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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 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). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

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 to the Labour Act of the Republika Srpska, 2016 (RS Labour Act), as well as the adoption of the Labour Act of the Brčko District, 2019 (BD Labour Act) and the Act on Inspections of the Republika Srpska, 2020.

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) one arbitration proceeding has been brought to the Agency for Amicable Settlement of Labour Disputes in the Republika Srpska in 2020 concerning the issue of termination of employment of a trade union president but the procedure has not yet been completed (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 16 requests to give consent for the dismissal of trade union representatives, of which 12 were granted but 11 of these referred to dismissal with an offer to modify the worker’s employment contract, resulting in practice in an amendment of the labour contract with more favourable conditions for the worker. 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 noted the detailed information provided by the Government concerning sanctions against acts of interference by employers against workers and workers’ organizations in the Federation of Bosnia and Herzegovina. The Government indicated 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$602–1,807) and in the event of recurring infringements from KM5,000 to 10,000 (US$3,012–6,024), and for a natural person from KM2,000 to 5,000 (US$1,204–3,012). While having taken due note of this information, the Committee observed that most of the prohibited actions constituted 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. In this regard, the Committee notes the Government’s supplementary indication that the penal provisions of the FBiH Labour Act do not prescribe a fine for the breach of section 16 but that inspection authorities may impose certain administrative measures on the perpetrators. The Government also informs that it will consider introducing appropriate monetary sanctions to address this issue during the next amendments to the FBiH Labour Act. The Committee therefore requests 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 and trusts that, in the meantime, labour inspectors will impose adequate remedy to punish any violations that may occur and prevent the repetition of such acts.

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. The Committee requests the Government to provide information on any amendments made to the provisions regulating the sanctions for acts of anti-union interference (breach of section 211 of the RS Labour Act) and trusts that, in line with its comments, these sanctions will be sufficiently dissuasive to ensure the effective application of Article 2 of the Convention.

With reference to the Brčko District, the Committee welcomed the Government’s indication that the lack of penalties for acts of interference would be revised 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 was undergoing expert public hearing. In its supplementary report, the Government indicates that the BD Labour Act was adopted and that section 15 prohibits employers and employers’ association to interfere in the establishment, activities and management of trade unions, as well as advocacy or providing help to trade unions with the goal to manage them. The Committee also observes that pursuant to section 173 of the BD Labour Act, a fine of KM1,000 to 3,000 (US$602–1,807) can be imposed on an employer, legal person, for violation of section 15, and in the event of recurring infringements a fine from KM5,000 to 10,000 (US$3,012–6,024); whereas the responsible natural person can be fined from KM500 to 1,000 (US$301–602) and in case of recurring infringements from KM1,500 to 3,000 (US$903–1,807). While taking due note of the above, the Committee considers that the sanctions foreseen for violations of the prohibition of interference may not be adequate to deter and prevent the repetition of such acts, in particular in large enterprises. It therefore requests the Government to consider revising the amount of the sanctions so that they are 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 and presently valid, and the sectors to which they apply in the Federation of Bosnia and Herzegovina (officers in the administrative and judicial authorities, electric power industry and postal traffic and the mining sector), 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, welfare institutions, the utilities and service sector and in the State-owned forest enterprise “Šume Republike Srpske”). It notes the Government’s supplementary indication that due to the current situation relating to the COVID-19 crisis and the declaration of a state of emergency in the Republika Srpska, agreements were concluded until September 2020 providing for the extension or amendments of collective agreements, with the goal of extending their duration and preserving the rights that had been gained. The Government also indicates that no information is available on the number of enterprise-level collective agreements concluded. The Committee further notes the Government’s indication that, following the adoption of the new BD Labour Act, measures will be undertaken to adopt collective agreements. Noting with interest the above efforts to maintain the existing coverage by collective agreements in the context of the current COVID-19 pandemic, the Committee requests the Government to continue providing detailed information on the number of collective agreements concluded and in force 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 concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

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. In its supplementary report, the Government asserts that pursuant to the existing legislation, the general rule of collective bargaining is bilateral negotiation and that public authorities participate only where a share of national capital is concerned, where activities are funded from the State budget or extra-budgetary funds and in enterprises whose founder is the Federation, canton, city or municipality. The Committee observes from the above 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 148(3) of the BD Labour Act, the Government of the Brčko District may also be a party to branch collective agreements concluded for employees in civil service bodies, judicial authorities, public institutions and other budget users. While taking due note of the above explanation, the Committee recalls that the Convention, applicable to both the private sector and public servants not engaged in the administration of the State, 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, 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.

