ANALYSIS OF THE LABOUR LEGISLATION IN MONTENEGRO
WITH REGARD TO EQUAL OPPORTUNITIES
FOR WOMEN AND MEN
Author: Branka Vlahovic
Translated by: Irena Boskovic
Edited by: Anna Wilkowska; Kristin Van Der Leest
February 2008
1
CONTENTS
1. INTRODUCTION
2. ANALYSIS OF THE SPECIFIC STANDARDS
A. EQUAL PAYMENT
A – 1) National legal framework related to the principle of equal pay for the work of
equal value
A – 2) Application of the principle of equal pay for the work of equal value
A – 3) Job classification
A – 4) Informing the employees and the role of trade unions
A – 5) Facts related to the principle of equal pay for the work of equal value
A – 6) Concluding remarks
B. EQUAL ACCESS TO EMPLOYMENT, VOCATIONAL TRAINING,
PROMOTION AND WORKING CONDITIONS
B – 1) National legislation related to the principle of equal treatment for women and
men at work
B – 2) Protection of maternity (pregnant women, women giving birth or nursing
their infants)
B – 3) Normative protection – status and needs
B – 4) Women in agriculture and self-employed women
B – 5) Access to additional education (education, trainings, retraining of redundants)
3. LEGAL CONCEPTS NOT PRESENT IN THE MONTENEGRIN LABOUR
LEGISLATION
4. RECOMMENDATIONS
5. LITERATURE
6. ANNEX: EXAMPLES FROM OTHER COUNTRIES
A.
B.
C.
D.
Equal pay
Pregnancy and maternity
Access to additional education
Collective agreement regulations
2
INTRODUCTION
This gender analysis of current Montenegrin legislation in the area of labour consists of a
comparative review of various laws based on the regulations of the international community,
primarily European Union standards. It covers the following concepts: the principle of equal pay
for work of equal value; equal treatment in employment; protection at work, protection of
pregnant women, breastfeeding women and mothers; the status of self-employed workers or
women working in agriculture, and other specific aspects related to the status of women in the
labour market (redundancy, age, promotion opportunities, additional training).
The aim of the analysis is to increase the level of information about current legislation
related to the principle of equal opportunities, and to promote changes and amendments to the
legislation, as well as to highlight the necessity of adopting new regulations in order to make
these data and recommendations effective tools for more efficient and thorough application of
gender equality standards. Moreover, to ensure the final compliance of the labour legislation with
the current needs of the labour market, with full protection of democratic principles and human
rights generally. Our hope is that the analysis will help the publicly proclaimed and accepted
principles of gender equality become an integral part of reality in Montenegro.
The current legal framework in Montenegro does not provide a necessary level of
protection against gender discrimination in the labour market, even though the adoption of the
Constitution of Montenegro1 and the Law on Gender Equality2 have opened new possibilities for
interventions at two levels: monitoring the implementation of the Law on Gender Equality in all
the areas permitted by the current legislation, and on the other hand, amending relevant
legislation in the area of labour to comply with the Constitution and the Law.
Montenegro confirms the primacy of international treaties and laws over domestic
legislation and provides for direct implementation of standards related to equal opportunities, but
the relevant provisions on gender equality have hardly ever been applied. Montenegro is
perceived as a country where traditional social roles and gender stereotypes persist. Protection of
women’s human rights is still not guaranteed as a concept itself and is not recognized by the
majority of people. Therefore, all the activities in that area should be well prepared and
synchronized in order to achieve better results and more effective implementation of relevant
laws. It is also crucial to use “the” moment when the international community as well as general
public and political bodies in Montenegro express their interest in the above-mentioned issues.
There are some positive steps undertaken by the Parliament and the Government of
Montenegro that are worth mentioning. The establishment of the Parliament Committee for
The Constitution of Montenegro clearly states that: “Direct and indirect discrimination on any ground shall be
prohibited. Regulations and introduction of special measures directed towards creation of conditions for achievement
of gender equality and protection of persons that are in unfavourable position on any ground shall not be considered
discrimination. Special measures shall be applied only until the aims for its introduction have been achieved”. Article
8: Prohibition of discrimination; Constitution of Montenegro adopted by the Constitutional Parliament of the
Republic of Montenegro on 19 October 2007.
2
The Law on Gender Equality adopted in July 2007, entered into force on 8 August 2007; published in the Official
Gazette No. 46/07 of 31 July 2007.
1
3
Gender Equality and the Gender Equality Office3 constitute the most significant examples here.
Since its establishment, the Office has been placed within the General Secretariat of the
Government. The Office acts as an expert working to implement the principles of equality as well
as provisions of the international treaties and conventions, and coordinates all the Government
actions in that area (Article 2 of the Government Decision). It is also responsible for the creation
of a database on gender equality and conducting research activities analyzing the position of
women in all areas of life and research related to international practice in the process of
implementation of gender equality. The Office drafts the amendments to the current legislation
and new laws aimed at improving the status of women in family, economic and political life.
Furthermore, the Office is responsible for launching a public campaign on raising awareness of
gender equality, issuing printed materials and preparing other forms of information related to
human rights. The natural follow-up activities include then the analysis of the current legislation,
particularly labour laws, proposals of measures to be adopted and undertaking concrete activities
as previously planned.
It is extremely necessary to continue drafting laws and regulations on the issue of gender
equality and to provide for the implementation of general and special measures as set up in the
Law on Gender Equality.4 That will show the intention of the Montenegrin Government to fulfil
and implement the standards required in the long and demanding process of stabilisation and
accession, and finally integration within the European Union. The documents adopted by the
European Union institutions, the European Parliament, the European Council and the European
Commission, create a roadmap for the activities to be undertaken and set up a legislative
minimum to be respected with regard to gender equality.
Taking the above into consideration, the analysis will focus on the European Union
regulations and their relevance to the Montenegrin legislation on labour relations. This is a
review of specific provisions existing at the EU level and relevant regulations that are present in
the national laws.
1. ANALYSIS OF THE SPECIFIC STANDARDS
A. EQUAL PAYMENT
European Union regulations
Council Directive 75/117/EEC on the approximation of the laws of the Member States relating to the
application of the principle of equal pay for men and women.5
Article 1 states that the principle of equal pay for men and women outlined in Article 119 of the Treaty,6
hereinafter called "principle of equal pay", means, for the same work or for work to which equal value is
attributed, the elimination of all discrimination on grounds of sex with regard to all aspects and conditions
3
The Gender Equality Office was established on the basis of the Government Decision of 27 March 2003 (Official
Gazette 20/2003). It was a result of the Stability Pact project entitled “Establishment of the mechanisms for equal
opportunities in the Government of Montenegro”. The Italian Government financed the first year of its work.
4
Art. 8l; The Law on Gender Equality.
5
Council Directive 75/117/EEC of 10 February 1975 on the approximation of the laws of the Member States relating
to the application of the principle of equal pay for men and women; OJ L 45, 19.2.1975.
6
Here: the Amsterdam Treaty.
4
of remuneration. In particular, this is applied where a job classification system is used for determining
pay. Article 3 includes the obligation of states to abolish all forms of discrimination between men and
women arising from laws, regulations or administrative provisions contrary to the principle of equal pay,
while article 5 calls for special measures to protect employees against dismissal by the employer as a
reaction to a complaint within the company.7
A – 1) National legal framework related to the principle of equal pay for the work of
equal value
The legal framework of Montenegro provides for a general principle of nondiscrimination, but it does not define a principle of equal pay for the work of equal value
specifically.
The Montenegro Constitution8 states that “Every person has the right to work, to freely
choose his/her own occupation and employment, to fair and humane working conditions and to
protection during unemployment”. The Constitution also says that “Employees are entitled to the
right to adequate pay”.9 The Constitution clearly incorporated the principle of non-discrimination,
but in Montenegrin legislation on labour and labour relations there is no separate provision
related to the issue of gender discrimination in relation to employment and pay. The Law on
Gender Equality adopted recently does not directly refer to the issue but confirms the general
principle of “achievement of equal benefits from the working results”.10 Moreover, the current
Montenegrin Labour Law11 and the Law on Civil Servants’ and State Employees’ Wages12 do not
directly include the principle of equal pay, but provide for the protection against discrimination
by implementation of the general principle of non-discrimination.
Thus, since legal texts do not contain a prohibition of discrimination in pay, there is no
direct legal protection in that field. Hence, the national legislation currently in force in
Montenegro does not include the principle of equal pay as described in the Council Directive on
equal pay for women and men. The national legal system of Montenegro provides for the general
principle of non-discrimination as a starting point, which means that incoming legal drafts should
contain the equal pay principle.
7
Other regulations describing the issue of equal pay for women and men include: the European Social Charter that
includes the right to fair pay and gives the right for both men and women to equal pay for the work of equal value; in
the appendix to the Declaration of Multi-Disciplinary Strategy adopted at the Fourth European Conference of
Ministers on Equality Between Women and Men, Istanbul 13-14 November 1997, which aims at promotion of
equality between women and men as a fundamental criterion of democracy, the equality in economic-professional
life is envisaged, thus the governments are invited to pass and implement laws that shall guarantee the right for
women and men to equal pay for equal work and work of equal value, as well as to pass and implement laws that
shall guarantee rights of women and men to equal treatment, opportunities and pay and to ensure access to justice by
providing legal support and counselling, financial support and information on the functioning of judicial
mechanisms. Also, Council of Europe Committee of Ministers Recommendation No. R (96)5 on reconciling work
and family life requests the elimination of discrimination between women and men in the labour market and
promotion of elimination of pay differences between occupations where women are dominant and those where men
are dominant, as well as a decrease in pay differences between women and men within the same occupation.
8
Art. 62; The Constitution of Montenegro.
Ibid., Art. 64.
10
Art. 2; The Law on Gender Equality.
11
The Labour Law of the Republic of Montenegro of 9 July 2003, Official Gazette No. 43/03; Art. 3.
12
The Act of 26 April 2004 on Civil Servants’ and State Employees' Wages, Official Gazette No. 27/04; Art. 8.
9
5
A-2) Application of the principle of equal pay for the work of equal value
It has been previously stated that the legal system of Montenegro does not contain legal
provisions which discriminate against women or men or could be contrary to the principle of
equal pay, but, at the same time, there are no affirmative provisions. The adoption of the Law on
Gender Equality does not automatically guarantee an absolute protection of women’s rights in
various spheres of life. However, as mentioned above, it constitutes a basis for collection of
statistical data, and that could be a good starting point for further activities.13
 The Labour Law requires that employees are equally treated in achieving their labourbased rights, regardless of their nationality, race, gender, language, religion, political or other
orientation, as well as education, social background, wealth or other individual attributes.14
 The Law on Civil Servants’ and State Employees’ Wages says the following: “The
salary of a civil servant is determined by the individual act, in accordance with the law”.15
Besides that, it states that a “civil servant shall enjoy protection of rights to salary and other
benefits in accordance with the regulation on civil servants”.16 Furthermore, the Law provides for
publication of data related to salary17 as well as the application of general rules governing the
labour law (meaning the Labour Law and Employment Law) to the rights to salary and other
benefits, unless otherwise specified by the law.18 Since the Law on Civil Servants and State
Employees19 does not directly contain the principle of gender equality, or the principle of equal
pay, it refers to the general rules of the labour law (the Labour Law and Employment Law) when
specifying the rights defined by that law.20
 The Act on the Protection of Citizens Working Abroad stipulates, under the section
“Equal treatment”, the principle of equal treatment in relation to working conditions, protection at
work, salary and other rights related to work.21 Under “Special protection”, the Law provides
(with regard to protection at work and salary guarantees) that a Montenegrin employer who sends
employees to work abroad shall guarantee that such employees are protected to the same extent
as provided by the state regulations where the work takes place.22
 The Act on Foreigners' Employment and Work23 does not include any provisions
related to pay, but it refers to the general rules of the labour law.
