CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

1. The Committee notes the information provided in the Government’s report received in August 2009 in reply to the 2007 direct request.

2. Article 4 of the Convention. Valid reason for termination of employment. The Committee noted in its 2007 direct request that section 87, paragraph 2, of the Labour Code of the Federation of Bosnia and Herzegovina provides that when no longer able to perform the job, an employee can be dismissed. Furthermore, section 88 of the Labour Code provides that an employee may be dismissed for serious misconduct or a serious breach of obligations. The Committee also notes that the Labour Act of the Brcko District provides that the employer may terminate the employment agreement if the employees are not able to fulfil their obligations arising from the employment agreement. The Committee asks the Government to provide copies of the leading court decisions on valid reasons for termination, in particular court decisions applying sections 87 and 88 of the Labour Code of the Federation of Bosnia and Herzegovina, section 113 of the Labour Act of the Republika Srpska, and the relevant provisions of the Labour Act of the Brcko District.

3. Article 5(b). Invalid reason for termination of employment: Seeking office as, or acting or having acted in the capacity of, a workers’ representative. In response to the 2007 direct request, the Government indicates that sections 5, 9, 10 and 10a of the Labour Code of the Federation of Bosnia and Herzegovina contain the prohibitions of discrimination, which include membership or non-membership in a trade union. Furthermore, section 93 of the Labour Code provides that an employer may terminate the employment contract of a trade union representative during the conduct of their duties and six months after performing these duties, only with the prior consent of the federal ministry responsible for labour. The Government indicates that the Labour Act of the Brcko District contains similar provisions concerning membership and non-membership in trade unions. The Government also indicates that section 126 of the Labour Act of the Republika Srpska enumerates the cases in which the employer may terminate the employment agreement of an employee – the employer has no legal authority to terminate the employment agreement beyond the cited cases. The Committee invites the Government to provide practical information on the manner in which effect is given to this provision of the Convention in the three entities.

4. Article 5(c). Invalid reason for termination of employment: Filing of a complaint or participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities. The Government reports that filing a complaint against an employer, pursuant to the labour laws in Bosnia and Herzegovina, does not constitute a justified reason for termination of employment. The Committee once again asks the Government to provide concrete examples of the manner in which this provision is applied in the three entities.

5. Article 5(d). Invalid reasons for termination of employment: Race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The Government reiterates that it has no information of any dispute brought before its courts due to termination of employment contrary to section 5 of the Labour Code of the Federation of Bosnia and Herzegovina. The Government further indicates that there are dozens of courts at the municipal level, as well as cantonal courts, dealing with individual disputes stemming from a violation of the rights arising from employment. The only information which is publicly available are the decisions from the Supreme Court of the Federation of Bosnia and Herzegovina, and according to the published information, there have been no disputes conducted before this court for breach of section 5 of the Labour Code. The Committee once again requests the Government to provide information on the implementation of section 5 of the Labour Code of the Federation of Bosnia and Herzegovina and of the Labour Act of the Republika Srpska, including court decisions from the Supreme Court of the Federation of Bosnia and Herzegovina as they become available.

6. Article 5(e). Invalid reason for termination of employment: Absence from work during maternity leave. The Government reports that section 132 of the Labour Act of the Republika Srpska provides that the employer may not terminate the employment agreement during pregnancy, maternity leave, parental leave, or during periods or shorter working hours for the purpose of child care. The Government also reports that the right to maternity leave is guaranteed in the Labour Act of the Brcko District, which provides that termination of employment is not possible during this period. The Government further indicates that it is not aware of any court decisions concerning section 53 of the Labour Code of the Federation of Bosnia and Herzegovina prohibiting the termination of employment while a worker is pregnant or on maternity leave. The Committee requests the Government to provide information on the application of this provision of the Convention in the three entities.

7. Article 6, paragraph 2. Temporary absence from work because of illness or injury. The Government reports that section 64 of the Labour Code of the Federation of Bosnia and Herzegovina provides that an employer may not terminate the employment contract of a worker who has suffered an injury or has developed a professional illness, which has resulted in the employee being temporarily unable to work. The Committee asks the Government to provide information on whether there have been any court cases concerning dismissal as a result of temporary absence from work because of illness or injury. If so, please provide copies of the leading court cases on this matter.

