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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Bosnia and Herzegovina (RATIFICATION: 1993)

Other comments on C098

Observation

Direct Request

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The Committee notes the 2021 amendment to the Labour Act of the Republika Srpska, 2016 (RS Labour Act) and the adoption of the Law on Representativity of Trade Unions and Employers’ Associations in the Federation of Bosnia and Herzegovina (FBiH), 2021. The Committee also notes the 2022 amendments to the Labour Act in the Institutions of Bosnia and Herzegovina, to the FBiH Labour Act and to the Labour Act of the Brčko District (BD Labour Act). The relevant amendments are addressed in the present comment.

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination in practice. In its previous comment, the Committee invited the Government to continue providing information on the effective implementation of the prohibition of anti-union discrimination in practice. The Committee notes that the Government recalls the applicable legal provisions in the various administrative entities of the country and indicates that: (i) in the Federation of Bosnia and Herzegovina, there is no information on any official complaint recorded concerning anti-union discrimination; and (ii) in the Republika Srpska, the arbitration proceeding initiated in 2020 at the Agency for Peaceful Resolution of Labour Disputes due to the cancellation of the employment contract of a union president, previously reported to the Committee, resulted in a decision of the Arbitration Commission stating that the proposal to initiate the procedure was untimely. The Committee requests the Government to continue to provide information on the effective implementation of the prohibition of anti-union discrimination in practice, including on the number of complaints filed with the relevant authorities, their follow-up and the remedies and sanctions imposed (use of reinstatement or financial compensation), as well as on the activities of the labour inspection in this regard. The Committee trusts that the Government will be able to provide detailed information in this respect from all administrative entities of the country.

Article 2. Adequate protection against acts of interference by employers’ and workers’ organizations into each other’s establishment, functioning or administration. In its previous comment, in relation to the Federation of Bosnia and Herzegovina, the Committee requested the Government to take the necessary measures to introduce adequate sanctions for breaches of section 16 of the FBiH Labour Act which prohibits acts of interference. The Committee notes that the Government simply recalls the applicable penalties for violations of sections 14 and 15 of the FBiH Labour Act, which protect the right to organize and provide for protection against anti-union discrimination but does not elaborate on any measures taken to introduce sanctions for breaches of section 16 of the FBiH Labour Act. The Committee therefore reiterates its request to the Government to take the necessary measures to introduce adequate sanctions for breaches of section 16 of the FBiH Labour Act and trusts that, in the meantime, labour inspectors will impose adequate remedy to punish any acts of interference that may occur and to prevent the repetition of such acts.

With regard to the Republika Srpska, the Committee previously welcomed the Government’s indication that, in the upcoming amendments to the RS Labour Act, penal sanctions provided in section 263 would specifically refer to allegations and breaches of section 211, which prohibits acts of interference. Noting with regret the Government’s indication that no amendments were made to the RS Labour Act relating to this matter, the Committee reiterates its request and trusts that, in line with the Government’s prior comments, any amendments made to the provisions regulating sanctions will specifically refer to acts of interference and will be sufficiently dissuasive to ensure the effective application of Article 2 of the Convention.

Concerning the Brčko District, the Committee previously requested the Government to consider revising the amount of the sanctions foreseen for violations of the prohibition of interference so that they are sufficiently dissuasive. In the absence of any updated information from the Government on this matter, the Committee reiterates its request in this regard.

Article 4. Promotion of collective bargaining. In its previous comment, the Committee requested the Government to continue providing detailed information on the number of collective agreements concluded and in force in all administrative entities of the country. The Committee notes the Government’s indication that: (i) at the level of Bosnia and Herzegovina, the procedure for initiating collective bargaining between the employer and representative trade unions is ongoing; (ii) in the Federation of Bosnia and Herzegovina, some collective agreements ceased to be valid, other agreements were concluded or extended; (iii) in the Republika Srpska, collective agreements were concluded in the field of education and culture, higher education, public health institutions, social protection, interior and judicial institutions, and work is ongoing to sign collective agreements in the real sector of the economy; and (iv) there is no data in the Republika Srpska on the number of individual collective agreements concluded with the employer. Taking due note ofthe above information, the Committee requests the Government to provide detailed information on the number of collective agreements concluded and in force in all administrative entities and to disaggregate, where possible, according to the levels at which they are concluded (enterprise, branch and national levels), the sectors concerned and the number of workers covered. The Committee also requests the Government to inform of any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention in all administrative entities of the country.

Bipartite negotiations. In its previous comment, the Committee observed that the applicable legislation in the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District allows for tripartite bargaining, with the participation of the Government, cantonal or municipal entities, in several instances of collective bargaining at the sectoral and national levels. The Committee recalled that the Convention is applicable to all branches of economic activity, including public enterprises and public servants not engaged in the administration of the State, that collective bargaining should essentially be bipartite and that the participation of public authorities should be limited to issues which are broad in scope, such as the formulation of legislation and economic or social policy or the fixing of the minimum wage rate. In light of the above, the Committee requested the Government once again to take the necessary measures to ensure that, as a general rule, negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect and that the content of the agreements is not dependent on the policy choices of successive governments. Noting the absence of any updated information on this matter, the Committee reiterates its previous request.

