Decision U.no.161/2005

U.no.161/2005

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Book of Procedures of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 21 and 22 December 2005, the Constitutional Court of the Republic of Macedonia made the following

DECISION

1. Article 104 paragraph 1 of the Labour Law (»Official Gazette of the Republic of Macedonia«, no.62/2005) IS REVOKED.

2. This Decision generates legal effects from the date of its publication in the »Official Gazette of the Republic of Macedonia«.

3. The Constitutional Court of the Republic of Macedonia with its Resolution U.no.161/2005 of 9 November 2005, upon the initiative of Bojana Mirceva from Skopje, instigated a procedure for the appraisal of the constitutionality of the provision noted in item 1 of this Decision.

The procedure was initiated since there was a well-founded question put before the Court as to the concordance of the disputed provision of the Law with the Constitution of the Republic of Macedonia.

4. At its session the Court found that under Article 104 paragraph 1 of the Labour Law, the employer is entitled to discountinue the job contract of an employee when the employee fulfills the conditions for an old-age pension pursuant to law.

5. Under Article 9 paragraph 1 of the Constitution, citizens of the Republic of Macedonia are equal in their freedoms and rights irrespective of their sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status.
Under paragraph 2 of this Article, citizens are equal before the Constitution and laws.

The Constitution of the Republic of Macedonia in the part of the provisions which relate to the economic, social and cultural rights, in Article 32 paragraph 1 stipulated that everyone has the right to work, to free choice of employment, protection at work and material assistance during temporary unemployment. Paragraph 2 of this Article in the Constitution defines that every job is open to all, under equal conditions, while under paragraph 5 of this Article in the Constitution the exercise of the rights of employees and their position are regulated by law and collective agreements.

Under Article 51 paragraph 1 of the Constitution, in the Republic of Macedonia laws must be in accordance with the Constitution, while all other regulations in accordance with the Constitution and law.

From the analysis of the provisions quoted from the Constitution, it derives that the constitutional principle of equality of citizens before the Constitution and laws obligates both the legislator and all subjects of collective agreement, in terms of the regulation of the issues for the realisation of the rights of employees and their position, to provide equal legal position of all workers by law and collective agreements. On the basis of that, the Labour Law specifically governs the issues regarding the discontinuation of the job contract with a notice by the worker and the employer, among which the right of the employer to discontinue the job contract of the employee when the worker meets the conditions to realise an old-age pension pursuant to law.

Article 1 of the Labour Law defines that this law regulates employment relations between employees and employers which are established by concluding a job contract. Under paragraph 2 of this Article in the Law, the employment is regulated by this and by other law, collective agreement and the job contract.

Under Article 3 paragraph 1 of the Law, this Law regulates the employment of the workers employed in the bodies of state administration, bodies of the local self-government units, institutions, public enterprises, bureaus, funds, organisations and other legal and natural persons employing workers, unless otherwise defined by another law.

In accordance with paragraph 2 of this Article of the Law, the employment may be terminated only in a manner and under conditions defined by law and collective agreement, while under paragraph 3 of this Article in the employment each party is obliged to fulfill the prescribed and agreeded upon rights, obligations and responsibilities.

Article 6 paragraph 1 of the Law stipulates that the employer must not put the job seeker or the worker in an unequal position based on race, colour of skin, sex, age, health condition, that is, disability, religious, political or other beliefs, affiliation to trade unions, national or social origin, status of the family, property status, sexual orientation or other personal circumstances.

Under paragraph 2 of this Article in the Law, women and men must have equal possibilities and equal treatment in employment, promotion in the work, training, education, retraining, salaries, rewarding, absence from work, working conditions, working hours and cancelling the job contract.

Article 7 of the Law deals with direct and indirect indiscrimination. Under paragraph 1 of this Article, the prohibition of direct or indirect discrimination in the cases of Article 6 of this Law refers to the discrimination of the candidate for employment and of the worker. Under paragraph 2 of this Article, direct discrimination, in the sense of paragraph 1 of this Article, is each treatment conditioned by some of the grounds of Article 6 of this Law whereby the person has been placed, is being placed, or could be placed in a more disadvantageous position than other persons in comparable cases. Under paragraph 3 of this Article, there is indirect discrimination, in the sense of this Law, when certain seemingly neutral provision, criterion or practice places or would place the candidate for employment or the employee in a more unfavourable position in respect of the other persons as a result of certain capacity, status, belief or convictions of Article 6 of this Law.

Under paragraph 4 of this Article of the Law, discrimination, in the sense of Article 6 of this Law, is prohibited, among other things, also in view of the cancelation of the job contract.

The Labour Law in the part of the provisions relating to the cancelation of the job contract by the worker and the employer in the subtitle »Termination of the job contract on grounds of the age of the employee« with the contested Article 104 paragraph 1 stipulated that the employer has the right to terminate the job contract of the employee when he/she fulfills the condtitions for an old-age pension pursuant to law.

Paragraph 2 of this Article of the Law prescribes that the employer may extend the job contract of the employee in paragraph 1 of this Article until 65 years of age at the most, unless otherwise defined by law and general collective agreement.

At its session, the Court has found that the constitutional obligation of the legislator is to place the citizens in an equal legal position on the grounds noted when regulating the issues regarding the realisation of the rights, obligations and responsibilities of the employee and the employer in the employment relations and the employment and termination of the employment.

In the opinion of the Court, the contested provision of the law does not stipulate an equal legal position of citizens. Namely, the definition with the constested provision of Article 104 paragraph 1 of the Law that the employer has the right to terminate the job contract of the employee when the employee fulfills the conditions for realisation of an old-age pension pursuant to law, implies an unequal treatment towards citizens on grounds of sex, whenever the conditions for realisation of a pension defined by a special law are different for men and women, as is the case now in our legal order.

Hence, the disputed provision of the Law is imperative and imposes termination of the right to work of women under different conditions than men, that is, with completed 62 years of age, compared to 64 years of age for men.

Taking as a starting point the above, the Court has found that the contested legal provision is not in agreement with the principle of equality of citizens irrespective of their sex and the principle of availability of each job to every person under equal conditions.

Thereby, the Court also took into consideration Article 17 of the Law on Pension and Disability Insurance, that is, the stance of the Court noted in its Resolution U.no.107/2004 of 29 September 2004 where the Court found that the right of a female insured person to acquire an old-age pension earlier than a male insured person is justified on the principle of affirmative action, that is, the principle of positive discrimination of women, but in the sphere of pension and disability insurance, which may not be automatically applied to other spheres, in particular if that leads to restriction of the rights on grounds of sex. This specific case concerns the realisation of the right to work which differs from the realisation of the right to an old-age pension.

Given the above-noted, the Court has judged that the contested provision of Article 104 paragraph 1 of the Labour Law is not in concordance with the provision indicated in the Constitution of the Republic of Macedonia.

6. On the basis of what has been stated, the Court has decided as in item 1 of this Decision.

7. The Court has passed this decision with majority votes in the following composition: the President of the Court Mrs liljana Ingilizova – Ristova, and the judges: Dr Trendafil Ivanovski, Mr Mahmut Jusufi, Mrs Mirjana Lazarova Trajkovska, Mrs Vera Markova, Mr Branko Naumoski, Dr Bajram Polozani, Mr Igor Spirovski, and Dr Zoran Sulejmanov.

U.no.161/2005
21 and 22 December 2005
S k o p j e

PRESIDENT
of the Constitutional Court of the Republic of Macedonia
Liljana Ingilizova – Ristova

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