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1.Dear Sirs, I would like to know if I can turn to the Republic Agency for Peaceful Settlement of Labour Disputes with the Proposal for the initiation of the procedure for amicable settlement of a labour dispute despite the fact that I had already initiated the procedure with the employer for the protection against harassment at workplace, in the event that such claim is rejected or the procedure fails.
The Law on Amicable Resolution of Labour Disputes („Official Gazette of the Republic of Serbia„ No. 125/04, 104/09) is a special law to which the provisions of the Law on Prevention of Harassment at Workplace („Official Gazette of RS“ No. 36/2010) do not apply, and thus, the initiation of the procedure is not conditioned by the previous claim for protection submitted to the employer.
Accordingly, you can submit the Proposal to the Agency prior to submitting the Claim for protection to the employer as well as in the event that mediation with the employer fails. The condition for the initiation of the procedure before the Agency is that the other party – employer, accepts amicable resolution of the dispute, in accordance with Article 5 paragraph 2 of the Law on Amicable Resolution of Labour Disputes.
In the event that in the mediation procedure with the employer you do not reach the Agreement on the resolution of the matter in dispute, the mediator is obliged to write the Dismissal of procedure and submit it to the parties. The 15-day term of preclusion for the court action starts running from the date of dismissal. The initiation of the procedure before the Agency will not halt this term and therefore, if mediation fails, it would be recommendable that you submit the Proposal immediately upon the completion of mediation, so that you do not lose the right of action in the event that the Agency does not receive the consent for amicable resolution of the dispute.
2. Is the participation of founders compulsory in the conclusion of collective agreement in a public enterprise if the Agency For Peaceful Settlement of Labour Disputes is involved in the bargaining process?
The answer is provided in Article 246 of the Labour Law: “A special collective agreement for public enterprises and public services is concluded between the founder or body authorized by the founder and the representative trade union.
The Agency conciliator may participate in the bargaining process depending on the will of the parties, if the public enterprise is not obliged to ensure minimum work process or ex officio, if the provision of minimum work process is compulsory, in accordance with Article 18 of the Law on Amicable Resolution of Labour Disputes.
The conciliator conducts the negotiations and may previously facilitate reaching of consensus between the public enterprise management representatives, founders, and the trade union about the text of collective agreement. If the consensus is reached, the signatories to the collective agreement are the parties referred to in Article 246 of the Labour Law –representative trade union and the founder.
3. Can mediation be organised before the Republic Agency for Peaceful Settlement of Labour Disputes in relation to the mobbing dispute and who can you recommend from the list of Agency mediators?
The disputes in connection with the harassment at workplace are resolved in the arbitration procedure, before the arbiter, and closed by final and binding decision, in accordance with the Law on Amicable Resolution of Labour Disputes.
The disputes in connection with the harassment at workplace are resolved in an internal procedure of the employer, by mediation, in accordance with the provisions of the Law on Prevention of Harassment at Workplace. If it is agreed to engage a person –mediator, who is the arbiter or conciliator that can be found in the Agency List of conciliators and arbiters, this is considered to be an agreement between the participants in the mediation procedure and the selected mediator in which the Agency neither participates nor has the responsibility for the course and outcome of such procedure in the event that a party is not satisfied with the work of such an intermediary.
4. If the Republic Agency for Peaceful Settlement of Labour Disputes is engaged in a dispute in connection with a strike, is it necessary to „freeze“ such strike?
The term „strike freeze“ is not defined either in the Law on Strike or the Law on Amicable Resolution of Labour Disputes. The started strike cannot be interrupted at the inception of the conciliation (negotiation) procedure before the Agency and then resumed if the trade union or the strike committee are not satisfied with the conduct or outcome of such negotiations. In such case, all the conditions for legal beginning of a new strike must be met again, regardless of the fact that all or any strikers’ demands have remained unchanged.
There is no legal provision stipulating strike interruption at the inception of negotiations, regardless of whether the Agency is involved or not. This is subject to the decision of the trade union which organised the strike or the decision of the strike committee.
5. My employer has not paid contributions for me since 2011 and owes me 9 wages. Can I resolve the dispute through the Republic Agency for Peaceful Settlement of Labour Disputes?
Payment of contributions does not fall within the competence of the Agency and similarly, the independent court action for payment of contributions is not within the court jurisdiction. The Law prescribes that the collection of contributions is made by the Ministry of Finance –Tax Administration, according to the seat of the employer and thus, it would be best to write to them.
The dispute in connection with unpaid wages is within the competence of the Agency, provided that the claim is not time-barred (older than 3 years from the date when it should have been paid) and that the employer has agreed to settle the dispute before the Agency. The Agency is in charge of claims up to the amount of a minimum wage, and the difference may be claimed before the court.
In connection with the right to the payment of wages, amendments to Article 121 of the Labour Law should be borne in mind. Namely, this Article stipulates that the employer is obliged to furnish the employee with the calculation slip with each payment of salary and calculation of salary, regardless of whether the payment of salary or calculation of salary was effected or not.
The calculation slip and calculation of salary which the employer is obliged to pay represent ENFORCEMENT document.