8. Article 7. Procedure prior to termination. The Government indicates that section 90 of the Labour Code of the Federation of Bosnia and Herzegovina provides that if the employer terminates the employment contract due to the behaviour or work performance of the employee, the employer is required to allow the employees to present their defence, unless there are circumstances for which the employer cannot be reasonably expected to permit such. The Government further reports that section 128 of the Labour Act of the Republika Srpska provides that, prior to termination, the employer is required to enable the worker to be heard and present their defence, if this is possible given the circumstances. The employer should also consider the opinion of trade unions or works councils, if such an opinion has been submitted before passing the final decision on termination. The Committee asks the Government to continue to provide information concerning the procedure prior to termination in the three entities, and to provide copies of court decisions on the application of the abovementioned provisions as they become available.

9. Article 12. Severance pay or other income protection. The Committee recalls that the Government stated in its report received in May 2006 that dismissed workers who do not have two years of permanent work with the employer have no right to severance pay, but are entitled, under conditions provided for in the labour laws, to pecuniary compensation during unemployment, and to health insurance and partly pension insurance. The Government indicates that section 23 of the Labour Code of the Republika Srpska stipulates that an unemployed person who had been terminated without their request, consent or fault, and who possesses at least eight months of continuous insurance record in the last 12 months, or 12 months with interruptions over the past 18 months, shall be entitled to monetary compensation, health insurance, pension and disability insurance. The Committee asks the Government to provide in its next report detailed information on the practical application of this provision of the Convention in the three entities.

10. Article 14. Notification to the competent authority. The Government reports that, in the Federation of Bosnia and Herzegovina, the Placement Agencies Act and social security for unemployed persons provide that, in case of termination of employment based on sections 98 and 99 of the Labour Code, the employer is obliged, within 15 days of the date of termination, to notify the employment services in writing about the employees that will be affected by the terminations. The Committee requests the Government to specify in its next report the provisions in force in the Republika Srpska and Brcko District which give effect to this provision of the Convention.

11. Illegally dismissed workers. In its previous comments, the Committee noted that a report concerning the exercise of rights for the illegally dismissed workers was to be discussed in June 2006 before the National Assembly and the Government of the Republika Srpska was making efforts to secure the funds for severance pay. The Committee invites the Government to indicate how adequate reparation was provided to unfairly dismissed workers and how those workers placed on waiting lists have already benefited from the measures adopted following deliberations by the National Assembly.

CMNT_TITLE

1. The Committee notes the information provided in the reports received in May and December 2006. The Committee draws the attention of the relevant authorities of the Federation of Bosnia and Herzegovina and of the Republika Srpska on the importance of regularly providing practical information on the manner in which effect is given to the provisions of the Convention (Part V of the report form). Please also report in detail on the following points.

2. Article 4 of the Convention. Valid reason for termination of employment. The Committee notes that Section 87, paragraph 2, of the Labour Code of the Federation of Bosnia and Herzegovina, as amended by the Act of 15 August 2000 No. 01-447, stipulates that an employee can be dismissed when no longer able to perform the job. The Committee refers to its 2005 direct request and asks the Government to indicate how the provisions of sections 87 and 88 of the Labour Code of the Federation of Bosnia and Herzegovina and section 113 of the Labour Act of the Republika Srpska, ensure that employment is not terminated unless there is a valid reason connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service, providing copies of relevant decisions taken by the competent courts in this regard.

3. Article 5(b). Invalid reason for termination of employment: Seeking office as, or acting or having acted in the capacity of, a workers’ representative. In response to the 2005 direct request, the Government states in its report, received in May 2006, that there are “explicit legal provisions offering sufficient protection” for the worker representative against termination of employment. Please indicate, for each entity, the provisions that are referred to in this response, especially those ensuring that the act of an employee seeking representative office does not constitute a valid ground for the termination of his/her employment.

4. Article 5(c). Invalid reason for termination of employment: Filing of a complaint or participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities. The Government indicates that filing of a complaint or participation in proceedings against an employer, or addressing the competent administrative and court authorities, pursuant to the labour laws in Bosnia and Herzegovina, does not constitute a justified reason for termination of employment. Please indicate the provisions ensuring this principle.

5. Article 5(d). Invalid reason for termination of employment: Race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The Government states in its report received in May 2006 that there is no information of any dispute brought before its courts due to termination of employment on the grounds prohibited by the labour laws. The Committee refers to its 2006 comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and requests the Government to provide, in its next report on the application of Convention No. 158, information on the implementation of section 5 of the Labour Code of the Federation of Bosnia and Herzegovina and of the Labour Act of the Republika Srpska, including any court decisions delivered.

6. Article 5(e). Invalid reason for termination of employment: Absence from work during maternity leave. The Committee notes, according to the Government’s report received in May 2006, the provisions of the Labour Laws of Republika Srpska and Brcko District prohibited the termination of employment during maternity leave. The Government also indicates that, with the exception of section 53 of the Labour Code of the Federation of Bosnia and Herzegovina prohibiting the termination of employment while a worker is pregnant, no other measure protects a worker during pregnancy. The Committee requests the Government to specify in its next report the provisions in force in the Republika Srpska and Brcko District which prohibits termination of employment during maternity leave. Please also indicate how it is ensured in the Federation of Bosnia and Herzegovina that absence from work during maternity leave is not a valid reason for termination of employment, providing copies of decisions of the competent courts.

7. Article 6, paragraph 2. Temporary absence from work because of illness or injury. The Government indicates that, despite the fact that the Labour Code of the Federation of Bosnia and Herzegovina does not provide a definition of temporary absence from work, there are legal provisions in the health insurance regulations that specify medical documentation, duration of sick leave, payment of compensation and all other issues related to this type of absence. The Committee requests the Government to specify in its next report how temporary absence from work is defined by these legal provisions, the extent to which medical certification is required, and what limitations, if any, have been placed on the application of temporary absence from work because of illness or injury.

8. Article 7. Procedure prior to termination. The Committee recalls that the purpose of Article 7 of the Convention is to ensure that any decision to terminate employment is preceded by dialogue and reflection between parties (paragraph 148 of the General Survey of 1995). The Committee again requests the Government to indicate the manner in which the right to defend themselves prior to termination is ensured for all workers, as required by this provision of the Convention, in the Federation of Bosnia and Herzegovina and in the Republika Srpska.

9. Article 12. Severance pay or other income protection. The Government states in its report received in May 2006 that dismissed workers who do not have two years of permanent work with the employer have no right to severance pay, but are entitled, under conditions provided for in the labour laws, to pecuniary compensation during unemployment, to health insurance and sometimes pension insurance. Please provide further information indicating the conditions under which such compensation (pecuniary and health insurance) is granted in each entity and how they are evaluated.

10. Article 14. Notification to the competent authority. The Government reports that notice of termination of employment due to economic, technological, structural or similar reasons shall be submitted to the employment services in Bosnia and Herzegovina. The Committee would appreciate examining information from the next report on how laws or regulations specify the minimum period of time in which the employer shall notify to the employment services the terminations, before carrying out the terminations.

11. Illegally dismissed workers. In the report received in May 2006, it is indicated that this particular issue is being resolved pursuant to the provisions of sections 151 to 159 of the Labour Law of Republika Srpska, as amended by the decision of 12 November 2000, and that a commission is resolving individual applications. A report concerning the exercise of rights for the illegally dismissed workers was to be discussed in June 2006 before the National Assembly and the Government of the Republic Srpska is making efforts to secure the funds for severance pay. The Committee refers to its previous comments and reiterates its interest in examining how adequate reparation was provided to unfairly dismissed workers and how those workers placed on waiting lists have already benefited from the measures adopted following the abovementioned deliberations by the National Assembly.

[The Government is asked to reply in detail to the present comments in 2009.]

