MEF: Respecting court decisions is not a matter of choice

Representatives of the Union of Employers (UPCG) are seriously concerned about the actions of the Ministry of Labor, Employment and Social Dialogue in the retrial conducted after the Administrative Court's ruling of April 3, and add that respecting court decisions is not a matter of choice.

"The Administrative Court annulled the previous decision of the Ministry and took a clear and explicit legal position that for employees who work six working days a week, Saturday, as their working day, is counted towards their annual vacation days, and that the legal minimum of 24 working days does not represent an increased right compared to employees who work the same full working hours through a five-day working week," the statement from the MEF states.

The Court specifically pointed out that employees who work full-time hours of 40 hours per week cannot be placed in a more favorable position solely due to a different working time schedule, as such an interpretation would lead to unequal treatment of employees who work the same full-time hours.

"It is important to emphasize that the Administrative Court in this case did not leave room for different interpretations. The verdict is clear, explicit and unambiguous. Despite this, in the retrial, a new solution was reached that is essentially based on the same legal interpretation that the court had already deemed illegal," said the MEF.

It is particularly important to point out that immediately after the 2020 Labor Law entered into force, the Ministry of Labor adopted a legal position on this issue that was fully consistent with the interpretation that was later confirmed by the Administrative Court's ruling. The subsequent deviation from that initial interpretation created years of legal uncertainty and led to a court case whose outcome today leaves no room for doubt.

"The dispute in question did not arise due to ambiguities in the Labor Law, but as a consequence of a deviation from the legal interpretation that the Ministry of Labor initially considered correct. Because this dispute was not caused by an unclear norm. It was caused by a change in its interpretation," the statement states.

The legal solutions in question are not, as specified, specific to Montenegrin legislation, but are based on international standards and the European acquis in the field of working time organization, which links the right to annual leave to the number of weeks of leave, and not to the number of calendar days.

"That is precisely why employees who work the same full-time working hours of 40 hours per week over five or six working days are equalized in terms of the duration of their annual leave, whereby for employees whose Saturday is a working day, it is also counted towards their annual leave days," said the MEF.

From the very beginning, the MEF did not share the subsequently changed interpretation of the Ministry of Labor, believing that it was not in accordance with the Labor Law, international standards on which the relevant solutions are based, nor with the purpose of the annual leave institute itself. "At the same time, the same legal position has been advocated for years in the professional community by the professor of labor law and coordinator of the working group for the drafting of the Labor Law, Vesna Simović Zvicer," the statement added.

Today, the question of different legal interpretations of the Labor Law no longer arises. That issue has been resolved with the ruling of the Administrative Court. The question that remains is what message the state is sending to citizens and the economy if, even after such a clear and unambiguous ruling, it does not abandon the legal understanding that the court has already deemed unlawful.

"For the economy, this issue goes far beyond a specific dispute and the method of calculating annual leave. Employers have been indicating for years that legal certainty, stability, predictability and equal application of regulations are among the basic prerequisites for responsible business, investment and trust in institutions," the statement said.

The economy must be certain that, when it seeks protection of its rights before a competent court and succeeds in doing so, the court's decision will have its full legal effect. Because, if the same legal understanding can be persisted in after such a clear verdict, the question justifiably arises as to what citizens and the economy can expect from the judicial protection of their rights and what is the real scope of administrative judicial control of the legality of the administration's work.

"The application of law cannot depend on the expectations, interests or pressures of any interest group. State authorities are obliged to base their decisions on the law and legal positions of the courts, and not on an assessment of possible reactions of interested parties," the MEF believes.

The essence of this issue therefore goes far beyond the scope of the specific dispute. It is, first and foremost, a question of the relationship towards the rule of law, and then also a question of the relationship of the state towards citizens and the economy, who do not expect privileges from its institutions, but only what should be indisputable in any well-organized legal system – stability, predictability, equal application of the law and respect for court decisions.

"Because, in a well-ordered legal system, court decisions are not recommendations. They are binding. And that is precisely why respecting court decisions is not a matter of choice," the statement concludes.