In several companies that are owned by the state and municipalities, the coefficients for calculating wages for management and executive directors are higher than the one defined by the branch collective agreement (GKU), and in the Center for Ecotoxicological Testing (CETI) it is almost equal to the coefficients for calculations the salary of the President of the State, the President of the Assembly, the Government, the Supreme Court and the Constitutional Court.
The coefficient for calculating the salary for the executive director in CETI is 25. The salary of the President of Montenegro is calculated based on the coefficient 27,67, and the salary of the President of the Assembly, the Government, the Supreme Court and the Constitutional Court is based on the coefficient 25,94. The calculated value of the complexity coefficient is determined in the monthly gross amount of at least 90 euros.
Expert in labor law and professor at the Faculty of Law of the University of Montenegro, prof. Ph.D Vesna Simović, Switzerland, she told "Vijesti" that the regulations do not restrict the executive director from agreeing to a salary that does not depend on the coefficients, but that it is only a possibility. When making such a decision, she added, the board of directors that decides on it should represent the interests of the state or local self-government.
"The Labor Law, in Article 100, regulates the institute of 'contracted salary', which is foreseen in the employment contract itself, independently of the coefficients for the salary calculation. The contracted salary can be predicted only for certain jobs, that is, certain categories of employees, namely: for a director, manager or for another employee who performs tasks of special importance for the employer. Therefore, the contracted salary is a possibility, and the board of directors is obliged to represent the interests of the state or local self-government when it makes such a decision", she said and added that this means that the director's salary "should not be determined differently compared to the solutions that are contained in the GKU (if it provides for the coefficient for calculation of salary for the director), although the employment contract can provide for a greater scope of rights for each employee, including for the director".
The non-governmental organization Center for Civil Liberties (CEGAS) received data on the earnings of management, i.e. executive directors in companies founded by the state or local self-government, based on requests for free access to information (FIA). The documentation was also given to "Vijesti" for inspection.
Cegas, in its request for SPI, asked 177 public companies, among other things, to provide them with regulations on the internal organization and systematization of workplaces, employment contracts... and for the purposes of research on the method of employment, the level of wages, the determination of employment positions during adoption of regulations on the internal organization and systematization of workplaces, all in accordance with the Collective, Branch and General collective agreement, in accordance with the Labor Law and the Law on Business Companies.
Some won't even show earnings
From the documentation that was submitted to that NGO, among other things, it was established that some public companies do not want to make the data on the earnings of executive directors public, but obscure them.
The provided data also indicate that, for example, in the Railway Infrastructure of Montenegro (ŽiCG), during the same day, amendments and additions to the same rulebook on the internal organization and systematization of workplaces were made several times.
"In the case of ŽiCG, several times in one day, two amendments were made to the same Rulebook from 2019, which by the beginning of March 2024 had thus experienced the twenty-seventh change. "Here, the way of making changes, as well as the preparation and systemic solution of employment needs in that public company, not to mention qualification, professionalization, transparency and control during employment, as a result of the adoption of these regulations, is problematic," she told "Vijesti". Marija Popović Kalezić, CEO of Cegas.
ŽiCG recently announced an advertisement for a coordinator for corporate management and an independent professional associate for project implementation, and an unofficial source claims that these are newly systematized jobs, for which there are no wage calculation coefficients determined by the collective agreement.
In the response to the request for SPI, which was submitted to Cegas, and which "Vijesti" had access to, the "Bistrica" Waterworks from Bijelo Polje intended not to announce the coefficient for the calculation of wages agreed with the executive director, but from the documentation, under the blacked-out part, see that it is 16,20.
Popović Kalezić said that this is contrary to the Collective and Branch Agreements, which stipulate a coefficient of 11,10.
According to the documentation submitted to Cegas, in doo "Komunalno" Cetinje, for example, they did not adopt a new collective labor agreement, but apply the one from 2005, from the time of the State Union of Serbia and Montenegro.
From that company, as well as from Bjelopolje Vodovod "Bistrica", they obscured the salary amount of the executive director, as well as the coefficients for the salary calculation for part of the management.
On the basis of the same documentation, "Vijesti" recently announced that the Public Company Sports Center Nikšić rejected part of the request related to employment contracts with the director and management, "since it contains personal data", but they are from the same company, with with an unprotected ID number, submitted work contracts with the person who was hired to perform the services of unclogging and cleaning the water drain in the WC premises...
Collective agreements in conflict with the Labor Law
Simović Zvicer explains that collective agreements must be in accordance, not only with the branch collective agreement (GKU), but also with the General Collective Agreement and with the Labor Law.
"In accordance with Article 217 of the Labor Law, the deadline for harmonizing collective agreements with this law is one year from the date of its entry into force. Since the Labor Law entered into force on January 7, 2020, that deadline has long since expired, i.e. more than three years ago. After the expiration of the specified period, the provisions of the collective agreement that are contrary to the Labor Law cannot be applied," she said.
