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Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bosnia and Herzegovina (RATIFICATION: 1993)

Other comments on C087

Observation

Direct Request

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Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). In its previous comment, the Committee requested clarification from the Government as to any judicial proceedings pending in relation to the registration of the SSSBiH. The Committee notes that, on the one hand, the Government indicates that the SSSBiH has been registered in line with the 2012 judgment of the Court of Bosnia and Herzegovina and that there are no court proceedings regarding its registration. On the other hand, it states that the last activities in this case refer to the adoption of conclusions on the termination of the proceedings in April 2020, which relate to court proceedings initiated in 2018 by the Union of Independent Trade Unions of the Police of the Federation of Bosnia and Herzegovina before the municipal court of Sarajevo that are still ongoing. Observing that the information provided by the Government is unclear, the Committee requests the Government to provide further information on the pending court proceedings relating to the SSSBiH, including on the content and outcome of the court proceedings.

Legislative reform. The Committee notes the 2021 amendment to the Labour Act of the Republika Srpska, 2016 (RS Labour Act) and the adoption of the Act 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).

Article 2 of the Convention. Right to establish organizations without previous authorization. Act on Associations and Foundations. Failure to register. Brčko District. The Committee previously requested the Government to amend sections 25(1) and 45(1)(a) of the BD Act on Associations and Foundations, to the extent that they are applicable to workers’ and employers’ organizations, to ensure that the exercise of legitimate trade union and employer organization activities is not dependent upon registration, and failure to register is not subject to sanctions. While the Government does not elaborate on the provisions of the BD Act on Associations and Foundations, it indicates that section 135 of the BD Labour Act, which provides for the registration of trade unions and employers’ associations in a register maintained by the competent authority, is not applied, because no such authority has yet been formed. The Committee understands that registration under the BD Labour Act has not yet been put into practice but recalls that its request relates to provisions regulating registration under the BD Act on Associations and Foundations, to the extent applicable to workers’ and employers’ organizations. Therefore, the Committee requests the Government once again to indicate whether sections 25(1) and 45(1)(a) of the BD Act on Associations and Foundations are applicable to workers’ and employers’ organizations and if so, to amend these provisions to ensure that the exercise of legitimate trade union and employer organization activities is not dependent upon registration, and failure to register is not subject to sanctions.

Delays in registration. Federation of Bosnia and Herzegovina. The Committee notes the Government’s indication that during registration or entry of changes in the register at all levels, the prescribed deadlines for registration were not followed. The Committee requests the Government to provide further details on this issue and to take the necessary measures, including provision of sufficient human and financial resources, as well as training to the relevant authorities, to avoid any undue delays in the registration process.

Right of workers and employers to establish organizations of their own choosing. Relationship with workers’ and employee councils. Brčko District. In its previous comment, the Committee requested the Government to clarify the relationship between workers’ councils and trade unions in section 134 of the BD Labour Act. Not having received any reply from the Government on this point, the Committee reiterates its request. Should trade unions be in a subsidiary position vis-à-vis workers’ councils, the Committee once again requests the Government to take the necessary measures, including amendments of the above provision, to ensure that the existence of workers’ councils does not undermine trade unions and their activities.

Article 3. Right of workers’ and employers’ organizations to elect their representatives in full freedom. Republika Srpska. In its previous comments, the Committee encouraged the Government to revise the applicable rules of the RS Rulebook on registration, 2016 so as to remove the requirement that the application for registration at the level of the enterprise must confirm that the person authorized to act on behalf of the trade union is employed by that employer. The Committee recalled that this requirement could prevent individuals such as full-time union officers or pensioners from carrying out union duties and becoming candidates for trade union office. In the absence of any further information on this point, the Committee reiterates its previous request.

Right of workers’ and employers’ organizations to organize their administration and activities. Act on Strikes. Institutions of Bosnia and Herzegovina. The Committee previously noted the adoption of the Act on Strikes in the Institutions of Bosnia and Herzegovina and requested the Government to provide information on the practical application of the law. The Committee notes the Government’s indication that so far, there have been no strikes. The Government also reiterates that, under section 15 of the Act, minimum services in case of a strike are determined by a decision of the Council of Ministers of Bosnia and Herzegovina, made on the basis of a proposal from the employer with consent of the trade union. Observing that the decision on minimum services must be made within 90 days from the entry into force of the law, the Committee requests the Government to indicate whether such a decision was adopted and, if so, to share a copy thereof. The Committee also requests the Government to clarify whether the requirement to ensure minimum services during a strike applies to all employees in the Institutions of Bosnia and Herzegovina or only to a specific category of public servants or services. Finally, recalling that any disagreement among the parties on the scope of the minimum service should be resolved by a joint or independent body, the Committee requests the Government once again to provide information in this regard.

The Committee further notes that the Labour Act in the Institutions of Bosnia and Herzegovina, 2004 (as amended up to 2022) stipulates that a strike in the Institutions of Bosnia and Herzegovina can be initiated by a representative union, defined as 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 (sections 92 and 95). Observing that the Act on Strikes in the Institutions of Bosnia and Herzegovina does not seem to set a similar requirement, the Committee requests the Government to provide clarification on the relationship between these laws with regard to the regulation of the right to strike. The Committee also requests the Government to indicate whether trade unions which do not represent the majority of employees of an employer and are thus not representative within the definition of the law, benefit from all the rights granted by the Convention.

