Texts of pending comments

Articles 1(1), 2(1) and 25 of the Convention. Trafficking in persons. 1. Legal framework and penalties. The Committee previously noted that in 2015, the criminal offences of transnational trafficking (section 186), organized transnational trafficking (section 186(a)), and international procuring in prostitution (section 187) were introduced into the Criminal Code of Bosnia and Herzegovina of 27 June 2003. In 2016, section 210(a) on trafficking in persons and section 210(b) on organized trafficking in persons were introduced into the Criminal Code of the Federation of Bosnia and Herzegovina of 9 July 2003. Under section 207(a) of the Criminal Code of the Brčko District of 2003 and section 145 of the Criminal Code of the Republika Srpska of 2017, trafficking in persons is a criminal offence.

The Committee notes the information provided by the Government in its report indicating that in 2017, under sections 186 and 187 of the Criminal Code of Bosnia and Herzegovina, the State Investigation and Protection Agency (SIPA) investigated four cases against six persons, which resulted in four convictions, whereas in 2018, there were no investigations. In 2017, in the Brčko District, one person was convicted under section 207(a) of the Criminal Code of the Brčko District. In 2017–20, in the Republika Srpska, three cases of trafficking in persons were investigated, which resulted in two convictions against three persons. The Committee notes the information provided by the Government in its 2020 reply to the questionnaire for the evaluation of the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings indicating that a significant number of verdicts showed that there is still a misunderstanding of the essence of trafficking in persons and that there is a mismatch of views among court panels in its interpretation. In this respect, the Committee observes that one of the five strategic goals of the Strategy of combating trafficking in persons in Bosnia and Herzegovina and the Action Plan for 2020–2023 (SAP 2020–2023) aim at the improvement of detection and prosecution of perpetrators of trafficking in persons and related crimes, including by training of police officers, prosecutors, and judges. The Committee requests the Government to strengthen the capacities of the authorities responsible for enforcing the law to ensure that all persons who commit acts of trafficking in persons are investigated and prosecuted, and sufficiently effective and dissuasive penalties are imposed on them. The Committee further requests the Government to provide information on the measures taken within the framework of the SAP 2020-2023 in this regard and the results achieved. It also requests the Government to continue to provide information on the application of the abovementioned provisions of the Criminal Codes in practice, including the number of prosecutions, convictions and the specific penalties applied.

2. Programme of action. The Committee previously noted that according to the evaluation of the implementation of the Strategy to Counter Trafficking in Human Beings in Bosnia and Herzegovina and the Action Plan for 2013–15 (SAP 2013–15), about 80 per cent of activities envisaged in the Action Plan had achieved the expected results. The main factors influencing the failure to achieve the objectives included lack of political will, financial resources or capacity, complex internal structure, unclear and conflicting jurisdiction, unstable political situation and difficult economic situation. The Committee further noted that the SAP for 2016–19 was adopted and that the coordination and assessment of its implementation was entrusted to the monitoring team set up for this purpose.

The Committee takes note of the information provided by the Government indicating that according to the annual reports of the monitoring team on the implementation of the SAP 2016-2019, out of 80 activities, 63 activities were fully implemented, 12 activities were partially implemented and 5 activities were not implemented in 2018. Out of 77 activities, which were planned to be implemented in 2019, 62 activities were fully implemented, 11 activities were partially implemented and 4 activities were not implemented. The Committee requests the Government to provide information on the implementation of the SAP 2020–23 and the results achieved in this regard.

3. Protection of victims. In its previous comments, the Committee noted that, 16 presumed victims of trafficking were identified in 2013, 49 in 2014, 35 in 2015 and 45 in 2016. The prevailing form of exploitation over that period was forced begging, sometimes combined with other forms of forced labour and/or sexual exploitation (92 victims), followed by sexual exploitation (34 victims) and forced labour (15 victims). The Committee further noted that although by law the prosecutor should inform the victim about the possibility to file a claim for compensation in criminal proceedings, in practice victims are discouraged to do so because it would prolong the proceedings. As a result, there was no information about any victim who actually received compensation from the perpetrator. Moreover, the State compensation scheme for victims was not established due to political and financial difficulties.

The Committee notes the indication by the Government that in 2017, there were 83 presumed victims of trafficking in persons, including for the purpose of sexual exploitation (10 victims), labour exploitation (7 victims), and beggary (52 victims). In 2018, 36 presumed victims of trafficking in persons were identified, including 21 women and 15 men; in 2019, there were 21 presumed victims of trafficking in persons, including 17 women and 4 men. The Government also indicates that safe accommodation was provided to 26 victims of trafficking in persons in 2017 and to 9 victims in 2019. The Committee observes from the 2018 Government’s report on the measures taken to comply with the Committee of the Parties Recommendation CP(2017) 27 on the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, that Bosnia and Herzegovina did not make any progress in setting up the State compensation scheme for victims of trafficking in persons. The Committee further observes the information provided by the Government in its 2020 reply to the questionnaire for the evaluation of the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings that according to current practice, victims of trafficking in persons cannot receive the awarded monetary claims because the convicted persons have no property or other income, and therefore the decision on execution has no legal effect.

The Committee further notes that the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), in its 2019 concluding observations, expressed concern about the lack of specialized shelters to accommodate women and girls who are victims of trafficking in persons and exploitation of prostitution, and the severe understaffing and lack of technical and financial resources of the centres for social welfare (CEDAW/C/BIH/CO/6, paragraph 27). In this respect, the Committee observes that the SAP 2020–2023 addresses the issue of protection of victims through the allocation of sufficient funds for safe accommodation, including specialized shelters for women and girls, and ensuring access to assistance and services (strategic goal No. 4). Furthermore, the SAP 2020-2023 provides for the establishment of special funds for the purpose of compensation of victims of trafficking in persons and ensuring easier access to compensation in criminal and civil proceedings (strategic goals Nos. 3 and 4). The Committee requests the Government to continue to take measures to facilitate access for victims of trafficking in persons to assistance and services, including specialized shelters for women and girls. It also requests the Government to continue to provide statistical data on the number of victims of trafficking in persons identified and who have been granted protection and assistance. The Committee once again requests the Government to provide information on the measures taken to ensure that victims of trafficking in persons receive appropriate compensation within a reasonable time limit.

Noting that the Government has not provided its first detailed report on the application of the Protocol of 2014 to the Forced Labour Convention, 1930, the Committee requests the Government to provide it with its next report on the application of the Convention due in 2024.

Article 1(1) and (2) of the Convention. Definition of “industrial undertaking”. Federation of Bosnia and Herzegovina (FBiH). The Committee previously noted that the Labour Law of the FBiH No. 62 of 2015 (Labour Law of the FBiH, 2015) prohibits minors from performing particularly hard manual labour, underground or underwater works, or other jobs, which could have a harmful effect or pose increased risks to their life and health, development or morality, given their psychological and physical capacities (section 57(1)). In addition, section 42(1) of the Labour Law of the FBiH, 2015 prohibits night work of minors, and section 42(2) states that for minors employed in industry, “night work” includes work between 7 p.m. and 7 a.m. According to section 42(5), the Federal Minister of Labour and Social Policy shall prescribe the activities considered to be industrial in terms of night work for minors by virtue of a Rulebook.

The Committee notes with regret the Government’s reply in its report that the Rulebook, pursuant to section 42(5) of the Labour Law of the FBiH, 2015, has not been adopted yet. The Committee also takes note of the Government’s intention to harmonize the national legislation with the Convention on this point. The Committee therefore once again expresses the firm hope that a Rulebook, prescribing the activities considered as industrial for night work for minors and which will take into account the compliance with Article 1(1) and (2) of the Convention will be adopted in the near future. The Committee requests the Government to provide information on any progress made in this regard.