The principle of equal pay mentioned in the Constitution and other laws should be applied
to both public and private sector. Hence, the private sector is obliged to comply with the
provisions of the Labour Law.
13
Art. 8; The Law on Gender Equality.
Art. 3 (1); The Labour Law.
15
Art. 3; The Law on Civil Servants’ and State Employees’ Wages.
16
Ibid., Art. 4 - Protection of Rights
17
Ibid, Art. 5: “Data on salaries of civil servants are available to the public”
18
Ibid, Art. 6
19
The Act of 26 April 2004 on Civil Servants and State Employees, Official Gazette No. 27/04.
20
Art. 4; The Law on Civil Servants’ and State Employees’ Wages.
21
Art. 3; The Act of the Republic of Montenegro on the Protection of Citizens of Montenegro Working Abroad,
Official Gazette No. 11/04.
22
Ibid., Art. 18.
23
The Act of the Republic of Montenegro on Foreigners' Employment and Work, Official Gazette No. 11/04.
14
6
The reality is rather different. Quite often employers ignore the Labour Law provisions
and do not comply with the obligations set forth in the Law, both towards their employees and
the state. In the latter case, it results in limited pension funds and/or unpaid social and health
insurance, which directly affects the most vulnerable groups, including primarily women.
There are certain protection mechanisms, which could be used in such instances and these
mechanisms are provided for in the Law on the Labour Inspection24. The aim of the Law is to
monitor the activities of employers as well as monitor the implementation of the Labour Law
provisions and other regulations.25 The labour inspection is placed within the Ministry of Health,
Labour and Social Welfare.26 It deals with the individual requests for inspection control as well
as with anonymous complaints (which are extremely important from an employee’s point of
view).27 Even though the labour inspection has a right to ban the execution of the regulations,
which constitute a violation of the Labour Law until judicial procedure is completed, the actual
numbers of such actions undertaken by the inspection are very low. And when it comes to the
principle of equal pay there is no methodology according to which the inspection could monitor
the implementation of that principle. Moreover, no statistical data on the issue exists showing the
scope of the problem, therefore the labour inspection has never done anything about that issue.
There is also a separate body within the Ministry of Justice, called the State
Administration Inspection28 responsible for monitoring and assessment of the civil servants’
work and monitoring procedures of their conduct, promotion and salary. The State
Administration Inspection is competent to act in the area of public administration, (meaning the
public sector), while the Labour Inspection is authorized to act in both the private and public
sector, except the public administration bodies (covered by the State Administration Inspection).
A – 3) Job classification
The Labour Law29 and the General Collective Agreement30 guarantee the right of an
employee to adequate pay in both public and private sectors.
The earnings are calculated on the basis of the wage rate of the related position, the
contribution to work and the time spent at work in accordance with the Law and the General
Collective Agreement.31 Working groups with the assigned wage rates are presented in Table 1
below.
Table 1
Working group
Qualifications required
Wage rate
The Act of the Republic of Montenegro on Labour Inspection, Official Gazette No. 69/03, referred to as ‘the Law
on the Labour Inspection’.
25
Ibid., Art. 1.
26
It used to be the Ministry of Labour and Social Care.
27
Submission of complaints to the labour inspection or trade union is somehow forbidden within private companies,
and those who complain are very often dismissed.
28
Art.120, para. 2; The Act of 26 April 2004 on Civil Servants and State Employees.
29
Art. 65-71; The Labour Law.
30
The General Collective Agreement, Official Gazette No. 01/04.
31
Art. 66; The Labour Law.
24
7
I.
Without qualifications
1.00
II.
I degree
1.25
III.
II degree
1.60
IV.
Two years or three years of secondary school (III degree)
1.95
V.
IV degree
2.20
VI.
Qualified worker (V degree)
2.45
VII
High school (VI degree)
2.80
VIII.
University degree (VII degree)
3.30
IX.
Masters degree (VII – 1 degree)
3.60
X.
PhD (VIII degree)
4.00
The amount of earnings depends on the previous work, i.e. for each year during the first
10 years of employment the earnings are increased by 0.5%, then between 10 and 20 years - by
0.75% and by 1% each year after 20 years of employment. The earnings are higher where night
work, overtime work and work during holidays are concerned.
The Law on Civil Servants’ and State Employees’ Wages establishes a system of
classification of salary grades for the purposes of determination of earnings for civil servants and
state employees. It gives a detailed description of salary grades and classification of salary grades
in the public service32.
Despite the fact that the Montenegrin legal system, namely the Labour Law and the
Criminal Code33, protects the right of employees to equal pay, it proves to be insufficient
especially since the current regulations do not contain any provisions obliging the employers and
other entities to respect the principles of equal pay for the same work for women and men; there
are no provisions directly stating that violation of the principle of equal pay constitutes
32
The salary is divided into three parts: fixed part, a supplement to the salary and a variable part. Based on the
position and duration of employment there are thirty-six salary grades. Civil servants’ titles are arranged in three
grades, and each of them has three levels. State employees’ titles are arranged in five grades and the first three grades
has each three sub-groups – I, II, III and the fourth grade has three groups marked as IV, V, VI, while the fifth grade
has only one title – state employee (elementary school). The amount of the fixed part is determined “by multiplying
the coefficient stipulated for the salary grade, in which his/her title has been classified, with the value of coefficient
determined by the Government for a certain month period”. Increase on the basis of the working years is also
stipulated. The variable part of the salary is determined on the basis of the quality of performed work and the
employee has to be graded with the mark “excellent”. Supplement to the salary, salary’s increase depends on the
following factors: a) difficult working conditions, b) night work, c) work during national and religious holidays, d)
work exceeding full-time system and performed on the basis of different laws. The system of classification of
working positions is applied equally to both women and men. The fact that the salary consists of three parts, one of
which is granted exclusively by the employer, can potentially create inequality. The classification into salary grades
does not create any differences between women and men, however such differences occur anyway, because the value
of the working positions women and men occupy is different, therefore they are classified differently; The Law on
Civil Servants’ and State Employees’ Wages, Art. 7-15, Part II - The Salary of Civil Servants and State Employees.
33
The Criminal Code, Official Gazette No. 72/03.
8
discrimination. Moreover, no cases have been brought to the courts concerning violation of the
equal pay principle, mainly because the issue has been left untouched by the authorities and the
parties concerned do not know how to submit complaints.
A – 4) Informing the employees and the role of trade unions
There are no provisions in the national legislation in Montenegro, which impose an
obligation on the employer to inform the employees individually or in any other way about their
rights and obligations. Such an obligation exists only towards a trade union, but the employers do
not comply with the obligation to inform a trade union at least once a year about various
important activities. The Constitution34 and the Labour Law define the conditions for operations
of trade unions.35 Trade unions are registered within the Ministry of Health, Labour and Social
Welfare. A trade union elects a person representing it before the employer and informs the
employer about that fact.36 The employer shall inform a trade union, at least once a year, about:
1) business results, 2) development plans and their prospective effects on employees' status and
trends and changes in earnings' policies, 3) provisions for improvement of work conditions,
occupational health and protection and other issues of importance for the wealth and social status
of employees.37
Although rather strange but true, trade unions themselves do not pay enough attention to
the issue of equal pay for the work of equal value. The organisation of the employed women
“Woman Today” (trade union) is not strong enough to seriously provoke implementation of
activities related to the issue. No data or information exists on which trade unions could rely. The
issue of equal pay is not considered as a priority issue, because the equal pay principle is not
included in the Montenegrin legal system, thus it is clear that trade unions do not give enough
support to the issues related to equal pay. None of the trade unions has ever used its capacities to
gather data and evidence as to salary payments. But, trade unions have the competence to provide
general legal assistance to the employees so they can submit complaints and represent them in
court. Trade union organisations have the mandate to plead for equality in order to improve the
implementation of the equal pay principle.
The equal pay principle, as it is defined in the Council Directive 75/117/EEC is also not
contained in the collective agreements. These agreements include only a general principle of nondiscrimination.
A – 5) Facts related to the principle of equal pay for the work of equal value
In 2004 research conducted among a variety of households in Montenegro38 showed that
there was a wage difference between women and men. Men with lower education (not attending a
secondary school) earned 185 euros/month, while women with the same level of education
34
Art. 53; The Constitution of Montenegro.
Art. 136-140; The Labour Law - Union operating conditions.
36
Ibid., Art. 137 (2) and (5).
37
Ibid., Art. 138 (1); Art. 138 (1) p.2.
38
Conducted in 2004 by the Institute for Strategic Studies and Prognosis, data from the Report on the monitoring of
equal opportunities for women and men in the field of labour and employment in Montenegro, by Nina Vujovic
Krgovic, Darko Curic.
35
9
earned only 131 euros. Men with high school education earned 274 euros in comparison to
women, who earned 190 euros, and men with a university degree earned 329 euros in comparison
to women, who earned 263 euros. The Statistics Bureau (MONSTAT) has never conducted
research looking specifically at the principle of equal pay for the work of equal value. However,
it seems quite obvious that both horizontal and vertical segregation exists in the labour market,
especially since women are more frequently employed in the social, health and education sectors,
which are less paid and are described as “less significant” by society.
In 2006 the Statistics Bureau in cooperation with the Gender Equality Office issued a
publication entitled “Women and Men in Montenegro”. It contains a short presentation of the
status of women’s and men’s earnings in our society. “It emerged as the response to greater
needs of users that the status in society is monitored, inter alia, over statistical data
disaggregated by sex”.39
Average pay by gender and sector activities in 200440
Sector activity
Average pay
total
Total
Agriculture
and
forestry
Fishery
Mining industry
Refine industry
Production
of
electricity gas and
water
Engineering
Trade small and big
Hotels and restaurants
Transport
Finance
Real estate
State administration
and social insurance
Education
Health and social
work
Other
associations
and personal services
39
40
women men
Average pay of
women and men in
comparison to the
total
Women Men
Average pay of
women in
comparison to the
average pay of
men
326
276
290
270
354
279
88,8
97.9
108,7
100.9
81,7
97.0
59
436
274
450
51
438
171
360
62
436
319
473
87.1
100.5
62.4
80.0
106.7
99.9
116.2
105.0
81.7
100.6
53.7
76.2
190
207
187
458
701
329
366
177
181
188
472
656
351
323
193
238
185
453
785
314
413
93.0
87.6
100.8
103.0
93.6
106.4
88.3
101.3
114.9
99.1
98.9
112.0
95.2
112.7
91.9
76.2
101.7
104.2
83.6
111.8
78.4
377
346
351
315
429
430
93.0
91.1
113.8
124.3
81.7
73.3
304
257
334
84.6
109.9
77.0
Women and Men in Montenegro, Podgorica 2006; published by the Statistics Bureau of Montenegro.
