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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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The Committee takes note of the supplementary information, provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020), on measures undertaken to assist the economy and mitigate the social and economic consequences of the COVID-19 pandemic. The Committee notes that the Government indicates that these measures were adopted in intense dialogue with trade unions and employers’ associations and that no changes were introduced to the labour legislation. According to the Government, protection of workers and trade unions has thus remained unchanged and measures taken did not diminish the rights deriving from the Convention.

As to other pending matters, the Committee reiterates the content of its direct request adopted in 2019 and reproduced below.

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2018 referring to the application of the Convention in practice and denouncing the increase since 2017 in the number of injunctions against legal strikes. It further notes the Government’s indication that the Labour Act offers protection against the withholding of union dues and for taking part in a lawful strike (sections 183(1) and 189 and 215(2) of the Labour Act). Observing that the Government does not provide its observations regarding the allegations raised by the ITUC, the Union of Autonomous Trade Unions of Croatia (UATUC) and the Independent Trade Unions of Croatia (NHS) in 2016, the Committee reiterates its previous request. It also requests the Government to provide its observations with respect to the alleged increasing number of injunctions against legal strikes.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comments, the Committee had noted that, under section 171(1) of the Labour Act, only adult persons with legal capacity can establish workers’ or employers’ associations and requested the Government to take the necessary measures to ensure that minors could also form and join workers’ and employers’ organizations. The Committee notes the Government’s indication that no restriction impedes minors from participating in the process of forming a trade union or of joining a union. However, pursuant to section 171(1) of the Labour Act, a trade union must be established by at least ten adult persons with legal capacity and, under Croatian legislation, minors under the age of 18 have not fully acquired their legal capacity to conclude contracts, undertake legal actions or perform some other activities necessary for the normal functions of trade unions. Recalling that minors who have reached the minimum age for admission to work should be able to exercise their trade union rights, the Committee requests the Government to clarify whether, in a sector with a high prevalence of minors who are allowed to conclude labour contracts, minors could avail themselves of legal procedures to help form a union that includes fewer than the ten adults required under section 171(1) of the Labour Act.

In its previous comments, the Committee had noted that the definition of workers provided by section 4(1) of the Labour Act does not cover self-employed workers. The Committee notes the Government’s indication that, despite the lack of a universal definition of self-employed workers, the national legislation allows the right to join and form unions to the different categories of self-employed workers such as craft workers, workers who practice liberal professions and freelancers (such as journalists, artists, and athletes). The Committee notes however that the Government does not provide information on the applicable legal provisions. The Committee requests the Government to specify the legislative provisions granting the rights enshrined in the Convention to self-employed workers, such as craft workers, workers who practice liberal professions and freelancers. Furthermore, it requests the Government to specify which provisions recognize these rights to workers in the informal economy.

Right of workers and employers to establish organizations of their own choosing. In reply to the previous requests of the Committee to clarify the relationship between works councils and trade unions, the Government points out that: (i) works councils are an institutionalized form of workers’ participation in decision-making at the enterprise level on issues related to their economic and social rights and interests, while trade unions represent workers at an industry or enterprise level with an aim of improving working conditions, wages and other material rights (section 140 of the Labour Act); (ii) collective bargaining and the exercise of any form of industrial action is a prerogative of trade union organizations, notwithstanding an agreement between works council and the employer can be concluded, but it must not regulate wages, working hours and other matters regulated by collective agreement, except when parties to a collective agreement have given authorization (sections 148(4) and 160(3) of the Labour Act); (iii) the procedure for the establishment of works councils can be initiated upon the proposal of a trade union or at least 20 per cent of the workers employed, therefore only workers can decide whether they want to be represented solely by a trade union or if it is necessary to establish work councils; if no work council has been established, all the rights and obligations pertaining to works councils are exercised by one or more trade union representatives, elected by trade unions (section 153(3) and (4) of the Labour Act); and (iv) under the Act, employers have the obligation to inform, consult and ask for the consent of works councils, while works councils have the obligation to regularly inform the workers and trade unions about the work of the councils, and to receive their initiatives and proposals (sections 149, 150 and 151 of the Labour Act). Trusting that the Government will ensure that works councils will not be used to undermine trade unions and their activities, the Committee takes due note of this information.

