Good practice examples (individual)

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CASE STUDY no. 2

07. 03. 2017.

The Participants in the Dispute

The participants in the dispute were a group of 10 employees of the Health Centre, as the claimants and the Health Centre – as the respondent.

The Subject of the Dispute

The subject of the dispute was determining of the entitlement to jubilee awards and the payment thereof.

How the Arbiter was included

At the proposal of the employees, with the written consent of the employer, an individual labour dispute was initiated between the parties to the dispute: a group of 10 claimants, all employees of the Health Centre and the employer – the Health Centre, in order to determine and pay the jubilee awards.

Since the parties to the dispute had not agreed on the arbiter, the one was appointed by a decision of the director of the Republic Agency for Peaceful Settlement of Labour Disputes pursuant to the provisions of Article 12 paragraph 2 of the Law on the Peaceful Settlement of Labour Disputes (‘Official Gazette of RS’, No. 125/04 and 104/09).

Upon being appointed as the acting arbiter and taking over the case, the arbiter had, without delay, determined the place, date and time of the public hearing, after having spoken with the parties over the telephone. The public hearing was held in the employer’s premises, in the presence of the parties to the dispute, and ended the same day as it commenced.

Short Review of the Procedure

The public hearing was held in the employer’s premises in the presence of three and absence of seven duly invited claimants on the one side, and the legal representative of the employer on the other. It ended on the same day as it commenced. Based on the inspection of the relevant documents from the personal files of the claimants, and specifically their employment records, the list of employees of the Health Centre of dental health care for the jubilee awards for the length of service, the previous written statements of the employer given at arbiter’s claim, and on the basis of concurrent statements of the parties to the dispute, the arbiter established the following:

– that six out of the ten claimants have the required length of service spent in labour relations and thus fulfilled the condition for exercising the right to the jubilee awards, and that the employer, on the basis of the jubilee award right, paid only a part of the corresponding amount to some of them, while he did not pay any amount to the others;

– that the two claimants obtained the right to jubilee awards during the disputed period for 30 and 20 years of work spent in labour relation respectively and that they were paid full amounts of jubilee awards by applying the provisions of Article 60 of the Work Regulations, valid at the time when the claimants were entitled to jubilee awards;

– that the two claimants, even though they signed a Petition to initiate the procedure of the peaceful settlement of labour dispute, not only did not acquire the right to jubilee awards, and did not request establishing the rights to jubilee awards and payment of the appropriate amounts, but they also signed the proposal with the aim to support other claimants who have the rights to jubilee awards and who have not been paid the amount that belongs to them under that right;

– that the jubilee awards for the disputed period were not paid in full amounts or partially to the employees of dental service, and that they were paid to other employees in other organizational units of the employer. According to the statement of the director of the employer, this is because National Health Insurance Fund specifically provided and allocated funds for the payment of jubilee awards to all the employees, except for employees in the dental service.

The Applicable Law and Outcome of the Procedure

Based on the conducted evidence procedure and the established factual situation, by applying the relevant law in the following provisions:

a) of Article 60 of the Employer’s Work Regulations, which established that the employer can provide a jubilee award to an employee for the years of service in the Health Centre (paragraph 1), that in terms of paragraph 1 of this Article, jubilee awards are considered 10, 20 and 30 years of work (paragraph 2) and that the amount of the jubilee award is determined by the Director of the Health Centre in accordance with the available funds (paragraph 3);

b) of Article 107, paragraph 5 of the Special Collective Agreement for health facilities founded by the Republic of Serbia (‘Official Gazette of the RS’, No. 36/10 and 42/10), which also applies to the employer in this dispute in accordance with the provisions of Article 1 of the Decision on the Application of Special Collective Agreement for health facilities founded by the Republic of Serbia and applies to all the employers who perform healthcare activity or certain healthcare activities (‘Official Gazette of RS’ No. 42/10). It has been established that the employer is obliged to pay an employee a jubilee award in the amount of 1) 50% of the average salary in the commercial sector in the Republic of Serbia – for 10 years of work spent in employment relation; 2) one average salary in the commercial sector in the Republic of Serbia – for 20 years of work spent in employment relation; 3) one and a half average salary in the commercial sector in the Republic of Serbia – for 30 years of work spent in employment relation; 4) two average salaries in the commercial sector in the Republic of Serbia – for 35 years of work spent in employment relation;

c) of Article 28 of the 2009 Law on the Budget of the Republic of Serbia (‘Official Gazette of the Republic of Serbia’, No. 120/08 and 31/09), which, among other things, determined that in the budget year 2009, jubilee awards provided by special and individual collective agreements will not be calculated and paid for direct and indirect beneficiaries of the budget funds of the Republic of Serbia, the local government budget and organizations of compulsory social insurance and their users;

d) of Article 15 of the Law on the Budget of the Republic of Serbia for 2010 (‘Official Gazette of the Republic of Serbia’, No. 107/09 and 91/10) which, among other things, determined that in the budget year 2010, jubilee awards provided by special and individual collective agreements will not be calculated and paid for direct and indirect beneficiaries of the budget funds of the Republic of Serbia, the local government budget and organizations for compulsory social insurance;

e) of Article 13, paragraph 2 of the Law on the Budget of the Republic of Serbia for 2011 (‘Official Gazette of the Republic of Serbia’ No. 101/10 and 78/11) which, among other things, determined that in the year 2011, the jubilee awards will be calculated and paid to the beneficiaries referred to in paragraph 1 of this Article who have fulfilled the conditions for exercising this right in 2009 and 2010 based on the records of employees in specified years;

f) of Article 13 paragraph 1 of the Law on the Budget of the Republic of Serbia for 2012 (‘Official Gazette of the Republic of Serbia’ No. 111/11) which, among other things, determined that in the budget year 2012, jubilee awards will be calculated and paid to the employees who acquired this right in 2012,

the arbiter determined that:

-in accordance with the provisions of Article 107, paragraph 5 of the Special Collective Agreement for Health Institutions founded by the Republic of Serbia, Article 13 paragraph 2 of the Law on the Budget of the Republic of Serbia for 2011 and Article 13 paragraph 1 of the Law on the Budget of the Republic Serbia for 2012, the requirements of six claimants were founded and they are entitled to jubilee awards for 10, 20 and 35 years of work spent in employment and the payment of full amounts on that basis (to some of them), i.e. payment of the difference between the paid and the corresponding full amounts of jubilee awards (to the others);

-the requests of two claimants who, by applying the provisions of Article 60 of the Employer’s Work Regulations, established the rights to the jubilee awards and were paid the corresponding compensation in full amounts by the employer, are unfounded; and

-the remaining two claimants did not file the claims for violation of the rights, but with the aim of giving some kind of support to other employees who were not paid their jubilee awards, therefore, the labour rights of these claimants were not violated, so that there is not an individual dispute within the meaning of Article 3 paragraph 2 of the Law on Peaceful Settlement of Labour Disputes, and made a decision by which:

1. the right to jubilee awards has been established for six claimants for 10, 20 and 35 years of work spent in employment relation. The employer has the obligation to pay the corresponding full amounts of the jubilee awards to two claimants, and to the remaining four of them to pay the difference between the paid and the corresponding full amount of the jubilee awards, within 8 days from the date of receiving the written notice of the Decision;

2. the requests of two claimants to be paid the amounts higher than the amount acquired by right to the jubilee awards obtained during the disputed period for 30 or 20 years of work spent in employment relationship, were dismissed as unfounded; and

3. the proposal of two claimants for the payment of the jubilee awards was rejected.