Brčko District. The Committee previously noted the Government’s statement that in the Brčko District, activities that fall under the term “industrial undertakings” are regulated by collective agreements based on the laws regulating agricultural, commercial and other activities and which determine the boundary that separates industry from other activities. The Committee requested the Government to clarify whether the classification by collective agreement in the Brčko District includes all the activities mentioned under Article 1(1) of the Convention, in particular activities related to mining and quarrying.

The Committee notes an absence of information in the Government’s report in this respect. The Committee observes, however, that section 2(a) of the new Labour Law of the Brčko District No. 34/19 of 2019 (the Labour Law of the Brčko District, 2019) defines the term “employer” as a domestic or foreign legal entity or entrepreneur who employs persons in accordance with the Labour Law. The Committee observes therefore that an employer is determined regardless of the business performed and that the prohibition on night work of young persons under the age of 18 years set out by section 57(1) of the Labour Law of the Brčko District, 2019 is applied in industry and in other branches of business activities. The Committee further observes that the Classification of Activities in Bosnia and Herzegovina of 8 June, 2010 (KD BIH 2010) includes the activities established by Article 1(1) of the Convention.

Articles 2(1) and 3(1) of the Convention. Period during which night work is prohibited for persons under 18 years. Republika Srpska. The Committee previously noted that section 72(1) of the Labour Law of the Republika Srpska, 2015, read in conjunction with section 70(2), prohibits the night work of young persons under the age of 18 years between 7 p.m. and 6 a.m., that is for a period of 11 consecutive hours, which is inconsistent with Article 2(1) of the Convention. The Committee recalled that Article 2(1) of the Convention, read in conjunction with Article 3(1), stipulates that the prohibition on night work of young persons under the age of 18 years shall constitute a period of at least 12 consecutive hours.

The Committee notes with regret the indication by the Government, according to which there were no changes during the reporting period in this respect. The Committee once again requests the Government to take the necessary measures to bring the Labour Law of the Republika Srpska, 2015 into line with Articles 2(1) and 3(1) of the Convention thereby prohibiting night work of a period of at least 12 consecutive hours for young persons under the age of 18 years.

Articles 4(2) and 5. Exemptions from the prohibition of night work of persons of 16–18 years of age in case of emergencies. FBiH, Republika Srpska and Brčko District. The Committee previously noted with regret that the Labour Law of the FBiH, 2015 and the Labour Law of the Republika Srpska, 2015 had not taken into account the Committee’s comments related to the age of young persons for whom temporary exceptions from the prohibition of night work in case of emergencies may be granted, according to Articles 4(2) and 5 of the Convention. In particular, the Committee observed that the exceptions from the prohibition of night work under section 42(4) of the Labour Law of the FBiH, 2015 refer to minor employees (between 15 and 18 years of age), and under section 72(2) of the Labour Law of the Republika Srpska, 2015, apply to workers younger than 18 years of age. In addition, the Committee noted that section 28(3) of the Labour Law of the Brčko District No. 19/06 of 2006 exempted temporarily minor employees (between 15 and 18 years of age) from night work in case of major breakdowns and force majeure, based on the approval of the competent authority of the canton. The Committee recalled that pursuant to Articles 4(2) and 5 of the Convention, the prohibition of night work shall not apply or may be suspended only with regard to young persons between the ages of 16 and 18 years in case of emergencies.

The Committee notes with regret that the new Labour Law of the Brčko District, 2019 did not take into account the Committee’s comments on this matter. In particular, section 57(2) of the Labour Law of the Brčko District, 2019 allows minor employees under the age of 18 years to be temporarily exempted from the prohibition of night work in the event of elimination of the consequences of force majeure and accidents or for the purpose of protection of general interests, based on the approval of the labor inspector. The Committee further notes the indication by the Government that the Committee’s comments will be taken into consideration during the next review of the Labour Law of the FBiH, 2015. The Government also indicates that in the Republika Srpska and the Brčko District, there were no cases of the work carried out at night by young persons under 18 years of age in case of emergencies. The Committee once again requests the Governments of the FBiH, the Republika Srpska and the Brčko District to take the necessary measures to ensure that the exemption on the prohibition of night work shall be applicable only to children between the ages of 16 and 18 years in accordance with Article 4(2) in case of emergencies which could not have been controlled or foreseen or suspended in accordance with Article 5 when in case of serious emergency, the public interest demands it. The Committee requests the Government to provide information on any measures taken in this regard.

Impact of compulsory prison labour on the application of the Convention. Brčko District. With respect to its previous request concerning the voluntary character of the work performed by convicts, the Committee notes that by virtue of section 112(1) of the Criminal Code of the Brčko District of 2003, convicted persons sentenced to imprisonment may work only with their consent. The Committee further observes that the violation of the legislation governing political parties, assemblies, meetings and demonstrations in the Brčko District, in particular the Law on Peaceful Gathering of 29 July 2020, the Law on Political Organizations of 29 August 2002, the Law on Public Assembly of 25 July 2012, and the Law on Public Order and Peace of 14 October 2009, is punishable by a fine.

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

The Committee notes the observations of the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) and the International Trade Union Confederation (ITUC) received on 1 September 2017. The Committee requests the Government to provide its comments in this respect.

Articles 1 and 2 of the Convention. Implementation of an active employment policy. In their observations, the workers’ organizations allege that the Government has failed to declare and pursue, as a major goal, an active policy designed to promote full, productive and freely chosen employment. They stress that the employment situation in both Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska (RS) is dire, with extremely high rates of unemployment, citing a 28 per cent general unemployment rate and youth unemployment rates exceeding 60 per cent. The Committee notes the Government’s indication that, pursuant to the Law on Employment Intermediation and Social Security of Unemployed Persons of the FBiH, the relevant authorities of the FBiH or Cantons are responsible for establishing measures to increase employment rates and improve the situation of employed persons. The FBiH adds that the work plan of the FBiH Employment Institute provides for the various forms of support for the promotion of employment, self-employment, preparation for entering the labour market; and professional development and training. These measures seek to integrate unemployed persons into the labour market, particularly in relation to persons belonging to hard-to-employ categories of unemployed persons. The Committee notes that section 23 of the Law gives priority to persons with disabilities in employment. With respect to the Brčko District of BiH, the Committee notes that the Law on Employment and Rights during Unemployment and the Labour Law of the Brčko District provide for professional training, preparation for employment and special protections for women, minors and persons who are not fit for work. In relation to the RS, the Committee notes that the RS Employment Strategy 2011–15 established a system for the registration of unemployed persons with the RS Employment Bureau (RSEB). The Committee notes the Government’s indication that the RSEB implemented three projects providing support for employment in the RS from 2013 to 2015, through which a total of 4,522 persons were employed. In October 2016, the RS National Assembly adopted the RS Employment Strategy 2016–20, which seeks to increase employment and stimulate economic activity in RS through the implementation of thirteen operational goals and fifty specific measures. The Committee notes the Government’s indication that, according to the records of the RSEB, implementation of these measures led to the employment of 34,593 persons in 2015. The Government adds that the measures set out in the RS Employment Action Plan for 2017 seek, inter alia, to structurally reform the role of the RSEB and focus its activity on employment intermediation. The Committee requests the Government to provide detailed updated information, including statistical data disaggregated by sex, age and administrative entity, on the impact of the policies and measures implemented to promote full, productive and freely chosen employment, including the employment promotion activities carried out under the Employment Strategy of Republika Srpska 2016–20.

