The Constitutional Court has repealed Article 35a of the Law on Internal Trade, which defines Sunday as a non-working day for this area, so this day will become a working day after the decision is published in the Official Gazette. The ruling majority MPs announce that they will adopt the same article again at the session of the Parliament scheduled for February 16. The Union of Free Trade Unions calls for the adoption of the decision on partial and limited work of shops on Sundays, which the social partners agreed on in 2022, by the time it is published in the Official Gazette. The largest retail chain and the largest employer, the company "Voli", announced that they support Sunday as a non-working day, but equally for everyone, and that a responsible dialogue should be initiated in the Chamber of Commerce.
According to previous experience, the time between the adoption of a decision and its publication in the Official Gazette has ranged from a few days to a few months, depending on the needs of the decision's editorial team.
The Union of Free Trade Unions has been demanding for decades that Sunday be introduced as a mandatory non-working day for all activities that do not have a public interest in work and the need for continuous work. In the spring of 2019, the Trade Committee of the Chamber of Commerce proposed to the Government to introduce a non-working day for trade on Sundays and public holidays. The law was adopted in July of that year, and its implementation began on October 20. In August 2019, the Union of Employers submitted an initiative to the Constitutional Court for the assessment of this article of the law.
"The Constitutional Court assessed that the aforementioned provision violates the freedom of entrepreneurship guaranteed by the Constitution, as well as the constitutional principle of equality of all before the law, because one group of entrepreneurs/traders is allowed to carry out their activities on Sundays and on public and other holidays (pharmacies, pastry shops, bakeries, newsstands, souvenir shops, florists, funeral equipment stores, plant protection stores, gas stations, markets, etc.), while the other group is prohibited from doing so. The Constitution precisely prescribes the reasons for which freedom of entrepreneurship may be restricted (for the purpose of protecting human health, the environment, natural resources, cultural heritage, or the security and defense of Montenegro) and the legislator cannot independently prescribe new restrictions outside of these constitutional grounds, nor without a clearly established legitimate goal in the public interest," the Constitutional Court's reasoning stated.
They stated that such a ban has no objective and reasonable justification, from the aspect of the constitutional obligation of the state to provide all entrepreneurs with an equal position in the market, and that this resulted in restrictions on human rights and freedoms and a violation of the constitutional principle of the consistency of legal regulations.
On November 10, the "Europe Now" group of MPs sent the Parliament a proposal to amend Article 35a by adding a sentence at the beginning of the new article that "in order to prevent and protect the health of employees in retail establishments," their work cannot be performed on Sundays and on public and other holidays, and then repeating almost the same text of the now-cancelled article.
MPs from PES, Democrats, Bosniak Party, SNP and Albanian parties (a total of 35 MPs) yesterday submitted a request to hold an extraordinary session of the Parliament for February 16th, at which a proposal for amendments to Article 35a on the non-working week would be presented.
"We responsibly waited for the social partners to agree on the level of rights affecting more than 50.000 employees in the trade sector, before the Constitutional Court's decision. As that agreement did not come about, we proposed that the law be included in the agenda. We remain consistent and committed to preserving and improving workers' rights. This is a matter of health, family life and fundamental labour rights. It is the right to rest, to time with family and to the preservation of human dignity," the PES MP stated. Miloš Pižurica.
An interlocutor of "Vijesti" in the field of constitutional law said that if the essentially same article of the law as the one that has now been repealed is re-adopted and if someone starts its review again, the Constitutional Court could repeal it again in a shortened procedure. The assessment of the constitutionality of the current article lasted six and a half years, from August 2019 until yesterday.
Deputy General Secretary of the Union of Free Trade Unions (USS) Ivana Mihajlovic She told "Vijesti" that they propose that the Parliament adopt amendments to the law that social partners agreed on at the end of 2022 as part of negotiations for the then text of the General Collective Agreement.
"Since 2020, social partners (representative trade unions and a representative association of employers) have been conducting intensive negotiations on the topic of amendments to the Internal Trade Act. As we were aware of the possibility that the epilogue before the Constitutional Court would be like this, as a responsible organization, we entered into negotiations and found a solution that would be acceptable to all parties, primarily employees, and then employers (with an emphasis on small business owners) and the current needs of our economy (tourist destination, sustainability of small businesses in the trade sector, needs of a part of the population...). By investing enormous effort and sacrifice, we found a compromise solution that was unanimously adopted by the Social Council and was supposed to be tested in just one year and that would guarantee trade employees an even greater degree of protection of the right to a day off during the week. However, the compromise proposal of the social partners did not receive attention or interest from either the Government or the MPs in the Parliament. Not even the deadline that the Constitutional Court left to the Government to find a solution that would prevent the adoption of such a final "The decision was not an alarm for further processing of the compromise reached at the level of social partners," Mihajlović stated.
The MPs then did not even agree to discuss this compromise solution of the social partners, which now results in the complete return of the working week.
The compromise stipulated that stores could operate on Sundays from June 1 to August 31 and from December 1 to January 31 in only one shift and in only one store on the territory of one municipality. In other words, if a retail chain in Podgorica had ten megamarkets, it could operate only one and in one shift. Workers who worked on Sundays would receive an increased daily wage and an additional day off. This agreement was limited to a trial period of one year, after which its effect would be analyzed.
Part of the then-agreement on a partial workweek was an 80 percent increase in the daily wage for working on Sundays, which came into effect through the then-adopted General Collective Agreement.
MIhajlović states that the key role of the Parliament now is to adopt the amendment to the law, as agreed by social partners, by the time it is published in the Official Gazette, and thus demonstrate "responsibility for protecting the rights of employees in trade, for whom, it has long been clear, general labor regulations do not apply, and for whom the right to weekly rest is guaranteed as one of the basic rights."
The management of the company "Voli" announced that they support Sunday, and also said that the law must apply equally to everyone.
"Practices in which markets operate on Sundays and holidays, within gas stations, or in which commercial facilities are formally renamed bakeries, represent a violation of the principle of equality and directly threaten the rights of workers, but also fair market competition. 'Voli' will, as before, fully respect the law and advocate for everyone to be equal before the law," the company said.
Responsible employers to continue not working on Sundays
In the event that the compromise proposal is not adopted by the time the Constitutional Court's Decision is published in the Official Gazette, the USS will call on employers in the trade sector to continue not to work on Sundays in order to demonstrate a responsible attitude towards their employees, their employment rights, working conditions, and occupational health and safety.
"Also, until a final solution is found, we will insist that inspection bodies be fully focused on the trade sector in order to protect the right of employees to a day off during the week, namely on Sundays, as prescribed by Article 76 of the Labor Law," Mihajlović stated.
This article stipulates that the employee shall use the safe weekly rest of at least one day on Sunday, and only if the nature of the job and work organization so require, the employer is obliged to determine other days for the use of this rest.
"USS will continue to insist not only on preserving the non-working week in trade, but also in all other sectors whose nature of activity does not imply continuous work. The right to limited working hours, to a day off during the week, are constitutional and legal rights of all employees and as such must be protected," Mihajlović stated.
Bonus video:
