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(JPMNT) Journal of Process Management – New Technologies, International Vol. 5, No 3, 2017.

REGULATION OF A RIGHT TO A IN THE INTERNATIONAL LEGAL INSTRUMENTS OF ILO AND UN AND THEIR IMPLEMENTATION IN THE INTERNATIONAL LABOUR IN THE REPUBLIC OF MACEDONIA

Darko Majhošev, 1 Ivana Risteska 2 1University "Goce Delchev", Faculty of and Logistics, Štip, Macedonia 2University "Goce Delchev", Faculty of , Štip, Macedonia [email protected] , [email protected]

Professional Paper doi:10.5937/jouproman5-14616

Abstract: This paper deals with the salary Labour relations are social-legal as the most important legal institute, element and relations, based on various factors of the principle of the labour relations. Before we approach social labour that aim at functioning of that the analysis of the legal regime of the salary, we will define the term labour relations. This paper puts labour. Its social content and its forms special emphasis on the terminology of the notion depend on specific social realtions. In a salary, as well as the legal nature of the legal regime situation of a capitalistic system as a form of the salary. of government, the labour relations Additionally, in this paper the most are typical where the employee sells his important international legal instruments of ILO, UN labour as goods to the employer, hereupon and The European Council are analyzed for salary making profit. Thereto, the term- labour and ban on compensation . In this context, the most important legal acts in the relations, is always conditioned on the socio Republic of Macedonia are analyzed which regulate economic conditions and the legal the legal institute salary, i.e. the determination of a specific society. (The , , and Law on Considering this fact the term - labour Minimum Wage). relations is not always the same. Besides, Key words : labour relations, the questions that relate to the content of the agreement, salary, conventions, law labour relations and very often have а 1. Work payment decisive role in determination of the term – 1.1. The notion of labour relations labour relations, refer to the level of the and work payment technical technological progress, working conditions, cooperation and the conflicts Before we approach the more between people in the process of the work, detailed analysis of the subject of this part the customs, the tradition, the cultural and ‘work payment’, it is necessary to explain the national differences, the collective and the term’ labour relations’. the individual motivations at work, the Defining of the term-labor relations economic interests, the social needs, then, is a very difficult task and it is the influence of the external i.e. the simultaneously a big challenge for the international factors expressed through the labour – legal theory and for the labour international politics and the economic legislation. situation.

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Starting with the complexity of the voluntariness; personal relationship; terminological determination of the labour professionalism; salary and other relations, the need for one unique and compensations; (onerousness); durability; precise definition of the term labour subordination and continuity- ceaseless relations is becoming more obvious that work performing. 1 will refer to all socio- economic and All the above-mentioned elements political establishments, i.e. formations. of the labour relations have very important The Labour Law of 2005, determines the significance to determine it as a notion, labour relations as follows: labour therefore in the legal theory they are relations are contractual relations defined as general elements of the labour between the employee and the employer relations. They are general, because they and with it, the employee voluntarily are present at all labour relations, but they involves in the organized process of work are important because if any one of them with the employer, in order to receive do not exist, it makes it impossible to salary and other compensations, personally 2 determine the notion labour relations. and continually to perform his work in accordance with the directions and supervised by the employer (article 5 paragraph 1 subparagraph 1 from the Labour Law). The Labour Law shall lay down the 1 contractual principle of the labour Salary and other compensations (onerousness). The employee establishes labour relations for relations; hence it shall define the performing certain work and with it he is entitled to employment as a separate contract earnings, i.e. a salary and other of labour right. As before, the employment (compensations, allowance). The employee is entitled to a salary that belongs to him for the agreement remains the basis of invested labour and the evident results from the establishing the labour relations, because labour, i.e. accomplished work, in accordance with with the employment agreement, labour the spent at work and the achieved results during the work (efficiency). In that sense, the relations are concluded, and that will be a employee cannot fully take the whole risk in any subject in another paper. sense. Employees for the invested, i.e. for The elements of the labour the performed work (salary and other relations are categories – elements that compensations), is one of the basic principles, not provide the most precise determination of only of the labour relations but also of the total economic and social life in every society-country. the notion labour relations, and of its The proper earnings, is also a constitutional conceptual setup. Those are legal category, because pursuant to the Constitution assumptions where the existence or (article 2 paragraph 3)’ every employee shall have the right to proper earnings’ Labour Law, nonexistence of the labour relation collective agreements, and employment agreement depends on their fulfillment or non- regulate that the employee has the right to earnings fulfillment. In the legal definition in article – salary as a compensation for the performed work proportionally to the performed work, i.e. to the 5 paragraph 1 subparagraph 1 and in the requirements of the position. legal theory, as important elements of the 2 Belichanec, T., Starova G., (1996), Labor Law, labour relations are mentioned the Faculty of Law, Univerisuty Iustinianus Primus following: ; contractual relations; Skopje, 112-116.

