Montenegro

"Article 3 of the Convention. Right to organize activities in full freedom. In its previous comment, the Committee noted that under section 18 of the Law on Strikes, 2015, the police, employees of state bodies and the public service could organize a strike in a way that would not endanger national security, safety of persons and property, the general interest of citizens or the functioning of government authorities and that in such occupations, minimum services must be ensured. Having noted that it was the prerogative of the state authority responsible for national security to determine whether the organization of a strike endangered the general interest of citizens and functioning of government authorities, the Committee requested the Government to take the necessary measures to amend the Law on Strikes in consultation with the social partners so as to ensure that responsibility for declaring a strike illegal rests with an independent body that has the confidence of the parties involved. The Committee notes the Government’s indication that: (i) in line with section 7, work disruption not organized in accordance with the provisions of the Law on Strikes shall be considered an illegal strike; (ii) section 31 of the Law provides that the employer, the representative association of employers, the representative trade union or the strike committee can initiate a procedure for determining the illegality of a strike or unlawful dismissal, which will be decided upon by the competent court within five days of such a request (this provision applies to any organized strike regardless of the area of activity in which it is organized); and (iii) the assessment under section 18 of whether the organization of a strike for the above employees endangers the general interest of citizens and functioning of government authorities is done by the public authority responsible for national security. While taking due note of this indication, the Committee understands that even if section 18 does not, in its wording, refer to the determination of the legality of a strike (which is regulated by section 31, providing for a judicial determination irrespective of the area of activity in which the strike is organized), section 18 provides for an assessment by a public authority of whether a strike endangers the general interest of citizens and functioning of government authorities and thus, whether it can lawfully take place under section 18 or not. The Committee notes in this regard the observations made by the UFTUM that: (i) at the drafting stage, a representative from the UFTUM warned that section 18 was not sustainable as the National Security Agency was a security intelligence service whose work implied the secrecy of information; (ii) the National Security Agency may declare that a strike endangers the public interest, and is therefore illegal, without prescribed clear criteria, acting in its own discretion and without the possibility of objections from the initiators of the strike; and (iii) the UFTUM submitted an initiative to review the constitutionality of section 18 of the Law on Strikes after its entry into force but has not yet received a response from the Constitutional Court. While noting the Government’s submission that Article 9 of the Convention leaves it to Members States to determine the extent to which the guarantees of the Convention apply to members of the armed forces and the police, the Committee observes that section 18 of the Law on Strikes also regulates the right to strike of employees of state bodies and the public service who are not excluded from the scope of the Convention under Article 9 and who, unless they are engaged in essential services in the strict sense of the term or exercising authority in the name of the State, should benefit from the right to strike. In view of the above, the Committee once again requests the Government to take the necessary measures to amend the Law on Strikes in consultation with the social partners so as to ensure that any determination of whether a strike organized under section 18 endangers the general interest of citizens and functioning of government authorities, and is therefore illegal, is the prerogative of an independent body that has the confidence of the parties involved. The Committee also requests the Government to provide information on the current status of the initiative to review the constitutionality of section 18 filed to the Constitutional Court by the UFTUM."