Ibid., page 39.
10
A – 6) Concluding remarks
Despite the existence of the Law on Gender Equality, the Labour Law and other
regulations related to the employment sphere, the current legal framework of Montenegro does
not give an adequate basis for protection and implementation of the principle of equal pay for
equal work. Thus, the Montenegrin legislation does not comply with the provisions of the
Council Directive 75/117/EEC or any other legal acts dealing with protection of the principle of
equal pay. Although insufficient and incomplete, research analyses show significant differences
between the average pay of women and men, which are very common and constitute a reality in
Montenegro. Also, as already stated above, no cases of violation of the principle of equal pay for
the work of equal value were submitted to courts or any other institution, which proves either that
women are not aware that such a type of discrimination exists, or they do not know how to tackle
such problems occurring in their workplaces.
Women’s lack of knowledge about their rights results in their ignorance as to
discrimination practices but also, on the other side, in their insecure status in the workplace and
vulnerability to dismissal from work. Women very often do not react even when they know they
are discriminated against, they do not use any procedures, which, although ineffective, could
attract attention to certain aspects of the problems faced by women in the labour market. Women
do not react because they are simply afraid of losing their jobs.
B. EQUAL ACCESS TO EMPLOYMENT,
PROMOTION AND WORKING CONDITIONS
VOCATIONAL
TRAINING,
European Union regulations
1. Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men
and women as regards access to employment, vocational training and promotion, and working
conditions.41 The Directive states that application of the principle of equal treatment means that there
shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for
access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational
hierarchy.42 Furthermore, application of the principle of equal treatment with regard to access to all types
and to all levels, of vocational guidance, vocational training, advanced vocational training and retraining,
and implementation of the principle of equal treatment in relation to working conditions, including the
conditions related to the dismissal, means that women and men shall be guaranteed the same conditions
without discrimination based on sex.43
2. Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment
for men and women in matters of social security.44 It is applied to all legal schemes which provide
protection against the following risks: sickness, invalidity, old age, accidents at work and occupational
diseases and unemployment.
41
Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for
men and women as regards access to employment, vocational training and promotion, and working conditions, OJ L
39, 14.2.1976; amended on 23 September 2002 by the Directive 2002/73/EEC.
42
Ibid., Art. 3.
43
Ibid., Art. 4 and 6.
44
Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal
treatment for men and women in matters of social security; OJ L 6, 10.1.1979.
11
3. Council Directive 86/613/EEC on the application of the principle of equal treatment between men
and women engaged in an activity, including agriculture, in a self-employed capacity, and on the
protection of self-employed women during pregnancy and motherhood.45 It aims at implementation of
the principle of equal treatment of women and men engaged in an activity in a self-employed capacity or
to contribute to the engagement in that activity with regard to those aspects that are not covered by the
Directives 76/207/EEC and 79/7/EEC.
4. Council Directive 97/81/EC concerning the Framework Agreement on part-time work concluded
by UNICE, CEEP and the ETUC.46 Its objective is to lay down ‘general principles and minimum
requirements relating to part-time work’. It illustrates the willingness of the social partners to establish a
general framework for the elimination of discrimination against part-time workers and to assist the
development of opportunities for part-time working on a basis acceptable to employers and workers. With
measures that facilitate the access to part-time work, women and men get easier access to this kind of
employment; they could easier reconcile family and professional life and use the opportunity for further
education and training.
5. Council Directive 97/80/EC on the burden of proof in cases of discrimination based on sex.47
According to the Directive, “the principle of equal treatment shall mean that there shall be no
discrimination whatsoever based on sex, either directly or indirectly, indirect discrimination shall exist
where an apparently neutral provision, criterion or practice disadvantages a substantially higher proportion
of the members of one sex unless that provision, criterion or practice is appropriate and necessary and can
be justified by objective factors unrelated to sex.”48 It shall be for the respondent to prove that there has
been no breach of the principle of equal treatment and this shall not prevent Member States from
introducing rules of evidence which are more favourable to plaintiffs.49
6. Directive 2002/73/EC of the European Parliament and of the Council amending the Council
Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as
regards access to employment, vocational training and promotion, and working conditions.50 For the
first time at Community level, the amended version of the Directive gives a definition of sexual
harassment, which means a situation "where any form of unwanted verbal, non-verbal or physical conduct
of a sexual nature occurs, with the purpose or effect of violating the dignity of a person, in particular when
creating an intimidating, hostile, degrading, humiliating or offensive environment".51 Member States must
ensure that proper compensation or reparation can be obtained for the damage suffered by an injured
party. Additionally, employers will be encouraged to take preventive measures against sexual harassment
and to provide employees with appropriate information on equal treatment for women and men in the
workplace.
B- 1) National legislation related to the principle of equal treatment for women and
men at work
45
Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment
between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the
protection of self-employed women during pregnancy and motherhood; OJ L 359, 19/12/1986.
46
Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work
concluded by UNICE, CEEP and the ETUC - Annex: Framework agreement on part-time work; OJ L 14, 20.1.1998.
47
Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex;
OJ L 14, 20.1.1998.
48
Ibid., Art. 2.
49
Ibid., Art. 4.
50
Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 [OJ L 269, 5.10.2002]
amending the Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and
women as regards access to employment, vocational training and promotion, and working conditions.
51
Ibid., Art. 2.
12
The legal system of Montenegro provides so far only the general principles of nondiscrimination; the concepts of direct and indirect discrimination are neither used nor defined.
There is a still much work to do on the development of an adequate legislative framework to be
easily applied in practice, as it is clear that such a framework has not been created yet.
 The current Constitution states that “All forms of direct or indirect discrimination based
on any ground shall be prohibited”.52 The second paragraph is particularly important as it says
that the regulations and special measures that are directed at creation of conditions for
achievement of equality and protection of persons that are in an unfavourable position shall not
be considered discrimination. It needs to be highlighted here that the Constitution for the first
time identifies gender equality: “The State shall guarantee the equality of women and men and
shall implement equal opportunities policy.”53
 The Law on Gender Equality defines discrimination based on sex as “every legal and de
facto, direct or indirect differentiation, privilege, exclusion or restriction based on sex which
places the other person in a difficult position, makes it impossible for her to enjoy or exercise the
rights and freedoms in political, educational, economic, social, cultural, sport, civil and in other
fields of public and private life”.54 The Law also states that “Sexual harassment, incitement of
other person to discrimination and usage of words in masculine gender as generic neutral form
for masculine and feminine gender, within the meaning of the paragraph 1 of this article is
considered to be discrimination”.
 The Labour Law provides for a general principle of non-discrimination (Art. 3):
(1) Employees are equally treated in achieving their labour-based rights, regardless of their
nationality, race, gender, language, religion, political or other orientation, as well as education,
social background, wealth or other individual attributes.
(2) An employer is obliged to respect employee's rights, provide an equal treatment in protection
of those rights and the privacy and dignity of any employee. 55
If an employer fails to fulfil the obligations described in para. 2 above, the Labour Law provides
for sanctions to be used accordingly.56
 The Law on Civil Servants and State Employees states: “On the occasion of
employment of civil servants and state employees, the candidates shall have equal access to all
posts under equal conditions,” and further that a “civil servant, i.e. state employee shall enter into
employment on the basis of a public announcement of the vacancy”.57 From a gender equality
point of view provisions related to “Privileges or deprivation” are important as they state that “A
privilege or deprivation of a civil servant, i.e. state employee, in his/her rights shall be prohibited,
especially on the basis of political, national affiliation, race or religious affiliation, gender, or due
to some other reason that is in opposition with the rights and freedoms guaranteed by the
Constitution and the law.”58
 The Law on Employment contains the principle of non-discrimination in Article 3 and
states that “all unemployed persons are equal regardless of national affiliation, race, sex,
52
Art. 8, para. 1 of the Constitution of Montenegro.
Ibid., Art. 18.
54
Art. 4; The Law on Gender Equality.
55
Art. 3; The Labour Law.
56
Ibid., Art. 148, para.1, point 1.
57
Art. 8; The Law on Civil Servants and State Employees -Equal Access.
58
Ibid., Art. 11.
53
13
language, political or other belief, education, social inheritance, property status or other personal
quality.”59
 The Law on Foreigners' Employment and Work does not include provisions that
prohibit unequal access and discrimination, even though that Law refers to the provisions of the
Labour Law. Similarly, the Law on Protection of Citizens Working Abroad does not contain
separate provisions defining discrimination or prohibiting discrimination of any kind, besides
general protection from “unequal treatment” with employees in the state of employment.
Therefore, since no definition of direct and indirect discrimination exists in the national
legislation, and only a general framework is present, serious shortcomings are visible in the
protection of women’s rights related to employment.
Furthermore, the provisions in the Act on Pension and Disability Insurance60 are
questionable and can be considered direct discrimination: Article 17 states the right to pension to
be obtained at 65 years of age (for men) and 60 (for women) and after at least 15 years of regular
contributions to a pension insurance fund; the right to pension is obtained also after 40 years of
regular contributions to the pension insurance fund (for men) or 35 (for women), but the person
must be at least 55 years old. That Law is inconsistent with the Labour Law, which provides for
the same age (65) for both women and men. The amendments to the Act on Pension and
Disability Insurance state that the provisions of the Law apply also to a widow who, based on her
parental duty towards children, used the right to family pension in accordance with the
regulations in force since 30 December 2003, and whose right to a family pension had ceased
before the law entered into force, if she was 40 years of age on the day when that right had
ceased.61
Due to lack of adequate legal regulations in the labour legislation, meaning the definitions
of the principle of equal treatment for women and men, the provisions of the Criminal Code have
not been implemented with regard to “Violation of Equality”, which punishes the limitation of
rights based on “national or ethnic affiliation or religion […], or different political and other
beliefs, sex, language, education, […] which are confirmed by the constitution, laws and other
regulations or confirmed in the international treaties.”62 The Code punishes also a “deliberate
violation of regulations or limitation of a right to free employment under the same conditions or
in another illegal way.”63
Based on the findings obtained from the courts in Montenegro, no single case related to
discrimination based on sex was initiated. That additionally proves the insufficient and
ineffective implementation of protective measures against discrimination.
B-2) Protection of maternity (pregnant women, women giving birth or nursing their
infants)
59
The Law on Employment, Official Gazette No. 5/02; Art. 3.
The Act on Pension and Disability Insurance, Official Gazette No. 54/03, 39/04, 79/04.
61
The Act to amend and supplement the act on pension and disability insurance, Official Gazette No. 39/04; Art. 10.
62
Art. 159; The Criminal Code.
63
Ibid., Art. 225.
60
14
While monitoring the status of equal treatment in employment, it is necessary to focus
also on the situation of pregnant women and protection of their spouses. It is important to see
whether women who are pregnant, giving birth or breastfeeding participate in working life and
other economic processes within the society and to check the status of reconciliation of working
and family obligations in order to promote joint participation of women and men in family life,
and greater and active participation of fathers in the process of raising children.