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1.2. The notion of salary employer and the employee. 3 There are a few elements that can be found in the In everyday life different terms for definition. First, the salary is an equivalent salary are used. The most common terms of the invested work; second, the salary is that have general meaning are used in expressed in money as a legal means of labour law and they are: income of the payment, which means that there is a ban employees (English Remuneration, on , coupons and such like; third it Compensation, French La remuneration, has a legal dimension because it derives German Arbeitsengelt), earning or salary( from a mutual agreement between the English Wage/salary, French Le salaire), employee and the employer with a earning compensation (English Indemnity, specifically defined rights and obligations French Indemnite, German Der Erwerb, of the subjects of the contract and so on. der Verdienst), and such like. The terms earnings (English wage) or 2. Legal nature of the salary salary (English salary) are terms which, as The salary is one of the elements of a rule, are used as synonyms that express the labour relations. It implies that the two forms of direct of the employed person (employee) receives employees that have the same legal nature. suitable money compensation in The term earnings (wage) in the accordance with the law, the collective is used when it is about agreement and the employment agreement, the employees that are employed in the for the invested work and performing the industry, (blue collars) that, as a rule, are work obligations at his job. The earnings paid by the and the professional i.e. the salary is not an abstract category, , whereas the term salary (salary) is but a right that derives from legal relations used for the employees (white collars) that of the labour relations. By its very nature are monthly or annually paid and refer to the salary/earnings is a right for the the of the managers, state and employee and an obligation for the public officials, the elected and appointed employer. If the employer does not pay the officials. In the Republic of Macedonia in salary in the accordance with the legal the time of a contract economy (socialism) and the , for the terms salary the term personal in this case the employee is entitled to income was used. The term salary replaced legal protection. the term personal income in the LL of 1993. The legal nature of the earnings also derives from other aspects such as: a) The definition of salary is provided for the salary a certain amount of social in the Convention no. 25 of ILO. payments (PDI, health , According to the definition, the term employment etc) is paid; b) in a case of salary is determined ‘as a compensation of insolvency of the employer () the earnings regardless the way how it is the employee is entitled to a settlement earned or calculated, that can be expressed demand on the basis of salary from the in terms of money and can be stipulated bankruptcy up to a certain amount; with mutual agreement, between the

3 Art. 1 from the Convention no.95 for the protections of salaries

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c) legal suspending of payment in family. The legal regime of the minimum the case of legally binding guaranteed wage is based on law (or (e.g. child alimony or compensation for provision), but lately its confirmation has damage to the employer done by the been a result of the principle of tripartism, employee; d) legal regulation of the i.e. tripartite social dialog between social minimum (guaranteed) wage; e) ban on partners. discrimination etc. In the comparative law, there are 3. Legal regime of the payment more ways – mechanisms that regulate the In the modern legal practice, the institute minimum wage. They are: legal regime of the system of payments is tripartite deal, governmental provision, regulated in three ways as follows: by tripartite body (economic-social council), heteronomous (law), autonomous consulting of the social partners, law etc. (collective negotiations) and international The general law regime is valid for sources of labour law (Conventions of ILO the employees in the private sector, and it no.95, 100 and 131). There are three legal is applied to a great portion of the regimes in the system of salaries: legal employees in the public sector (public regime of minimum /guaranteed wage, service, public enterprise). The general general legal regime (private sector) and regime is based on free negotiations for the special legal regime that refers to the salaries- sovereignty of the social salaries of the state officials. The principle, partners. the salaries to be determined by the Special legal regime of the salaries principle of social dialog, i.e. the principle is applied to the employees in the state of tariff sovereignty of the social partners, organs (public officials). The basic in the case of the minimum , taking characteristic of this regime is that the into consideration the principle of state is the one that determines the salary tripartism, regarding the payment through so called salary bands determined distribution to the public officials by by law (less frequent by a provision). taking into consideration the consulting of the union of the public officials or Within the three systems of salaries collective negotiation. there are different variants that, foremost, depend on the model of payment of the The salary, i.e. the minimum wage employees. 4 is one of the most important international standards of the labour stipulated with the acts of ILO, in particular with the Convention no.131 for minimum wage. The legal regime of the guaranteed- minimum wage is an expression of the 4 Today in the world generally there are two state interventionism in the system of models of payment of the employees. The first one payments, in order to provide the principle I rigid and the second one is flexible. The flexible system of payment is typical ror the non-liberal of social through the legal economies, where payments are mostly regulated in determination of the lowest/minimum a decentralizing manner i.e.in a negotiating way. The rigid way of regulation means that the freedom /wage that will provide basic income to the of negotiation of payments is limited with the institute minimum wage- earnings.

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4. International instruments for will be complemented with other means of determination of salaries social protection. 5 UN as a universal and planetary The first international instrument organization, and in that context also ILO that regulates the matter of salary is The as its specialized organization, have Convention no.96 of ILO for protection of adopted several internationally legal wages. Besides this, with this Convention instruments that determine the matter of the term salary is defined, this convention salary whose value must secure dignified is important because with it, the rest of the income to every employee and his family. matters relating to the salary are regulated, Besides UN, other regional organizations for instance: the time of payment, the such as EU, the European Council etc. place of payment, the ways of payment, have actively involved in determination of the forms of payment etc. this matter. The Convention no.131 of ILO for The most important internationally- regulation of minimum wage obliges the legal and regional instruments that state members of IOL that ratified it, to determine the matter of the salary are: the establish a system of minimum wages,….. Universal Declaration of that will have legal force and will not be (1948) , International Covenant on able to decrease and make under Economic, Social and Cultural Rights payment, because otherwise, certain penal (1966), Protection of Wages Convention and other measures will be applied to the 6 no.95 of ILO, Minimum Wage Fixing responsible person. Convention no.131 of ILO, Minimum Additionally, in the Convention, Wage Fixing Recommendation of ILO the elements are determined that need to no.136, European Social etc. In all be taken into consideration for indicated instruments, it is unequivocally determination of the lowest wage(the regulated that national states that have needs of the employees and their families, ratified them, are obliged to establish a the level of salaries in the country, life system of minimum wage in their own expenses, the demand from the economic legal system. growth, the level of productivity, the need The Universal Declaration of of achieving and maintaining high rate of 7 Human Rights does not explicitly say employment). about the lowest (minimum) wage, The Minimum Wage Fixing nevertheless, this act has a huge moral and Recommendation no.136 of 1970 the political significance for the determination fixation of minimum wages - salaries must of the matter on the lowest wage that be one of the elements of the policy whose provides dignity of the human income. target is a battle against poverty and Namely, the Declaration in a unequivocal meeting the basic needs of all employees way, points out that ‘everyone who works and their families, i.e. to provide the has the right to a fair and satisfying employees the necessary protection compensation(salary) that to him and his regarding minimum allowed level of family provides income that matches wages- salaries. human dignity and which, if necessary, 5 art. 23 paragraph 3 from the United Nations Universal declaration of the human rights of 10.12.1948 6 For more in art.1 and 2 from the Convention no.131 of ILO 7 See art.3

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In the European Social Convention The Equal Remuneration of the European Council of 1961 in article Convention, No . 100 (1951) pays a 4 it is determined that the contracting separate attention to the problem of parties are obliged to acknowledge the different system of payment of the employees’ right to an earning that is employees of male and female gender. sufficient to provide them and their Women were paid less for a long time families a decent life standard and that the compared to their male colleagues. The application of these rights must be secured ILO Convention no. 100 offers a way of whether by free concluded collective dealing this issue and it is complemented agreements or by lawful methods for with the Recommendation no. 90. fixation of the wages, or other way that is The goals of this Convention in accordance with the domestic no.100 are: application of the rule ‘equal conditions. payment system for equal work’, 5. Ban on discrimination abolishing the compensation differences according to international documents that are received by male and female and acts of ILO employees. Basic principle of ILO is the The means of accomplishing this premise: definite and sustainable can convention are: collective agreements at be accomplished if it is based on the national level, at whole industry level, at principles of equality, nondiscrimination, employer level; state and regulative and reducing poverty. (e.g. fixation of the lowest wage); This ban is determined in many mechanisms of determination of salaries, international documents. 8 e.g. table of determination of public sector salaries and combination of all the above- mentioned means.

8 Although the Convention no.100 The European Convention for human rights adopted within the European Council that is does not exclusively refer to racial and ratified by Republic of Macedonia, then, ethnic discrimination, it is important European social convention adopted within European Council, The Conventions of the because the minority and the indigenous for basic social rights of the peoples are very often discriminated at workers; the Directives of the European Council their work place, because of the for equal pay of men and women; the Directives of the European Councils for accomplishing the differences in gender, ethnicity, which principle of equal treatment of men and women affects the way they are paid. 9 regarding the employment opportunities, professional adjustment and improving working conditions; to the Conventions of ILO, whereupon special emphasis should be put on 9 The Convention of ILO no.100 for equal the Convention no.100 for equal employment rewarding of male and female labour force for for men and women for equal work, 1951 and equal work of 1951, obliges country-members Convention no.111 for employment and on a way that is adjusted to the effective discrimination,1958. methods of determining the amount of With the of Amsterdam, taking measures remuneration and to encourage them and if it is against sex discrimination is in the authority of in accordance with the indicated methods to setting law regulations of the Union, as well as guarantee the principles of equal remuneration durability of the policies of equal pay, of male and female work force for equal work opportunities and treatment between men and for all workers. women.

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The Convention of Abolishing Labour Law (official gazette of employment Discrimination no.111 of RM 62/05) dedicated a whole chapter on 1958 is the main instrument of ILO that is work payment (Chapter VIII) that consists used for dealing the minority and the of eleven articles (105-115). indigenous people discrimination at their According to LL, the employee has work place. This convention promotes a the right to earnings – salary, in policy of equal opportunities for everyone. accordance with law, collective agreement, The principle of equal salary for and the payment may always be in cash. man and women is present in many acts of At payment, the employer may respect the the European Community, now European lowest amount regulated with the Union, starting with the agreement for EC collective agreement, in accordance with (article 141), Directive for equal salary for the law, that directly obliges the men and women, Resolution of employer. 12 elimination of all kind of discrimination, The salary is paid for periods that direct or indirect, regarding salary of 1961, may not be longer than one month, thus i.e. 1975, Directive of Shifting Burden of the salary is paid 15 days after the of 1980. The directive of equal pay payment period at the latest. If the is revoked in 2009 and replaced with the payment day is free- non-working day, the Directive of implementation of the payment is paid the next working day at principle of equal opportunities and equal the latest. The employer is obliged to treatment for men and women when it notify the employees in writing, of the comes to employment and occupation. payment day and of every change of the 6. The salary in the Macedonian payment day. legislation The salary is comprised of basic The Constitution of RM, as the salary, part of the salary is for work highest legal act in the state, in article 8 performance and wage supplement. paragraph 7, as one of the fundamental The employer can pay a 13 th salary values in the constitutional regime of RM to the employee, if the employer is able to is humanism, and solidarity. pay. 13 In part II where the fundamental freedoms and rights of the man citizen are regulated 6.1. Basic salary i.e. in the section 2 where economic, social and cultural rights are regulated, the right ‘The basic salary is defined on the to a appropriate earnings is regulated 10 base of the job requirements (profession, i.e.fulfillment of the rights of the gained skills, complexity, job employees and their position is regulated responsibility), and it is determined in a by law and collective agreement. 11 This way that the job complexity coefficient of states that the right to salary is a the working position of the employee, in constitutional category, and the principle accordance with the employment of remuneration is a constitutional agreement, is multiplied by the unit value principle. of the coefficient( last lowest salary). 10 art.32 paragraph 3 of the Constitution of RM of 1991 12 art.105 paragraph 2 of LLR 11 See art.32 paragraph 4 13 See art.105 of the LLR

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The basic salary cannot be lower working in noisy environment, in shaft than the minimum wage regulated by mining, in water, dust, in the presence of law. 14 chemicals etc is taken into account. The lowest salary, because of With the General collective certain extent of complexity of and agreement in the private sector, nine job assignments, is basic salary. coefficient groups are determined and they With the collective agreement at increase the lowest salary in a proportion branch/work level the lowest salary for the of 1:3, starting with complexity coefficient appropriate branch, i.e. work is 1 for simple, repeatable and various jobs, determined. and ending with complexity coefficient 3 for the most complex, specialized, creative 6.2. Work performance and independent jobs. The work performance of the ‘With the collective agreement at a employee is measured, i.e. it is estimated level of branch/department i.e. at the level according to predetermined criteria and of an employer, other groups of measures that the employee meets before complexity degrees can be determined starting to work. within the previous article as well as The criteria and the measurements higher degrees of complexity for typical that determine the work performance are: job positions’. economical approach, the quality and the With the collective agreement or scope of the work performed (creativity with an act of the employer, there is a job and inventiveness, accomplished distribution into separate degrees of productivity, thriftiness, savings in the complexity. process of work) for which the employee The criteria and the measurements that has concluded the . 15 determine the work performance are: 6.3. Supplements economical approach, the quality and the scope of the work performed, quality, The supplements are determined creativity and inventiveness, accomplished for the special working conditions that productivity, thriftiness, savings in the process derive from: the of the working of work, efficiency, and using the means of – , part-time work, night work, the working hours and others work, work on duty, work on a day of determined with the collective agreement at weekly rest, work on holiday determined the level of branch i.e. department, i.e. at the by law and supplement of working level of an employer. experience. Depending on the working 7. Difference between the lowest conditions where the employee works, he and the minimum (guaranteed) wage receives a suitable supplement – compensation on that basis. For harder In the public, the terms- the lowest work conditions, usually a job with: and minimum /guaranteed wage is mostly equated, although there is a crucial difference between these two terms. What 14 See art.16 of the OKSPS 15 See art.21 of the General collective agreement in is the difference? the private sector in the area of economy ‘Part of the salary for work performance’.

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The lowest wage is economic and 8. Equal payment for men and planned category which is one of the women elements for defining the basic salary in The equal payment for men and accordance with the complexity women is a matter that is related to the coefficients of the job positions non-discrimination right on the base of determined by the collective agreement. gender. The principal of equal payment for Compared to the lowest wage, the men and women for equal labour or work minimum wage is a social category and a with equal value is proclaimed in the basic instrument for solving, i.e. reducing Convention of ILO no. 100 of 1951 that poverty. It should provide to the employee refers to equal payment for men and a suitable social and material security and women for work of equal value. The same a life standard based on his work. It is principle is found in the article confirmed on the basis on more criteria, as 141(previously article 119) from the ‘the employees’ needs and their families Agreement for EU. taking into consideration the general level Republic of Macedonia has of the salaries in the state 16 and so on’. harmonized its nation legislative regarding Hence, the minimum wage is a social this matter. Thus, in the article 108 category that provides minimum paragraph 1 of LLR the matter of equal subsistence of the employee and its payment for men and women is regulated, amount must be obligatory for all and in paragraph 2 of the same article it is employers in the state. The Minimum regulated that the provisions of the wage basically is always higher than the employment agreement, the collective lowest salary. agreement, i.e. the General act of the employer, must not be contrary to the 7.1. Decreasing of the lowest paragraph 1 and if they are contrary to this salary paragraph they are void and null. The employer that has dealt with From the very foundation of ILO, certain difficulties in his work, on the basis two goals have been set in the area of of a setup program that provides women’s labour: they are seen in the overcoming of the occurred problems on Constitution of the Organization. The need the basis of a consent by the union, a of equality in remuneration of the female deviation from the lowest salary could be and male work force, for work with the determined, and the decreasing of the same value is emphasized. Suppressing lowest wage cannot be more than 20% and discrimination regarding payment of the cannot last more than 6 months. The male and female work force is a long employer is obliged to pay the difference lasting process: the problem has been for certain levels of complexity and the stated for a very long time but it is concerning that it is present even today. less paid wage, within 6 months after the Recently, as possible causes of overcoming of the difficulties. discrimination are the job positions that hire mostly women that are not valued and paid and the authorized on the work , must have the opportunities to 16 See article 3, paragraph 1, paragraph a and b of the convention no.131 of ILO for regulating of check the differences in the wages of men minimum wage of 1970. and women.

