The legal opinion of the NPD (Network for Protection against Discrimination) and the Gender Platform, based on an analysis of the provisions in the new text of the Law on Labor Relations, consists of several comments:
- It is impossible to talk about advancement of labor rights, if the primary piece of legislation in this area leaves a significant number of workers who do actual work, albeit without an employment contract, out of the scope of its protection. The new, as well as the old LLR, defines a worker as any natural person who is in an employment relationship based on an employment contract. This definition is incorrect and does not provide any protection to a large body of workers who do actual work without an employment contract or under a different type of contract, and it is not in accordance with the European legislation and international standards.
We propose the Law to be harmonized with the European legislation[1] and the Employment Relationship Recommendation, 2006 (No. 198),[2] and the definition to be expanded to include workers who do not have an employment contract, but are in an actual employment relationship, the existence of which can be determined based on related facts. Such facts are the daily arrival of the employee at the workplace, payment of financial compensation and/or remuneration, subordination, control and behavior as if the employment relationship was based on an employment contract, regardless of the type of contract – including verbal contracts, temporary service contracts, hiring arragements, services, etc. In that direction, the position of the EU Court of Justice is that “an employee” shall mean anyone who in fact works, regardless of the legal basis (type of contract) for the employment relationship and whether such a contract exists at all.
This legal change would contribute to the inclusion of workers in the formal economy, with more secure jobs and more effective legal protection of their labor rights, and in turn, employers would be discouraged from abusing the workers’ labor. In this way, labor rights i.e., the right to pension, health and social insurance, would be fully enforced. In addition, the legal amendments would provide an expedient response to the grey economy in labor relations, which would result in benefits for the state budget.
- 2. The definition of prohibition of discrimination in itself does not imply protection against discrimination if the other provisions enable discriminatory policies and a discriminatory approach to the recruitment and the implementation of the employment relationship. Therefore, the LLR should contain provisions based on the principles of equality, equal pay and a human-rights based approach, which would imply setting the basis for employment of everyone, with an obligation for reasonable accomodation of the workplace based on the abilities of the workers.
Stereotypes and prejudices towards the diverse and marginalized groups are prevalent in the labor market as well. The labor market is not a safe or accessible place for people from marginalized communities, and hence they face unemployment, which further leads to poverty, which in turn carries the risk of other social problems. The most common forms of discrimination in labor relations are employment based on political affiliaton (unfounded preference on a discriminatory basis); gender-based discrimination (employment of women, the gender pay gap; fewer opportunities for promotion of women; discrimination in the context of pregnancy and motherhood, employment of older women - intersectional discrimination, gender segregation in the labor market; labor market tailored to the needs of men i.e. according to the assumption that domestic care should take place outside the labor market); discrimination against Roma (racial discrimination); workplace harassment in the form of sexual harassment of women and LGBTI people; discrimination in the employment of transgender persons; inaccessibility of workplaces for persons with disabilities and discrimination and prejudices against them; discrimination against people who use drugs, that is, people who are being treated for addiction; discrimination of different groups of patients who, due to chronic diseases and conditions, need to use sick leave more often.
Due to its importance as a systemic law, the alignment of the LLR with the Law on Prevention and Protection from Discrimination (LPPD) must not be reduced to declarative provisions that prohibit discrimination and which only mention a few of the forms that occurs in. Therefore, we propose that the LLR be harmonized with the LPPD through an extensive model, which would consist of:
- separation of “equality and non-discrimination” in separate chapters in the legal text;
- removal of the provisions which lead to discrimination and violation of other rights due to their improper application in various areas of labor relations (employment advertisements, dismissal, job security, etc.), and introduction of so-called safeguards; An example of one such provision is the dismissal without a notice period of an employee who consumes, uses or is under the influence of alcohol and narcotic substances. The needs and health rights of workers who might be treated for addiction, and patients who might use narcotic drugs prescribed and/or administered by a health institution as part of a treatment against a disease are not taken into account, thus enabling discrimination of these groups. Another example is the requirement that, upon the establishment of the employment relationship, the candidate shall submit evidence of fulfillment of the conditions for performing the work to the employer, including evidence of not having diseases or other circumstances that may in any way make it impossible or significantly limit the performance of the contractual obligations or endanger the life or health of the persons that the employee comes in contact with in the performance of his/her duties. This provision may lead to discrimination based on health status and needs to be amended into a certificate that the person does not have a disease that is transmitted through employment or that is aggravated by the employment.
- envisaging obligations for the employers, the SLI (the State Labour Inspectorate), the MLSP (Ministry of Labour and Social Policy) and the other key stakeholders to take targeted action to prevent and protect against discrimination (establishing internal procedures for reporting discrimination; measures to educate employers and workers about equality and non-discrimination; temporary affirmative measures for marginalized communities and procedure for their adoption and implementation; etc.);
- introduction of misdemeanor provisions for non-compliance with the articles regulating equality and non-discrimination, which would stipulate proportional penalties and explicit competence of the SLI to take action in those cases, referring to the LPPD during the procedure (for example, in order to shift the burden of proof).
