CMNT_TITLE

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 takes note of the Government’s reply to the 2016 observations of the International Trade Union Confederation (ITUC), which referred to large-scale anti-union discrimination practices and employer interference in trade union activities. The Committee notes the Government’s reply that these allegations are untrue and that, according to the reports of the Labour Inspectorate, only a limited number of irregularities were found and these have already been addressed.

The Committee notes the 2018 amendments to the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and the Labour Act of the Republika Srpska, 2016 (RS Labour Act). Observing that a new labour law is in the process of being adopted in the Brčko District, the Committee requests the Government to provide a copy of this legislation once adopted.

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination in practice. In its previous comment, having taken due note of the detailed information provided, the Committee requested 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, as well as on the activities of the labour inspection in this regard. The Committee notes the Government’s indication that: (i) between 2016 and 2018, inspection of working conditions of trade unions and workers’ councils in Republika Srpska did not detect any irregularities; (ii) no arbitration proceedings have been brought to the Agency for Amicable Settlement of Labour Disputes on the issue of termination of employment of workers’ representatives (under section 191 of the RS Labour Act, a workers’ representative may be dismissed during her/his office or six months after only with the approval of the trade union or workers’ council and, if such approval is not given, the employer may request arbitration); and (iii) no reports of violations of protection against anti-union discrimination were recorded by the Administration for Inspections in the Federation of Bosnia and Herzegovina, but the Ministry of Labour and Social Policy received 17 requests to give consent for the dismissal of trade union representatives, of which eight were granted and three referred to dismissal with an offer to modify the worker’s employment contract. Taking due note of the information provided, the Committee invites the Government to continue providing 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, as well as on the activities of the labour inspection in this regard. The Committee requests the Government to provide, in particular, information on the use of reinstatement as the primary remedy for anti-union dismissals, as well as on the type and amount of financial compensation granted where reinstatement is not ordered.

Article 2. Protection against acts of interference by employers’ and workers’ organizations into each other’s establishment, functioning or administration. In its previous comment, the Committee requested the Government to take the necessary measures to ensure that the national legislation establishes sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations. The Committee notes the Government’s indication concerning the Federation of Bosnia and Herzegovina that: section 171(1)(1)–(2) of the FBiH Labour Act provides for fines against the employer (legal person) for preventing the organization of a trade union, putting a worker in an unfavourable position by reason of trade union membership or non-membership, preventing trade union representatives from approaching the employer or failing to provide the conditions for trade union activity (sections 14(1) and 15(2) of the FBiH Labour Act). The fines foreseen for a legal person vary from Bosnia and Herzegovina Convertible Mark (KM) 1,000 to 3,000 (US$564–1,692) and in the event of recurring infringements from KM5,000 to 10,000 (US$2,820-5,640), and for a natural person from KM2,000 to 5,000 (US$1,128–2,820). While taking due note of this information, the Committee observes that most of the prohibited actions constitute a breach of the right to organize or anti-union discrimination under sections 14 and 15 of the FBiH Labour Act and not acts of interference in trade union affaires, which are comprehensively prohibited by section 16 of the FBiH Act. The Committee therefore requests the Government to indicate the sanctions foreseen for breaches of section 16 of the FBiH which prohibits acts of interference.

With regard to the Republika Srpska, the Committee notes that the Government reiterates that section 264(1)(2) of the RS Labour Act provides for penalties for employers who prevent or disrupt the organization of trade unions and adds that section 163 of the Criminal Code of the Republika Srpska provides for a fine or imprisonment for a term not exceeding one year for any person who denies or prevents political, trade union or any other form of citizens’ organization, or who prevents the activity of their political, trade union or other organizations or citizens’ associations in breach of the law or in any other unlawful manner. The Committee welcomes the Government’s indication that, even though it considers the prescribed sanctions for any attempt of interference by the employer in the activity of a trade union and vice versa to be adequate, the penal provisions referred to in section 263 will, in the forthcoming amendments to the RS Labour Act, specifically refer to allegations and breaches of section 211, which prohibits acts of interference.

With reference to the Brčko District, the Committee welcomes the Government’s indication that the lack of penalties for acts of interference will be corrected in the new Labour Act of the Brčko District of Bosnia and Herzegovina (BD Labour Act), which was adopted at the first reading in March 2019 and is currently undergoing expert public hearing.

