The main innovations in the draft law on strikes are that all unions will have the right to strike, not just representative ones, and that strikes in public services are being made easier, i.e. the scope of activities for which unions must have approval from the National Security Agency to organize a strike is being reduced.
The Ministry of Labor and Social Dialogue did not abandon these two norms despite the objections they received from employers and unions at the public hearing, stating in the report from the public hearing that they are in line with the norms of the European Union and the International Labor Organization (ILO).
So, strikes in sectors of public interest, not security, such as education, healthcare, social protection, energy, telecommunications... will be possible while respecting the minimum work process agreed upon with the employer or through arbitration without seeking consent from the ANB.
Approval from the Agency to organize a strike will be required for unions in the military, police, judiciary, prosecutor's office, and criminal sanctions enforcement administrations.
The aim is to reduce restrictive measures
The Ministry of Labor states that the new law is being drafted precisely to reduce restrictive conditions on the right to strike in activities of public interest.
"This restrictiveness (in the current law) is reflected both in terms of the exclusion of some categories of employees from exercising the right to strike, and in terms of the conditions for organizing it. This problem has been pointed out in the previous period by both trade union representatives and experts from relevant international organizations in the field of labor - especially the International Labor Organization. Therefore, a new Law on Strikes has been drafted, which aims to overcome previous problems in practice and harmonize legal solutions with the positions of the Committee of Experts of the International Labor Organization and the Council of Europe," the explanatory memorandum to the law states.
The main innovations compared to the current law relate to the separation of activities of vital importance and other activities of public interest.
"Activities of vital importance are activities whose interruption of work due to the nature of the work could endanger the life, personal safety or health of part or all of the population, such as: health care; veterinary care; production, transmission, distribution and supply of electricity; production and supply of water; public electronic communications, in accordance with the law; fire protection; air traffic control; social and child protection. In these activities, there is an obligation to respect the minimum work process from the first day of organizing a strike. Therefore, it does not mean that all public services have vital, essential importance for the community. This is also confirmed by international standards in this area. Namely, the ILO Committee on Freedom of Association defines vital services as those services whose 'interruption of work could endanger the life, health or personal safety of all or part of the population'. This distinction between vital and public services is necessary not only due to the flexibility of the conditions for the exercise of fundamental social rights, such as the right to strike, but also due to the need to establish a balance between general and professional interests," the explanation states.
Not every public interest is vital.
The Ministry indicates that so far there have been abuses of restrictions on the right to strike, citing public interest and safety (strike of education workers), and at the public hearing they rejected the objections of Montenegrin Telecom and Railway Infrastructure to restrict the right to strike for their employees, even though these companies referred to the vital importance of these activities.
"Not every activity of public interest is of vital importance in terms of exercising the right to strike, but only those activities whose interruption of work due to the nature of the work could endanger the life, personal safety or health of part or all of the population," the Ministry stated.
Activities of public interest may strike while maintaining a minimum work process, the determination of which, as stated, should be the result of a compromise with the trade union. Thus, the minimum work process in these activities may be regulated by agreement within 90 days of the entry into force of this law or by arbitration before the Agency for Peaceful Resolution of Labor Disputes.
"The Arbitration Council consists of one representative of each of the parties to the dispute and one member from among the experts in the field for which the minimum work process is determined. A novelty in relation to the current law is the solution that the parties to the dispute appoint their representatives as members of the Arbitration Council, and the member from among the experts instead of the competent state administration body is appointed by the parties to the dispute by agreement, and in the event that no agreement is reached - he is appointed by the director of the Agency for Peaceful Resolution of Labor Disputes. Another novelty is the solution that a third - neutral member of the Arbitration Council signs a statement on the absence of a conflict of interest to act in a specific dispute," the explanation states.
ANB responsible for strikes in the army, police,...
An important novelty is the provisions relating to a possible ban on organizing strikes in the Army, police and some state bodies.
