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 22 June 2011, the Constitutional Court of the Republic of Macedonia took the following
DECISION
1. Article 53 paragraph 1 line 6 of the Law on Employment and Insurance in Case of Unemployment (“Official Gazette of the Republic of Macedonia”, nos.37/1997, 25/2000, 101/2000, 50/2001, 25/2003, 37/2004, 4/2005, 50/2006, 29/2007, 102/2008, 161/2008, 50/2010 and 88/2010) IS REPEALED.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 “Magna Carta” Association from Veles, represented by Dimirat Apasiev, and the Movement for Social Justice “Lenka” from Skopje, represented by Zdravko Savevski, with its Resolution U.br.173/2010 of 2 March 2011 the Constitutional Court of the Republic of Macedonia instigated proceedings for appraising the constitutionality of Article 53 paragraph 1 line 6 of the Law noted in item 1 of the present Decision.
The proceedings were instigated since there was a reasonable question raised before the Court with regard to the accordance of the contested article with the Constitution.
4. At its session the Court found that under Article 53 paragraph 1 line 6 of the Law, an unemployed person in the sense of this Law is considered to be a person who has had his/her employment terminated not upon his/her will.
5. Under Article 8 paragraph 8 lines 1 and 11 of the Constitution, the basic freedoms and rights of the individual and citizen recognised in international law and defined by the Constitution and the respect for the generally accepted norms of international law are among the fundamental values of the constitutional order of the Republic of Macedonia.
Under 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.
Under Article 32 paragraph 1 of the Constitution, everyone has the right to work, to free choice of employment, protection at work and material assistance during temporary unemployment, and under paragraph 2 of this Article every job is open to all under equal conditions.
Under paragraph 5 of this Article in the Constitution, the exercise of the rights of employees and their positions are regulated by law and collective agreements.
From the said constitutional provisions is arises that the Constitution defined the right to work among the other basic social and economic rights, whereby the determination of the content of this right is left to be regulated by law and collective agreements.
The right to work as a basic economic and social right is manifested through the right to access to employment and exercise of this right upon employment.
Hence, the right to access to employment and insurance in case of unemployment is regulated by the Law on Employment and Insurance in Case of Unemployment, and the exercise of the rights of employees as a contractual agreement between workers and employers is regulated by the Law on Working Relations.
Under Article 1 of the Law on Employment and Insurance in Case of Unemployment, this Law regulates the issues of exchange of labour, the right and obligations of employers, unemployed persons, other persons seeking a job and the associations in connection with employment and insurance in case of unemployment, and other issues relevant for employment.
Article 1-a of the Law envisages that everyone has a right to access to employment, without any restrictions whatsoever, pursuant to the principle of equal treatment defined in the Law on Working Relations and other laws. Pursuant to the principles of equal treatment, there is a prohibition on discrimination in employment based on the marital status, family status, colour of skin, sex, language, political or another belief, activity in trade unions, national belonging, social status, disability, age, ownership, social or other status.
Pursuant to Article 6 paragraph 1 of the Law on Working Relations, the employer may not put the job seeker (employment candidate) or the worker in an unequal position owing to his/her race, colour of skin, sex, age, health condition … property status or owing to other personal circumstances.
Under Article 7 paragraph 4 line 1 of the Law, discrimination in the sense of Article 6 of this Law is prohibited also with regard to the terms for employment.
6. Taking into consideration the said constitutional provisions and the content of the contested Article 53 paragraph 1 line 6 of the Law, vis-à-vis the statements noted in the initiative, the Court found the same to be with merits, for a reason that the contested legal solution according to which only the person who has had his/her employment terminated not upon his/her will, and not the person who has had his/her employment terminated upon his/her will, has the status of an unemployed person, questions the right to work and free choice of employment defined in Article 32 of the Constitution.
The right to work and free choice of employment is operationalised in the Law on Working Relations under which the working relation is a contractual voluntary relation between the employer and the worker, in which the worker joins the organisational process of work with the employer for a salary and other incomes.
The employment contract as a two-party relation may be cancelled upon mutual agreement, according to the conditions and manner defined in the Law, cancelled by the employer under the conditions and manner envisaged in the Law, and the working relation may be cancelled by the worker again under the conditions and in a manner defined by law (Article 100). Accordingly, if the working relation may be cancelled upon mutual agreement or upon the will of the employer and in such case the worker gains the status of an unemployed person and is registered in the Employment Agency, and if the working relation is cancelled upon the worker’s will he/she cannot gain the status of an unemployed person, that is, cannot register in the Employment Agency, a question is raised as to what the aim of the legislator was in giving, on the one hand, the right to the worker to cancel the employment contract upon his/her own will, and on the other hand the exercise of this right to be an obstacle for him/her to gain the status of an unemployed person, that is, to register himself/herself in the Agency and in such case to exercise the rights in case of temporary unemployment, if he/she meets certain conditions.
Hence, given that the Employment Agency keeps records, inter alia, of employers and their needs for workers and records of unemployed persons based on their qualification, knowledge and experience, in order through mediation for employment to aid the employers in filling in the vacancies, and aid the unemployed to find a job, the Court found that both the persons who cannot offer their labour on the market owing to not being registered in the Agency and the employers who do not have an insight into, that is, are not able to know that there are persons who may be interested in finding a job, suffer consequences in a certain way from the contested provision, or more specifically the contested provision indirectly restricts the right to movement – fluctuation of the manpower, that is, restricts the manpower market.
Considering what has been noted, the Court found that the provision in Article 53 paragraph 1 line 6 of the Law is not in accordance with the provisions of the Constitution invoked by the submitters of the initiative.
7. On the basis of the aforementioned, the Court decided as in item 1 of the present Decision.
8. The Court took the present decision with a majority vote in the following composition: Mr Branko Naumoski, President of the Court, and the judges: Dr Natasha Gaber-Damjanovska, Mr Ismail Darlishta, Mr Igor Spirovski, Mrs Liljana Ingilizova-Ristova, Mrs Vera Markova, Mr Vladimir Stojanoski, and Dr Zoran Sulejmanov. (U.br.173/2010)