European Union regulations
1. Council Directive 92/85/EEC on the introduction of measures to encourage improvements in the
safety and health at work of pregnant workers and workers who have recently given birth or are
breastfeeding.64 The Directive states that every employee has a right to appropriate health and safety
conditions at work. This Directive is important as it “may not have the effect of reducing the level of
protection afforded to pregnant workers, workers who have recently given birth or who are breastfeeding
as compared with the situation which exists in each Member State on the date on which this Directive is
adopted.”65 The Directive includes a number of definitions: (a) pregnant worker shall mean a pregnant
worker who informs her employer of her condition, in accordance with national legislation and/or national
practice; (b) worker who has recently given birth shall mean a worker who has recently given birth within
the meaning of national legislation and/or national practice; (c) worker who is breastfeeding shall mean a
worker who is breastfeeding within the meaning of national legislation.66 The Directive provides for the
obligation of risk assessment on the security and health of pregnant workers, workers who have recently
given birth or who are breastfeeding.67 Since the risk of dismissal in relation to pregnancy may have
harmful consequences on the physical and psychological status of a pregnant woman or woman who has
given birth and/or who is breastfeeding, provisions that prohibit a dismissal related to these conditions
shall be adopted in the national legislation.
2. The Council Directive 76/207/EEC as amended by the Directive 2002/73/EEC. The new Directive
makes it clear that a woman on maternity leave must be given protection and will be entitled, after her
period of leave, to return to her job or to an equivalent post on terms and conditions which are no less
favourable, and to benefit from any improvement in working conditions to which she would have been
entitled during her absence. Less favourable treatment of a woman during pregnancy and maternity leave
within the meaning of the Directive 92/85/EEC shall be considered discrimination.
Besides the above mentioned directives adopted within the European Union, there are
other important documents covering the area of protection of maternity. 68 International
64
Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in
the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding; OJ
L 348 , 28/11/1992.
65
Ibid., Art. 1, para. 3.
66
Ibid., Art. 2.
67
Ibid. and appendix I and II with the lists of agents, processes and working conditions.
68
The Revised European Social Charter (adopted on 2 May 1996 in Strasbourg) sets forth the right to equal
opportunities and equal treatment with regard to employment without discrimination based on sex. The Charter states
that it is considered unlawful for an employer to give a woman notice of dismissal if she notifies her employer that
she is pregnant until the end of her maternity leave. It is also unlawful to prohibit the employment of pregnant
women, women who have recently given birth or who are nursing their infants in underground mining and work
which is of dangerous, unhealthy or arduous nature and to take appropriate measures to protect the employment
rights of these women. The Charter also speaks about equal treatment in employment, protection against dismissal
and occupational reintegration including vocational guidance, training, retraining and rehabilitation and career
development, and promotion. The Appendix to the Declaration of Multi-disciplinary Strategy aiming at promotion
of equality between women and men as fundamental criterion of democracy, calls upon the governments to eliminate
15
documents set forth the minimum protection standards, but that does not mean that national
legislation cannot be more favourable.
In Montenegro the situation of pregnant women, women who have given birth and are
breastfeeding is still difficult especially with regard to their work security and possibility of
promotion. It is slightly better in the public institutions (schools, health centres, hospitals or state
administration bodies). Besides general provisions embodied in the Constitution, which prohibit
discrimination based on sex, the right to work and the right to special protection of a mother and
child is also assured.69 But, the Labour Law still needs to be adjusted to the European standards.
The Labour Law states that an employer cannot refuse to conclude a labour contract with
a pregnant woman or terminate a contract due to her pregnancy or her absence due to maternity
leave. It is also prohibited to terminate a labour contract with an employed woman engaged half
of the full time due to attending a child with severe development difficulties, with a single parent
of a child under seven, with a single parent of a highly disabled child, nor with an individual
exercising one of the mentioned rights.70 It is especially important that according to the Law an
employee who used the right to maternity leave is entitled to additional vocational training, if the
employer introduced certain changes of a technological, economic or structural nature or changes
in the method of operating.71 The provisions of the Labour Law72 state that a pregnant or nursing
woman can be temporarily deployed to another position if it is in the best interest of protection of
her or her child's health and based on findings and recommendations of a competent medical
doctor. If an employer is not in a position to provide another position to a woman, the woman is
entitled to a leave and earnings compensation, in accordance with the collective agreement. The
referred compensation shall not be less than earnings that would have been accumulated if the
woman continued working in the same position.73 A woman employed during her pregnancy and
an employed mother of a child under the age of three cannot be assigned to work overtime or
overnight.74 As an exception, an employed woman with a child older than two can be assigned to
work overnight only if she gives her written consent.75 These protection principles are very firmly
established and they are applied to other laws related to working relations. The Law equally treats
the concepts of pregnancy, giving birth, and child nursing and provides for the right to maternity
leave of 45 days before the delivery, but not later than 28 days before the childbirth, and right to
maternity leave of 365 days from the beginning of exercising the referred right. 76 An employed
discrimination against women in relation to their reproductive rights (for example the prohibition of making remarks
regarding pregnancy during employment period). It urges the social partners to provide schemes for education and
training (in cases when one sex is under-represented special training shall be provided) and to conclude collective
agreements, which include provisions that would support the reconciliation of professional and family life.
69
Art. 73; The Constitution of Montenegro.
70
Art. 79; The Labour Law.
71
Ibid., Art. 89 (3).
72
The Montenegrin legislation does not include specific provisions on protection of pregnant workers, workers who
have recently given birth or who are breastfeeding. The Labour Law prohibits generally, in relation to all women,
working in a position with harmful effects, increased risk for the health and life of women in general, as well as
performing extremely difficult manual work, underground or underwater activities; Art. 75; The Labour Law.
73
Ibid., Art. 80 (1) and (2).
74
Ibid., Art. 81 (1).
75
Ibid., Art. 81 (2).
76
The medical rules say that a woman who gave birth should be entitled to a minimum of 6 weeks for recovery, and
the ILO Convention on Protection of Maternity envisages this period as a compulsory leave for the protection of a
16
woman may cease her maternity leave before its expiration, but not before expiration of 45 days
upon the delivery. In this case she has the right to utilize an additional 60-minute break for baby
nourishment in addition to the defined day break.77 The Labour Law does not provide for the
opportunity for both parents to use simultaneously the leave for joint care of a child in the first
period of life (except for 5 days for fathers upon the childbirth). Some countries provide for such
a possibility and it would be good to use such examples of good practices because not providing
that right to a man is a violation of the right of equal treatment of parents.78
The Montenegrin Law lacks a concrete provision stating a woman’s right to leave work in
order to undertake necessary examinations and medical checks without any harm to her salary (as
provided in the European Union directives). A woman may leave work if previously agreed with
an employer and she has to use her sick leave or holiday package. The labour legislation in
Montenegro lacks also an explicit provision stating that a parent (mother or father) after
termination of leave may return to the same working position or the position that is adequate to
his/her qualifications and expertise, meaning also the same salary and future possibilities at work.
The EU Directives and ILO Conventions provide for the return to the same or similar work
(appropriate) with the same salary, therefore that area should also by complied with.
Furthermore, the World Health Organisation obliges member states (“general health
recommendation”) to support breastfeeding in the first six months and it is advised to continue
breastfeeding at least until the second year.79 Right now in Montenegro it is not possible to
implement that solution in practice. Even though the Labour Law ensures the additional 60
minutes of leave for the purposes of breastfeeding, the question remains whether that can be used
in practice. There are no rooms in our companies designed to serve that purpose, no appropriate
possibilities of bringing the baby to work exist, and the flexible working time of a mother is
almost impossible, as it is not reflected in our legislation. Also, the financial situation of
employed women is very often difficult (low salaries, no reimbursements for expenses connected
with travelling between work and home), and that constitutes an additional burden that prevents
that recommendation from implementation. The lack of willingness by employers to respect the
minimum of worker rights results in lack of implementation of the above-mentioned standards.
The General Collective Agreement80 also mentions general protection at work and
envisages adoption of regulations on risk assessment for all working positions, and activities to
eliminate risk.81 The Law on Occupational Safety speaks about general protection measures
mother and a child. The same solutions are contained in the European Social Charter (12 weeks at least), and the ILO
Convention C-183 envisages 14 weeks of leave at least.
77
Art. 82; The Labour Law.
78
For example, since 1999 in Norway, within parental leave, four last weeks are “reserved” for fathers and mothers
cannot use that period. In France also one month is reserved for a father. In Spain it is only a woman who has the
right to parental leave but can transfer that right to a father for 4 weeks. In Sweden, where for the whole leave of 15
months the full income is received and where greater number of fathers use parental leave in comparison to other
European states, the organisation of workers proposed a measure, on the basis of which an income of a parent who
uses more than a half of the leave shall be significantly reduced, and this additionally motivates parents to equally
take care of children.
79
World Health Organisation; The expert opinion No. 54.228/2001.
80
Art. 56-58; The General Collective Agreement.
81
There is no practice of collective agreements to include, apart from the general principles of protection of pregnant
women, women who gave birth and who are breastfeeding, the issues of their further professional engagement and
promotion after maternity leave or starting out work during breastfeeding. See: Annex: Examples from other
countries. D. Collective agreement regulations.
17
without special emphasis on the category of pregnant and breastfeeding workers. The Law
generally speaks about the obligation that all employees should be informed about the risks of a
working position, and similarly to the Labour Law, that Law sets forth the right of an employee
to refuse working in a position that fails to secure necessary measures for protection at work until
these measures are implemented.82
Even though the legislation in Montenegro failed to fully provide more detailed
description of protection categories with regard to pregnancy and maternity, the laws would
provide a certain level of protection if their implementation were ensured. Currently however,
protection of employees, and in particular protection of persons seeking employment, is rather
inadequate. Women are frequently complaining to trade unions and labour inspectorates that
during job interviews an employer asks questions related to family planning or requests
additional medical certificates. They do not want to make formal complaints and bring charges in
order to start court proceedings, because they do not believe in successful resolution of their
problems. Women seeking a job or already employed do not undertake steps in order to protect
their rights. The reasons for this are twofold: lack of knowledge of international and national
legislation and the insufficiently built awareness within society on the concept of discrimination
based on sex and gender, and direct and indirect discrimination.
B – 3) Normative protection – status and needs
Article 224 of the Criminal Code creates a basis for initiating a legal procedure against an
employer whose behaviour falls under one of the described types. It states that everyone who
intentionally violates regulations or in any other illegal way limits a citizen’s right to free
employment in Montenegro shall be punished with a fine or imprisoned up to one year.83 That
provision cannot be considered as sufficient due to lack of a clear definition of discrimination
based on sex and gender.