Employment trends. The FBiH reports that there were a number of positive changes in the labour market in 2016. The RS indicates that a gradual stabilization of the labour market began in 2013, adding that numerous measures taken by the RS and other stakeholders addressed the increasing unemployment rate. The Committee notes that, according to data from the FBiH Statistics Institute, 457,974 workers were employed in the FBiH in 2016. It further notes that data from the Labour Force Survey indicates that the employment rate in the FBiH stood at 30.5 per cent in 2016, while the average unemployment rate was 25.6 per cent, a reduction of 3.31 per cent in comparison with the 2015 average. The Committee notes the high unemployment rate among young persons 15–24 years of age, which decreased from 64.9 per cent in 2015 to 55.1 per cent in 2016. The Committee further notes that, according to the ILOSTAT database, the general unemployment rate for young persons was 45.8 per cent in 2017. At the end of 2016, the largest percentage of those registered as unemployed in the FBiH (44.24 per cent) were in the 30–49 age group, followed by persons under the age of 30 (32.5 per cent) and persons over the age of 50 (25.26 per cent). In 2016, 133,037 persons were removed from the records of the Cantonal employment services, 115,379 persons were registered as unemployed and 92,263 persons were placed in employment. This represents an increase of 15,671 in comparison with 2015. According to the ILOSTAT database, in 2017, the general unemployment rate was 20.5 per cent, whereas the unemployment rate for men and for women was 18.9 per cent and 23.1 per cent, respectively. The Committee requests the Government to continue to provide statistical data disaggregated by sex and age concerning the size and distribution of the labour force, including the size of the informal economy and employment trends in relation to employment, unemployment, and visible underemployment.

Undeclared work. In their observations, the workers’ organizations indicate that the informal economy is widespread, maintaining that the Government has not made serious efforts to tackle this issue effectively. They emphasize that nearly one-third of all persons who are employed are working in the informal economy, trapped there primarily due to poor access to the labour market, slow job creation in the formal economy and the lack of skills matching labour market demands. They add that workers in rural areas face a higher probability of remaining in informal employment in comparison with workers in other sectors. The Committee notes that, according to the RS Employment Strategy 2016–20, informality is predominately present in agriculture, making up about two-thirds of informal employment, with informal employment concentrated among the rural population. The Committee therefore once again requests the Government to provide detailed updated information on the measures taken or envisaged to facilitate the transition of undeclared workers in the informal economy to employment in the formal economy, with special attention to the agricultural sector and rural communities.

Workers vulnerable to decent work deficits. The FBiH indicates that a number of gender-sensitive programmes implemented by the FBiH Employment Institute focus on specific groups of workers vulnerable to decent work deficits: women; young persons; persons with disabilities; persons belonging to the Roma community; persons over the age of 40; and the long-term unemployed. The RS reports that 2,859 persons were employed through Social Safety Nets and the Employment Support Project. In addition, 543 persons were employed in 2015 through a project to support the employment of persons over the age of 45 and 135 persons were employed through an employment support project targeting the Roma minority from 2011 to 2015. It adds that the RS Employment Action Plan for 2017 sets out a number of measures aimed at increasing the employability of persons under the age of 30, persons over the age of 50 and persons belonging to the Roma community. In their observations, the workers’ organizations allege that the 2015–18 Reform Agenda fails to address the interests of women, workers in the informal economy and workers with disabilities. In addition, the workers’ organizations observe that women have low participation levels in political and public affairs, noting that the gender pay gap in BiH is larger than the EU average. The Committee requests the Government to provide detailed updated information, including statistical data disaggregated by age and sex in the three administrative entities, on the nature and impact of measures taken to promote full, productive, freely chosen and sustainable employment for persons vulnerable to decent work deficits, including women, young persons, persons over the age of 50, informal workers, the long-term unemployed, persons with disabilities and members of the Roma community. Noting, moreover, the gender pay gap and the higher rates of unemployment for women, the Committee requests the Government to provide information on specific measures taken to promote employment for women at all levels and across all sectors, including in decision-making positions.

Employment of young persons. The Committee notes that, according to the ILOSTAT database, the youth unemployment rate in the country stood at 45.8 per cent in 2017. The Committee notes that both FBiH and the RS took measures to promote the employment of young persons. In this regard, the RSEB implemented five projects from 2011 to 2014 to support young persons in gaining work experience, through which 3,650 persons were employed as trainees. Furthermore, the RS Employment Action Plan for 2017 contemplates the promotion of socially useful employment for youth, for which 50,000 Bosnian convertible marka (BAM) are allocated. In their observations, the workers’ organizations express concerns in relation to the high rate of youth unemployment and the likelihood that they will remain in long-term unemployment and the mass exodus of young educated persons from the country seeking work elsewhere. The Committee requests the Government to provide updated detailed information, including disaggregated statistical data on the impact of the measures taken by the three administrative entities of the country to promote full, productive, freely chosen and lasting employment for young workers.

Vocational education and training. The Committee notes that the FBiH Employment Institute and the Cantonal employment services are responsible for implementing the Job Preparation Programme: from Training to Employment, which provides co-financing for the training of unemployed persons to enable them to acquire professional skills tailored to the needs of employers. In respect of the RS, the Committee notes the establishment of 11 job clubs and 6 Information, Counselling and Training Centres which provided job search assistance to more than 34,376 beneficiaries from 2011 to 2015, leading to the employment of 9,172 persons. Furthermore, the RS Employment Action Plan for 2017 contemplates the development, financing and delivery of training aimed at enhancing the employability of active jobseekers, for which BAM500,000 are allocated. The Committee requests the Government to continue to provide information on the nature and impact of measures taken to improve vocational education and training and on their impact on the employability and competitiveness of the national labour force.

Article 3. Consultation with the social partners. The Committee notes the Government’s indication that the tripartite FBiH Economic and Social Council discusses all measures related to economic and social policy prior to their formal adoption and that the RS Employment Action Plan for 2017 was adopted after consultation with the social partners. In their observations, the workers’ organizations allege that the social partners were not able to participate in the development and implementation of the 2015–18 Reform Agenda and that this lack of participation and transparency continued in relation to laws and policies adopted by regional governments in 2016. They further allege that the 2015 Labour Law undermines the strategic position of trade unions and collective agreements. The Committee requests the Government to provide detailed information on the nature and extent of the involvement of the social partners in the development, implementation, monitoring and review of employment policy measures and programmes in the different administrative entities.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Article 3(2) of the Convention. Determination of hazardous work. 1. Federation of Bosnia and Herzegovina (FBiH). In its previous comments, the Committee noted that pursuant to section 57 of the Labour Law of the FBiH No. 26/16 of 2016, underage persons may not be assigned to any physically demanding work, underground or underwater work, or any other work likely to create a hazard or increased risk to their life, health, development or morale, taking into account their mental and physical characteristics. The Committee further noted that a by-law that shall define the types of work referred to in section 57 of the Labour Law had not been adopted. The Committee notes with regret that according to the information provided by the Government in its report, such a by-law has not been adopted yet. Observing that it has been raising this issue since 2005, the Committee once again urges the Government to take the necessary measures to ensure, pursuant to section 57 of the Labour Law of the FBiH, that a list of activities and occupations prohibited for persons below 18 years of age is adopted, after consultation with the employers’ and workers’ organizations concerned, in accordance with Article 3(2) of the Convention. It requests the Government to provide information on any progress made in this regard.

