Decision U.no. 114/2016

U.no. 114/2016

On the basis of Articles 110 and 112 of the Constitution of the Republic of Macedonia and Article 70 of the Rules of the Constitutional Court of the Republic of Macedonia (»Official Gazette of the Republic of Macedonia«, no.70/1992), at its session held on 29 June 2016, the Constitutional Court of the Republic of Macedonia took the following

DECISION

1. Article 104 paragraph 2, in the part: “(men), that is, until 65 years of age (women)” and paragraph 4, in the part: “(men), that is up to 65 years of age at the most (women)” of the Labour Law (“Official Gazette of the Republic of Macedonia” nos.62/2005, 106/2008, 161/2008, 114/2009, 130/2009, 50/2010, 52/2010, 124/2010, 47/2011, 11/2012, 39/2012, 13/2013, 25/2013, 170/2013, 187/2013, 113/2014, 20/2015, 33/2015 and 72/2015 SHALL BE REPEALED.

2. The Resolution U.br.114/2014 dated 1 April 2015 for suspension of the execution of the individual acts or actions taken on the basis of the provisions noted in item 1 of this Decision SHALL BE PUT OUT OF EFFECT.

3. This Decision shall generate legal effect on the date of its publication in the “Official Gazette of the Republic of Macedonia”.

4. Upon the application filed by the Union-National Council for Gender Equality” and “Macedonian Women’s Lobby,” both associations from Skopje, six professors from the University “Ss.Cyril and Methodius” from Skopje: Elena Gradishki-Lazarevska, Liljana Hadji-Pecova, Konstandina Korneti-Pekevska, Biljana Sidovska-Ivanovska, Snezhana Efremova Aaron and Miljana Stojanovikj-Toloska and a group of employees at the Higher Medical School from Bitola, with its Resolution U.br.114/2014 dated 1 April 2015 the Constitutional Court of the Republic of Macedonia instigated proceedings for appraising the constitutionality of the provisions of the Law noted in item 1 of the present Decision. At the same time, the Court suspended the execution of the individual acts or actions taken on the basis of the legal provisions noted.

5. At its session the Court found that Article 104 of the Law is part of Chapter II that deals with “Cancelation of the employment contract with a notice by the employee and the employer”, subsection “termination of the employment contract due to employee’s age”.

Article 104 paragraph 1 of the Law stipulates that “The employer terminates the employee’s employment contract when the employee turns 64 years of age and 15 years of service.”

Under Article 104 paragraph 2 of the Law, which is impugned, “The employer may, with a written statement to the employer, request to have his/her employment contract extended up to 67 years of age at the most (men) and 65 years of age (women), unless otherwise defined by law.”

Paragraph 3 of the same Article in the Law stipulates that: “The employee shall submit the written statement referred to in paragraph 2 of this Article no later than 31 August of the current year to extend the employment contract under paragraph 1 of this Article, and for any further extension of the employment contract referred to in paragraph 2 of this Article the statement shall submit the statement once a year and no later than 31 August of the current year to extend the employment contract for next year.”

Under Article 104 paragraph 4 of the Law, whose part is also impugned, “The employer is obliged upon the submitted statement referred to in paragraph 2 of this Article to extend the employment contract up to 67 years of age at the most (men), that is, up to 65 years of age at the most (women).”

6. Pursuant to Article 9 of the Constitution, “Citizens of the Republic of Macedonia are equal in their freedoms and rights, regardless of sex, race, colour of skin, national and social origin, political and religious beliefs, property and social status.” “All citizens are equal before the Constitution and law” (paragraph 2).

Under Article 32 of the Constitution, “Everyone has the right to work, to free choice of employment, protection at work and material assistance during temporary unemployment” (paragraph 1). “Every job is open to all under equal conditions” (paragraph 2). “The exercise of the rights of employees and their position are regulated by law and collective agreements” (paragraph 5).

From the said constitutional provisions, among other things, it arises that everyone is entitled to work, to free choice of employment, every position is available to everyone under equal conditions, and rights of employees and their position are regulated by law and collective agreement, whereby the citizens of the Republic of Macedonia are equal regardless of, inter alia, gender, and citizens are equal before the Constitution and laws. In other words, the constitutional obligation of the legislator is in the regulation of matters relating to the exercise of the rights, obligations and responsibilities of the employee and the employer of the employment relationship, including the extension of the employment contract and therefore the continuation of employment, to place citizens in the same legal position on the stated grounds, including on grounds of sex.

In the present case, the Court held that the impugned parts of Article 104 paragraphs 2 and 4 of the Law determine that the male employee may request from the employer to have his/her employment contract extended up to 67 years of age and the female employee may seek an extension of that contract up to 65 years of age, whereby the employer is obliged to extend the employment contract up to the period requested by the male employee or female employee, without a possibility to go beyond the established legal framework.

Accordingly, such legal provisions are mandatory and impose termination of employment of the female employee under different conditions than the male employee, that is, her employment and the right to work terminates with 65 years of age, and the employment of a male employee terminates with turned 67 years of age.

Considering the above, the Court found that the contested legislative provisions are not in accordance with the established constitutional principle of equality of citizens on grounds of sex defined in Article 9 of the Constitution.

The Court considers that it is another matter the right of an insured woman to acquire old-age pension earlier than the insured man, if she herself chooses so, given that that right has justification in the principle of affirmative action, that is, the principle of positive discrimination of women. However, that right of women in the sphere of pension and disability insurance may not automatically be applied in other areas, especially if it leads to restriction of rights on the basis of sex. In the present case, the Court finds that the extension of the employment contract actually means extension of employment, that is, exercise of the right to work which is different from the exercise of the right to an old-age pension.

7. Given that it repealed the said constitutional provisions, the Court holds that the conditions, defined in Article 27 paragraph 1 of the Rules of the Court, are met to put out of effect the Resolution U.br.114/2014 dated 1 April 2015 which suspended the execution of the individual acts and actions taken on the basis of the said legal provisions. Consequently, the Court decided as in item 2 of the present Decision.

8. On the basis of what has been noted, the Court decided as in items 1 and 2 of the present Decision.

9. The Court took the present Decision with a majority vote, in the following composition: Mrs Elena Gosheva, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mr Nikola Ivanovski, Mrs Vangelina Markudova, Mr Sali Murati, Dr Gzime Starova and Mr Vladimir Stojanoski.

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