The Law on Labour Inspection84 states that labour inspectors are authorised to temporarily
prohibit further performance of work in the company of an employer, who violates the Labour
Law by not concluding a labour contract with a new employee or with a foreigner under the
conditions provided in the special law, and if an employer failed to pay necessary contributions
on behalf of her/his employees. These types of violations are punished also with a fine.85 Current
practice shows that the above provisions are not being enforced because in many Montenegrin
companies salaries are not paid due to a very bad financial situation of the company;86 in
addition, the provisions of the Law on Insolvency of Business Enterprises87 are not executed and
temporary measures are introduced too late, when debts have already increased drastically.88
82
The Act of the Republic of Montenegro on Occupational Safety, Official Gazette No. 79/04; Art. 5.
Art. 225; The Criminal Code - Violation of equality in employment.
84
Art. 3 and 4; The Law on the Labour Inspection.
85
Fines range from 50% up to 200% of a minimum salary in accordance with Art. 4 of the Law on the Labour
Inspection.
86
Data provided by the legal offices of the Trade Union in Montenegro.
87
The Law on Insolvency of Business Enterprises, Official Gazette No. 25/02; Art. 6.
88
That practice is characteristic for the companies in the textile and leather industry, which employ mostly women
(over 70% of all employees); IMO Kosuta Cetinje, Vumko Bijelo Polje, Barsi Bar and others.
83
18
Additionally, courts are perceived as not responsible for dealing with cases of non-payment of
salaries and other contributions and inspectors rarely or never undertake measures of temporary
prohibition of work, or other adequate measures.
There is a visible lack in this area of effective monitoring and there is no recording of
gender disaggregated data.89 No national multidisciplinary body exists which could monitor not
only legislation and its practical implementation, but also individual cases in order to detect and
prevent gender inequality, a body which could point out the existing irregularities and organize
cooperation between relevant bodies and institutions and the civil sector organisations.
B-4) Women in agriculture and self-employed women
The legal system in Montenegro does not contain special provisions regulating the status
and rights of women in agriculture and self-employed women in relation to their employment.
Both groups of women are covered by the general provisions of labour law as well as regulations
related to protection of health and pension insurance. That means that the facilities envisaged in
the Directive 86/613/EEC on the application of the principle of equal treatment between men and
women engaged in an activity, including agriculture, in a self-employed capacity, and on the
protection of self-employed women during pregnancy and motherhood are not separately defined.
Since the Constitution says that all persons have the same rights to employment and can
freely choose their occupation, and the right to special protection of mother and child is
guaranteed, it means that self-employed persons enjoy the right to social insurance under the
same conditions as other employees. Hence, according to Article 54 of the Law on Social and
Child Protection self-employed women have the opportunity to get the allowance during their
maternity leave if all the taxes and contributions are paid. In that case the allowance is
determined based on the level of income, of which the taxes and contributions are paid.90 But, it
is rather clear that there is no form of direct protection for women entrepreneurs, i.e. selfemployed persons, once they become pregnant, give birth or are breastfeeding, or their spouses.
In other words, there are no affirmative measures or mechanisms within the social care system
that would give these women support to continue with their work activity and reconcile family
and professional life.
89
According to the Law on Records in the Area of Labour and Employment, the existing records refer to: a)
employed persons; b) vacant job positions; c) unemployed persons and their salaries; d) foreign employers’
employment offers for Montenegrin citizens to work abroad; e) Montenegrin citizens working abroad; f) employed
and unemployed foreigners; g) users of rights on pension and invalidity insurance. The data has to be disaggregated
by gender in relation to employed persons, unemployed persons, for Montenegrin citizens working abroad and for
users of pension and invalidity insurance. Under “vacant job positions” the necessary conditions to be fulfilled
include: employment, education level, working experience, special knowledge and skills, gender and age. However,
Article 14 of the Law states that submission of reports on application of vacant job positions does not require
indication of gender for selected candidates. Gender is not present in records on employed persons’ income, foreign
employers’ offers related to employment of Montenegrin citizens abroad, or on employees and non employed
foreigners; The Law on Records in the Area of Labour and Employment, Official Gazette No. 69/03; Art. 7, 19, 24,
27, 30, 33, 39.
90
The Law on Social and Child Protection; Official Gazette No. 79/04.
19
Women in agriculture are in a much worse position since they usually work as family
members and do not officially register their activities. Therefore, they do not enjoy any of the
benefits that employed women get. Their visibility in the social security system is only through
their spouses, who appear as insuring entities as they are very often land and property owners.
According to the Regulation on performance of agricultural activity as the only occupation91,
agricultural activity means the activity performed by the owner together with the household
members for the purposes of obtaining means for living, if no additional profit is made. For
women it means unpaid work, since a man is considered to be the head of a family and he is the
main insurance beneficiary. The same Regulation92 states that for the purposes of registering
agricultural activity, the following documentation should be submitted: birth certificate, health
certificate, residence declaration, evidence of property ownership, co-ownership of rent of the
property, household certificate, evidence that the agricultural activity is the main occupation, and
evidence on unemployment. Therefore, once again it is confirmed that very infrequently can
women be recorded as performing agricultural activity and enjoy protection on that basis,
because women are not the property owners.
B – 5) Access to additional education (education, trainings, retraining of redundants)
European Union regulations
1. European Parliament Directive 2002/73/EEC amending the Directive 76/207/EEC on
implementation of equal treatment principle for women and men in relation to access of
employment, vocational training and improvement of working conditions, in Section 8 clarifies that
special attention shall be paid to all forms of discrimination occurring not only at the working place but in
the context of access to employment and vocational training during employment. In this context
employers and those who are responsible for vocational training should be obliged to undertake preventive
measures against all forms of discrimination based on sex.
2. Council Recommendation 84/635/EEC on the promotion of positive action for women93 provides
for diversification of vocational choice, and more relevant vocational skills, particularly through
appropriate vocational training, including the implementation of supporting measures and suitable
teaching methods; and measures necessary to ensure that placement, guidance and counseling services
have sufficient skilled personnel to provide a service based on the necessary expertise in the special
problems of unemployed women.
Also, the UN Convention against Discrimination in Education94 states that
“discrimination” includes any distinction, exclusion, limitation or preference which, being based
on race, colour, sex, language, religion, political or other opinion, national or social origin,
economic condition or birth, has the purpose or effect of nullifying or impairing equality of
treatment in particular in education. It is important that the term “education” refers here to all
types and levels of education, and includes the access to education, the standard and quality of
education, and the conditions under which it is given.
91
Regulation on performance of agricultural activity as the only occupation, Official Gazette No. 25/04; Art. 2.
Ibid., Art. 4.
93
Council Recommendation 84/635/EEC of 13 December 1984 on the promotion of positive action for women; OJ L
331; 19/12/1984.
94
United Nations Convention against Discrimination in Education adopted at the General Conference of United
Nations Organisation for Education, Science and Culture, at the meeting in Paris on 14 November – 15 December,
1960.
92
20
Taking the above into consideration, it can be stated that there is no reference to direct
and indirect discrimination in the Montenegrin legislation with regard to access to education,
although the general principle of non-discrimination covers also additional education and job
training. But, is that enough? The Montenegrin Constitution under the “Education” section
guarantees the right to education based on equal conditions, states that elementary education is
obligatory and free of charge, and guarantees the autonomy of universities, high schools and
scientific institutions.95 The Law on Higher Education introduces the goal of providing
opportunities for obtaining a higher education throughout the whole life of a person. With regard
to that right, discrimination based on sex, race, marital status, colour, language, religion, politic
or other belief, national, ethnic or other origin, belonging to national community, property status,
invalidity or other similar base or ground is prohibited.96
Therefore, provisions of the Constitution, which provide for the right to employment and
state: “Everyone shall have the right to work, to free choice of occupation and employment, to
fair and humane working conditions and to protection during unemployment,”97 together with the
Law on Gender Equality, which refers to gender equality as “the usage of personal knowledge
and capabilities”98 and the European Union Directives as well as other international documents
create a framework to be complied with by the national legislation.
It is obvious that training and education are important tools for women’s empowerment
and the process of improving their qualifications will contribute to the general development of
human resources and increased numbers of employed women, in particular in the areas which are
less accessible to women. However, to achieve the above, women have to be provided with
possibilities to access additional training much more easily, so they could improve qualifications,
level of knowledge and acquire their new skills. Education and training are closely interrelated to
equality of opportunities in employment and equality in access to occupation and working
positions.
The Labour Law in relation to education and job training states that “an employer can
delegate employee to attend certain professional training and specialization, in accordance with
requirements and needs of the position of employee's deployment, especially when it comes to
implementation and applying new methods in work organization and technology.” Furthermore,
“an employee is obliged to obtain professional training and specialization, depending on his
capabilities and requirements of the work process.”99 Thus, an employer ‘may’ delegate, but he is
not obliged to do so, whereas an employee is obliged. Such a formulation does not produce a
serious guarantee. In practice, it happens quite often that private employers, in the case of
structural redundants, women employees in particular, send them to additional training related to
a very different and frequently unacceptable occupation, indirectly forcing them to leave their
95
Art. 75; The Constitution of Montenegro.
The Law on Higher Education, Official Gazette No. 60/03; Art. 2, para.1, point 3 and Art.7.
97
Art. 62; The Constitution of Montenegro.
98
Art. 2; The Law on Gender Equality.
99
Art. 26; The Labour Law.
96
21
jobs.100 In such cases, retraining sounds almost like a penal sanction, and constitutes a signal to
leave a job. The inadequate protection and lack of monitoring of the situation by the Labour
Inspection, greatly contributes to the legal insecurity of women employees.101 The Inspection
does very little in similar cases; also the Employment Bureau has not developed any effective
method to protect employees in cases where their right to retraining or additional training are
often used against them in an illegal way, as described above.102
The issue can be regulated and is frequently regulated in the collective agreements, but
even when included, it creates no improvement for women, who due to lack of adequate services
related to childcare and economic resources, are unable to accept the offer for vocational training
and the employers themselves have a problem with accepting such an obligation. Needless to say,
such regulations, even if on paper, have not been implemented.
Therefore, the law should clearly identify the obligation of an employer to, with
assistance of a proper institution, train and improve qualifications of his/her personnel, in
particular structural redundants, to include a gender aspect in the legal provisions and provide for
an adequate protection mechanism in case of violation of rights.103 Moreover, an employer has to
be obliged to provide permanent retraining and additional training for employees in cases of
introduction of technological innovations. In relation to that, in some legislation, provisions say
that new employees cannot be hired within a period of time after dismissal of a certain number of
employees (more than 5), or state that when hiring new staff priority has to be given to former
employees who lost their jobs due to technological restructuring.104
There are no such solutions in our legal system. The Labour Law specifies that “an
employer reducing the number of employees in accordance with the program of Introducing
technological, economic and restructuring changes, in a year following the year of Program
implementation, enact a program of honoring rights of employees that were proclaimed
redundant.” In the following paragraph the employer is obliged to inform the Trade Union and
100
A private employer uses the opportunity for retraining only to fill out the forms (for example, graphical workers
with more than 20 years of work are retrained as waitresses). The Labour Law and the Law on Employment do not
provide for adequate protection in that regard.
101
The Labour Fund would have had a significant role to play here, but it was not established. Its creation is
described in the Law on Employment, Art. 36-44.
