The draft of the Law on Strike in the public debate stage
The Ministry of Labour, Employment, Veterans and Social Affairs has presented the draft of the Law on Strike (hereinafter: the “Draft Law”), which should substitute current Law on Strike from 1996 (hereinafter: the “Law”).
The need for change of the legislation related to the right to strike occurred due to the change in the definition of the right to strike in the Constitution of the Republic of Serbia from 2006, the reform of labour legislation, as well as due to the existence of special laws which, inter alia, regulate right to strike.
Another, but not less important reason for the adoption of the new Law on Strike comes from the Serbia's obligation to comply with the stances and principles of the International Labour Organization of European Union, as well as the standards of the European Union.
In the Draft Law the strike is defined as interruption of work organized by the trade union or by the majority of the employees employed at the employer, or in organizational unit of employer in order to protect their economic, social and professional interests and rights from the employment agreements.
Ten key novelties which the Draft Law introduces are:
- Minimum working process is determined by collective agreement. – The Law prescribes that employer determines minimum working process, while the Draft Law prescribes that minimum working process is determined under the collective agreement. Moreover, if a collective agreement does not exist, the employer and the trade union, or the majority of employees, consensually set up minimum working process within 15 days from the filing of a proposal by one party. In case there is no such agreement, an employer and the trade union are obliged to immediately initiate the process of peaceful settlement before the Republic Agency for Peaceful Settlement of Labour Disputes (hereinafter: the “Agency”) that issues a decision within 30 days from the date of initiation of the procedure.
- Employer cannot commit the members of the strike committee for maintenance of a minimum working process, without consent of the strike committee.
- Strike is prohibited for members of the Security Information Agency, in health services that provide emergency medical assistance, in flight control, for members of special police units and in cases prescribed by the Law on Police. - The applicable Law forbids the strike only to professional soldiers.
- Employer is entitled for damage in case of unlawful organization and participation in strike. – Although this provision is entered into the Draft Law there are many issues about damage in this case (for example, from whom the employer is entitled to request compensation of damage).
- Obligation of keeping records about the strike. – Accordance to the Draft Law, the Agency is obligated to keep record of strike, containing information about: the employer, the type of the strike, the number of organized strikes, the demands of participants in the strike, duration of strike, the place of strike and the way of ending strike, while the Law doesn’t prescribe obligation of keeping this record.
- The strike committee delivers to employer decision to start the strike at an employer at least 3 working days before the strike starts, while in case of branch strike, strike for autonomous province and units of local and regional self-government 5-days’ term is prescribed. – The Law prescribes general 5-days’ term, while the 10-days’ term prescribed for the activities of general interest is identical in the Law and in the Draft Law.
- The Draft Law regulates solidarity strike (support). Namely, the solidarity strike is organized in order to support the employees or the trade unions that are already in strike at the same employer, in the same branch, group or activity or in the unit of territorial autonomy or local self-government, in duration of maximum one day. In this case the decision to start the strike is delivered to the employer, the association of employers or to the founder and/or to the state administration body at least 2 working days before the day determined for the beginning of a solidarity strike.
- The Draft Law prescribes specific grounds when employment can be terminated as a result of organization and participation in the strike, as follows:
- if an employee, determined to work in order to ensure a minimum working process, refuses to work,
- if an employee organizes or participates in strike jeopardizing security and health of citizens, causing damage to the means of work and equipment,
- if an employee participates in unlawful strike, which unlawfulness is determined by the decision of the court,
- if an employee organizes and participates in strike in activity in which strike is forbidden.
The Draft Law regulates that an employer is not entitled to terminate employment agreement in case b) and c) above before the final decision of the court is adopted.
Unlike the rules from the Draft Law, the Law doesn’t prescribe special grounds when an employer is entitled to terminate an employment agreement. The Law prescribes, by the general rule, that the employment agreement can be terminated if a strike is not organized in accordance with the Law.
- The Draft Law specifies that participants in a strike are not entitled to reimbursement of costs.
- Participants in the process of conclusion of collective agreements in the areas of general interest are obliged, within 30 days from the day the new Law on Strike came into effect, to initiate negotiation in good faith for determination of the minimum working process, except in cases when minimum working process is prescribed by the law.
Finally, please note that there is no consensus about right of an employer to temporarily close the company and thus prevent loss caused by interruption of the work (so-called lock-out).