Peaceful Settlement of Labor Disputes
Initiation of proceedings
Proceedings before the Republic Agency for Peaceful Settlement of Labor Disputes (“the Agency”) are initiated by a proposal for initiating proceedings (“Proposal”), which states data on the proposer, data on the other party in the proceedings and the subject of the dispute, and is submitted to the Agency, by mail or e-mail. In addition to the Proposal, the disputing parties are obliged to submit the available documentation related to the subject of the dispute and the names of the witnesses, if any. It is envisaged that the parties can jointly submit the Proposal, but if that is not the case, the further procedure continues so that after receiving the Proposal, the Agency forwards it with the accompanying letter and documentation to the other party, which decides on the Proposal within five working days. If the other party accepts the Proposal, the Director of the Agency shall issue a decision on appointing a conciliator or arbitrator. The parties to the proceedings have the option of selecting conciliators and arbitrators from the Directory of Conciliators and Arbitrators, and if there is no agreement on the election, it is determined by the Director of the Agency. If the other party in the procedure rejects the Proposal or does not respond within the legal deadline, the procedure is terminated by a conclusion on the suspension of the procedure.
Individual labor disputes – Arbitration method
An individual labor dispute (“Individual dispute”) is considered a dispute regarding:
- termination of the employment contract;
- working hours;
- exercising the right to annual leave;
- salary / salary payments, salary / salary compensations and minimum wages;
- payments of compensation for food expenses during working hours, for arrival and departure from work, recourses for the use of annual leave and other compensation of expenses;
- payments of severance pay upon retirement, jubilee awards and other benefits in accordance with the law;
- discrimination and harassment at work.
Individual disputes are the most numerous, and are resolved by arbitration. Arbitration is a procedure in which the arbitrator decides on the subject of an individual dispute between the parties – the employee and the employer.
Here, an arbitrator who is a lawyer with a bar exam organizes a quasi-trial and through that procedure comes to an arbitral award that has the force of a court judgement – it is final, enforceable and essentially based on the same facts as the court judgement and completely replaces the court judgement. There is no possibility of appeal against this decision and it is binding on the parties in the proceedings and can be enforced. When the proceedings ends with the decision of the arbitrator, the parties in the proceedings do not have the right to conduct a court dispute on the same basis, and the dissatisfied party has the right to sue for annulment of the domestic arbitral award.
Collective labor disputes – Conciliation method
A collective labor dispute (“Collective dispute”) is considered to be a dispute concerning:
- concluding, amending and / or supplementing a collective agreement;
- application of the collective agreement as a whole or its individual provisions;
- application of a general act regulating the rights, obligations and responsibilities of employees, employers and trade unions;
- exercising the right to organize and act as a trade union and exercising the right to determine the representativeness of the trade union with the employer;
- exercising the right to information, consultation and participation of employees in management;
- determining the minimum of work process.
Conciliation is procedure in which the conciliator provides assistance to the parties to the Collective dispute with the aim of concluding an agreement on resolving the dispute or in which the conciliator gives a recommendation to the parties in the Collective dispute on how to resolve the dispute.
An employer, trade union, authorized employee representative, employee, strike committee, founder for public companies, capital companies founded by a public company, capital companies and public services founded by the Republic, autonomous province or local self-government unit are considered parties to the Collective Dispute.
Collective labor disputes are mediated by a conciliator, an independent expert who seeks to reach an agreement between the parties to the dispute. If an agreement is reached on the subject matter of the dispute, the conciliation committee – consisting of the parties to the proceedings and the conciliator, adopts a recommendation on the settlement of the dispute. If the committee does not make a recommendation within the legal deadline from the day of concluding the hearing, the conciliator may, at the request of one of the parties to the dispute, propose a recommendation. It should be noted that the recommendation is not binding on the parties, but is the basis for concluding an agreement on resolving the dispute. If the subject of the dispute is a collective agreement, the agreement becomes the basis for concluding, amending and / or supplementing the collective agreement, otherwise it has the force of an executive document.
The only exception to the voluntary initiation of proceedings is a collective labor dispute in activities of general interest, to which the minimum work process is applied in accordance with the law governing the suspension of work (strike). The parties are obliged to proceed to the peaceful settlement of the Collective dispute, and to submit a proposal, within three working days from the day the dispute arose. If the parties to the dispute do not submit a proposal, the director of the Agency shall ex officio initiate the conciliation procedure and appoint a conciliator from the Directory.
Conciliators and arbitrators
Conciliators and arbitrators are independent experts who are not civil servants and who are not employed by the Agency. These are experts who are on the list kept by the Agency and elected by the Social and Economic Council, the Commission consisting of representatives of the Ministry of Labor, ie representatives of the Government, then representatives of trade unions that are representative in Serbia and representatives of the Union of Employers – they choose independent experts who are mostly labor law professors, lawyers, experts in various fields, former judges. They are independent in their work, guided by ethical principles, which are provided by the code of conduct for conciliators and arbitrators, and work in one procedure where they establish the facts, apply the law, and come to a decision.
Judicial review of arbitral awards
Arbitration of disputes is based on the agreement of the parties, however, the parties to the arbitration proceedings have the right to a legal remedy against the arbitral award to the extent and in the manner prescribed by law. In terms of the Law on Arbitration (“Official Gazette of RS”, No. 46/06), when it comes to a domestic arbitral award, that legal remedy is a lawsuit for annulment of the arbitral award before a state court, which conducts subsequent and limited control of the arbitral award. The procedure of judicial control is initiated by a lawsuit for annulment of a final domestic arbitral award within the time limit, for the reasons and in the manner prescribed by law.
The Law on Peaceful Settlement of Labor Disputes does not contain provisions on legal protection regarding the arbitral award made before the Republic Agency for Peaceful Settlement of Labor Disputes, but only prescribes that the decision is final and enforceable on the day of delivery to the parties to the dispute.
In the opinion of the Supreme Court of Cassation, it follows from the stated rule that there is no two-stage decision-making in the arbitration procedure before the Agency, however, that does not mean that the right to judicial protection is excluded. Namely, the right to a legal remedy against a decision deciding on a right, obligation or interest based on law is a constitutional right guaranteed by Art. 36 of the Constitution of the RS, and the view that judicial protection cannot be sought in connection with the arbitral award of the Republic Agency for the Peaceful Settlement of Labor Disputes, unjustifiably denies that right to the parties in that procedure.