Law on Ombudsperson, Law on Gender Equality and Law on Protection against Discrimination, which have entered into force in July 2015, constitute the legal package of human rights and freedoms. These laws have added new legal powers and responsibilities to the Ombudsperson, with main emphasis on the Law on Protection from Discrimination, which entrusts to the Ombudsperson also the responsibility for handling of cases dealing with discrimination.
Implementation of the Law on Labor and in general matters relating to labor relations remain complex and include more than just the right to work. In the absence of a unique legal base, which would adjust functioning of inspectorates in general, including central and local level, supervision of this issue remains disconnected in legal and administrative aspect as well, and therefore leaves scattered and without necessary institutional attention, violations made on matters which are directly or indirectly related to employment, especially in the private sector.
Based on the cases filed with the Ombudsperson, as well as in public records, whether in media or institutions, the number of problems related to the employment relationship is big, especially in private sector.
Significant number of workers in private sector has no labor contracts, which represents legal violation and continual uncertainty at work, increase of workers’ restlessness to be expelled from work, without any procedure or possibility for appeal. It is considered one of the main reasons why workers in the private sector never made denunciation or indicate openly violations endured by their employers.
Lack of labor contracts represents violation of the Law on Labor no. 03 / L-212, which adjusts the issue of the employment contract. Article 10, paragraph 1 of this law clearly stipulates that: "An employment contract shall be concluded in written form and signed by the employer and employee. [...] ".
Lack of contracts, consequently violates also Article 7, paragraph 4, of the Law on Labor, which reads:“For the due payment of contributions and other legal duties, the employer is obliged to report the employee to the Tax Administration of Kosova and other institutions which manage and administer the obligatory pension schemes and other obligatory shemes”.
The Ombudsperson considers that this right is violated to the workers in private sector, because most of them are not registered at the Tax Administration or Pension Trust and therefore tax fees and pension contribution are not been paid.
To a large extent employers in the private sector do not respect the Labor Law even when it comes to working hours. In the private sector, employees are forced to work as long as the employer considers that the requirements set by him/her are met, without respecting working hours or extended working hours (overtime) limits and without any compensation for that overtime work, despite the fact that Law on Labor, in Article 20, paragraph 2, specifies:” Full time working hours shall be forty (40) hours per week, unless it is defined otherwise by this Law
While Article 23, paragraph 1, of the same Law, clarifies the additional work time limits, in case of increase of the volume of works: “In extraordinary cases, with the increase of volume of works and other necessary cases, on request of the employer, an employee shall work extended working hours (overtime) for a maximum of eight (8) hours per week”.
While paragraph 2 of the same Law, reads: “Extended working hours, in compliance with paragraph 1 of this Article, may only last as long as it is necessary.”
Furthermore, the Law on Labor also adjusts the issue of holidays, which are scarcely respected in private sector. There are employers who force the workers to work during the entire week, including weekends. The issue of the weekly rest is regulated also by article 31, paragraph 1 of the Law on Labor, which stipulates: “An employee is entitled to a weekly rest for at least twenty- four (24) continuous hours.”
On the other hand, the right to annual leave is determined with Article 32, paragraph 1 of the Law on Labor: “An employee is entitled to a paid annual leave for at least four (4) weeks during a calendar year, despite if he/she works a full-time or part-time job”and paragraph 2. “The extension of annual leave shall be defined on the basis of work experience, whereby one day shall be added for every five (5) years of service.”
In many cases in the private sector, workers are allowed to use annual leave only when they are substituted by their colleagues; otherwise they are deprived from personal planning of using their annual leave. There are also many workers to whom employers prevent to use their annual leaves or sick leave. There are many cases when in severe health condition, workers must work, or otherwise will be discharge from the work without any justification.
Particularly sensitive and with preconditions of obvious violation is the issue of maternity leave. Article 49 of the Law on Labor regulates the issue of maternity leave: ”An employed woman is entitled to tweleve (12) months of maternity leave ", to further precise that for First six (6) months of maternity leave, the payment shall be done by the employer with the compensation of seventy percent (70%) of basic salary, while the following three (3) months, the maternity leave shall be paid by the Government of Kosovo with the compensation of fifty percent (50%) of average salary in Kosovo leaving the opportunity to employed woman to extend her maternity leave also for other three (3) months without payment.
In majority of cases in private sector Annual Leaves on the Day of Official Holidays is not respected, which based on Article 24 of the Law on Labor, reads: 1. “Official holidays that coincide in working days shall not be counted as annual leave days according to the Law on Official Holidays in Republic of Kosovo”. 2. “If an employee during the use of annual leave gets sick, the sick leave shall not be counted in the annual leave”.
Problems arising from employment relationship, such as: lack of labor contracts, disrespect of the right to daily, weekly and annual leave, as well as maternity leave, safety at work, discrimination in terms of salary etc., commonly are due to the vast fiscal evasion (informal economy, tax evasion), for the benefit of employers.
Measures undertaken by the competent state institutions, initially by Labor Inspectorate, regarding prevention of violations are insufficient and in many cases their decisions are not respected by the public and private sector. This action deteriorates functioning of the rule of law state in protection of human rights in the field of employment.
This situation is exacerbated by the difficulties that the employees have as per rights protection which derive from employment relationship due to inefficiency of the judiciary, where delays regarding the cases continue for several years until they get final decisions
More ever, it is very important that private sector recognizes itself as important stakeholders as per respect of human rights even though this sector has neglect workers' rights, health and safety at work. The private sector should create opportunities to address employees’ complaints within private businesses.
On the other hand, even though the state holds no responsible for violations committed by private businesses, it rests with state’s jurisdiction to undertake measures for prevention, punishment and restoration of infringed rights and violations for which it is, or becomes aware. In particular, the state should ensure access to judicial mechanisms, as well as to non-judicial mechanisms for an effective resolution of cases filed.
Considering what has been stated above and on the basis of the roundtable discussions organized by the Ombudsperson Institution, supported by the Council of Europe, on 20 April, 2016, with the theme "Discrimination at work and related to work", the following is recommended:
Tel: + 381 (0) 28 530 138, Address:
Street " Afrim Zhitia" n/n (Kosovo Pension Administration Building), Floor 3, offices No. 11 and 12. Working hours: 08:00 - 16:00
Mitrovica Sub-Office Tel: + 377 (0)45 455 319
+ 381 (0)63 817 44 79 Address:
Str. "Sami Frashëri", nn.
AOK building in the North of Mitrovica
+381 (0)39 432 931 Address:
Str. “Queen Teuta” no.59
Municipal Building, 3rd Floor, No.3 Working hours: 08:00 - 16:00
Free calls for applicants:
+381 (0) 38 223 782; +381 (0) 38 223 783 +381 (0) 38 223 784; +381 (0) 38 223 789
Fax: +381 (0) 38 223 790
Main Office Address: Ombudsperson Institution Str. “MIGJENI”, no. 21 10000 Pristina, KOSOVO
Regional Office, Gjakova
+381 (0)390 327 698 Address:
Str. “Ismail Qemaili"
(former Cadastre Building) Working hours:
08:00 - 16:00
+381 (0)280 320 843 Address:
"Adem Jashari" St Municipal Building II Working hours: 08:00 - 16:00
+381 (0) 38 65 118
+377 (0) 44 367 719
+381 (0) 64 37 11 137
str."Car Lazar" n.n.
Working hours: 08:00 - 16:00
+381 (0)290 326 032 Address:
Municipal Building (Basement) Working hours: 08:00 - 16:00
+381 (0)29 222 138 Adresa:
Str. “Remzi Ademi”, nn Working hours: 08:00 - 16:00