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For example, we should indicate Nations, especially ILO, the European the work of the house keepers, lifting and Council and the European community). 19 caring load when looking after old and The term same work with the same disabled people and such like. 17 requirements, is a job with the same The convention no.100 for equal expertise, complexity and responsibility. remuneration of 1951 is considered to be And regarding the term work with the one of the basic instruments of ILO and is same values, it means that same results at one of the most accepted conventions that the job positions are accomplished. has been ratified by 161 countries. We On the other hand, with the should remind that the ratified conventions provisions of the same article appropriate are part of the internal legal regime of the sanction of civil-legal nature is allocated. Republic of Macedonia and therefore The provisions of the employment knowing their content is of great agreement, the collective agreement or the importance. 18 The discrimination general act of the employer that will not be regarding salary is a form of in accordance with the provision of the discrimination on the bases of gender in legislator, that equal payment for men and the sphere of labour relations. It exists women is guaranteed, those provisions are when women and men are hired at the void and null. The matter of void and null same employer or at connected employers as illegal consequence is always valued and they do not receive equal payment for according to the general rules of the equal work or work with equal values or law, i.e. the provisions of the Law when they do not have equal approach to on obligations for null legal matters. In the elements of the system of remuneration this comment it is emphasized that the the labour. The legislator emphasizes the contractual relation between the employer principle of equal payment, i.e. for equal and employee is based on the employment work with equal demands of the job agreement. The employment agreement is position, to pay equal salary to the a legal matter. 20 employees, regardless the gender, thus, to monitor the numerous initiatives of the 9. Other legal solutions regarding international organizations (United work payment 9.1. Payment day According to article 109 of the LL, titled as “The day of payment”: The salary 17 Within the EU the application of the principle of equal payment is guaranteed by: articles 141 of the is paid for the periods that may not be agreement for European community Directive for longer than a month. It is paid 15 days equal payment of 1975 and Directive of equal after the passing of the payment period at treatment of 1976 and other Directives. 18 According to article 1 ‘In this Convention: a) the latest. term “remuneration” comprises usual, basic or minimum earnings or wage, and any supplementary 19 EC had an important part in that sphere, firstly incomes that are paid to the employee directly or because it adopted the article 119 in the Agreement indirectly, in cash or in kind by the employer, as a for EC, where there is an equal payment for equal result of the employee’s employment; b) The term work, and later, with the adopting different ‘equal remuneration for men and women directions. employees for equal qualification work’ refers to 20 For the void and null agreements more details in amounts of payment confirmed without the provisions of the articles 95-102 of the Law on discrimination regarding gender. Obligation.

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If the day of the payment is a free other ways of retaining the payment, are day, the salary is paid the next first null and void. working day at the latest. The employer is (2) The employer may not settle obliged previously in writing to notify the his claims with the employee (without employers on the day of payment and on his written consent) with his obligation every change of the day of payment. to pay the salary. If the employer does not pay the (3) The employee may not give salary for a longer period, and this happens a consent referred to in paragraph (2) of in practice, the employee is entitled to this Article before the claim of the notify the employer in writing on the employer arises. fulfillment of this obligation. Additionally, The Decisions referred to in the employee is entitled after the written article 111 of the Labour Law, are warning, to cancel the employment decisions that consist other advanced agreement to the employer. Here, we have labour - law . These decisions the case of cancelling because of reasons are also supported in the theory of labour that exist with the employer. We must put law. Our legislator is agreeable on emphasis that in this case the employee decisions as follows: first, the employer always has the right on a lawsuit before may retain payment on a certain the authorized court for accomplishing employee only in legally determined monetary claim. cases. Outside legally determined cases, 9.2. Place and manners of salary these provisions of the employment payment contract that determine other ways of According to article 110 of the LL, payment retention are null and void. the employer is obliged to pay the salary to When it comes to legally determined the employee in a way confirmed by law. cases, there is a difference that appears in Additionally, at every payment of salary as practice very often. Retention of payment well as, to the 31 st January of the new may be demands of the employer on the calendar year, the employer is obliged to basis of effective court decision as well issue a receipt, contributions on salary and as demands of third persons from the compensation on salary for the payment employer, but also on the basis of period, i.e. for the previous year, and these effective court decision. In these cases, show the receipt and the payment of the the employer has a legal right to retain tax and the contributions. The expenses the payment of the salary, but up to a relating the payment of salary are covered certain amount. Labour Law with this by the employer. legal decisions referred to in this article111, does not say the exact amount 9.3. Retention and Settlement of of the employee’s payment retention. Salary Payment The law theory and the secondary According to article 111 of the LL: legislation indicates the conclusion that this amount may not be higher than a (1)The employer may retain the third of the employee’s salary, and salary payment only in legally certain amount for payment of certain determined cases. All provisions of the demands may be retained from that employment agreement, which specify salary.

