Sunday off, but with a number of exceptions?

The Constitutional Court plans to issue a final decision in December on the constitutionality of Article 35a of the Law on Internal Trade, which introduced a non-working week for the trade sector in early October 2019, but until then, social partners will once again try to propose to MPs amendments to this law agreed in 2023, according to which the non-working week would remain for a significant number of trade employees, while those who would work would have greater rights.

"Vijesti" learned this from sources among social partners, and a formal proposal can be expected in the coming days.

This article of the law was adopted by the Parliament in July 2019, based on previous similar initiatives by trade union centers, but also after the Government received such a formal proposal from the Trade Committee of the Chamber of Commerce. The largest employers in the trade sector then requested that Sunday be a non-working day for everyone, stating that workers would be more satisfied and that they expected consumers to change their habits and make purchases on other days of the week.

The Employers' Union, which brought together another group of employers, submitted an initiative to the Constitutional Court in August 2019, requesting that this article be annulled due to unconstitutional restrictions on entrepreneurial freedoms.

It was only in May of this year, five and a half years after the initiative was submitted, that the Constitutional Court issued a Decision on initiating proceedings to review the constitutionality of the provisions of Article 35a of the Internal Trade Act.

The Constitutional Court told "Vijesti" that on July 21, they submitted the decision to initiate the procedure to the proposer - the Government and the adopter - the Parliament for comment, but that they did not respond within the 60-day period nor did they file a request to suspend the procedure.

Since the Government and Parliament have now avoided stating to the Constitutional Court whether they are for or against the abolition of the Sunday non-working holiday in the trade sector, and have not even requested a stay of proceedings, the Constitutional Court may already make a decision at one of the first subsequent sessions.

However, in previous practice, it has happened that the Parliament, prior to the Constitutional Court's decision, amended the disputed article of the law being assessed, after which the Constitutional Court concluded that the disputed article of the law was no longer valid and formally rejected the initiative.

Amendments to the Law may be proposed by a group of deputies or the Government, with or without the formal consent of the Social Council.

What was agreed in 2023 can be done now

The Union of Free Trade Unions told "Vijesti" that since 2009 they have been campaigning for respect for the right to a day off during holidays and Sunday as a mandatory weekly rest day, but that employers' associations have been leading a strong campaign against it.

"Part of that campaign is an initiative to assess the constitutionality of Article 35a of the Internal Trade Act on grounds of discrimination. From the very beginning, our position on that initiative has been that it is unfounded. Namely, the legislator has the right to prescribe living and working conditions depending on the interests of society, and Article 35a is directly related to the need for families to have at least one day together a week, which, you will agree, is a special social interest. For example, if life were created according to the ideas and needs of employers, then our stores would be open 24 hours a day, but the law limited daily working hours because a person is not a 'perpetuum mobile' and must have time for rest," said the USS.

They state that as a responsible social partner, they accepted the compromise solution reached by the Social Council working group in March 2023.

They recall that the working group proposed that Article 35a remain unchanged, and that a new Article 35b be adopted, which would provide new exceptions and which would be limited to 12 months.

"By way of exception to Article 35a, paragraph 1 of this Law, wholesale and retail trade may be carried out on Sundays in the period from 1 June to 31 August and from 1 December to 31 January from 7 am to 15 pm or from 15 pm to 23 pm. Traders who carry out wholesale and/or retail trade in accordance with paragraph 1 of this Article may carry out the same only in one sales facility on the territory of a particular (one) local government unit. The trader is obliged to enable an employee who works on Sundays to use the first following Saturday as a weekly rest day," it was stated, among other things, in that then agreed article.

According to this agreement, stores could only operate during the season - five months a year, and so that only one store per employer in one municipality could operate in one shift. Employees who worked on Sundays would have their daily wage increased by 80 percent and an additional day off.

Compromise remains on the table

The USS emphasizes that their condition for reaching this compromise was an increase in wages for Sunday work of 80%, which was achieved by signing the General Collective Agreement at the end of 2022.

"Therefore, USS has done everything in our power to reach a solution that will satisfy all parties, without being at the expense of employees and their families. We especially emphasize that the implementation of this model would bring, as expected, two more days off during the month to employees in trade, i.e. employees who would be assigned to work on Sundays would have two free weekends (Saturday and Sunday) and two free Saturdays during the month. In the end, it is not up to us to comment on why the aforementioned compromise solution was not adopted, but we sincerely hope that this will not affect the decision of the Constitutional Court, i.e. that the initiative to repeal Article 35a will be rejected," the union headquarters believe.

Employers open to agreement and compromise

"Vijesti" also sent a question to the Employers' Union on this topic, from which they sent statements to all media outlets that they expect the Constitutional Court to accept their initiative and abolish the non-working week, but that they are also now ready for a compromise and agreement. "The UPCG expects that the decision of the Constitutional Court regarding our initiative, submitted in 2019, will put an end to this six-year procedure and establish that this is an unconstitutional restriction of entrepreneurial freedom. The issue of the (non-)working week goes beyond trade, it is about the principles of the free market, legal certainty and predictability of the business environment. Also, the public has witnessed that in the past period we have been the initiator of agreements and attempts to resolve this and all other issues that are important for employers and employees, together with social partners, and such an attitude and responsible attitude will not be absent this time either," the UPCG stated.

According to information from "Vijesti", employers are ready to re-accept the agreement from 2023. The reason for this is that in the meantime, payment for work on Sundays has been introduced in an increased amount of 80 percent and that it would not be profitable for many employers, especially large retail chains, to keep all stores open on Sundays.

PES amends Article 35a so that the Constitutional Court has nothing to discuss

The "Europe Now" group of MPs sent the Parliament a proposal to amend Article 35a of the Law on Internal Trade, by adding a sentence at the beginning that "in order to prevent the health of employees in wholesale and retail trade facilities," their work cannot be performed on Sundays and on public and other holidays.

Then, the same exceptions are listed as before: pharmacies, bakeries, gas stations, stalls, markets, kiosks,... while wholesale warehouses have been removed from the current exceptions.

Although it is essentially the same article, if the Parliament adopts this proposal, the Constitutional Court would not be able to continue the initiative of the Employers' Union under the current article of the law, but would have to reject it because the article they complained about would no longer be valid.