2. Brčko District. The Committee previously noted that section 41 of the Labour Law of the Brčko District No. 19/06 of 2006 provides that underage persons may not be assigned to any dangerous or demanding work, underground or underwater work, or any other work likely to pose a hazard or jeopardize their life, health, physical development or morale, and that these types of work shall be regulated under collective agreements. The Committee requested the Government to provide information on the progress made in adopting the list of types of work prohibited to children and young persons under 18 years of age, as well as on the types of work prescribed by collective agreements.

The Committee notes with regret an absence of information in the Government’s report in this respect. The Committee further notes that pursuant to section 75(1) of the new Labour Law of the Brčko District No. 34/19 of 2019, employees under the age of 18 may not be assigned to any physically demanding work, underground or underwater work, work carried out at a height, or any other work likely to create a hazard or increased risk to their life, health, development or morale, taking into account their mental and physical characteristics. Observing that it has been raising this issue since 2005, the Committee urges the Government to take the necessary measures to adopt a regulation determining the types of hazardous work prohibited for persons under the age of 18 years, after consultation with the employers’ and workers’ organizations concerned, in accordance with Article 3(2) of the Convention. It requests the Government to provide information on any progress made in this regard.

The Committee reminds the Government that it may avail itself of ILO technical assistance in order to facilitate the application of the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

[The Government is asked to reply in full to the present comments in 2022.]

Article 9(1) of the Convention. Penalties. 1. Federation of Bosnia and Herzegovina (FBiH). In its previous comments, the Committee noted that section 171(1)(3) of the Labour Law of the FBiH No. 26/16 of 2016 provides that a fine in the amount of 1,000 to 3,000 Convertible Marka (BAM), or of BAM5,000 to 10,000 in case of a recurring violation, shall be imposed on employers (legal persons) if they have concluded an employment agreement or if they have employed an underage person for any type of work, in breach of section 20 of the Labour Law. The fine is of BAM2,000 to 5,000 on employers (natural persons) for the same offence.

The Committee notes the indication by the Government in its report that no penalties were imposed by the labour inspectors of the Federal Administration for Inspection Issues (FAII) for violation of section 20 of the Labour Law of the FBiH during the reporting period. The Committee requests the Government to continue to provide information on the application of section 171(1)(3) of the Labour Law of the FBiH, in conjunction with its section 20, in practice, in particular the number of violations detected and the penalties imposed.

2. Brčko District. The Committee previously noted the Government’s indication that section 110 of the Labour Law of the Brčko District No. 19/06 of 2006 shall be amended to provide that a fine between BAM1,000 and 10,000 shall be imposed on employers (legal persons) if they have concluded an employment agreement with a person under the age of 15 years, in violation of section 10(1) of the Labour Law, or if they have employed an underage person without fulfilling the requirements referred to in section 10(2) of the Labour Law.

The Committee notes with interest that the new Labour Law of the Brčko District No. 34/19 of 2019, in its section 173(1)(j) and (7), imposes a fine of BAM3,000 on employers (legal persons) for the conclusion of an employment agreement with underage persons, in violation of its section 20(1) which provides for a minimum age of 15 years for employment, and of section 20(2)(a) and (b) which sets out the requirements for the employment of persons between the ages of 15 and 18. The fine is of BAM1,500 on employers (natural persons) for the same offence (section 173(1)(j) and (9)). In addition, section 173(1)(hhh) and (7) of the Labour Law No. 34/19 of 2019 imposes a fine of the same amount for violation of its section 75 that sets out provisions on employment protection of underage persons, including the prohibition of performance of hazardous work. The Committee requests the Government to provide information on the application of section 173(1)(j) and (hhh) of the Labour Law of the Brčko District No. 34/19 of 2019 in practice, in particular the number and nature of violations detected and the penalties imposed.

Article 9(3). Registers of employment. Brčko District. Further to its previous request on the specific legal provisions that prescribe the keeping of registers of employees in the Brčko District, the Committee observes that by virtue of sections 165-167 of the Labour Law of the Brčko District No. 34/19 of 2019, employees must have working record books which shall be kept by their employers during the period of employment of employees. The Committee further observes that the Rulebook on Working Record Books of the Brčko District No. 7 of 2011 regulates the entry of data into the working record book, including the names and dates of birth of employees (section 3(2)).

Application of the Convention in practice. The Committee previously noted the Government’s information according to which, in the Republika Srpska, 97 young persons (62 boys and 35 girls) between the ages of 15 and 18 were recorded as employees in 2015 and 194 (125 boys and 69 girls) were recorded in 2016; in the FBiH, 338 employees under 18 years were recorded in 2014 and 197 in 2015; and in the Brčko District, no cases of employment of persons under the age of 18 had been registered by the labour inspectors.

The Committee notes the statistical data provided by the Government indicating that in the Republika Srpska, 75 employees (51 boys and 24 girls) between the ages of 15 and 18 were recorded in 2017; 69 employees (57 boys and 12 girls) were recorded in 2018; and 100 employees (81 boys and 19 girls) were recorded in 2019. The Government further indicates that according to the data of the labour inspectorate, in the Republika Srpska, there were no cases of work carried out by children under the age of 15. The Committee requests the Government to continue to provide statistical data, including on the number of children below the minimum age engaged in economic activities and the number of young persons engaged in hazardous work in the FBiH, the Republika Srpska and the Brčko District.

[The Government is asked to reply in full to the present comments in 2022.]

Article 6 of the Convention. Programmes of action to eliminate the worst forms of child labour. Strategy to Counter Trafficking in Human Beings in Bosnia and Herzegovina and an Action Plan for 2020–2023. In its previous comments, the Committee noted that, 16 presumed victims of trafficking were identified in 2013, 49 in 2014, 35 in 2015 and 45 in 2016, the majority of whom were children. The prevailing form of exploitation over the 2013–2016 period was forced begging, sometimes combined with other forms of forced labour and/or sexual exploitation. The Committee further noted the adoption of the Action Plan to Counter Trafficking in Human Beings in Bosnia and Herzegovina for the period 2016–2019 (Action Plan for 2016-2019), which aimed to improve the system of support for the fight against trafficking in persons, the effective prosecution of trafficking in persons and related crimes, the prevention of trafficking in persons by risk reduction and effective protection and assistance to victims of trafficking, and strengthening the partnership and cooperation between the parties involved in countering trafficking in persons.

The Committee notes the information provided by the Government in its report under the Forced Labour Convention, 1930 (No. 29) that 47 presumed child victims were identified in 2017, 24 in 2018, and 5 in January-June 2019. The Government further indicates that 15 out of a total of 77 activities envisaged in the Action Plan for 2016-2019 were not fully implemented in 2019. In this respect, the Committee observes from the 2020 Report of the State Coordinator for Combating Trafficking in Human Beings that most of the activities on preventing and combatting trafficking of children contained in the Action Plan for 2016-2019 achieved the expected results. In particular, a number of trainings for workers of social centers and educational activities for school students were carried out under strategic measure C.3 of the Action Plan for 2016-2019 on the prevention of trafficking of children. In addition, support services were provided to child victims of trafficking which included the provision of shelter, food, clothing, footwear, hygiene supplies, and healthcare (strategic measure D.6 on protection and assistance services). The Committee also notes the adoption of the Strategy to Counter Trafficking in Human Beings in Bosnia and Herzegovina for 2020-2023 on 23 January 2020 and its Action Plan (SAP 2020-2023). The SAP 2020-2023 focuses notably on the prevention of trafficking of children (strategic measure No. 2.5), the protection of child victims of trafficking during criminal proceedings (strategic measure No. 3.7), better identification of child victims of trafficking, and the provision of support services tailored to the needs of child victims (strategic measure No. 4.4). The Committee requests the Government to provide information on the implementation of the SAP 2020-2023, particularly the abovementioned strategic measures, and its impact on preventing and combating the trafficking of children under 18 years of age.