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9.4. Payment of the trainee that the trainee is completely equal in terms of salary, fees and salary

supplements as well as the other According to article 114 of the LL’ employees, with a certain percentage of The employee- trainee has a right to a reduction. 21 salary determined by law and the collective agreement, but not less than 10. Legal regime of minimum 40% of the basic salary of the job position wage in the Republic of Macedonia for which he is trained’. After years of debate and social According to the Labour Law of dialogue between the social partners in the 2005, the trainee was guaranteed a salary RM, the Parliament of RM adopted the no less than 50% of the lowest wage of the Law on Minimum Wage in RM in 2012 job position for which he is trained. With (Official Gazette of the Republic of law amendments, the guaranteed salary is Macedonia No. 11/12 of 24.01.2012) This decreased up to 40% (See article 114 of is a consolidated law, which contains only LL). 12 articles. This law determines the amount of the minimum wage, as well as The Labour Law on labour other issues related to the minimum regulates a salary for a trainee not less than wage. 22 Article 2 of the Law defines the 40% of the base of the job position for minimum wage according to which it is which he is trained. But with the collective the lowest monthly amount of the basic agreement more than 40% of the base of salary that the employer is obliged to pay the job position may be determined. Thus, to the employee for full-time work and has according to the General collective fulfilled normalized performance. 23 agreement in the private sector in the field According to the provisions of this law, all of economy (GCAPS) ‘during the training employees in the amount of 39.6% of the period, the employee belongs at least 70 average gross salary in RM for the per cent of the lowest salary, for a certain previous year, have the right to a minimum degree of complexity, envisaged for the wage, according to the data published by workplace that is being the State Statistical . 24 trained.(article30).That is because in accordance with Article 12, paragraph 3 of the Labour Law, an employment agreement, or a collective agreement, the 21 According to the collective agreement for the rights can be determined which are more industry of the Republic of Macedonia, favorable for the workers than they are during the , the employee is entitled to an allowance in the amount of 70% of the basic salary determined by this law. Or according to determined for the workplace for which he is the general collective agreement for the trained. The separate collective agreements at the public sector, during the internship, the branch level and the individual at the level of the employer belongs to that branch, minor rights employee is entitled to 80% of the basic cannot be prescribed. salary for the post for which he is trained 22 Article 1 of the Law on Minimum Wage (article 25 paragraph 2). (Official Gazette of the Republic of Macedonia No. 11/12) 23 There is not a provision of See Article 2 24 See Article 4 of the Law on Minimum Wage in paragraph 2 in the GCAPS .This means the Republic of Macedonia

