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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Croatia (RATIFICATION: 1991)

Other comments on C087

Observation

Direct Request

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In its previous comments, the Committee had requested the Government to provide comments on the observations of the International Trade Union Confederation (ITUC) received on 31 August 2016, of the Union of Autonomous Trade Unions of Croatia (UATUC) and the Independent Trade Unions of Croatia (NHS) received on 31 August 2016, and of the Association of Croatian Trade Unions (MATICA) received on 14 October 2016. Observing that the Government’s comments do not address all of the concerns raised, the Committee requests the Government to provide a detailed reply with respect to the allegations of intimidation of trade union members and attempts to weaken trade unions by prohibiting trade union activities, withholding union dues and cancelling election of works councils.

The Committee takes notes of the Labour Act adopted on 18 July 2014.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that, under section 171(1) of the Labour Act, only adult persons with legal capacity can establish a trade union or an employers’ association, whereas in line with section 19, minors between 15 and 18 years of age who are not subject to compulsory full-time education may be employed. Recalling that minors who have reached the minimum legal age for admission to employment should be able to exercise their trade union rights, the Committee requests the Government to take the necessary measures to ensure that minors who can be employed under the national law can also form and join workers’ and employers’ organizations. Further observing that the definition of workers provided in section 4(1) of the Labour Act does not cover self-employed workers, the Committee requests the Government to indicate the provisions granting self-employed workers the rights enshrined in the Convention.

Right of workers and employers to establish organizations of their own choosing. The Committee notes that the Labour Act provides for the establishment of both trade unions and works councils but observes that the relationship between these entities is unclear, despite section 153 regulating this matter, as some provisions of the Labour Act appear to give priority to trade unions, while others to works councils. The Committee requests the Government to clarify the relationship between works councils and trade unions, and to take the necessary measures to ensure that works councils do not undermine the role of trade unions.

Article 3. Right of workers’ and employers’ organizations to organize their administration. The Committee recalls that, since 1996, it had been commenting on the issue of the distribution of trade union assets and had been requesting the Government to determine the criteria for their division. In its previous comments, the Committee had expressed the hope that an agreement on the distribution of trade union assets would be reached in the near future. The Committee notes the Government’s indication that the Croatian Trade Union Association (HUS), the MATICA, the NHS, the UATUC and the Croatian Association of Workers’ Trade Unions concluded the Agreement on the Division of Trade Union Property in July 2010 and are authorized to participate in the division of union property. A working group consisting of representatives of the State and the unions involved was thus set up with the aim of creating a legal framework to address the issue of trade union property. The Committee notes that according to the UATUC and the NHS, the participating confederations have not yet managed to agree with the Government on the method or the legal framework for the return of trade union property. The Committee requests the Government to provide information on the progress made in this regard.

The Committee observes that, in line with section 180 of the Labour Act, any change of name, seat, information on whether it operates in one or more counties or on the territory of the State, name of the body, authorized representatives and termination of its operations must be communicated within 30 days to the authority responsible for registration, and registered. The Committee notes that the UATUC and the NHS point to the unnecessary financial burden this can create on union activities, where any small change has to be communicated and registered, especially considering that an administrative cost applies for such changes, and that the UATUC and the NHS allege that Ordinance on the Content and the Manner of Keeping the Register of Associations No. 32/15 prescribes even broader obligations in this regard. The Committee also observes that, in line with section 230, penalties consisting of a fine of HRK5,000–20,000 (US$780–3,119) can be imposed for a violation of this provision. The Committee considers that amendments to union by-laws should be effective once approved by the competent bodies of a trade union and notified to the competent authority. In view of the concerns raised by workers’ organizations, the Committee invites the Government, in consultation with the social partners, to consider simplifying this procedure, for example by requesting a simple notification of important changes instead of their registration, so as not to unduly interfere in the lawful exercise of trade union rights.

Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comment, having noted that under section 220 of the Labour Act, strikes in the armed forces, police, public administration and public services shall be regulated by specific provisions, the Committee had requested the Government to provide information on and a copy of the specific provisions adopted in this regard. The Committee notes the Government’s indication that, in line with section 15 of the Act on Service in the Croatian Armed Forces, active military personnel do not have the right to form trade unions or to strike, whereas clerks and employees in the armed forces can form trade unions in accordance with general labour regulations, but may not organize a strike in a state of war or immediate threat to the independence, unity or existence of the State, which is directly related to preparedness measures or to the combat readiness of the armed forces or which threatens the vital functions of the armed forces. The Committee further notes the Government’s statement that, pursuant to section 40 of the Police Act, police officers have the right to form trade unions but their right to strike can be limited under section 39 in situations of war or immediate threat to the independence and unity of the State or other situations qualifying as acute national or local crisis, and that even when participating in a strike, police officers must apply their powers to protect the lives and safety of people, arrest persons caught in a criminal act or prevent the perpetration of crimes. The Committee notes that with regard to the State administration and public service, the Government indicates that no separate legislation which would limit the right to form trade unions or the right to strike, has been enacted. Taking due note of this information, the Committee requests the Government to clarify whether, in the absence of specific legislation under section 220, workers in the State administration and public service can in practice effectively exercise their right to strike under the Labour Act.