Article 7(2). Effective and time-bound measures. Clause (a). Preventing the engagement of children in the worst forms of child labour. Access to free basic education. In its previous comments, the Committee noted the Government’s information that, as a result of various stimulus measures – including training of teachers and parents, the provision of free textbooks, transportation and school meals to Roma children, increased cooperation with the Centre for Social Welfare and helping families in need – an increased number of Roma children completed primary and secondary education in 2015 and 2016. The Committee noted, however, the concern expressed by the Committee on the Elimination of Racial Discrimination about the low school attendance of Roma children and their over representation in special schools because of alleged “social disabilities” or because such schools were often the only ones that provided support such as free meals, books or transportation, which many Roma families depended on to send their children to school.

The Committee notes an absence of information in the Government’s report on this point. However, it observes from the 2018-2020 Reports of the State Coordinator for Combating Trafficking in Human Being, that various projects were implemented which aimed at the provision of access to pre-school and primary education for Roma and other vulnerable groups of children, including the conduct of a 12-month literacy course for Roma girls for their further integration into the regular education system in 2018. The Committee also notes the adoption of the Framework Action Plan on the Educational Needs of Roma in Bosnia and Herzegovina (2018–2022). In addition, the Committee observes from the 2019 Report on the implementation of the Action Plan for Children of Bosnia and Herzegovina for 2015–2018 that in the period 2016-2018, 1500 Roma children, more than 3000 parents, and over 1000 teachers participated in the project “Affordable and quality education for Roma girls and boys” which aimed to prevent Roma children from dropping-out of school. The Committee notes, however, from the same report that only 10 per cent of Roma children complete high school. The Committee further notes that the Committee on the Rights of the Child (CRC), in its concluding observations, expressed concern about the high rates of school dropout owing to poverty and economic hardship (CRC/C/BIH/CO/5-6, paragraph 39). While noting the measures taken by the Government, the Committee requests the Government to continue its efforts to facilitate access of Roma children to free, quality basic education. It further requests the Government to continue to provide information on the measures taken in this regard and on the results achieved, particularly with regard to improving the functioning of the education system, increasing the school enrolment rates and reducing the school drop-out rates of Roma children. To the extent possible, this information should be disaggregated by age and gender.

Clause (d). Identifying and reaching out to children at special risk. Street children. In its previous comments, the Committee noted the Government’s information that there had been considerable progress following the implementation of measures under the Action Plan for Solving Problems of the Roma in the Fields of Employment, Housing and Health Care (2013–2016), which had had the effect of directly and indirectly reducing the exploitation of Roma children in all forms, especially in street begging. The Committee also noted that in 2015, 122 children (62 boys and 60 girls), all of them involved in begging, were assisted by the day centers (drop-in centers) for children. The Committee further noted that, according to a 2015 UNICEF study on child begging and other child street work, children working on the streets were mostly younger than 14, were primarily Roma although all communities were affected, and were very vulnerable and exposed to abuse.

While noting an absence of information in the Government’s report, the Committee observes from the 2019 Report on the implementation of the Action Plan for Children of Bosnia and Herzegovina for 2015 – 2018 that a series of measures were taken under specific objective H.3 of the Action Plan concerning the economic exploitation of children working on the streets. In particular, the 2019 Report indicates the conduct of awareness-raising activities and the establishment of day centers for children working on the streets, such as a shelter in Tuzla Canton for children from the age of 3-18 years who are victims of different forms of exploitation, including begging. The 2019 Report, however, indicates the lack of sufficient funding of such day centers. The Committee further notes that the CRC, in its concluding observations, recommended to provide alternative opportunities for children in street situations, including vocational training and employment opportunities, as well as to provide adequate financial support to the day centers for children working in the street (CRC/C/BIH/CO/5-6, paragraph 45). The Committee encourages the Government to strengthen its efforts for the removal of children working on the streets and to ensure their rehabilitation and social integration, with special attention to the most vulnerable groups. It requests the Government to continue to provide information on the measures taken in this regard and on the results achieved.

Articles 3(a) and 7(1) of the Convention. Trafficking of children and penalties. The Committee observes that pursuant to the Criminal Code of Bosnia and Herzegovina of 27 June 2003, transnational trafficking (section 185(2)) and organized transnational trafficking of persons under 18 years of age (section 186(2)) are criminal offences. Furthermore, section 210(a)(2) of the Criminal Code of the Federation of Bosnia and Herzegovina of 9 July 2003, section 146 of the Criminal Code of the Republika Srpska of 2017, and section 207(a)(2) of the Criminal Code of the Brčko District of 2003 penalize trafficking of children. The Committee observes from the 2018–20 Reports of the State Coordinator for Combating Trafficking in Human Beings that there were two persons convicted under section 207(a)(2) of the Criminal Code of the Brčko District in 2017 and two persons convicted under section 146 of the Criminal Code of the Republika Srpska in 2018. The Committee further notes that the Committee on the Rights of the Child (CRC), in its concluding observations, expressed concern about the low rate of prosecutions and convictions of the trafficking and exploitation of children and urged the Government to strengthen training for law enforcement officers at all levels to investigate all cases of child trafficking and to ensure that the perpetrators of those criminal offences are prosecuted and adequately punished at all levels of jurisdiction (CRC/C/BIH/CO/5-6, paragraph 46). The Committee recalls that, under Article 7(1) of the Convention, the Government is obliged to take all the necessary measures to ensure the effective implementation and enforcement of the provisions giving effect to the Convention, including the provision and application of penal sanctions. The Committee therefore requests the Government to ensure that persons involved in the trafficking of children are investigated and prosecuted and that sufficiently effective and dissuasive sanctions are imposed upon them. The Committee requests the Government to provide information on training sessions for law enforcement officers addressed to investigating child trafficking and apprehending perpetrators, including the number, nature, and duration of sessions and the number of officers attending. It also requests the Government to provide statistical data on the abovementioned sections of the Criminal Codes concerning the trafficking of children, including statistics on the number of investigations, prosecutions, convictions and penalties imposed.

The Committee is raising other matters in a request addressed directly to the Government.

Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). In its previous comment, the Committee requested the Government to provide information on the outcome of the proceedings relating to a request for judicial review against the decision of the Court of Bosnia and Herzegovina for violation of the Act on Associations and Foundations of Bosnia and Herzegovina, 2001 linked to the previously examined issue of registration of the SSSBiH. The Committee notes that while the Government reiterates information provided previously on the successful registration of the SSSBiH in 2012, indicating that the Ministry of Justice had fully executed the judgement of the Court of Bosnia and Herzegovina, it does not elaborate on the outcome of the previously mentioned proceedings relating to a request for judicial review against the decision of the Court of Bosnia and Herzegovina for violation of the Act on Associations and Foundations. The Committee therefore requests the Government once again to indicate whether any judicial proceedings are pending in relation to the registration of the SSSBiH and the decision of the Court of Bosnia and Herzegovina and if so, to provide information on the outcome thereof.

Legislative reform. The Committee notes the 2018 amendments of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and of the Labour Act of the Republika Srpska, 2016 (RS Labour Act), and observes the Government’s indication that the changes do not affect sections relevant to the application of the Convention. The Committee also notes the 2020 amendments to the Act on Strikes in the Republika Srpska (RS Act on Strikes) and the adoption of the Labour Act of the Brčko District, 2019 (BD Labour Act).