- 3. Equal pay for equal work or work of equal value is in itself a matter of discrimination, hence the provisions for this principle should be stipulated in the aforementioned chapter “equality and non-discrimination”. We commend the alignment of Article 111 with the ILO Convention No. 100,[3] but we believe that in order to adequately regulate this right (in accordance with the EU legislation[4] and ILO Convention No. 100) it is necessary to add provisions that would stipulate:
- an obligation for salary transparency (every employer has an obligation to inform the employees about everyone's salary, salaries by position/grade should be easily accessible (for example published on web-sites, notice boards, etc.); an obligation for employers to conduct an objective evaluation of the workplace and data analysis once a year, an obligation to detect the gaps in equal pay based on the size of the employer, as well as the obligation to take measures to reduce the gap detected by the analysis, an obligation to publicly announce the measures that are planned to be taken and to report to SLI;
- the definition of salary, in addition to monetary payments, should also include all types of insurance, in-kind payments and other types of benefits (transportation, food, etc.);
- everyone who actually works is entitled to these rights, not only those who have signed an employment contract;
- envisaging a by-law that would offer the methodology for objective evaluation of the workplace that the ILO has developed,[5] and which would be instrumental in detecting the equal pay gap and calculating the equal pay for equal work or work of equal value. It is necessary to regulate the competences of SLI for supervision of its implementation, and provide training on the application of the methodology to the human resources managers. Failure to comply with this obligation should be subject to fines, meaning that awareness-raising and knowledge-building should be provided to the courts in order to enable effective application of this obligation by employers;
- in cases for proving forms of discrimination, all the prinicples from LPPD should apply (burden of proof, statistical data, etc.);
- the law should determine what comparator is applicable according to the CJEU practice. Since it refers to discrimination, it is important to establish a benchmark in relation to which the equal pay should be determined. The comparator is best found within the same company, but this leaves out traditionally women-dominated industries where there are no male employees doing the same work or work of an equal value - in these cases a comparator at the industry level should also be provided;
- it is important to stipulate a provision regulating the offence, along with a proportional fine in accordance with the Directive, meaning that it should be possible for the competent authority to calculate the fine based on the size of the employer, and the fine should be in an amount sufficient to deter the employer from repeating the offense. However, this is in fact in contravention to the Law of Misdemeanors, so taking into account the reconciliation procedure and the obligation it imposes to offer the lowest amount, adequately high amounts for the fines should be stipulated by the law.
- 4. It is necessary for the LLR to provide a separate chapter on self-employed persons – “Self-Employment” where their employment rights would be regulated in detail. This chapter should contain:
- a definition of self-employment according to EU directives and the practice of the EU Court of Justice;
- enabling all the pension, health and social insurance rights of self-employed persons, the right to maternity leave and the right to sick leave;
- recognizing and defining unpaid domestic work (the work of housewives), envisioning their registration and exercising of their rights.
- 5. When it comes to regulating the leave due to pregnancy, maternity, paternity and parenthood, there are significant improvements that we salute. However, we believe that some of the solutions would not be functional in practice, unless they are furher amended. We explain some of them as follows:
- Fixed-term contracts are the most common form of discrimination against pregnant working women. Hence, the only novelty is that the employer should inform the worker in time that no new contract with be signed, which would not solve the problem, meaning that this type of discrimination would continue. What we demand is to stipulate an obligation to extend a fixed-term contract up until the moment when the employee would acquire the right to a paid leave due to pregnancy, maternity, paternity or parenthood;
- in several instances in this chapter the law stipulates the occastions when the funds should be paid to the employee at the employer's expense (for example, if they are unable to provide safe working conditions for pregnant workers, implying that the workers have the right not to go to work, etc.). It is necessary for LLR to stipulate that the compensation due to maternity, paternity and parenthood leave is paid in full by HIF (the Health Insurance Fund) and amounts to 100%. Despite the fact that the Law on Health Insurance regulates these aspects, these are key issues in the exercising of these rights that must also be regulated by the “Lex Generallis” that these rights stem from - LLR;
- According to Article 170, paragraph 6 “The employer may decline the employee's request from paragraph (3) of this article, only if there is a valid reason related to the organization or functioning of the work, whereby they are obliged to explain the reason in writing”. In order for workers to actually enjoy the right to flexible work due to child care, it is necessary to have some control over the employers who decline such requests, otherwise they would be able to easily reject the requests and the workers would not be able enjoy the right. Hence, a procedure for notification to the SLI should be envisaged in case the employer declines the request, with an obligation for the SLI to make a decision on the justification of the rejection within a certain period (the proposed period should be 15 days);
- Article 174, paragraph 1 stipulates that the employer may not dismiss an employee for the duration of two months after returning to work following a leave due to maternity, paternity and parenthood. We believe that this is too short to protect workers with newly established families. We request for this to be extended to six months and a mandatory notice period of three months, unless the employee requests a shorter notice period.