Article 3. Right of workers’ and employer’s organizations to organize their administration. The Committee recalls that, since 1996, it has been commenting on the issue of the distribution of trade union assets and has been requesting the Government to determine the criteria for their division. It also recalls that in its previous comments, it had noted that an Agreement on the Division of Trade Union Property was concluded in 2010 and that a working group consisting of union and Government representatives was set up to create a legal framework to address the issue of trade union property. The Committee notes the Government’s indication that no further progress has been made since its last report. Recalling that the distribution of assets is a long-standing issue, the Committee firmly expects that the Government will take all the necessary measures to ensure that an agreement on the distribution of trade union assets will be reached in the near future and requests the Government to provide information on any progress achieved in this regard.

The Committee had previously invited the Government to consider simplifying the procedure of notifying changes in workers’ and employers’ organizations, as laid down in section 180 of the Labour Act. The Committee recalls that the UATUC and the NHS have pointed out 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 takes note of the Government’s indication that: (i) section 180 of the Labour Act plays an important role in gathering the most relevant information regarding workers organizations and determining their representativeness, as well as keeping a record of employers and workers organizations; and that (ii) the procedure is simple and the administrative fees of 35 Croatian Kuna (4.7 euros) cannot be regarded as an excessive burden. While taking note of these indications concerning the procedure under the Labour Act, the Committee observes that no information was provided on the obligations arising from the Ordinance on the Content and the Manner of Keeping the Register of Associations No. 32/15. The Committee requests the Government to provide its observations thereon and to review the application of the different procedures used to notify organizational changes with the social partners.

Right of workers’ organizations to organize their activities and formulate their programmes. The Committee had previously requested the Government to provide clarifications on whether workers in the State administration and public services can effectively exercise in practice their right to strike under the Labour Act. The Committee takes due note of the Government’s indication that: (i) the collective agreement for civil servants expressly provides for the right to strike in the event of a dispute concerning the conclusion, modification or renewal of a collective agreement; (ii) all public servants, with exception of those employed in the health sector, can exercise their trade union rights without any special restrictions; and (iii) as regards the health sector, section 198 of the 2018 Health Care Act prohibits strikes in emergency services and its section 199(1) provides that in healthcare activities of healthcare institutions strikes must not begin before a mediation procedure.

With regard to the application in practice of section 205(2) of the Labour Act, which provides for the right to call and undertake a strike of higher-level trade union organizations, the Committee takes due note of the Government’s indication that from 2016 to 2018, no industrial action has been carried out by a higher-level trade union organization and no industrial action has been questioned or challenged by the Government.

In its previous comments, the Committee had requested the Government to clarify whether the agreement on the maintenance of certain minimum activities during a strike or lockout under section 214(1) of the Labour Act must be established in all public and private enterprises. The Committee notes that there is no obligation to conclude an agreement on the maintenance of production activities and essential services, but that most public services, such as elementary school, have concluded that type of agreement.

As to the application of section 107 of the Labour Act, which provides for a worker’s liability to indemnify an employer for any damage at the workplace intentionally caused or due to gross negligence, the Committee recalls that it had previously requested the Government to ensure that this provision is not used in a manner to penalize the lawful exercise of the right to strike. The Committee notes that according to the Government, section 107 of the Labour Act should not be interpreted extensively, and the worker should not be held liable for participating in a lawfully organized strike. The Government adds that only courts can decide on the worker’s liability, the burden of proof falls on the employer and to be applicable, three conditions must be met, namely, the existence of damage, the work-related origin and the existence of either an intentional action (dolus) or gross negligence. The Committee takes note of the information provided and trusts that domestic courts will ensure that this provision will not be interpreted in a manner that restricts the lawful exercise of the right to strike.

Article 4. Administrative dissolution. In its previous comments, the Committee had requested the Government to provide clarification on 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. The Committee takes due note of the Government’s indication that since the dissolution is a sole instance procedure, there is no possibility of appeal, but the decision may be challenged before an administrative court within 30 days of its adoption; and that a stay of execution prevails during such appeal.

The Committee also recalls that in its previous observations it had requested the Government to repeal section 182(3) of the Labour Act, which provides that in the event of dissolution of an association its assets could not be allocated to its members. While taking note of the Government’s indication that the Ministry of Labour and Pensions System is evaluating the amendment of the above-mentioned provision to ensure its conformity with the Convention, the Committee reiterates its previous request.