102
Regulation on continuous education and the way of valuation of all forms of vocational training (related to
medical doctors) provides for concrete examples of positive trends in the area of vocational training. Art. 2, para. 1
and Art. 3 state the following: “Vocational training and improvement of knowledge is the obligation of every doctor
in accordance to trends of development of science. Health institution is obliged to provide vocational training to
doctors in accordance to the program of personnel education.” Even though, this act does not refer explicitly to
gender, it still recognises the need for special protection of certain categories of workers: “If a doctor for justified
reasons (pregnancy, parental leave and other) fails to collect certain number of needed marks he/she has the
additional term up to one year to fulfil the requirements.” Unfortunately, the Regulation covers only the education
and improvement of the medical doctors, excluding medicine personnel of secondary level, mostly women, which
only confirms the previous statements that professions occupied mostly by women are considered as less significant
in society; Official Gazette, No. 31/2006.
103
Primjer za to je pozitivan odjek Uredbe o poreskim olakšicama za novozaposlene (Sl. List RCG 32/04)
104
The Labour Law of the Republika Srpska states that: “If an employer, within one year from the date of
termination of working relation with an employee, in the meaning of Article 138 of the Law, intends to hire a certain
number of employees with the same qualifications as those who he previously terminated labour contracts with, he is
obliged to offer the employment to the previously employed persons, whose labour contracts were terminated.”; Art.
140, The Labour Law of the Republika Srpska, Official Gazette No. 38/00, 40/00, 47/02, 38/03, 66/03 and 20/07.
22
Employment Bureau, within a month from the date of passing the program, on the reasons for
termination of employment, number and categories of employees and the term intended for
termination of employment. An employer is also obliged, at least three months before termination
of the labour contract, to inform the Employment Bureau, Trade Union and employees about the
age structure, type and the level of education of redundant employees and the proposal of
measures for honoring rights prescribed by this Law. The above-mentioned program must
include data on employees proclaimed redundant, activities performed by them, qualification
structure, age and provisions for achieving their rights as follows: reallocation to other positions
at same employer, within an employee's level of education, on full time or short time basis;
transfer of employees to another employer , within an employee's level of education, on full time
or short time basis; vocational training, retraining or additional training for working in another
position with the same or with another employer and other measures.105
The Law on Civil Servants and State Employees states that vocational training is the
right and obligation of a civil servant and state employee, and the head of unit is responsible for
providing conditions for vocational training to take place.106 That could be perceived as an
advantageous regulation for all employees, including women, since it is construed as an
obligation and a right of an employee. The Law also identifies the obligation of undertaking a
programme of vocational training, designing its content and paying all the expenses connected
with the programme (by a state authority). After the completed special training, a civil servant
and state employee who signed the contract on vocational training cannot resign before the period
of two times the period they spent in the training. Otherwise the state authority has a right to
demand restitution of the expenses of the training.107 There is a special protection of employees
due to reorganisation of a state authority: a civil servant or state employee has a priority to be
employed at a position, for which he/she meets the requirements, in any state authority, for two
years following the termination of employment.108 Unfortunately, as with many other provisions,
the above ones are also not enforced in practice.
The Law on Employment treats all unemployed persons in achievement of their rights to
employment equally regardless of national affiliation, race, sex, language, religion, politic or
other belief, education, social origin, property status or other personal characteristic.109 The Law
specifies a right to participate in the programmes aimed at implementing a policy of active
employment in relation to an unemployed person, person employed on a part-time basis or a
person whose employment contract was terminated due to technological, organisational or
economic changes. Unemployed persons, who are unable to find a job, have a possibility to
participate in education programmes in accordance with the law and the employment policy. It is
said that during such education programmes unemployed persons are to be provided with health
insurance, and are not obliged to actively seek employment.110 However, everything looks
different in reality. The number of women who finish additional trainings at the Employment
Bureau and find employment is rather small in comparison with the number of women still
105
Art. 115 and 116; The Labour Law.
Art. 14; The Law on Civil Servants and State Employees.
107
Ibid., Art. 94 and 95.
108
Ibid., Art. 106.
109
Art. 3; The Law on Employment.
110
Ibid., Art. 25 and 37.
106
23
searching for jobs. Also, the number of women who finish retraining programmes and vocational
trainings is insignificant; those types of activities are insufficiently used in practice by employers
and are not properly framed in legislation, and certainly do not focus on the important gender
component.
2. LEGAL CONCEPTS NOT PRESENT IN THE MONTENEGRIN LABOUR
LEGISLATION
European Union regulations
The Commission Recommendation 92/131/EEC on the protection of the dignity of women and men
at work111 calls on the governments, committees for equal opportunities and trade unions to promote
awareness about sexual harassment. The Recommendation defines sexual harassment as “a conduct which
is unwanted, unreasonable and offensive to the recipient; the fact that a person's rejection of, or
submission to, such conduct on the part of employers or workers (including superiors or colleagues) is
used explicitly or implicitly as a basis for a decision which affects that person's access to vocational
training, access to employment, continued employment or salary; any conduct which creates an
intimidating, hostile or humiliating work environment for the recipient”. The Recommendation draws
attention to the Commission’s code of conduct, “Protecting the Dignity of Women and Men At Work: a
code of practice on measures to combat sexual harassment”, annexed to the Recommendation. The aim of
this Code is to prevent sexual harassment and if it exists to provide appropriate procedures in order to
prevent it from reoccurring. The definition states that sexual harassment includes any unwanted physical,
verbal or non verbal behaviour. The Recommendation states the obligation to respect the Council
Directive 76/207/EEC on implementation of the principle of equal treatment for women and men and
makes it clear that behaviour of a sexual nature or other behaviour based on sex that influences the dignity
of women and men at work can be contrary to the principle of equal treatment within the meaning of
Articles 3, 4 and 5 of the Directive. In certain circumstances and depending on national legislation sexual
harassment can be treated as a criminal offence. Since sexual harassment represents a form of indecent
behaviour and presents a risk to health and security, employers are obliged to undertake necessary steps to
eliminate the risk. Employers have to ensure an internal investigation procedure to deal with all the
complaints and guarantee such a procedure is clear and precise. Investigations of complaints are to be
carried out with sensitivity by independent persons, with due respect for the rights of the complainant and
the alleged harasser.
Labour legislation in Montenegro fails to recognise the concepts of sexual harassment and
mobbing, and does not explicitly define the issue of protection of an employee’s dignity; it
remains a general principle only. The Law on Gender Equality recognises separately a category
of violence based on sex,112 which is defined as any act that causes or may cause physical,
mental, sexual or economic harm or suffering, as well as threat of such an act that seriously
impedes a person’s ability to enjoy his of her rights and freedoms in both public and private life.
That includes domestic violence, incest, rape and trafficking in human beings. The Law also
describes sexual harassment as any form of unwanted physical, verbal or non-verbal conduct of
sexual nature, which aims at or actually constitutes a violation of a person’s dignity and creates a
disagreeable, hostile, humiliating or offensive state.
111
Commission Recommendation 92/131/EEC of 27 November 1991 on the protection of the dignity of women and
men at work; OJ L 049, 24/02/1992.
112
Art.7; The Law on Gender Equality.
24
The review of legal regulations which exist in the neighbouring countries clearly show
that labour legislation in Croatia, Slovenia, Serbia, Republika Srpska and Kosovo defines the
issues of dignity of workers at work, identifies protective measures to be used against sexual
harassment and the labour law of Republika Srpska recognizes mobbing as violation of a
person’s rights.
3. RECOMMENDATIONS
Taking the above into consideration, it is clear that due to lack of the appropriate legal
regulations in our legislation, namely definitions related to the equal treatment principle for
women and men, many general provisions remain unenforceable.
In order to ensure the implementation of the principle of equal pay it is necessary to
integrate entirely that principle into the national legal framework. The general principle of nondiscrimination proves to be insufficient to guarantee adequate respect to that standard. Thus, it is
necessary to adopt new regulations or amend the existing ones. Furthermore, when adopted, these
regulations should provide for adequate procedures, measures and compensation in order to
ensure their full implementation. The previous recommendation “to establish an independent and
neutral body that will solely deal with directive 75/117/EEC, and execution of rights of women in
economy and that shall provide legal assistance and advocacy”113 would create a forum to raise
the awareness of the public and increase the security of women, especially those whose rights are
violated. It is necessary to inform the existing bodies (labour inspectorates, courts, state
administration bodies) about their international obligations in relation to the principle of equal
pay, and present the Law on Gender Equality, mainly by organising public educational
campaigns. All these institutions should adopt adequate plans and programmes for monitoring
and implementation, and all the activities undertaken at the state level should be synchronised
and constant monitoring should be performed.
With the aim of implementing the equal pay principle, beside the above-mentioned
activities there should be:
 Constant monitoring of the implementation of this principle, in particular from the aspect
of gathering and processing data in order to use it as indicator and basis for the activity
plan and programme for its implementation;
 Organisation of awareness-raising campaigns with participation of employers and
employees focusing on the existing differences in wages between women and men and on
the principle of equal pay for the work of equal value;
 Exchange of good practices from the European Union countries and the neighbouring
countries, which are aimed at development of quality legislation.
113
Report on monitoring of equal possibilities for women and men in the area of labour and employment in
Montenegro, Nina Vujovic Krgovic, Darko Curic.
25
4. LITERATURE
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Constitution of Montenegro
Labour Law, Law on Gender Equality, Law on Civil Servants and State Employees, Law
on Salaries of Civil Servants and State Employees, Law on Employment, Law on
Protection of Montenegrin Citizens of Republic of Montenegro on Working Abroad, Law
on Employment and Work of Foreigners, Law on Recording in Area of Labour and
Employment, Law on Labour Inspection, Law on Protection at Work, Law on Higher
Education, Law on Pension-Invalid Insurance, Law on Health Protection, Law on Social
and Child’s Protection, Law on Insolvency of Companies, General Collective Agreement,
Regulation for Tax Easement for New Employees, Rulebook on Performing Agricultural
Activity, Rulebook on Achievement of Health Protection and Other Rights from Health
Insurance;
Labour Laws of Slovenia, Croatia, Bosnia and Herzegovina, Serbia, Republika Srpska
(BiH), Macedonia and Regulation number 2001/27 on basic Labour Law in Kosovo;
Gender Equality in International Documents – European Union – Book I, issued by
Gender Equality Office, Government of Montenegro;
Gender Equality in International Documents – Council of Europe – Book II, issued by
Gender Equality Office, Government of Montenegro;
Gender Equality in International Documents – OSCE – Book III, issued by Gender
Equality Office, Government of Montenegro;
Women and Men in Montenegro – MONSTAT;
Labour-Social Rights of Women in Montenegro – issued by Trade Union in Montenegro
– Association of Employed Women “Woman Today”
International Labour Standards and Employed Women - issued by Trade Union in
Montenegro - Association of Employed Women “Woman Today”
Maternity or Parenthood – care of children – joint care of both parents issued by the
Group for Promotion of Women’s Political Rights of NGO “Glas Razlike”, Belgrade
Beijing Declaration and Platform for Action
Report on Monitoring of Equal Principles for Women and Men in the Area of
Employment in Montenegro, Nina Vujovic Krgovic, Darko Curic.