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Two basic criteria for determining irregularity, which shall indicate the the amount of the minimum guaranteed removal of the established irregularities salary are taken into account: the needs of within eight days and simultaneously he the employees and family members and shall give him an invitation to the possibility of paying the employer the employer for the determined (national economy).Therefore, irregularity (Article 6 paragraph 1). The consideration is also taken of other Law provides a possibility in the additional criteria: the achieved standard departments of (textile, leather and of pay in other Economic branches, as well construction) which have problems and as the need for economic development, difficulties in their operations and securing (especially in the developing countries). the salaries of the employees in the next For 2012 the amount of the minimum three years to make alignment with the wage was determined at the level of 8050 amount of the minimum wage multiplied MKD in the net amount, and with the by the amount of 15600 denars with the amendments to the Law on the lowest following coefficients: wage, the amount of the minimum wage in -0.778 for 2012 2016 was determined in the amount of 10048 denars. The new government of the -0.852 for 2013 Republic of Macedonia proposed the -0.926 for 2014 minimum wage to increase to 12,000 How the law on minimum wage denars which has been paid since October works in practice? The labour inspection 2017. in the period of 2012-2016 conducted The part-time employee has the several controls from which irregularities right to a proportion of the minimum wage were detected in the implementation of the for the time spent at work (Article 3 legal regulations. The inspectors paragraph 2). This right does not apply to concluded that employers in two labor- self-employed persons. The minimum intensive branches in three regions in the wage is published by the Ministry of Labor country, did not respect the law on and Social Policy in the official Gazette of minimum wage , paying the employees for the Republic of Macedonia, upon a a part-time job, even though they worked previous opinion of the Economic and full-time, forcing them to withdraw their Social Council. With the labor inspectors salary and then pay them lower than the the state labor inspectorate conducts legally stipulated. 25 supervision on the application of the Conclusion provisions of this Law regarding the calculation and payment of the minimum The international legal instruments wage. adopted by the UN, the ILO and the European Council pay great attention to If the labor inspector during the the organization of the institute salary and inspection established that the employer minimum wages. has incorrectly applied the law on the amount of the minimum wage for the first 25 time, he is obliged to compile a record in http//www.mtsp.gov.mk/?ItemID=A238508B6BD9 which he shall determine the committed 384FA760823CF76BD142 (open 13.01.2013)

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They have adopted numerous [4] European Social Charter of the European declarations of Conventions and Council (1961); Recommendations regulating the issue of [5] Law on Labor Relations (Official Gazette salary: Convention no.95, Convention No. of the Republic of Macedonia No. 62/05); 100, Convention No. 111, Convention No. [6] Law on Minimum Wage (Official Gazette 131, Recommendation 136, the Universal of the Republic of Macedonia No. 11/12); Declaration of Human Rights, the [7] Collective agreement for employees in the European Convention on Human Rights, textile industry in the Republic of Macedonia; the European Social Charter and others. [8] ILO Convention No.95 on Wage Protection (1949); The Republic of Macedonia in its national labor legislation has implemented [9] ILO Convention on Equal Paying System No. 100 (1951); all the legal instruments of the UN, ILO, European Council and EU regarding [10] Convention No. 111 on the salary. However, the only problem is their Abolition of Employment Discrimination (1958); implementation in practice, especially in the private sector, (textile, leather, shoe [11] ILO Convention No. 131 for the determination of the lowest wage (1970); industry and construction). In practice, there is an abuse of the category minimum [12] Lubarda B, (2004) European Law of the Right, CID, Podgorica; wage in certain low accumulation industries, (textile, leather, and shoe [13] Majhoshev, A, (2013), the role of the social partners in the industry). in the Republic of Macedonia in the period In the past period, the Labor 1990-2012, NUUB Kliment Ohridski, Skopje; Inspection in the Republic of Macedonia [14] General Collective Agreement in has undertaken a number of activities for the private sector in the field of economy in protection of the right to salary and the Republic of Macedonia; minimum wages that have been fruitful, [15] General collective agreement for but some irresponsible employers have the public sector of the Republic of abused this very important right. Macedonia; [16] ILO Recommendation No. 136 Bibliography for Minimum Wage (1949); [1] Belovski V, and Majhoshev A, (2017), [17] UN Universal Declaration of Labor Law Textbook, University Goce Delcev Human Rights (1948); Stip; [18] Constitution of the Republic of [2] Belichanec, T., Starova G., (1996), Labor Macedonia (1991); Law, Faculty of Law, University Iustinianus Primus Skopje. [19] http://www.mtsp.gov.mk/?itemI [3] European Convention on Human Rights, D+A238508B6BD9384FA760823CF76BD14 Council of Europe (1950); 2 (open 13.01.2017)

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