Relationship with workers’ and employee councils. Federation of Bosnia and Herzegovina. In its previous comments, having noted that section 119 of the FBiH Labour Act seemed to place trade unions in a subsidiary position vis-à-vis work councils, the Committee requested the Government to take the necessary measures, including any legislative amendments, to prevent any risk of weakening the institutional position of trade unions. The Committee welcomes the Government’s clarification that section 119 should not be interpreted in a manner that would make trade unions dependent on work councils since this was not the objective of the provision. In comparison to work councils, trade unions have broader authority and the provision aims to assure that, apart from its existing obligations and competencies, the union would also assume additional competencies of work councils, should these not be formed in an establishment. The Committee takes due note of this information.

Relationship with workers’ and employee councils. Republika Srpska and the Brčko District. In its previous comment, the Committee requested the Government to clarify the relationship between a trade union and a workers’ council under the RS Labour Act and to take the necessary measures, including amendments of sections 83 and 93 of the BD Labour Act, to ensure that the existence of workers’ councils does not undermine trade unions and their activities. The Committee welcomes the Government’s clarification that the legislation in Republika Srpska clearly and unambiguously distinguishes between trade unions and workers’ councils in that workers’ councils are subordinate to trade unions – only a trade union is allowed to enter into collective agreements and if there is an obligation prescribed to consult workers, workers’ councils will only be consulted if no trade union has been organized at the employer (section 16(8) of the RS Labour Act). With regard to the Brčko District, the Committee notes the Government’s indication that section 134 of the new BD Labour Act regulates the right of employees of a company with at least 15 employees to form workers’ councils that will represent them before the employer with regard to protection of their rights and interests. It observes, however, that no additional information was provided to clarify the relationship between trade unions and workers’ councils. The Committee therefore requests the Government once again to clarify the relationship between workers’ councils and trade unions as a matter of law and practice, in section 134 of the BD Labour Act and should trade unions be in a subsidiary position vis-à-vis workers’ councils, 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.

Act on Associations and Foundations. Failure to register. Brčko District. In its previous comment, the Committee requested the Government to indicate whether sections 25(1) (voluntary registration) and 45(1)(a) (penalization of the failure to register) of the Act on Associations and Foundations in Brčko District (the BD Act on Associations and Foundations) were 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. In its supplementary report, the Government indicates in general terms that the BD Act on Associations and Foundations regulates material requirements which associations and trade unions have to meet in order to be registered and obtain legal personality. The Committee understands from the above that sections 25(1) and 45(1)(a) of the BD Act on Associations and Foundations would be applicable to workers’ and employers’ organizations and therefore requests the Government 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.

Act on Associations and Foundations. Suspension of activities and dissolution of trade unions. In its previous comment, the Committee requested the Government to indicate whether sections 43 and 44 of the Act on Associations and Foundations in the Federation of Bosnia and Herzegovina (the FBiH Act on Associations and Foundations), sections 40 and 41 of the Act on Associations and Foundations in the Republika Srpska (the RS Act on Associations and Foundations) and sections 26 and 37 of the BD Act on Associations and Foundations were applicable to workers’ and employers’ organizations, and if so, to take the necessary measures to amend these provisions to ensure that trade unions and employers’ organizations can be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure.

The Committee welcomes the Government’s indication with regard to Republika Srpska, that the RS Labour Act, which prohibits the temporary or permanent suspension of lawful activities of trade unions and employers’ organizations (section 212(1)), is lex specialis in relation to provisions of the RS Act on Associations and Foundations, the provisions of which would thus not apply to trade unions.

Concerning the Federation of Bosnia and Herzegovina, the Committee welcomes the Government’s supplementary indication that section 17 of the FBiH Labour Act, which prohibits the temporary or permanent suspension of lawful trade union activities, may be interpreted as lex specialis with regard to the FBiH Act on Associations and Foundations, as it regulates exclusively the activities of trade unions and employers’ associations.

In relation to the Brčko District, the Committee observes, on the one hand, the Government’s general indication that the BD Act on Associations and Foundations regulates material requirements which associations and trade unions have to meet in order to be registered. The Committee recalls in this regard that section 37, read in conjunction with section 45, provides for the possibility of suspension of trade union activity for reasons that do not appear to justify the severity of such sanctions, including for repeated failure to: use the registered name of the association in legal transactions, use profits in a way prescribed by the laws and the statute and notify the relevant authority about a change of data to be entered into the registry. On the other hand, the Committee notes the Government’s statement that by virtue of section 14 of the BD Labour Act, legal activities of trade unions and employers’ associations may not be permanently or temporary prohibited. In light of the foregoing, the Committee requests the Government: (i) to clarify whether workers’ and employers’ organizations in the Brčko District can be suspended or dissolved under section 37 of the BD Act on Associations and Foundations, or whether provisions of the Labour Act effectively preclude such suspension or dissolution, and (ii) if necessary, to take the pertinent measures to amend the relevant provisions, in consultation with the social partners, in order to ensure that trade unions and employers’ organizations can be suspended or dissolved only in cases of serious breaches of the Act and following a normal judicial procedure.

Article 3. Right of employers’ and workers’ organizations to elect their representatives in full freedom and to organize their administration and activities. Act on Strikes. Institutions of Bosnia and Herzegovina. In its previous comment, having noted the adoption of the Act on Strikes in the Institutions of Bosnia and Herzegovina, the Committee requested the Government to provide information on the exact scope of its application and the nature of the public servants concerned. The Committee notes the Government’s indication that: (i) section 45 of the Act on Civil Service in the Institutions of Bosnia and Herzegovina stipulates that the Labour Act in the Institutions of Bosnia and Herzegovina and other laws regulating employee rights and obligations are applicable to civil servants unless otherwise provided; (ii) pursuant to section 2 of the Act on Strikes, employees are private persons employed in the institutions of Bosnia and Herzegovina; and (iii) the provisions of the Act on Strikes therefore apply to all employees in the institutions of Bosnia and Herzegovina, including civil servants. Taking due note of the above, the Committee requests the Government to provide information on the application in practice of the Act on Strikes in the Institutions of Bosnia and Herzegovina, in particular on the number of strikes undertaken and the categories of public servants concerned.

Determination of minimum services. Institutions of Bosnia and Herzegovina. In its previous comment, the Committee also requested the Government to provide information on the application of sections 15 and 26 of the Act on Strikes in the Institutions of Bosnia and Herzegovina in practice, in particular, on the manner in which trade unions can participate in the determination of the minimum services and on the manner of resolution of any disputes. The Committee notes the Government’s indication that section 15 prescribes that the Council of Ministers of Bosnia and Herzegovina issues a decision concerning the minimum service on the basis of a proposal submitted by the employer to which the trade union gave its consent. Therefore, according to the Government, trade unions participate in defining the minimum service with the employer and the decision on establishing the minimum work process is then published and made available to everyone. While taking due note of the above information, the Committee observes that the Government did not indicate what are the applicable mechanisms for the resolution of disputes arising among the parties during the determination of minimum services under the Act on Strikes in the Institutions of Bosnia and Herzegovina. 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 respect.