Procedure to determine the representativity of trade unions and employers’ associations. Federation of Bosnia and Herzegovina and the Republika Srpska. In its previous comment, having noted that the Ministry of Labour (both in the Federation of Bosnia and Herzegovina and in the Republika Srpska) and the employers (in the Federation of Bosnia and Herzegovina) played an important role in determining the representativity of trade unions and employers’ associations, the Committee invited the Government to establish a mechanism to determine the representativity of the most representative workers’ and employers’ organizations, which enjoys the confidence of all social partners. The Committee notes that the Government does not provide any updated information in this regard for the Republika Srpska or the Federation of Bosnia and Herzegovina. The Committee observes, however, that, in the Federation of Bosnia and Herzegovina, the Act on Representativity of Trade Unions and Employers’ Associations, previously referred to by the Government in its draft version, was adopted in 2021 and retains the involvement of the employer or the cantonal and federal Ministry of Labour in the determination and review of representativity of trade unions or employers’ organizations (sections 20–21 and 23–25). Therefore, recalling that the determination of representativity should be carried out in accordance with a procedure that offers every guarantee of impartiality, enjoys the confidence of the parties and without political interference, the Committee requests the Government to review the applicable legislation in the Federation of Bosnia and Herzegovina and in the Republika Srpska with a view to establishing, in consultation with the social partners, a mechanism to determine the representativity of the most representative workers’ and employers’ organizations, in line with the above criteria, and to provide information on any developments in this regard.

Representativity threshold for workers’ and employers’ organizations. Institutions of Bosnia and Herzegovina, Federation of Bosnia and Herzegovina and Republika Srpska. Regarding the Institutions of Bosnia and Herzegovina, the Committee notes that the Labour Act in the Institutions of Bosnia and Herzegovina, 2004 (as amended up to 2022) stipulates that a representative union is a trade union registered at the level of Bosnia and Herzegovina, or two or more trade unions acting jointly, whose membership consists of the majority of employees of one employer at the employer’s headquarters. Observing that the Act does not seem to indicate whether only representative unions can engage in collective bargaining, the Committee requests the Government to indicate whether collective bargaining is the exclusive right of representative unions of the public institutions of Bosnia and Herzegovina or whether any trade union can engage in collective bargaining on behalf of its own members.

In its previous comment, in relation to the Republika Srpska, the Committee noted the high dual requirement for employers’ organizations to be able to bargain collectively (at least 10 per cent of the total number of employers in the domain, area or branch at the level of the Republic and employment of not fewer than 10 per cent of the total number of employees in the domain, area or branch – section 221 of the RS Labour Act) and requested the Government to take the necessary measures, in consultation with the social partners, to amend the relevant legislation. Observing that the Government does not provide any information in this respect, the Committee reiterates its previous request.

With regard to the Federation of Bosnia and Herzegovina, the Committee notes that the newly adopted Act on Representativity of Trade Unions and Employers’ Associations provides different thresholds of representativity for employers’ organizations: (i) for representativity in an area of activity at the cantonal level, employers have to employ at least 15 per cent of the total number of workers at that level (section 14(2)); (ii) for an area of activity at the Federal level, they must employ at least 15 per cent of the total number of workers from at least five cantons (section 14(1)); (iii) to obtain representativity at the cantonal level, they must employ at least 15 per cent of all workers in at least three areas of activity (section 15(1)); and (iv) to obtain representativity for the territory of the Federation, employment of at least 20 per cent of the workers in the economy in the territory of the Federation is required in at least five areas of activity and membership should include employers from at least three cantons (section 16). If no organization meets these requirements, the employers’ organization whose members employ the largest number of workers in the specific unit is considered as representative (section 18).

The Act on Representativity of Trade Unions and Employers’ Associations also provides for thresholds of representativity of trade unions at the enterprise level (20 per cent membership out of the total number of workers at the employer – section 6), in an area or field of activity (15 per cent membership out of the total number of workers in the area or field of activity – section 7), at the cantonal level (15 per cent membership – section 8) and at the level of the territory of the Federation (20 per cent membership in at least five areas or areas of activity – section 9). If no union satisfies the requirements of representativity, then the union with the largest number of members out of the total number of workers is considered as representative (section 10) and if there are more unions with the representative status, all enjoy the privileges of representative unions under the Act (section 12). The Committee requests the Government to provide information on the practical application of the above provisions.

Finally, the Committee observes that despite submitting regular reports, the Government failed to provide updated information on a number of the Committee’s recommendations, leading the Committee to repeat its previous requests. The Committee therefore considers that the Government may wish to benefit from the technical assistance of the Office in this regard.