Taking due note of the above information, the Committee requests the Government to indicate the sanctions foreseen for acts of anti-union interference (breach of section 211 of the RS Labour Act and section 7 of the BD Labour Act) once the necessary amendments have been made and it trusts that, in line with its comments, these sanctions will be sufficiently dissuasive to ensure the practical application of Article 2 of the Convention.

Article 4. Promotion of collective bargaining at the level of the Republic as a whole. In its previous comment, the Committee requested the Government to continue providing information on the concrete measures taken or contemplated, including at the level of the Republic as a whole, in order to encourage and promote collective bargaining, as well as on the previously announced legislative action in this regard in the Brčko District. The Committee also requested the Government to continue providing detailed information on the number of collective agreements concluded in the Federation of Bosnia and Herzegovina, in the Republika Srpska and in the Brčko District at all levels (enterprise, branch and national levels), the sectors to which they apply and the number of workers covered. The Committee welcomes the detailed statistics provided by the Government on the number of sectoral collective agreements concluded since 2016 and the sectors to which they apply in the Federation of Bosnia and Herzegovina (wood and paper industry, officers in the administrative and judicial authorities, electric power industry, trade, postal traffic, rail workers, metal production and processing, telecommunications and the textile, leather, rubber and footwear industries), as well as in the Republika Srpska (employees in the administrative authorities, internal affairs, public services, education and culture, health care, local self-government, judicial institutions, the utilities and service sector and in the field of social protection). The Committee notes the Government’s indication that, following the adoption of the new BD Labour Act, activities will be undertaken to adopt collective agreements. The Committee requests the Government to continue providing detailed information on the number of collective agreements concluded in the Federation of Bosnia and Herzegovina, in the Republika Srpska and in the Brčko District at all levels (enterprise, branch and national levels), the sectors to which they apply and the number of workers covered.

Bipartite negotiations. Federation of Bosnia and Herzegovina. In its previous comment, the Committee noted the detailed allegations of State intervention in collective bargaining presented by the Association of Employers of the Federation of Bosnia and Herzegovina (AEFBiH) and requested the Government to take the necessary measures to ensure that all members of the AEFBiH could freely participate in collective bargaining and that negotiations of collective bargaining agreements were conducted in a bipartite context, including at the national and sectoral levels. The Committee notes the Government’s indication that, following the 2018 amendment to the FBiH Labour Act, sections 138 and 138a regulate the parties involved in collective bargaining: (i) the general collective agreement shall be entered into by the FBiH Government, the representative association of employers and the representative trade union; (ii) an individual collective agreement shall be entered into by the representative trade union with the employer and, if the owner is the Federation, canton, city or municipality, it is necessary to obtain their prior consent; (iii) a branch collective agreement for the fields of activity financed from the budget or extra-budgetary funds shall be entered into by the Government or the relevant cantonal ministries or governments and the representative trade unions; (iv) branch collective agreements for public enterprises and public institutions founded by the Federation, canton, city or municipality shall be entered into by the founders and the representative trade unions; (v) branch collective agreements for companies in which the Federation, canton, city or municipality participates with more than 50 per cent of the total capital, shall be entered into by representatives of the state capital holder with the participation of the representative association of employers and the representative trade union, unless regulated otherwise by an agreement between the public entity and the representative association of employers; and (vi) the representative trade union is required to cooperate with other smaller trade unions to express the interests of the employees they represent. The Committee observes from the information provided that the applicable legislation regulates in detail the parties to collective bargaining at the different levels and allows for tripartite bargaining, with the participation of the FBiH Government, cantonal or municipal entities, in several instances of collective bargaining at the sectoral and national levels. The Committee recalls in this regard that the Convention is applicable to all branches of economic activity, including public enterprises, 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 requests 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. The Committee requests the Government to report any progress in this regard.

Bipartite negotiations. Republika Srpska and the Brčko District. For a number of years, the Committee requested the Government to ensure that the Government of the Republika Srpska was not a party to collective agreements concluded between the trade union and the employers’ association at the level of the Republika Srpska. In its last comment, the Committee once again requested the Government to take the necessary measures to ensure that 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. The Committee notes that the Government reiterates that, apart from the representative organizations of workers and employers, the RS Labour Act also provides for the possibility for the Government to enter into the General Collective Agreement due to specificities of the economy, in which privatization and transition have not yet been completed, and as the Government still has majority ownership or co-ownership in around one third of enterprises. It further clarifies that the Government only participates in collective bargaining as a direct or indirect employer. The Committee also observes that, under section 96 of the BD Labour Act, the Government of the Brčko District may also be a party to collective agreements concluded at the level of the Brčko District. While taking due note of the above explanation, the Committee recalls that the Convention tends essentially to promote bipartite negotiation and to limit the participation of public authorities 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. The Committee therefore requests the Government to take the necessary measures to progressively 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.