Trade union representatives. Republika Srpska. The Committee had previously noted that as a result of the 2012 amendment of the Regulations on registration, the word “permanent” had been deleted from its section 4(3) but observed that the text of the provision had not been otherwise altered – the application for registration must include a certificate indicating that the person authorized to act on behalf of the trade union is employed by that employer. The Committee noted the adoption of the 2016 RS Labour Act and the Rulebook on registration and requested the Government to clarify whether the 2012 Regulations on registration continued to be in force. The Committee notes the Government’s indication that section 6 of the Rulebook on registration provides that the application for registration must be accompanied by a certificate issued by the employer confirming that the person authorized to represent the union is employed with the employer, or, if the employer refuses to provide such a certificate, the person can provide the employment contract or a statement to prove that he or she is employed with the employer. The Government clarifies that: (i) this requirement is only applicable at the lowest level of organization, that is, at the level of the employer and not at the level of branches, industry or Republika Srpska, in which cases, the unions are generally managed by professionals; (ii) allowing a third party to represent the union at the level of the enterprise may be counterproductive since it requires daily contact with the employer; (iii) trade unions can hire lawyers or other professionals to represent the union before all competent bodies and courts; and (iv) section 215(7) of the RS Labour Act allows external trade union representatives to have access to trade unions with prior announcement to the employer. The Committee observes from this information that the requirements under section 6 of the 2016 Rulebook on registration are essentially the same as those previously examined by the Committee in section 4(3) of the 2012 Regulations on registration, in that the application for registration at the level of the enterprise must, in the form of a certificate, employment contract or personal statement, confirm that the person authorized to act on behalf of the trade union is employed by that employer. While noting the Government’s detailed explanation on the rationale behind this rule and on the participation of workers’ representatives in its elaboration, the Committee recalls that such a requirement could prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office. The Committee therefore encourages the Government to revise the applicable rules so as to remove this requirement and allow trade unions to freely determine the eligibility of trade union representatives.

Right to strike in the civil service. Federation of Bosnia and Herzegovina. In its previous comments, the Committee noted the adoption of the Act on Civil Service in the Federation of Bosnia and Herzegovina, 2003 which allows civil servants to go on strike in accordance with law, but does not govern issues of organizing and leading strikes, and observed the Government’s indication that separate laws governing the issue of strikes in administration bodies and services would be adopted. The Committee has therefore been requesting the Government to provide information on the regulation of the right to strike (in collective agreement or legislation) in the civil service in the Federation of Bosnia and Herzegovina. The Government indicates that a special law regulating the issue of strikes in the civil service has not yet been adopted but that the matter of strike and the conditions of work in trade unions of officers in the administrative and judicial authorities are regulated by the 2020 collective agreement in force. Taking due note of this information, the Committee requests the Government to continue to provide information on any legislative provisions adopted in this respect.

Act on Strikes. Republika Srpska. Determination of minimum services. In its previous comment, having noted that under the RS Act on Strikes the determination of minimum services continued to be a prerogative of the employer, the Committee requested the Government once again to take the necessary measures to amend section 12, so as to allow trade unions along with the employers and the public authorities, to participate in defining the minimum services and, in case of disagreement among the parties, to provide for a joint or independent body to define the minimum services. The Committee requested the Government to provide information on the instances in which the determination of the minimum services was the subject of collective bargaining. The Committee welcomed the Government’s indication that the draft Act on Amendments to the RS Act on Strikes was being developed, in consultation with the social partners, that the Committee’s proposals would be reviewed and that the Government would define the optimum legal solution in cooperation with the social partners. The Committee notes, however, from the supplementary information provided by the Government, that the July 2020 Act on Amendments to the RS Act on Strikes did not amend section 12 and understands that the determination of minimum services thus continues to be a prerogative of the employer. The Committee therefore requests the Government once again to take the necessary measures to amend section 12 of the RS Act on Strikes, 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 requests the Government to provide information on any progress made in this regard, as well as on the instances in which the determination of the minimum services was the subject of collective bargaining.

Strike vote. The Committee further requested the Government to provide information on the application in practice of section 4(1) and (2) of the RS Act on Strikes, which sets the requirements for taking a decision to begin a strike action or a warning strike (the decision must be taken by the authorized body of the relevant majority representative trade union or by more than 50 per cent of the workers of that employer or by another trade union which has the support of more than 50 per cent of the workers of the employer). The Government indicated that the term “majority” refers to 50 per cent plus 1 employee, whereby workers freely decide on whether they participate or not in a strike irrespective of their vote. In its supplementary report, the Government further informs that during the July 2020 amendments to the RS Act on Strikes, technical changes were introduced to section 4(1) to harmonize it with the terminology used in the Labour Act, which does not use the term “majority representative”, so that the decision to go on company-level strike or warning strike is issued either by the competent authority of a representative trade union, or by more than half of the employees at the company. While taking note of this terminological amendment, the Committee recalls 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. While observing that a strike can also be declared by the authorized body of a representative union, the Committee considers that for a strike to be declared by workers, the requirement of an absolute majority of all workers of the employer, as currently stated in the law, may be excessive (see the 2012 General Survey on the fundamental Conventions, paragraph 147). Therefore, the Committee requests the Government to provide information on the application in practice of this provision and requests it to take the necessary measures to revise the voting requirements in line with the above, for example by setting a reasonable quorum, so as not to unduly hinder the workers’ exercise of the right to strike.

Compulsory arbitration. The Committee also requested the Government to clarify whether arbitration under the RS Act on Peaceful Settlement of Labour Disputes, 2016 was voluntary, based on the agreement of both parties, or whether it could be imposed by the authorities or at the request of one of the parties. The Committee notes the Government’s clarification that, in line with sections 27-31, 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, where the parties are obliged to submit a proposal for peaceful resolution of the dispute to the Agency (sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes). If parties to the dispute do not submit the proposal, the director of the Agency will initiate the procedure of dispute resolution ex officio and pursuant to the law. Taking due note of the above, 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. It also requests the Government to provide more details on the possibility to establish an arbitration commission referred to in sections 34-36 of the Act, in particular whether this mechanism can be used in case of interest disputes and can lead to a binding arbitration at the request of one party.

Right to assembly in the context of a strike. Republika Srpska and the Brčko District. In its previous comment, the Committee requested the Government to take the necessary measures to amend section 5(2) of the RS Act on Strikes and section 4(1)(d) of the Act on Strikes in the Brčko District (the BD Act on Strikes), which did not seem to allow the gathering of workers in case of a strike outside the company in which the strike takes place, so as not to restrict freedom of assembly or impede the lawful exercise thereof. The Committee notes the Government’s indication, with regard to Republika Srpska, that any assembly of workers outside of the workplace is considered as a public gathering, assembly or protest, regulated by the Act on Public Assembly. In accordance with this law, there is no limitation for the organizer of a strike to organize a public gathering outside the work area of the employer. In its supplementary report, the Government adds that section 5(2) of the RS Act on Strikes prescribes that if a strike is manifested by the gathering of employees, the place of gathering may not be outside of the “work environment” of the employer. It clarifies, however, that under section 8 of the RS Labour Act “work environment” is defined as a space where work is performed including workplaces, working conditions, operational procedures and relations in the work process and that “workplace” is defined as a place intended for doing jobs at company level where an employee carries out work tasks or to which they have access while performing work and which is under direct or indirect management of the employer. The Committee observes that, according to the Government, the definitions of “work environment” and “workplace” in the RS Labour Act suggest that employees may gather freely in front of the employer’s workplace in order to strike, as this would be within the definition of “work environment”. The Government also states in general terms that the BD Labour Act provides that any lawful trade union activity may not be prohibited and assures that section 4(1)(d) of the BD Act on Strikes will be amended in line with the Committee’s comments to allow the full exercise of the right to strike (information contained in the Government’s 2019 report on the Collective Bargaining Convention, 1981 (No. 154)). The Committee therefore trusts that, as indicated by the Government, workers during a strike in the Republika Srpska may gather outside the company where the strike takes place and that section 4(1)(d) of the BD Act on Strikes will be amended so as not to restrict freedom of assembly as part of the lawful exercise of the right to strike.

