Decision U.no.73/2004

U.no.73/2004

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 18 May 2005, the Constitutional Court of the Republic of Macedonia made the following

DECISION

1. Article 9 in the part “ensuring on the part of the employer himself without announcing by concluding and certifying a job contract” from the Labour Law (“Official Gazette of the Republic of Macedonia nos. 80/1993, 14/1995, 53/1997, 21/1998, 25/2000, 3/2001, 50/2001, 25/2003 and 40/2003) IS REPEALED.

2. This Decision generates legal effect 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.73/2004 of 9 March 2005, upon the initiative of Stamen Filipov from Skopje, instigated a procedure for the appraisal of the constitutionality of the legal provision noted in item 1 of this Decision, since there was a founded question as to its conformity with the Constitution.

4. At its session, the Court established that under Article 9 of the Labour Law, the employer may engage workers by means of posting a public announcement in the daily press at the expense of the employer; announcement in the service competent to mediate in the employment without compensation; with the mediation of the service for mediation for employment by means of sending people to be employed based on the records of unemployed people; engagement on the part of the employer himself without posting an announcement by concluding and certifying a job contract, and through an agency for employment mediation for a compensation from an employer, in accordance with this and other law.

5. Pursuant to Article 8 paragraph 1 subparagraphs 1 and 3 of the Constitution, fundamental values of the constitutional order of the Republic of Macedonia are the basic freedoms and rights of the individual and citizen, recognised in international law and set down in the Constitution, as well as the rule of law.

Pursuant to Article 9 paragraph 2 of the Constitution, all citizens are equal before the Constitution and laws.

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

Under Article 51 of the Constitution, in the Republic of Macedonia laws shall be in accordance with the Constitution, and all other regulations in accordance with the Constitution and law. Everyone is obliged to respect the Constitution and the laws.

Article 9 of the Labour Law defines the manners in which the employer may engage employees. Among other manners, this Article of the Law allows for engagement of employees on the part of the employer himself without announcement by concluding and certifying a job contract.

The constitutional guarantee for the availability of the jobs to everyone under the same conditions is one of the fundamental rights of the citizen which at the same time is a guarantee for his/her economic and social safety and expresses the determination for each individual capable of working to exercise that right under certain conditions and objective possibilities and for any type of job.

In the opinion of the Court, the definition contained in Article 9 of the Labour Law for the engagement of employees on the part of the employer himself without announcement, brings citizens in an unequal position regarding job availability. Namely, the filling in of a job vacancy without announcement means that some citizens are privileged and is easier for them to become employed without having transparency and mutual competition.

The employment, that is, filling in a vacant job without announcement by concluding and certifying a job contract means inequality of citizens and limitation of the right to availability to every job for those citizens who are not familiar at all that there are vacant jobs, as a result of which there are founded grounds for the Court to judge that Article 9 in the part contested is not in conformity with Articles 9 and 32 of the Constitution.

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 Vera Markova, Mr Branko Naumoski, Dr Bajram Polozani, Mr Igor Spirovski, and Dr Zoran Sulejmanov.

U.no.73/2004
18 May 2005
S k o p j e

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

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