Right to strike in the civil service. Federation of Bosnia and Herzegovina. In its previous comments, having noted the Government’s indication that a specific law governing the issue of strikes in administration bodies and services would be adopted in the Federation of Bosnia and Herzegovina, the Committee requested the Government to provide information on any legislative provisions adopted in this respect. The Committee notes the Government’s indication that no legislation was adopted to regulate strikes, that until the final proposals on a new law are adopted, the Act on Strikes, 2000 remains in force and that there is no information on the numbers of initiated strikes and their categories. The Committee requests the Government to continue to provide information on any new legislation adopted in this respect in the Federation of Bosnia and Herzegovina.

Act on strikes. Determination of minimum services. Republika Srpska. In its previous comment, the Committee requested the Government to amend section 12 of the RS Act on Strikes so as to allow trade unions to participate in defining minimum services. The Committee notes the Government’s indication that no amendments were made to section 12 of the Act on Strikes concerning the determination of minimum services. The Committee therefore reiterates its request to amend this provision so as to allow trade unions, along with the employers and the public authorities, to participate in defining minimum services and, in case of disagreement among the parties, to provide for a joint or independent body to determine them. The Committee also requests the Government to indicate instances in which the determination of minimum services was the subject of collective bargaining.

Act on strikes. Strike vote. Republika Srpska. The Committee previously requested the Government to revise the voting requirements for taking a decision to begin a strike action or a warning strike under section 4(1) and (2) of the RS Act on Strikes, referring in particular to the requirement that a decision should be taken by an absolute majority of all workers of the employer (the provision also provides that a strike can be declared by the authorized body of a representative union). The Committee recalled that if a country deems it appropriate to require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast (in other words, workers participating in the respective meeting as opposed to all workers of the employer) and that the required quorum and majority are fixed at a reasonable level, since the requirement of an absolute majority of all workers of an employer, as stated in the law, may be excessive. In the absence of a reply on this point, the Committee reiterates its previous request.

Compulsory arbitration. Republika Srpska. The Committee previously requested the Government to provide information on activities or industrial sectors in which compulsory arbitration could be imposed under sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes. The Committee notes that the Government refers to section 11 of the RS Act on Strikes, 2008, which contains a list of activities of general interest, and activities in which the interruption of work due to the nature of the work could endanger human life and health or cause large-scale damage. The Government also mentions activities of importance for the functioning of public administration and security systems, as well as activities necessary for fulfilling obligations determined by international agreements in the cited activities. The Committee notes that while many of these activities correspond to essential services in the strict sense of the term, in which compulsory arbitration can be accepted, others do not fall within this category. Recalling that compulsory arbitration as a means to restrict the exercise of the right to strike should only be imposed in specific circumstances, such as in conflicts in essential services in the strict sense of the term, conflicts concerning public servants exercising authority in the name of the State or situations of acute national or local crisis (see the 2012 General Survey on the fundamental Conventions, paragraph 153), the Committee requests the Government to review and amend the applicable legal provisions to this effect, in consultation with the social partners. The Committee also once again requests the Government to provide clarification on the possible use of arbitration commissions under sections 34–36 of the RS Act on Strikes in case of interest disputes and whether this mechanism can lead to a binding arbitration at the request of one party.

Article 4. Act on Associations and Foundations. Suspension of activities and dissolution of trade unions. Brčko District. In its previous comment, the Committee requested clarification on whether workers’ and employers’ organizations in the Brčko District could be suspended or dissolved under section 37 of the BD Act on Associations and Foundations. While noting the Government’s indication that section 14 of the BD Labour Act prohibits temporary or permanent suspension of the activities of trade unions and employers’ associations, the Committee observes that the Government does not elaborate on the relationship between this provision and section 37 of the BD Act on Associations and Foundations, on which the Committee previously requested information. The Committee therefore once again requests the Government to clarify whether section 37 of the BD Act on Associations and Foundations is applicable to workers’ and employers’ organizations, and requests the Government to confirm that these organizations may not be suspended or dissolved through administrative measures.

Article 5. The right of workers’ and employers’ organizations to form federations and confederations. Brčko District. In its previous comments, the Committee requested the Government to indicate whether, even in the absence of specific legislative provisions to this effect, workers’ and employers’ organizations could, in practice, create and join higher-level organizations and affiliate to international organizations. The Committee notes the Government’s indication that there is no legal provision regulating this matter since Brčko District is a separate administrative unit within Bosnia and Herzegovina. While taking due note of the Government’s indication, the Committee recalls that it is the responsibility of the Government to ensure the application of the Convention which it freely ratified and which must be respected on its territory irrespective of the administrative divisions of the country. Accordingly, the Committee requests the Government to take the necessary measures to recognize the right of workers’ and employers’ organizations to form and join federations and confederations and affiliate to international organizations both in law and in practice.

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.