In its previous comment, the Committee had also requested the Government to provide comments on the 2015 ITUC allegations, according to which the new Labour Act does not appear to recognize the right to strike of higher-level trade union organizations. The Committee notes that, according to the Government, this allegation is incorrect, as, pursuant to section 205 of the Labour Act, the right to call and undertake a strike in the event of a dispute related to the conclusion, amendment and renewal of a collective agreement, is given to trade unions determined, under specific provisions, as representative for the purposes of collective bargaining, which have negotiated the collective agreement. In this regard, section 4(4) of the Act on Trade Unions and Employers’ Associations’ Representativeness, 2014 specifies that representative higher-level trade unions participating in tripartite bodies at the national level have the right to participate in collective bargaining covering employees who work for employers who are members of a higher-level employer organization. The Government thus affirms that since higher-level organizations can bargain collectively, they are entitled to call a strike in the event of a dispute related to the conclusion, amendment or renewal of a collective agreement which they have negotiated. The Committee also observes that, under section 168 of the Labour Act, federations and other forms of higher-level associations enjoy all the rights and freedoms granted to associations, which would also imply the right to strike. The Committee requests the Government to provide information on the application in practice of section 205(2) of the Labour Act with regard to higher-level trade unions, and to indicate, in particular, whether any industrial action has been carried out by or with the participation of higher-level organizations, and whether any such industrial actions have been questioned or challenged by the Government.

The Committee also notes that section 214(1) of the Labour Act provides that upon a proposal by the employer, the trade union and the employer shall prepare and adopt an agreement on the rules applicable to maintenance of production activities and essential activities, which must not be stopped during a strike or lockout. The Committee recalls in this regard that the maintenance of minimum negotiated services in the event of strikes should only be possible in essential services in the strict sense of the term, in services in which strikes of certain magnitude and duration could cause acute crisis threatening the normal conditions of existence of the population or in public services of fundamental importance. The Committee requests the Government to clarify whether an agreement on the maintenance of certain minimum activities during a strike or lockout under section 214 of the Labour Act must be established in all public and private enterprises and, if that is the case, to take the necessary measures to review this provision so as to ensure that minimum negotiated service is only used in the above-enumerated situations.

The Committee further notes that section 107 of the Labour Act provides for a worker’s liability to indemnify the employer, if the worker, either intentionally or due to gross negligence, causes the employer to suffer damage at the workplace or in relation to work. Observing the broad wording of section 107, the Committee recalls that in the context of industrial actions, sanctions should only be imposed on workers in case of abuses while exercising the right to strike, such as deliberate injury or damage deliberately caused to property. The Committee requests the Government to take the necessary measures to ensure that section 107 of the Labour Act is not misused to punish the lawful exercise of the right to strike.

Article 4. Administrative dissolution. The Committee notes that under section 190(2)–(3) of the Labour Act, an association must, after its highest body has convened, submit a report on the session of the highest body to the authority for registration and if this report indicates that the number of the association’s members has decreased below the minimum number specified in the Act (ten for trade unions and three for employers’ associations – section 171), the body authorized for registration shall delete the association from the register. Recalling that the dissolution of trade union organizations constitutes an extreme forms of interference by the authorities in the activities of organizations and should be accompanied by all necessary guarantees, and that this can only be ensured through a normal judicial procedure, which should also have the effect of a stay of execution, the Committee requests the Government to clarify whether a decision to delete an association from the register made by the body authorized for registration under section 190(3) of the Labour Act can be appealed to the relevant courts, and whether a stay of execution prevails during any such appeal.

The Committee further observes that under section 182(2)–(3) of the Labour Act, if an association ceases to operate, its assets will be dealt with as provided for by the articles of association but may not be allocated to its members. The Committee recalls in this regard that in the event of dissolution, the assets of a trade union should be used for the purposes for which they were acquired, distributed in accordance with its own rules, handed over to the association that succeeds it or, where there is no specific rule, the assets should be at the disposal of the workers concerned. The Committee requests the Government to take the necessary measures to repeal section 182(3) of the Labour Act.