CMNT_TITLE

1. The Committee notes the communication transmitted by the International Confederation of Free Trade Unions by which the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) submitted comments on the application of the Convention. The Office forwarded the observation by the SSSBiH to the Government in September 2005.

2. In its observation, the SSSBiH indicates that decisions on termination of work contracts are most frequently made without explanation or  without giving the opportunity to employees to defend themselves. In the case of termination due to serious failure to fulfil its duties, the employer does not have any responsibility to observe a period of notice nor to pay the severance payment. The SSSBiH also indicates that the courts fail to uphold the rights protected by the Convention. The proceedings last too long without justification. Requests for interim measures, such as reinstatement of the workers until the end of the court proceedings, are ignored or rejected by employers.

3. In its 2003 direct request, the Committee asked the respective authorities of the Federation of Bosnia and Herzegovina and of the Republika Srpska to describe the measures adopted to give effect to  various provisions of the Convention. In light of the observations of the SSSBiH, the Committee requests the Government to provide detailed information on the following issues.

4. Article 4 of the Convention. Please indicate how the provisions of sections 87 and 88 of the Labour Act of the Federation of Bosnia and Herzegovina and section 113 of the Labour Act of the Republika Srpska are applied in practice, supplying copies of the leading decisions taken in their application.

5. Article 5(b). The Committee notes the provisions of section 93 of the Labour Act of the Federation of Bosnia and Herzegovina and section 118 of the Labour Act of the Republika Srpska, protecting employees who are acting or have acted in the capacity of a workers’ representative. Please indicate, for each entity, the measures ensuring that the act of an employee seeking representative office does not constitute a valid ground for termination.

6. Article 5(c). Please indicate, for each entity, the measures ensuring that the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities do not constitute valid reasons for termination.

7. Article 5(d). Under the terms of this provision, the race, colour, sex, marital status, family responsibilities, religion, political opinion, national extraction or social origin of a worker shall not constitute valid reasons for termination. The Committee notes that section 5 of the Labour Act of the Federation of Bosnia and Herzegovina and section 5 of the Labour Act of the Republika Srpska now give effect to this provision of the Convention. It hopes that the next report will provide further information on the implementation of these legislative provisions including any court decisions handed down.

8. Article 5(e). The Committee notes that section 53 of the Labour Act of the Federation of Bosnia and Herzegovina prohibits employers from terminating an employment contract while a worker is pregnant. It requests the Government to indicate the measures which also prohibit the dismissal of a worker during her absence from work on maternity leave, in accordance with this provision.

9. Article 6, paragraph 1. The Committee notes that employers may not dismiss a worker during temporary absence because of an occupational disease or employment accident. It requests the Government to indicate the manner in which effect is given to this paragraph, which prohibits termination on account of temporary absence for reasons of illness or injury.

10. Article 6, paragraph 2. The Committee refers to the provisions of section 64 of the Labour Act of the Federation of Bosnia and Herzegovina and section 80 of the Labour Act of the Republika Srpska, and requests the Government to indicate how "temporary absence from work" is defined and the extent to which medical certification is required and what limitations, if any, have been placed on the application of this Article of the Convention.

11. Article 7. Please indicate the manner in which the right to defend themselves prior to termination is ensured for all workers, as required by this important provision of the Convention, in the Federation of Bosnia and Herzegovina and in the Republika Srpska.

12. Article 12. The Committee notes the provisions of section 100 of the Labour Act of the Federation of Bosnia and Herzegovina and section 127 of the Labour Act of the Republika Srpska concerning entitlement to a severance allowance for workers with an uninterrupted employment relationship of two years with the employer. Please indicate the nature of the allowance or other forms of income protection (unemployment insurance or assistance benefits or other social security benefits under a general scheme) granted to dismissed workers without a two-year uninterrupted employment relationship with their employer.

13. Article 14. The Committee would be grateful to be provided with information on how effect is given to this Article of the Convention, and particularly on the competent authority to be notified of terminations for reasons of an economic, technological, structural or similar nature, the nature of the information that has to be supplied to the above authority and also the minimum period of time for this notification.