26
5. ANNEX: EXAMPLES FROM OTHER COUNTRIES
A. Equal pay
REPUBLIKA SRPSKA – LABOUR LAW114
Article 90 (Salary)
Employee shall be entitled to the right to salary in accordance with the collective agreement, labour
regulation and labour contract.
Employees shall be entitled to equal pay for equal work or for the work of equal value achieved by the
employer. The work of equal value is the work that requires the same level of education, same working
ability, responsibility and physical and intellectual skills.
Employer’s decisions or the agreement with the employee, which are not in accordance with the paragraph
2 of this Article, are null and void. In case of violation of the right from the paragraph 2 of this Article, an
employee has the right to complain and receive a compensation for damage.
Employee cannot be paid by the employer a salary that is lower than that stated in the collective
agreement, labour regulation and labour contract.
CROATIA – LABOUR LAW
Article 89 (Equal pay for women and men)
(1) Employer is obliged to pay equal salary to women and men for the equal work or the work of equal
value.
(2) In accordance with the paragraph 1 of this Article two persons of different sex perform equal work
and equal value if:
- they perform the same work in the same or similar conditions or if they can replace one another at
the same position;
- work that one of them performs is similar to the work performed by the other, and differences
between performed work and conditions under which both of them perform does not have the
importance in relation to the nature of the work as a whole or appear so rarely that do not
influence the nature of the work as a whole;
- work that one of them performs is of equal value as the work performed by the other taking into
consideration criterions like education degree, skills, if the work physical or not, responsibilities
and conditions under which the work is performed.
(3) Salary from the paragraph 1 of this Article contain the main salary and all other payments of any kind
that the employer pays to the employee for the work performed directly or indirectly, based on the
labour contract, collective agreement, rulebook or other regulation.
(4) Provision of the labour contract, collective agreement, rulebook or other regulation that is contrary to
the paragraph 1 of this Article, is null and void.
SLOVENIA – LAW ON LABOUR RELATIONS115
Article 133 (Equal pay for women and men)
(1) Employer is obliged to pay equal salary to employers regardless of sex for the equal work and work of
equal value.
(2) Provisions in the labour contract, collective agreement that is contrary to the previous paragraph is
void.
SERBIA – LABOUR LAW116
114
115
Official Journal of the Republika Srpska, no. 38/00, 40/00, 47/02, 38/03, 66/03 and 20/07.
Official Journal, no. 42/2002.
27
Article 104
Employee shall be entitled to the right on adequate salary, which is established in accordance with the law,
general act and labour contract.
Employees shall be entitled to the right on equal pay for equal work or the work of equal value achieved at
the employer.
Work of equal value means the work that requires the same degree of education, same working ability,
responsibility, physical and intellectual work.
The decisions of the employer or the agreements with the employee that are not in accordance with the
paragraph 2 of this Article are void.
In case of violation of rights from the paragraph 2 of this Article the employee has the right on damage
compensation.
KOSOVO – REGULATION NO. 2001/27 ON LABOUR LAW IN KOSOVO
Article 13 (Equal pay for women and men)
The employer shall pay the same payment, that includes the main salary and all supplements and
contributions that employer pays to the employee directly or indirectly, to women and men for the work of
equal value.
BOSNIA AND HERZEGOVINA FEDERATION – LABOUR LAW
Article 68 (Salaries)
Salaries of the employees shall be stipulated by collective agreement, rule of work and labour contract.
Article 69 (Salaries)
Collective agreement and rule of work stipulates the lowest salary, conditions and ways of its adjustment.
Employer who is obliged by the contract or rule of work can not pay the salary lower that the one
established by the collective agreement, rule of work and labour contract.
MACEDONIA – LAW ON LABOUR RELATIONS
Article108 (Equal pay for women and men)
Employer is obliged for equal work and equal conditions at the working position to pay the same salary
for performed work regardless of sex. Provisions on labour contract, collective agreement, general act on
employer that is contrary to the paragraph is void.
B. Pregnancy and maternity
REPUBLIKA SRPSKA – LABOUR LAW
Special protection of woman and maternity
Article 76. Woman can not be deployed to the position in underground part of mines, except in cases
when she is employed at managing working conditions that does not require physical work or in health
and social care services. This prohibition excludes the cases when employed woman has to temporarily be
in underground part of mines for expert training and retraining or when she needs to perform certain job
that does not demand physical work.
Article 77. Employer is prohibited to refuse the woman to start a working relation due to pregnancy,
neither cancel the labour contract due to pregnancy or because she uses maternity leave.
116
Law is published in the Official Journal, no. 24/2005/61/2005).
28
Article 78. On the basis of recommendation of the medical doctor in charge, the woman during pregnancy
and breastfeeding can be temporarily transferred to other working position if it is in the best interest of her
or the child’s health.
If an employer is not capable to provide woman with the other position in sense of the paragraph 1 of this
Article, woman shall be entitled to the right to leave, with compensation, in accordance with the collective
agreement and labour rule. This allowance cannot be less tha the allowance achieved by woman in the
case that she is on her working position.
A woman during pregnancy and the mother of a child up to two years old can be transferred by the
employer to other place of work only with her consent.
Article 79. During pregnancy, giving birth and child care, the woman is entitled to the right to maternity
leave for a year incessantly, and for twins and third or every other child for 18 months continuously.
Based on the request of a woman and recommendation of the medical doctor in charge, woman can start
using the parental leave 28 days before the date of giving birth.
Parents of a child can come to the agreement that the leave from the paragraph 1 of this article, after 60
days from the child birth, can be used by a father instead of mother.
Article 80. Woman can, on her own request, start working before termination of parental leave from the
Article 79 paragraph 1 of this law, but not before 60 days pass from the giving birth.
If the woman starts working before termination of maternity leave from the article 79 paragraph 1 of this
law, she is entitled to the right to use, beside daily break, more 60 minutes of leave for the purposes of
breastfeeding.
If a woman gives birth of a dead child, or if the child dies before the termination of the parental leave, a
woman is entitled to the right to maternity leave for the time that is according to the medical doctor in
charge necessary to recover from giving birth and psychological status caused by the loosing of a child,
for at least 45 days from giving birth, i.e. the date of loosing a child.
SLOVENIA – EMPLOYMENT RELATIONSHIPS ACT
Article 153 (Night Work of Women in Industry and Construction)
(1) The employer in the area of industry or construction may assign female workers to night work only in
the following cases:
- if they are members of his/her family,
- if they carry out work of a managerial character or conduct work units or carry out work related to the
provision of safety, health, or social protection of workers,
- if such work is necessary due to force majeure or in order to prevent the damage to raw material or other
quickly perishable material; the employer must notify the competent labour inspector of such work within
24 hours after its introduction,
- if such work has previously been assessed as being in the national interest and exploitation approved by
the minister responsible for labour.
(2) Due to a better exploitation of work equipment, the expansion of employment possibilities, and similar
economic or social reasons, the night work of female workers may be introduced in the area of industry
and construction with the approval of the minister responsible for labour:
a) in a specific activity or occupation on condition that this was agreed or approved by the representative
trade union and the employers association;
b) at one or several employers not included in the decision referred to in Point 1 of this paragraph
provided that:
- an agreement has been concluded between the trade unions at the employer and the employer,
- a consultation between the employer(s) and the association of employers and the representative branch
trade union has been carried out;
29
c) at a specific employer not included in the decision referred to in Point 1 of this paragraph nor the
agreement under Point 2 of this paragraph has been concluded on condition that:
- an opinion is required from the trade unions at the employer, the representative trade union, and the
employers association,
- that the labour inspector has previously verified the fulfilment of the conditions for the introduction of
the night work.
(3) The minister responsible for labour shall approve the night work of female workers in case referred to
in Point 3 of the previous paragraph for a period of not more than one calendar year. The minister
responsible for labour shall withdraw the approval concerning the night work of female workers according
to the previous paragraph when the conditions, on the basis of which the approval was issued, no longer
exist.
1. Protection of women
Article 186 (Prohibition of Carrying Out Underground Work)
(1) Female workers may not carry out underground works in mines.
(2) The provision of the previous paragraph shall not apply to female workers:
- who are in managerial position and/or conduct work units and are authorised to make their own
decisions,
- who have to spend a certain period of their practice doing underground work in mines as part of their
professional education,
- who are employed in health care and social services and in other cases where they have to go
underground to perform non-manual work.
2. Protection of workers due to pregnancy and parenthood
Article 187 (General)
(1) Workers shall have the right to special protection in employment relationship due to pregnancy and
parenthood.
(2) In case of a dispute regarding the exercise of special protection due to pregnancy and parenthood
according to this Act, the burden of proof shall be on the employer.
(3) The employer must enable workers to easily reconcile of their family and employment responsibilities.
Article 188 (Protection of Data Related to Pregnancy)
For the time of duration of the employment relationship, the employer may not request or seek any
information on worker’s pregnancy unless the worker concerned allows this in order to exercise her rights
during pregnancy.
Article 189 (Prohibition of Carrying Out Works during Pregnancy and Breast-Feeding Period)
(1) During pregnancy and the entire breast-feeding period, a female worker may not carry out work which
might present a risk to her or her child’s health due to the exposure to risk factors and working conditions,
which shall be defined in an executive regulation.
(2) Should a female worker during pregnancy and throughout the breast-feeding period carry out the work,
where she is exposed to risk factors, procedures and working conditions, which shall be defined in more
detail in an executive regulation, the employer must take appropriate measures in order to temporarily
adjust the working conditions or the working time if the risk assessment indicates the risk to her and her
child’s health.
(3) Should a female worker carry out the work referred to in Paragraph 1 of this Article or the work
referred to in the previous paragraph and the temporary adjustment of the working conditions or the
working time does not remove the risk to the worker’s or her child’s health, the employer must ensure the
worker other appropriate work and a wage equivalent to her previous position should this be more
favourable to her.
30
(4) Should the employer not ensure the worker other appropriate work in accordance with the previous
paragraph, he must ensure her wage compensation in accordance with Paragraphs 1, 2, 7 and 9 of Article
137 of this Act during her absence from work due to this reason.
(5) The executive regulation, which shall in more detail define the risk factors and the working conditions
referred to in Paragraph 1 of this Article, and the risk factors, procedures and working conditions referred
to in Paragraph 2 of this Article, shall be issued by the minister responsible for labour in agreement with
the minister responsible for health.
Article 190 (Protection during Pregnancy and Parenthood with regard to Night Work and Overtime
Work)
(1) A worker, who takes care of a child under the age of three, may be ordered to work overtime or at
night only upon his written consent.
(2) A female worker may not carry out overtime work or night work during pregnancy and another year
after she has given birth and/or throughout the breast-feeding period if the risk assessment of such work
indicates risk to her and her child’s health.
(3) One of the employed parents of a child under seven or a child who is severely ill or of a severely
physically or mentally disabled child living alone with a child and caring for the child may be asked to
work overtime or at night only upon his prior written consent.
Article 191 (Parental Leave)
(1) The employer shall be obliged to ensure a worker the right to absence from work or to part-time work
because of applying parental leave provided by the law.
