The Occupational Safety and Health Inspection in the Ministry of Labor recently declared itself incompetent to act on the initiative submitted to that department from the State Election Commission (SEC) due to the non-conditionality of the official premises in the center of Podgorica. The applicant, SEC secretary Nikola Dedeić, then turned to the administrative inspection, in the Ministry of Public Administration (MJU), and the administrative inspector returned the ball to the Ministry, "as the competent authority for action".
In the decision by which they reject the initiative, from the department of work that leads Naida Nišić, among other things, stated that supervision is carried out "exclusively at employers in Montenegro who have the status of a legal entity or entrepreneur" and that, according to the Law on Occupational Health and Safety, "supervision is not prescribed at the subject of supervision that has the status of a state body, state body administration and local self-government".
As the administrative inspection of the MJU referred Dedeić to the department of labor, that there is a legal basis for the inspection of that Ministry to proceed in this particular case, according to the Occupational Safety and Health Association.
"Article 4 of the Law on Health and Safety at Work clearly indicates that the provisions of the law also apply to employees of state bodies, state administration bodies and local self-government units, unless otherwise specified by a separate law. This provision indicates that the law has universal application to all employees, regardless of the legal nature of their employer", she told "Vijesti". Džina Janković, general secretary and project manager of the Association.
He also adds that the inspection's refusal to act in a specific case can be considered an incomplete interpretation of the law.
Initiative
From the State Election Commission, the initiative for action due to the non-conditional nature of the official premises located at 8 Novaka Miloševa Street, in the center of Podgorica, was submitted to the Occupational Safety and Health Inspection Department of the Ministry of Labour, Employment and Social Welfare on October 18.
Seven days later, the applicant, Secretary of the SEC Nikola Dedeić, received a decision rejecting the initiative. According to the decision, which "Vijesti" had access to, the Inspection of the Department of Labor states, among other things, that the employees of the SEC belong to the category of civil servants and state employees, and that occupational health and safety inspectors are not competent to supervise the implementation of the Law on Civil Servants and employees.
In the explanation, they further state that, according to the Law on Labor Inspection, the Occupational Safety and Health Inspection does not supervise state bodies, state administration bodies and local governments. They also add that, "exceptionally, inspection supervision in the field of state administration, defense and security, protection and rescue, transportation of dangerous substances and explosive substances, and traffic safety and security is carried out by competent state administration bodies, in accordance with this law and a special law".
"Occupational health and safety inspectors as employees of the Ministry of Labour, Employment and Social Dialogue, Department of Occupational Health and Safety Inspection, supervision of the Law on Occupational Health and Safety, regulations adopted on the basis of it and technical and other measures related to protection and health, are carried out exclusively by employers in Montenegro who have the status of a legal person or entrepreneur. The above-mentioned law does not prescribe supervision of the subject of supervision that has the status of a state body, state administration body and local self-government", says the decision signed by the chief inspector of occupational health and safety Zlatko Popovic.
On November 4, Dedeić addressed the administrative inspection of the public administration department, which he heads Marash Dukaj, and from MJU they referred him to the Ministry of Labour.
Avoid legal uncertainty
The "Vijesti" interlocutor from the Occupational Safety and Health Association says that Article 4 of the Law on Occupational Health and Safety clearly indicates that the provisions of the law also apply to employees of state bodies, state administration bodies and local self-government units, unless otherwise specified by a separate law. determined.
"Article 4 clearly includes employees in state bodies, state administration bodies and local governments in the scope of the law. This confirms that employees of the SEC also have the right to protection and health at work in accordance with the law. The state body, as an employer, has the obligation to apply occupational health and safety measures in accordance with the law. This includes providing adequate working conditions, which includes conditional office premises," she said.
As she added, the interpretation of the occupational health and safety inspection, that it only supervises legal entities and entrepreneurs, "creates a legal problem, because the law does not exempt state authorities from supervision, and Article 4 expressly includes them".
"Since the law includes state bodies, it would be logical for the Occupational Safety and Health Inspection to have the authority to control working conditions in these institutions as well. Her refusal to act can be seen as an incomplete interpretation of the law. Although the primary competence of the Administrative Inspection is to control the application of regulations on state administration, it can investigate complaints about the organization of work and conditions in the SEC's premises. However, she is not specialized in issues of protection and health at work", explained Janković.
In order to ensure the implementation of the law, she added, this situation requires coordination between the Occupational Safety and Health Inspection of the Ministry of Labour, Employment and Social Dialogue, in whose department the Occupational Safety and Health Inspection has been since October 1, the Administrative Inspection and the SEC itself. -a.
"A person from the SEC can submit a request to the Occupational Safety and Health Inspection to review their jurisdiction, referring to Article 4 of the law. If the Occupational Safety and Health Inspection continues to refuse supervision, the person can lodge a complaint with the Administrative Inspection due to the inadequate conditions of the premises, referring to the state body's obligation to provide adequate working conditions," she said.
The Occupational Safety and Health Association said that the Ministry of Labour, Employment and Social Dialogue, as the body responsible for the law, "can issue an official interpretation to determine the jurisdiction for such situations".
"In the long term, it is necessary to clearly specify the competences of inspections in relation to state bodies through the amendment of the law or by-law, in order to avoid legal uncertainty," she said and added that, based on Article 4, "it is clear that there is a legal basis for inclusion state authorities under the supervision of the Occupational Safety and Health Inspection".
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