14. Illegally dismissed workers. In its previous comments, the Committee recalled the conclusions, approved by the Governing Body in November 1999, of the committee set up to examine the representation made under article 24 of the ILO Constitution in October 1998 by the Union of Autonomous Trade Unions of Bosnia and Herzegovina (USIBH) alleging non-observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Committee also recalls its comments on the application of Convention No. 111 in which, further to the communications by the USIBH and the trade union organization of the "Ljubija" iron mines concerning the dismissal of miners during the civil war, it noted that these constituted dismissals of workers based solely on their national extraction. The Committee indicated at that time that it was the responsibility of the parties concerned (the Government, the managers of the enterprises and the workers who had made the complaints) to implement the legislation so as to ensure that the workers who have not been able to return to their former jobs, for the sole reason of their national extraction and/or religion, can receive appropriate compensation.

Recalling the requirements of Article 12 of the Convention concerning the entitlements of dismissed workers to a severance allowance or other forms of income protection, the Committee notes that the transitional provisions of the Labour Act of the Federation of Bosnia and Herzegovina (sections 143 and 144) and of the Labour Act of the Republika Srpska (sections 151-159, as amended by the decision of 12 November 2000 of the High Representative in Bosnia and Herzegovina) envisage addressing the issue of compensation for workers illegally dismissed as a result of the conflict which affected the country as from 1992. The Committee would be grateful to be provided with information on the implementation of these transitional provisions, including the statistics available on the number of workers who have benefited from the measures adopted and, where appropriate, information on any difficulties encountered.

CMNT_TITLE

The Committee notes the information provided by the Government in its first report covering the period 1992-2001. Noting that each of the entities constituting Bosnia and Herzegovina, namely the Federation of Bosnia and Herzegovina and the Republika Srpska, is autonomous with regard to labour and employment issues, the Committee takes note of the legislative texts adopted since 2000 which give effect to the provisions of the Convention. It would be grateful to be provided with additional information on certain points concerning the implementation of these texts and requests the respective authorities to describe the measures adopted to give effect to the following provisions of the Convention:

Article 5(b) of the Convention. The Committee notes the provisions of section 93 of the Labour Act of the Federation of Bosnia and Herzegovina and section 118 of the Labour Act of the Republika Srpska, protecting employees who are acting or have acted in the capacity of a workers’ representative. Please indicate, for each entity, the measures ensuring that the act of an employee seeking representative office does not constitute a valid ground for termination.

Article 5(c). Please indicate, for each entity, the measures ensuring that the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities do not constitute valid reasons for termination.

Article 5(d). Under the terms of this provision, the race, colour, sex, marital status, family responsibilities, religion, political opinion, national extraction or social origin of a worker shall not constitute valid reasons for termination. The Committee notes that section 5 of the Labour Act of the Federation of Bosnia and Herzegovina and section 5 of the Labour Act of the Republika Srpska now give effect to this provision of the Convention. It hopes that the next report will provide further information on the implementation of these legislative provisions, with an indication of the effect given to these provisions, including any court decisions handed down.

Article 5(e). The Committee notes that section 53 of the Labour Act of the Federation of Bosnia and Herzegovina prohibits employers from terminating an employment contract while a worker is pregnant. It requests the Government to indicate the measures which also prohibit the dismissal of a worker during her absence from work on maternity leave, in accordance with this provision.

Article 6, paragraph 1. The Committee notes that employers may not dismiss a worker during temporary absence because of an occupational disease or employment accident. It requests the Government to indicate the manner in which effect is given to this paragraph, which prohibits termination on account of temporary absence for reasons of illness or injury.

Article 6, paragraph 2. The Committee refers to the provisions of section 64 of the Labour Act of the Federation of Bosnia and Herzegovina and section 80 of the Labour Act of the Republika Srpska, and requests the Government to indicate how "temporary absence from work" is defined and the extent to which medical certification is required and, what limitations, if any, have been placed on the application of this Article of the Convention.