“While in the current law, in addition to employees in the Army and the police, the possibility of prohibiting the organization of a strike applies to all employees in state bodies and the public service, the draft law narrows the categories of employees to whom this restriction may apply. Thus, the possibility of prohibiting the organization of a strike according to the proposed solutions applies to employees in the Army of Montenegro, the police, the court, the prosecutor's office, the state administration body responsible for justice, the administration body responsible for the execution of criminal sanctions, the administration body responsible for taxes and customs, as well as employees in managerial positions in state administration bodies. Therefore, unlike the current solutions, employees in state administration bodies who are not holders of public authority cannot be prohibited from the right to strike. Another novelty is the solution that refers to the reasons for which the organization of a strike may be prohibited. While the current law contains a list of reasons that can be interpreted broadly (national security, safety of persons and property, general interest of citizens, as well as the functioning of government bodies), the draft law defines only three reasons, namely: national security, safety of persons, as well as the functioning of government bodies authorities", it was stated in the explanation.
The Union of Free Trade Unions (USS) requested an amendment to the article that stipulates a mandatory opinion from the National Security Agency on strikes in the Army, police, court, prosecutor's office... so that the Court, and not the National Security Agency, would give an opinion on strikes in activities of vital security interest.
"The fact is that the National Security Agency, which has been given this issue under its jurisdiction by both the current and the Draft Law, is not and cannot be an independent and objective body that could hypothetically make any decision other than one that would benefit 'threats to national security, the security of individuals and the functioning of government bodies'. It is particularly problematic that the ANB's assessment cannot be disputed, given that the procedures and sources of information on which it bases its assessments are marked as secret, i.e. unavailable to the public," the USS stated.
The Ministry did not accept the proposal that the opinion be issued by the court and not by the ANB, stating that due to the length of court proceedings, this norm could not be applicable in practice.
Lists of strikers at the main unions
The draft law still provides that the strike committee is obliged to notify the employer in writing of the strike no later than five days before the day set for the start of the strike, or 24 hours before the start of a warning strike. The novelty relates to the procedure for organizing a strike at the branch level and at the national level, namely that the union is obliged to submit, along with the decision to go on strike, data on the trade union organizations organizing the strike and the sectors to which the strike applies, without the obligation to submit a list of strike participants. This list is submitted by the trade union organizations to the immediate employer.
The provision has been amended so that when determining the minimum work process, the employer determines the employees who will work at the proposal of the strike committee, so it is envisaged that this will be done in consultation with the strike committee. The strike committee has the right to request the rotation of employees who would work during the strike.
The novelty is that the so-called strike guards are limited to four members, unless the employer and the strike committee agree otherwise.
The so-called “lock-out” institute has been specified, i.e. a counter-strike by the employer, which implies the possibility of suspending work and dismissing workers who are not on strike during a strike. This measure is possible if the strike has been going on for at least 30 days. The new text of the law elaborates in more detail the issues related to determining the illegality of a strike and its legal consequences, as well as the prohibition of hiring new workers to replace those participating in the strike.
Council of Europe recommends that non-representative unions can also strike
Both employers and unions have objected to the new provision in the law that any union at an employer can organize a strike, not just a representative union, demanding that this possibility be deleted.
Employers stated that this provision opens up the possibility of abuse, and for the employer to be on constant strike, while the unions believed that this was a mistake and that it should be stated that only representative unions have the right to organize a strike, because the criminal part of the law states that penalties for failures to organize a strike are imposed on representative unions.
The Ministry had a unique response to these remarks:
"The proposal is not accepted, because it is contrary to the Recommendation of the Council of Europe, regarding the implementation of Article 6, paragraph 4 of the European Social Charter. Namely, a strike is a fundamental social right, so the right to organize a strike should belong to every trade union, regardless of its representative status."
Railway Infrastructure also stated that non-representative unions cannot organize a strike to achieve demands regulated by a collective agreement, given that they do not have the authority under the law to participate in its conclusion.
The Ministry responded that "the goal of organizing the strike is to protect professional, economic and social interests based on work."
"Therefore, the reason for organizing a strike can be both rights regulated by law and a collective agreement, because a collective agreement concluded at a certain level applies to all employees - regardless of whether they are members of a union that is a signatory to the collective agreement," the Ministry explained.
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