With regard to the Federation of Bosnia and Herzegovina, the Committee notes the Government’s supplementary indication that: (i) the Draft Act on Representativity of Trade Unions and Employers’ Associations is currently in the legislative process and in June 2020, a public discussion was held with representatives of social partners and other interested parties; (ii) sections 20-22 of the draft law regulate the procedure for determining representativity of trade unions and employers’ associations for all levels; (iii) at company level, the provisions prescribe the authorization of employers to determine the representativity of trade unions; (iv) at the level of the cantons and the Federation, the cantonal and the Federal Ministry of Labour conduct procedures to determine the representativity of trade unions and employers’ associations; and (v) during the discussion, the AEFBiH proposed to introduce a tripartite committee as a collective body in the procedure of determining the representativity of trade unions and employers’ associations, but this suggestion was not accepted as a result of the Government’s decision not to create any new bodies requiring allocation of additional funds from the budget of the Federation due restrictive budgetary policy. The Committee observes that despite a proposal to establish a tripartite committee to guide the decisions on the determination of representativity of trade unions and employers’ associations, such suggestion was not adopted in the new draft Act on Representativity of Trade Unions and Employers’ Associations, and observes with regret that the employers and the Ministry of Labour thus retain a major role in determining the representativity of trade unions and employers’ associations.

In light of the above, the Committee recalls 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 determination of the most representative organizations must be based on objective, pre-established and precise criteria, so as to avoid any possibility of bias or abuse (see the 2012 General Survey on the fundamental Conventions, paragraph 96). The Committee therefore invites the Government to establish, in consultation with the social partners, a mechanism to determine the representativity of the most representative workers’ and employers’ organizations in the Federation of Bosnia and Herzegovina and the Republika Srpska, which enjoys the confidence of all social partners, 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. The Committee notes that, in its supplementary report, the Government states that pursuant to section 217(3) of the RS Labour Act, if there is only one trade union at the appropriate level of organisation, it shall be representative regardless of the number of its members. The Committee trusts that by virtue of this provision, as well as section 241 which provides for agreements among unions to jointly reach the required threshold, the 20 per cent requirement at the level of the enterprise does not hinder collective bargaining in practice. Regretting the lack of any information on the high requirement for employers’ organizations to be able to negotiate, the Committee requests the Government once again to take the necessary measures, in consultation with the social partners, to amend the legislation in this regard.

Compulsory arbitration. Federation of Bosnia and Herzegovina. 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. The Committee notes the Government’s indication that arbitration referred to in the above provisions is a fully voluntary procedure. Even though a request for arbitration may be submitted by either party to the collective labour dispute, consent of the other party is necessary for the resolution of the dispute through arbitration. The Government adds that since all issues related to arbitration are resolved by provisions of collective agreements or agreements of the parties, labour administration has no data about the number of collective labour disputes resolved through arbitration. In light of the above, the Committee trusts that arbitration referred to in sections 139 and 154 of the FBiH Labour Act is voluntary, based on the agreement of both parties to the dispute and will not, in practice, lead to a binding decision imposed at the request of only one party.

Compulsory arbitration. 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 noted the Government’s general clarification, provided under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that arbitration was voluntary but observed that it appeared 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) could be referred to the Agency for Amicable Settlement of Labour Disputes established under the Act by either of the parties and could in some instances lead to compulsory decisions. The Committee notes the Government’s clarification that, in line with sections 27–31 of the Act, the procedure for peaceful resolution of interest disputes is voluntary. The Government explains that when a dispute is submitted to the Agency for Amicable Settlement of Labour Disputes by one party, the Agency delivers the proposal and documents to the other party to the dispute. If the other party does not reply within the anticipated deadline or if the proposal is not accepted, the procedure is stopped. If the other party accepts the proposal for peaceful resolution of a labour dispute, a peace council is appointed, where either an agreement is reached and becomes binding or the parties do not reach an agreement and the procedure is closed. The Government further states that exceptions are possible only in cases of collective disputes arising in activities of general interest regulated by the law or activities where suspension of work could endanger life and health of people or cause major damage. In these instances, the parties are obliged to submit a proposal for peaceful resolution of the dispute to the Agency and if they do not, the director of the Agency will initiate the procedure of dispute resolution ex officio and pursuant to the law (sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes). Taking due note of the above and recalling that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), or in essential services in the strict sense of the term or in cases of acute national crisis, the Committee requests the Government to provide further information on activities or industrial sectors that fall within sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes. Further observing that sections 34-36 of the Act refer to the possibility to establish an arbitration commission, the Committee requests the Government to provide further information in this regard, in particular whether this mechanism can be used in case of collective interest disputes and can lead to a binding decision imposed at the request of the authorities or one of the parties.

Compulsory arbitration. Brčko District. The Committee notes, from the Government’s supplementary report, that sections 147-156 of the new BD Labour Act regulate the matter of collective bargaining in the Brčko District but that no collective agreements have yet been concluded. The Committee observes that, according to section 149(4), parties to collective bargaining may initiate an arbitration process if no agreement is reached on the conclusion of a collective agreement after a period of 45 days of negotiation. The Committee requests the Government to clarify whether the arbitration referred to in section 149(4) of the BD Labour Act is voluntary in nature (agreed to by both parties) or whether it can be established at the request of one party and lead to a compulsory decision.