Positive action (Article 5 Directive 2000/43, Article 7 Directive 2000/78)

AuthorKostic-Mandic, Maja
Pages63-66
63
5 POSITIVE ACTION (Article 5 Directive 2000/43, Article 7 Directive
2000/78)
a) Scope for positive action measures
In Montenegro, positive action in respect of racial or ethnic origin, religion or belief,
disability, age or sexual orientation is permitted in national law.
The Constitution of M ontenegro provides that regul ations and the introduction of speci al
measures aimed at creating conditions for the realisation of ethnic, gender and overall
equality and protection of people who are in an unequal position on any grounds is not
considered discrimination, provided that the special measures last only until the
achievement of the aims for which they were undertaken (Article 8). The Constitution
also pr ovides for special minority rights, which include the right to authentic
representation of national and ethnic minorities in the Parliament of Montenegro and in
the local government assemblies, in which they represent a significant share of the
population, according to the principle of affirmative action, as well as the right to
proportional representation in public services, state authorities and local government
bodies (Article 79).
Article 79, parag raph 10, of t he Constitution establi shes the right for ethnic minoriti es to
proportional representation in public services, state authorities and local self-government
bodies. Article 25 of the Law on Minority Rights an d Freedoms (which deal s with the
rights of ethni c minorities) states that members of minorities have th e ri ght to
proportional representation in public services, state b odies and local government.
Competent bodies in charge of human resources, in cooperation wi th councils for
minorities, must ensure the representation of members of minorities. However , in
practice, these provi sions are not implemented, especially for Roma, in relation to whom
ethnic distance is greater in comparison with other ethnic minorities.
The Law on the Prohibition of Discrimination, Article 5, parag raph 2, provides that:
‘Regulations and special measures aimed at creati ng conditions for the realisation of
national, gender and overall equality and protection of persons in an unequal
position on any ground may be adopted by authorised state and local authorities,
authorities of the state administration, public enterprises and other legal persons
performing public powers, as well as other legal and natural persons.’
The mea sures referred to in Article 5 must be applied in proportion to what i s required
and possible and should last until the goals establi shed by those m easures are achieved.
The first p aragraph, in fact, provi des an exception for genuine and determining
occupational requirements, while the wording of the second paragraph suggests the
intention to cover both the concept of reasonable accommodation and that of positive
action.
Article 9 paragraph 2 of the Labour Law referred to as positive discrimination prescribes
that provisions of laws, collective agreements or contracts of employment will not be
considered as discrimination where they relate to special protection and assistance for
specific categories of employees, and i n particul ar where th ey govern the protection of
people with disabilities, women during pregnancy and maternity leave and leave from
work for the purp ose of childcare, i.e. special childcare, as well as provisions relating to
special rights for parents, adoptive parents, guardians or foster parents .
On the other hand, the Law on the Prohibition Discrimination of Persons wi th Disabilities
prescribes the obligation for state bodies, government bodies, local self-government
bodies, public enterprises and othe r legal persons v ested with public powers, as well as
other legal and natural persons wi thin their competencies and powers, to del iver,

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