(2) The worker shall be obliged to inform the employer on the beginning and the way of exercising the
rights referred to in the previous paragraph within 30 days before the exercise of the rights unless
otherwise provided by the Act regulating parental leave.
Article 193 (The Right of a Breast-Feeding Mother)
(1) A female worker, who breast-feeds a child and works full time, shall have the right to a breast-feeding
break during working time, which shall take not less than one hour a day.
(2) The right to wage compensation for the duration of the break referred to in the previous paragraph
shall be exercised in accordance with the regulations on parental leave.
SERBIA – LABOUR LAW
1. General protection
Article 80. Employee shall be entitled to safety and protection of life and health at work, pursuant to the
law.
Employee shall also comply with all regulations on security and protection of life and health at work in
order to avoid jeopardizing safety and health of himself/herself as well as safety and health of other
employees and other people.
Employee shall notify the employer on any type of potential danger that may affect safety and health at
work.
4. Maternity care
Article 89. An employed woman during pregnancy shall not work at jobs that, pursuant to advice of the
competent health authority, may have harmful effect on her health and health of her child, and particularly
not at jobs requiring lifting of weights or associated with exposure to extreme temperatures and vibrations.
Article 90. An employed woman shall not work overtime and during the night during the first 32 weeks of
her pregnancy should such work be harmful for her health and health of her child, based on the advice of
competent medical authority. An employed woman shall not work overtime and during the night during
the last eight weeks of her pregnancy.
31
Article 91. One of parents with a child of up to three years of age may work overtime or at night only with
his/her own written consent.
A single parent with a child of up to seven years of age or a severely disabled child may work overtime or
at night only with his/her own written consent.
Article 92. Employer may re-schedule working hours to an employed woman or employed parent with a
child below 3 years of age or severely disabled child only with written consent of such employee.
Article 93. Rights referred to in Articles 91 & 92 of this law are also shared by adoptive parents, foster
parents or guardians of children.
5. Maternity leave and leave for childcare
Article 94. An employed woman is entitled to leave for pregnancy and childbirth (hereinafter: maternity
leave), as well as leave for child care, the total duration of 365 days.
An employed woman may start her maternity leave pursuant to advice of a competent medical authority
45 days before the delivery term at the earliest and 28 days at the latest.
Maternity leave shall last until three months after the childbirth.
An employed woman, upon expiry of maternity leave, is entitled to leave for childcare to expiry of 365
days after the outset of the maternity leave referred to in paragraph 2 of this Article.
Father of the child may claim the right referred to in paragraph 3 of this Article in case the mother deserts
the child, dies or is prevented from caring for the child due to other justified reasons (serving prison
sentence, being severely ill, etc.). The father is entitled to that right even in case the mother is not
employed.
Father of the child may claim the right referred to in paragraph 4 of this Article.
During the maternity leave and absence from work because of childcare, the employed woman, or father
to the child are entitled to compensation of salary, pursuant to the law.
Article 94a. An employed woman is entitled to maternity leave and leave for childcare for third and any
subsequent child in the duration of two years.
The right to maternity leave and absence from work for childcare in the total duration of two years shall
also be granted to any employed woman who gives birth to three or more children from her first
pregnancy, as well as to any employed woman who give birth to one, two or three children, and gives
birth to two or more children in the subsequent delivery.
An employed woman referred to in paragraph 1 and 2 of this Article, upon expiry of maternity leave, is
entitled to leave for childcare till expiry of two years from the day her maternity leave referred to in
Article 94, paragraph 2 of this law started maternity leave.
Father to the child referred to in paragraph 1 and 2 may claim the right to maternity/paternity leave in
cases and under conditions set in Article 94, paragraph 5 of this law, and the right to leave for childcare in
the duration stipulated in paragraph 3 of this Article.
Article 95. The right to maternity leave in the duration set in Article 94, paragraph 3 of this law shall also
be granted to any employed woman should her child be stillborn or dies before expiry of the maternity
leave.
6. Leave for special care of child or other person
Article 96. One of parents to a child in need of special care because of severe psycho-physical disability,
except in cases covered by health insurance regulations, is entitled to, after the expiry of maternity leave
and leave for childcare prolong absence from work or work half-time up to the age of five of the child, at
most.
The right referred to in paragraph 1 of this Article shall be granted upon advice of the competent body for
evaluation of the level of psycho-physical disability of the child, pursuant to the law.
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During absence from work, referred to in paragraph 1 of this Article, the employee shall be entitled to
compensation of salary, pursuant to the law.
During half-time work, referred to in paragraph 1 of this Article, the employee shall be entitled to salary
pursuant to the law, general document and labour contract, while for the other half up to full time work –
compensation of salary pursuant to the law.
Requirements, procedure and mode of realization of the right to absence from work for special care of
child shall be regulated in greater detail by the minister in charge of child welfare.
Article 97. A foster parent or guardian of a child below the age of five shall be granted the right to
absence from work in the duration of eight successive months, from the day the child is placed into the
foster or guardian family, for care of that child, before the child turns five.
Should the placement into foster or guardian family took place before the child turns three months, the
foster parent or guardian of that child shall be entitled to leave from work until the child turns eleven
months, for care of that child.
The right referred to in paragraph 1 and 2 of this Article shall also be granted to a person to whom,
pursuant to adoption regulations, the child has been sent for adjustment before the official adoption, and
when the adoption becomes official, one of the adoptive parents, as well.
During absence from work for childcare, the person using the right referred to in paragraph 1-3 of this
Article shall be entitled to compensation of salary pursuant to the law.
Article 98. Parent or guardian, or a caregiver of a person disabled by cerebral palsy, any kind of plague or
muscular dystrophy and other severe diseases, may, upon advice of a competent medical authority, and
upon own request to work shorter hours, but not shorter than half-time.
Any employee working shorter hours referred to in paragraph 1 of this Article shall be entitled to adequate
compensation, proportional to the time spent at work, pursuant to the law, general document and labour
contract.
Article 99. Rights referred to in Article 96 of this law shall also be granted to one of adoptive parents
should the child, in the light of his/her psycho-physical disability need special care.
Article 100. One of the parents, adoptive parents, foster parents or guardians shall be entitled to absence
from work until the child turns three.
During absence from work referred to in paragraph 1 of this Article rights and duties associated with
labour relation shall be dormant, unless some of the rights have been regulated otherwise by the law,
general document and labour contract.
C. Access to additional education
CROATIA – LABOUR LAW
Article 32 (Obligation to provide education and job training)
(1) The employer shall make it possible for the worker, in accordance with possibilities and needs of the
work, to receive schooling, education, training, and further training.
(2) The worker shall, in accordance with his or her abilities and needs of the work, take part in workrelated schooling, education, training and further training.
(3) When changes are made or a new method or organisation of work introduced, the employer shall, in
accordance with needs and possibilities of the work, make it possible for the worker to receive workrelated training or further training.
Article 127 (Mandatory contents of a redundancy social security plan)
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(1) A redundancy social security plan must state:
 the reasons why the redundancies occurred,
 the possibility of introducing changes in technology and organisation of work in order to provide
for redundant workers,
 the possibility of assigning the worker to another job,
 the possibility of finding employment with other employers,
 the possibility of retraining or additional training for workers,
 the possibility of reducing working hours.
(2) If the measures referred to in paragraph 1 of this Article are not sufficient to ensure employment for
the employees, their labour contracts may be cancelled in the manner and under the conditions prescribed
by this Act.
(3) The employer must inform the workers and the competent employment service about any redundancy
social security plan.
(4) The information referred to in paragraph 3 of this Article must be forwarded in writing, no later than
within eight days following the adoption of the plan.
(5) The employer must not dismiss a worker before forwarding the redundancy social security plan to the
competent employment service, and before the employment service has provided its observations about
this plan, within a period of eight days.
(6) In case of important economic or social reasons, the competent employment service may postpone the
application of the plan referred to in paragraph 1 of this Article, either entirely or in part, but for a period
not longer than three months.
KOSOVO – LABOUR LAW
Article 12 (Termination of the Labour contract due to economic, technological and organisational
changes in the company)
12.1 Employer may cancel the labour contract due to economy, technological and organisational changes
in the company. Such changes are happening when employer introduces important changes in the
production, programming, organisation, structure and technology which requests decrease of the number
of workers. Dismissal of great extent means the case when at least 50 workers are dismissed within 6
months.
12.2 The following provisions are applied in cases of dismissal of great extent:
 Before introduction of such changes the employer shall notify in written employees and in
adequate cases the trade union on planned changes and their implications, including the number
and category of employers that are about to be dismissed, measures they plan to undertake in
order to facilitate consequences of such changes and on rights of employees cited in the labour
contract and in adequate cases in collective agreement.
 Employer shall notify in written the employees on cancellation of labour contract at least 3
months before cancellation;
 Employer shall notify in written the office for employment on employers who shall be dismissed
in order to provide the office with the possibility to give assistance to those employees while
seeking alternative employment;
 Employer shall undertake adequate measures to limit the number of employees who should have
been dismissed by non employment of new employers, internal re-distribution of employers,
limitation of overtime work, decrease of working hours, giving possibilities for expert re-training
and promotion of further training;

While deciding on the number and category of employees who shall be dismissed, the employer
shall have the following in mind: quality of performing tasks, professional training and skill,
working experience, working position, category and form of work, working period, age and other
criterions that could be stated in the labour contract and in adequate cases in collective agreement.
Employee can not be dismissed if not provided with single dismissal wage by the employer. Dismissal
wage shall be paid on the date of termination of contract according to the following classification:
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(i)
from 2 to 4 years of service, 1 monthly salary;
(ii)
from 5 to 9 years of service, 2 monthly salary;
(iii)
from 10 to 19 years of service, 3 monthly salary;
(iv)
from 20 to 29 years of service, 4 monthly salary;
(v)
30 years of service, 5 monthly salary; and
(g) In cases when employer recommends employment within 2 years from the date of cancellation, the
advantage is given to equally qualified workers who were dismissed.
D. Collective agreement regulations
The Collective Agreement of the association for transport and services “Capital Estate” Budva,
Hotel Lido Ulcinj could serve as an example here:

Working time between 22 and 06 o’clock on the following day is considered as the night work (Art.
20). The night work means the special working conditions, and the employer is obliged to provide
special protection to women with small children, disabled persons, pregnant women and employees
younger than 18 years of age, in accordance with the current legal regulations.

The Association can perform the redistribution of the working time to employed woman during
pregnancy and employed parent with a child younger than 3 years of age or a child with severe
disabilities only with their written consent (Art. 26).

Protection of women, young people and maternity as well as parental leave, leave for the care of a
child or leave for special care of a child. Association is obliged to provide in accordance with the law
not to dismiss from work during pregnancy, parental leave or leave for the care of a child (Art. 110).

Employer is obliged to undertake necessary protection measures at the working place in accordance
with the Labour Law, Law on Occupational Safety, other legal and general regulations, this Collective
Agreement and special regulations by the employer related to the protection at the working place (Art.
111). Employer is obliged to organise the work for all the posts and especially posts incurring higher
risk in such a manner as to protect life and health of an employee and to present conditions of work
and protection measures at work to all the employees concerned.
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