- 6. When regulating the rights and obligations of the employee, the LLR must harmonize the decisions with the existing state of facts - that is, special attention must be paid that some categories of persons require a different definition in the LLR than their definitions in other laws, such as - the Law on Social Protection, the Law on Family, or the Law on Primary/Secondary Education. The objectives of these laws are different and they establish special protection. The LLR should aim to recognize the different circumstances that workers find themselves in and arrange their working relationship and work-life balance life in a way that would be useful and applicable to them. Therefore, we suggest:
- inclusion of a special definition of “single parent” for the purposes of LLR, or changing the term “single parent” to "parent who is assigned custody and education of the children”. Currently, the definition of a single parent is provided in the Law on Social Protection, and it stipulates that it is a parent who exercises the parental rights and duties for the child alone, due to the fact that the other parent is unknown, deceased, missing or temporarily or permanently does not perform his/her parental rights and duties for justified reasons. This definition is not suitable for the LLR, because there is a large number of families in which children live with one of the parents, and the parent who is their caregiver is in a disadvantageous position when organizing the daily life and working hours in such a way as to be able to meet the needs of and obligations towards minor children. For these reasons, we believe that all parents who are primary caregivers of their child should be entitled to these rights, regardless of whether the parental rights of the other parent have been limited or revoked;
- extending the list of family members that the employee is allowed to take leave from work for. Currently, this list mainly focuses on parents and children. However, the situation in real life is significantly different - there is a large number of people living in extramarital unions (cohabitation), as well as people living in the same household with people who are not their closest relatives according to the provided definition, and the need to care for them may significantly burden their job for a certain period of time;
- in all occurences where marital partners are recognized in relation to certain rights that the employee is entitled to, the non-marital partners should also be included, which, in accordance with the Law on Family, would enable greater de facto equality between the marital and extramarital union (cohabitation).
- 7. LLR must comply with the existing international standards and provide adequate protection of all workers, and especially of the special categories of workers. Therefore, we propose:
- harmonization of the provisions relating to “children” and “youth” according to the Convention on the Rights of the Child which stipulates that all persons under the age of 18 are children;
- harmonizing the Law with the Convention on the Rights of Persons with Disabilities, by removing the term "general health condition" and replacing it with a term that would only include “abilities necessary to perform the job”, if reasonable adjustments are made to the workplace. For this to be effective, it is necessary to include a universal obligation to apply the principle of accessibility in all segments of the employment relationship, with the aim of effective and unobstructed access to the open labor market of the persons with disabilities;
- compliance with the WHO Recommendation, so that the rights of breastfeeding mothers can be extended until the child turns 2 years of age, instead of, as it is now, 1 year from the moment of the child's birth.
- 8. The law must ensure that the dignity of the employee remains protected during, but also after the termination of the employment relationship.For these reasons, the Law must pay attention to the following:
- if union membership is a matter of choice (optional), then any non-union worker must not have lesser employment rights compared to a union member. A union member may have access to benefits provided by the union, but outside the employment relationship, while the benefits related to the employment relationship must apply equally to all;
- the employee should independently decide on becoming a member of the union, which implies that the employee is the one who should ask the employer to pay a part of his salary as union membership fee, instead of the previous solution where the unions requested the payment;
- the non-compete clause must not put the employee in a position of unreasonable losses. For these reasons, the LLR must arrange that if the employer does not allow the cancellation of the non-compete clause, they would be obliged to compensate for the earnings that the employee would have received, as well as the opportunity for advancement that the employee foregoes due to the clause. With the current provision, the possibility is open for the employer to pay a much lower amount to the employee, which puts him in a much less favorable position.
In conclusion, the Network for Protection against Discrimination and the Gender Equality Platform demand the introduction of the proposed amandements resulting from the conducted analysis to the text of the new Law on Labor Relations. In addition, we urge the institutions to spearhead a transparent and inclusive process, which would result in a Draft Law that would include all the relevant factors in the field of labor relations, all the while guaranteeing the human rights and freedoms of workers, enshrined in the Constitution of the Republic of North Macedonia and in the international documents.
[1] Договорот за функционирање на Европската Унија C-326/49 и Директивата 2006/54/EC на Европскиот Парламент и Совет од 5 јули 2006 година.
[2] Види и Препорака број 2, точка 3 од Техничкиот меморандум на Меѓународната организација на трудот од 2019 година.
[3] Конвенција бр.100 на МОТ за еднакво плаќање, од 1951 година, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_INSTRUMENT_ID:312245.
[4] Види повеќе на https://www.consilium.europa.eu/en/policies/pay-transparency/ и https://ec.europa.eu/commission/presscorner/detail/en/ip_22_7739.
[5] Види повеќе на https://www.ilo.org/declaration/info/publications/eliminationofdiscrimination/WCMS_122372/lang–en/index.htm.