U.no.200/2008

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 13 May 2009, the Constitutional Court of the Republic of Macedonia took the following

1. The heading before Article145 and Article 145 paragraphs 1 and 2 in the part “or from the compensation for the annual leave in the cases of paragraph 1 of this Article” of the Law on Working Relations (“Official Gazette of the Republic of Macedonia”, nos.62/2005, 106/2008 and 161/2008) IS REPEALED.

2. This decision shall generate legal effects from the date of its publication in the “Official Gazette of the Republic of Macedonia”.

3. Upon the initiative submitted by the Association of Trade Unions of Macedonia, the Constitutional Court of the Republic of Macedonia with its Resolution U.no.200/2008 of 4 March 2009 instigated proceedings for appraising the constitutionality of the provisions in the Law noted in item 1 of the present Decision, as there was a well-founded question raised regarding their agreement with the Constitution.

4. At its session the Court found that the heading before Article 145 of the Law on Working Relations reads as follows: “Payment for the unused part of the annual leave”.

The Court also established that under Article 145 paragraph 1 of this Law, if the employer fails to enable the worker to use his annual leave the worker has the right to compensation for the unused days of the annual leave, in the amount of the worker’s average salary for those days. Under paragraph 2 of the same article, any agreements with which the worker would waive his right to an annual leave or the compensation for the annual leave in the cases of paragraph 1 of this article are null and void.

5. Under Article 8 paragraph 1, lines 3 and 8 of the Constitution, the rule of law and humanism, social justice and solidarity are the fundamental values of the constitutional order of the Republic of Macedonia.

Pursuant to Article 9 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. All citizens are equal before the Constitution and laws.

Pursuant to Article 32 paragraph 4 of the Constitution, every employee has the right to a paid daily, weekly and annual leave. Employees cannot waive these rights. Under paragraph 5 of the same article, the exercise of the rights of employees and their position are regulated by law and collective agreements.

The Law on Working Relations regulates the working relations between workers and employers that are established with the conclusion of an employment contract (Article 1 paragraph 1).

The contested Article 145 paragraph 1 of this Law establishes the ground and the amount for payment of the unused part of the annual leave. Thus, it is defined that if the employer has not enabled to the worker to use the annual leave, the worker has the right to compensation for the unused days of annual leave, in the amount of an average salary of the workers for those days. Paragraph 2 of this article stipulates that any agreement with which the worker would waive his right to annual leave or compensation for annual leave in the cases of paragraph 1 of this article is null and void.

According to the Court, the legal solution of paragraph 1 in Article 145 of the Law, in contradiction with the constitutional guarantee of Article 32 paragraph 4 of the Constitution, which means an obligation for the employer to create conditions for the worker to use annual leave and to pay for that leave, the legislator prescribes a possibility for the employer to pay compensation to the worker for the unused days of annual leave, instead of enabling him to use paid annual leave, that is to replace the use of annual leave with pecuniary compensation. Such provision leaves room for interpretation in the sense that if the employer finds it more profitable he may replace the worker’s annual leave with payment of pecuniary compensation without any sanctions whatsoever.

As the said legal provision means deprivation of the constitutionally prescribed right of workers to use paid annual leave, which they may not waive, the Court found that Article 145 paragraph 1 of the Law is not in agreement with Article 32 paragraph 4 of the Constitution.

Given that Article 145 paragraph 2 of the Law in the part “or from compensation for the annual leave in the case of paragraph 1 of this article” follows the legal destiny of paragraph 1 of this article, the Court assessed that any further existence of this part of the provision would mean violation of the principle of the rule of law, defined in Article 8 paragraph 1 line 3 of the Constitution. For the same reasons, the Court judged that any further existence of the heading before the contested Article 145, which reads: “Payment of the unused part of annual leave” would also mean violation of the principle of the rule of law. Accordingly, the Court found the further existence of these provisions in the legal order to be unconstitutional.

6. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.

7. The Court took the present decision in the following composition: Dr Trendafil Ivanovski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Branko Naumoski, Mr Igor Spirovski, Dr Gzime Starova, and Dr Zoran Sulejmanov.