rights and benefits of workers with family responsibilities have not been yet discussed in the Social Council of Montenegro, the Committee once again requests the Government to provide information on the specific measures taken to promote social dialogue and tripartite cooperation in order to strengthen the laws, measures and policies giving effect to the Convention. The Government is also asked to provide information on the manner in which workers’ and employers’ organizations have exercised their right to participate in the design and implementation of such measures, including through collective bargaining and the adoption and implementation of workplace policies on work and family reconciliation.

Enforcement and practical application. In its previous request, the Committee had asked the Government to provide information on the implementation of the activities by the Gender Equality Office. In its report, the Government provides detailed information on the institutional mechanisms for the implementation of gender equality policies, such as the Office for Gender Equality of the Ministry for Human and Minority Rights, the Gender Equality Committee of the Parliament of Montenegro, the Protector of Human Rights and Freedoms, as well as the new National Gender Equality Council, established in 2016. It also indicates that, pursuant to 2014 amendments to the Law on the Prohibition of Discrimination of 2010 (Act No. 448), the Protector, in addition to the competences and authorizations prescribed by the Law on the Protector of Human Rights and Freedoms, can act on complaints relating to discriminatory treatment and, under certain conditions, initiate the procedure for protection against discrimination in court or intervene in those proceeding. The Government additionally highlights the cooperation between the Ministry for Human and Minority Rights and the Statistical Office of Montenegro (MONSTAT) in developing the 2016 edition of the biannual publication “Women and Men in Montenegro” and a gender equality index, which will measure gender equality in a range of areas, including work. While welcoming the information on the institutional mechanisms for the implementation of gender equality policies, the Committee notes the absence in the Government’s report of information on enforcement mechanisms and of statistics, disaggregated by sex, that may enable both the Committee and the Government to assess how the principles of the Convention are applied in practice and the extent of the progress made. Consequently, the Committee asks the Government to provide information on the enforcement mechanisms, including the labour inspectorate, in giving effect to the provisions of the Convention, as well as any administrative or judicial decisions relating to the application of the Convention. It further asks the Government to provide statistics, disaggregated by sex and studies, surveys or reports that may enable the Committee to assess how the principles of the Convention are applied in practice, and how progress is being made to address the existing inequalities between men and women workers with family responsibilities. It also asks the Government to consider including information on workers with family responsibilities in its publication “Women and Men in Montenegro” and to consider integrating family responsibilities among the criteria of the gender equality index.