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, at the level of the Federation or canton (Federation of Bosnia and Herzegovina) or at the branch and national levels (Republika Srpska), representativity of trade unions and employers’ organizations, as well as its review, were determined by the Ministry, the Committee invited the Government, in consultation with the social partners, to consider establishing an independent and impartial mechanism to determine the representativity of trade unions and employers’ associations. The Committee notes the Government’s indication, with regard to the Republika Srpska, that the Minister determines representativity at the industry and national levels on the proposal submitted by an independent tripartite committee. Pursuant to section 231(1) of the RS Labour Act, the Minister can ask the committee to further review the proposal if not all facts important for determining representativity have been established and is then obliged to act upon the proposal. Trade unions can also address the independent tripartite committee as the second-instance entity which will examine the request and propose an appropriate decision. While no appeal may be filed against the final decision of the Minister, an administrative dispute may be initiated before the competent courts within 30 days. While taking due note of the above information and observing that no information was provided with respect to the Federation of Bosnia and Herzegovina, the Committee understands that the Ministry plays a major role in determining the representativity of trade unions at the branch and national levels in the Republika Srpska and recalls in this regard that determination of representativity should be carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties, and without political interference. The Committee invites the Government, in consultation with the social partners, to consider establishing an independent and impartial mechanism to determine the representativity of trade unions and employers’ associations in the Federation of Bosnia and Herzegovina and the Republika Srpska and to provide information on any developments in this regard.

Representativity threshold for workers’ and employers’ organizations. Republika Srpska. In its previous comment, the Committee noted the required threshold of representativity: (i) 20 per cent at the level of the enterprise (section 218 of the RS Labour Act); (ii) 10 per cent at the level of the branch; (iii) 5 per cent at the level of the State (section 219 of the RS Labour Act); and (iv) for employers’ organizations, a dual requirement of 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). The Committee observed that, when no trade union or employers’ association met the required threshold, workers’ and employers’ organizations could conclude a written agreement for the purpose of meeting jointly the stipulated threshold (section 241 of the RS Labour Act). The Committee requested the Government to indicate whether the 20 per cent threshold imposed at the level of the enterprise did not, in practice, hinder collective bargaining in certain enterprises. Observing the high requirement of 10 per cent for employers’ organizations to be able to negotiate and the restrictions on collective bargaining as a result of the dual requirement, it requested the Government to take the necessary measures, in consultation with the social partners, to amend the legislation in this regard. Regretting the lack of any information in this regard, the Committee reiterates its previous request on this point.

Compulsory arbitration. Federation of Bosnia and Herzegovina. Republika Srpska. In its previous comment, the Committee requested the Government to clarify the nature of the arbitration referred to in sections 139 and 154 of the FBiH Labour Act, indicating whether arbitration could be requested by one party to a labour dispute, and to provide information on its application in practice. Observing that no information has been provided in this regard, the Committee requests the Government once again to clarify the nature of the arbitration referred to in sections 139 and 154 of the FBiH Labour Act, indicating whether arbitration can be requested by one party to a labour dispute, and to provide information on the application of these provisions in practice.

Republika Srpska. In its previous comment, the Committee requested the Government to clarify whether the arbitration procedure provided for in the Act on Peaceful Settlement of Labour Disputes of the Republika Srpska, 2016, is voluntary, based on the agreement of both parties, or whether it could be imposed by the authorities, or at the request of one of the parties. The Committee notes the Government’s general clarification, provided under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that arbitration is voluntary. However, the Committee observes that it appears from sections 10(2) and 27–31 of the Act that individual and collective labour disputes (including disputes with the purpose of the conclusion, amendment and addition or cancelation of the collective agreement, realization of trade union rights, strike and other collective rights) may be referred to the Agency for Amicable Settlement of Labour Disputes established under the Act by either of the parties and can in some instances lead to compulsory decisions. The Committee requests the Government to clarify whether the arbitration procedure provided for in the Act on Peaceful Settlement of Labour Disputes of the Republika Srpska is truly voluntary, based on the agreement of both parties, or whether a binding decision can be imposed at the request of the authorities or one of the parties.