As she added, the General Collective Agreement, which was concluded at the end of December 2022, foresees that the GKU will comply with that collective agreement within one year from the date of its entry into force, and for the KU at the employer level, that deadline is six months from the date of adoption branch collective agreements.
"Similar provisions are contained in the collective agreements at the branch level - which implies that the collective agreements at the employer level should be harmonized within a certain period. Unfortunately, the mentioned deadlines are not respected in practice," she said.
In that case, adds Simović Zvicer, there can be two situations. In one case, if the collective agreement at the employer level foresees a greater scope of rights compared to the GKU, she said, such solutions can be applied, because they are more favorable for employees.
"If the collective agreement at the employer level provides for a smaller scope of rights, such provisions cannot be applied," she said.
According to Simović Zvicer, there are a large number of collective agreements that are contrary to the provisions of the Labor Law.
"The fact that these are not only collective agreements at the employer level, but also collective agreements at the branch level - such as the Branch collective agreement for the area of administration and justice and the Branch collective agreement for the field of education - is worrying," she said.
When asked who controls these legal acts in public companies, the "Vijesti" interlocutor said that, in the event that KU at the employer's level is contrary to the law or GKU, the responsibility rests with the subjects of collective bargaining.
"Who should conclude a new GKU or change the existing one. These are: representative trade union organizations, the director and the competent management body (eg council, board of directors, etc.)," she said.
Depending on whether KU is against the law or only GKU, added Simović Zvicer, the consequences can be different.
"If the KU is contrary to the law, it is necessary to initiate proceedings before the Constitutional Court - which has jurisdiction to protect the principles of constitutionality and legality, and in accordance with Article 149 decides on the compliance of lower acts with the constitution and the law. If no proceedings have been initiated before the Constitutional Court, or if the KU is opposed to the GKU, i.e. if certain provisions of the collective agreement at the employer's level provide for a smaller scope of rights (eg, smaller coefficients for calculating wages compared to GKU), then employees can exercise the right to compensation for damages due to less paid wages," she said.
He adds that the labor inspection in all companies, including public ones, carries out control.
"But also the application of regulations. The labor inspector does not have the authority to oblige the parties in collective bargaining to conclude a collective agreement, because its conclusion will take place if there is agreement of the will of the contracting parties," said Simović Zvicer.
There are also discriminatory provisions
As one of the collective agreements that are contrary to the provisions of the Labor Law, Simović Zvicer cited GKU for the area of administration and justice.
As she said, that GKU in Article 31 foresees that certain articles of that collective agreement (Articles: 13, 20, 23, 24 and 25) apply to state and local government bodies, funds, institutes, agencies, commissions, public institutions and institutions whose trade union organization is a member of the Trade Union, which is a signatory of the GKU.
"This article is contrary to the Labor Law, which in Article 182 determines the personal domain of application of collective agreements concluded at different levels of negotiation. In this regard, branch collective agreements apply to all employees and employers at the branch level, regardless of whether they are members of the representative organizations that concluded them," she said.
Besides being contrary to the Constitution, she added, Article 31 of the Civil Code contains a provision that is discriminatory.
"Although Article 8 of the Labor Law prohibits discrimination against employees, among other things, on the basis of union membership, because it prevents employees who are not members of a union or whose union is not a member of a union that is a signatory of the GKU from exercising the right to a salary increase based on their scientific title, as and solving housing needs under more favorable conditions", said Simović Zvicer.
That provision, she adds, is contrary to the right to freedom of trade union organization.
"Which, in accordance with International Labor Organization Convention No. 97, includes both the right to choose a union and the right of every worker not to be a member of any union. Therefore, the guarantee of the protection of trade union freedoms is the existence of effective protection mechanisms against discrimination due to belonging or not belonging to a trade union," she said.
Abuse of certain legal institutes
Simović Zvicer said that in practice there is abuse of some institutes regulated by the Labor Law, such as agreements on taking over employees.
"The Labor Law, in Article 51, foresees the possibility of changing the employer, through the takeover of an employee, which can be carried out if two conditions are met, namely: an agreement between the employers on the takeover and the consent of the employee to change the employer through takeover. Although the Labor Law in the mentioned article does not expressly forbid it, signing an agreement on taking over an employee between the employer in the so-called to the 'private sector' to work for an employer in the 'public sector' is an abuse of this institute, because in this way the obligation of public advertising is avoided", she said.
According to Simović Zvicer, the agreement on taking over employees cannot be interpreted in isolation from other legal institutes regulated by the Labor Law.
"This especially refers to the imperative legal provisions that regulate the obligation of public advertising in the 'public sector'," she said, adding that public advertisement is a constitutive element of establishing an employment relationship and that failure to comply with this obligation results in the illegality of an employment relationship.
Because of all this, as she said, employers in the "public sector" should provide in their internal acts the conditions under which employees can be taken over.
"Because otherwise, applying Article 51 of the Labor Law to the transfer of employees from the 'private' to the 'public' sector would circumvent the provisions on the obligation of public advertising for employers in the 'public sector'", which obligation is expressly provided for in Article 24, paragraph 3 of the Labor Law", said Simović Zvicer.
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