Article 12. The Committee notes the provisions of section 100 of the Labour Act of the Federation of Bosnia and Herzegovina and section 127 of the Labour Act of the Republika Srpska concerning entitlement to a severance allowance for workers with an uninterrupted employment relationship of two years with the employer. Please indicate the nature of the allowance or other forms of income protection (unemployment insurance or assistance benefits or other social security benefits under a general scheme) granted to dismissed workers without a two-year uninterrupted employment relationship with their employer.

Article 14. The Committee would be grateful to be provided with information on how effect is given to this Article of the Convention, and particularly on the competent authority to be notified of terminations for reasons of an economic, technological, structural or similar nature, the nature of the information that has to be supplied to the above authority and also the minimum period of time for this notification.

Illegally dismissed workers. In its previous comments, the Committee recalled the conclusions, approved by the Governing Body in November 1999, of the committee set up to examine the representation made under article 24 of the ILO Constitution in October 1998 by the Union of Autonomous Trade Unions of Bosnia and Herzegovina (USIBH) alleging non-observance of the Discrimination (Employment and Occupation) Convention 1958, (No. 111). The Committee also recalls its observation of 2000 on the application of Convention No. 111 in which, further to the communications by the USIBH and the trade union organization of the "Ljubija" iron mines concerning the dismissal of miners during the civil war, it noted that these constituted dismissals  of workers based solely on their national extraction. The Committee indicated at that time that it was the responsibility of the parties concerned (the Government, the managers of the enterprises and the workers who had made the complaints) to implement the legislation so as to ensure that the workers who have not been able to return to their former jobs, for the sole reason of their national extraction and/or religion, can receive appropriate compensation.

Recalling the requirements of Article 12 of the Convention concerning the entitlements of dismissed workers to a severance allowance or other forms of income protection, the Committee notes that the transitional provisions of the Labour Act of the Federation of Bosnia and Herzegovina (sections 143 and 144) and of the Labour Act of the Republika Srpska (sections 151 to 159, as amended by the decision of 12 November 2000 of the High Representative in Bosnia and Herzegovina) envisage addressing the issue of compensation for workers illegally dismissed as a result of the conflict which affected the country as from 1992. The Committee would be grateful to be provided with information on the implementation of these transitional provisions, including the statistics available on the number of workers who have benefited from the measures adopted and, where appropriate, information on any difficulties encountered.

CMNT_TITLE

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its 1997 direct request, which read as follows:

The Committee notes the conclusions, approved by the ILO Governing Body, of the Committee set up to examine the representation alleging non-observance of the Convention made under article 24 of the ILO Constitution by the Union of Autonomous Trade Unions of Bosnia and Herzegovina. In its conclusions, the Committee considered that the acts described in the representation violate Article 5, paragraph (d), of the Convention and invited the Government to take various measures to ensure compliance with the provisions of the Convention. Please supply a detailed first report which includes in particular information on the application of Article 5, paragraph (d).

CMNT_TITLE

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

The Committee notes that the Government’s first report has not yet been received. It also notes the conclusions, approved by the ILO Governing Body, of the Committee set up to examine the representation alleging non-observance of the Convention made under article 24 of the ILO Constitution by the Union of Autonomous Trade Unions of Bosnia and Herzegovina. In its conclusions, the Committee considered that the acts described in the representation violate Article 5, paragraph (d), of the Convention and invited the Government to take various measures to ensure compliance with the provisions of the Convention. Please supply a detailed first report which includes in particular information on the application of Article 5, paragraph (d).

CMNT_TITLE

The Committee notes that the Government's first report has not yet been received. It also notes the conclusions, approved by the ILO Governing Body, of the Committee set up to examine the representation alleging non-observance of the Convention made under article 24 of the ILO Constitution by the Union of Autonomous Trade Unions of Bosnia and Herzegovina. In its conclusions, the Committee considered that the acts described in the representation violate Article 5, paragraph (d), of the Convention and invited the Government to take various measures to ensure compliance with the provisions of the Convention. Please supply a detailed first report which includes in particular information on the application of Article 5, paragraph (d).

[The Government is asked to report in detail in 2000.]