Article 5. The right of workers’ and employers’ organizations to form federations and confederations. Brčko District. In its previous comment, having noted that the BD Labour Act does not contain any provisions on the possibility for workers’ organizations to form federations and confederations, the Committee requested the Government to clarify whether workers’ and employers’ organizations can, in law and practice, form federations and confederations of workers and to indicate the relevant legal provisions. Noting the Government’s indication that the BD Labour Act does not regulate the right of organizations of workers and employers to establish and join federations and confederations or to affiliate with international organizations, the Committee requests the Government to provide information on whether, even in the absence of legislation in this respect, workers’ and employers’ organizations can, in practice create and join higher-level organizations and affiliate to international organizations, and requests the Government to endeavour to take the necessary measures to recognize these rights in the legislation.

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 from the International Trade Union Confederation (ITUC).

Article 2 of the Convention. Scope of application. In its previous comment, on the basis of section 6 of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (the FBiH Labour Act), section 5 of the Labour Act of the Republika Srpska, 2016 (the RS Labour Act) and section 2(5) of the Labour Act of the Brčko District of Bosnia and Herzegovina, 2006 (the BD Labour Act), the Committee requested the Government to indicate whether specific categories of workers – workers without an employment contract, domestic workers, workers in the informal economy and self-employed workers – enjoy, in law and practice, the rights guaranteed by the Convention, and if not, to take the necessary measures to amend the relevant labour legislation in this regard. The Committee notes the Government’s indication that: (i) in the Federation of Bosnia and Herzegovina, the right to associate is primarily enjoyed through the Act on Associations and Foundations in the Federation of Bosnia and Herzegovina (the FBiH Act on Associations and Foundations) which gives all persons without discrimination the right to form associations in order to proclaim or protect their rights and interests, irrespective of whether they are employees or not; (ii) while the specific protection of employees to organize in trade unions is separately provided by the provisions of the FBiH Labour Act, this does not prevent persons who are not employees to associate and protect their interests in accordance with the FBiH Act on Associations and Foundations; (iii) it is not necessary to review the existing labour legislation and no measures have been taken in order to expand the right to organize to persons outside the definition of worker (natural person employed on the basis of an employment contract – section 6 of the FBiH Labour Act); and (iv) in Republika Srpska, the legislation makes a distinction between trade unions and all other types of formal or informal associations of workers or citizens: all persons having the status of workers under section 5 of the RS Labour Act can form trade unions, whereas the persons who do not have the status of a worker formally or legally can establish organizations, by virtue of the Act on Associations and Foundations of the Republika Srpska, 2001 (the RS Act on Associations and Foundations) with a view to improving their position and protecting their interests, thus exercising the rights guaranteed by the Convention. The Committee observes, however, that the FBiH Act on Associations and Foundations and RS Act on Associations and Foundations do not provide the same guarantees to workers in terms of the right to organize and associated rights, and that both in the Federation of Bosnia and Herzegovina and in the Republika Srpska, specific categories of workers are thus not covered by all the guarantees of the Convention. The Committee notes that no information has been provided in respect of this issue in the Brčko District. The Committee further understands from the information provided by the Government under this Convention and the Right of Association (Agriculture) Convention, 1921 (No. 11), that the distinction between employees, who benefit from the rights granted by the Convention, and other workers is also applicable to the agricultural sector. Recalling that the right to organize should be guaranteed to all workers without distinction or discrimination of any kind, including to workers without an employment contract, domestic workers, agricultural workers, workers in the informal economy and self-employed workers, the Committee once again encourages the Government to revise the relevant legislation in the three entities to ensure that the above categories of workers enjoy, in law and in practice, all the rights guaranteed by the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

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.

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 notes the adoption in April 2016 of the Labour Act of the Federation of Bosnia and Herzegovina (FBiH Labour Act) and its amendment in November 2018, the adoption of the 2016 Labour Act of the Republika Srpska (the RS Labour Act) and its 2018 amendments, the adoption of the 2019 Labour Act of the Brčko District (BD Labour Act) and of the 2020 Act on Inspections of the Republika Srpska.

Article 1 of the Convention. Adequate protection of workers’ representatives against acts of discrimination related to their representative functions. The Committee refers to its 2016 comments made under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in which it noted the Government’s indication that the FBiH Labour Act, the RS Labour Act and the BD Labour Act provided for a comprehensive prohibition against anti-union discrimination and observed the detailed information provided by the Government on the relevant provisions applicable in this regard. The Committee further notes the Government’s indication with regard to the Republika Srpska that, in 2020, one arbitration proceeding has been brought to the Agency for Amicable Settlement of Labour Disputes on 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 his office or six months after only with the approval of the trade union or workers’ council and if such agreement is not given, the employer may request arbitration). It also notes the Government’s indication, concerning the Federation of Bosnia and Herzegovina that the competent authorities ensure protection of rights of workers’ representatives when deciding about employers’ requests for consent on intended terminations of employment of workers’ representatives. The Government states in this regard that, since June 2019, the Ministry of Labour and Social Policy received 16 requests to give consent to the dismissal of trade union representatives, out 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. Finally, as regards the Brčko District, the Committee notes with interest the Government’s indication that section 121 of the new BD Labour Act stipulates that the employer may not terminate the employment contract of trade union representatives organized at the employer nor put them in any less favourable position in comparison to the position they had before they were appointed representatives without the prior consent of the trade union and for as long as they hold that position, as well as for three months after they stop performing their duty. The Committee requests the Government to indicate whether this protection also extends to elected workers’ representatives other than trade union officers.

Article 2. Facilities granted to workers’ representatives. Federation of Bosnia and Herzegovina and Republika Srpska. In its previous comment, the Committee welcomed the Government’s indication on the facilities provided to workers’ representatives in the Federation of Bosnia and Herzegovina and the Republika Srpska. The Committee further noted that section 215(7) of the RS Labour Act allows external trade union representatives (not employed by the employer) to have free access to the concerned trade unions but that such activities and visits are subjected to prior announcement to the employer. The Committee requested the Government to provide information on the application in practice of this provision, in particular to indicate whether there have been cases in which the employer refused external trade union representatives not employed by the employer to have access to the concerned trade unions. The Committee notes the Government’s supplementary indication that it does not have data about the instances in which such access was refused.

Brčko District. The Committee previously requested the Government to provide information on the legislative or other provisions which give effect to Article 2 of the Convention in the Brčko District. The Committee notes the Government’s statement that the BD Labour Act does not foresee any benefits which would facilitate the performance of duties of workers’ representatives. The Committee therefore requests the Government to indicate whether any other measures are in place or foreseen to give effect to Article 2 of the Convention and if not, to take the necessary measures, including legislative, to grant such facilities to workers’ representatives so as to enable them to carry out their functions promptly and efficiently.

Articles 3, 4 and 5. Relations between trade union representatives and elected representatives. In its previous comments, the Committee had requested the Government to provide information on the provisions which give effect to Articles 3, 4 and 5 of the Convention in the Brčko District and on the content of the specific provisions governing relations between trade union representatives and elected representatives in the Brčko District and in Republika Srpska, indicating whether they preserve the position and rights of trade union representatives when there are elected representatives in the enterprise. With regard to the Republika Srpska, the Committee welcomes the Government’s clarification, provided under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that the legislation clearly and unambiguously distinguishes between trade unions and workers’ councils and that workers’ councils are subordinate to trade unions. Concerning the Brčko District, the Government indicates with respect to Articles 3, 4 and 5 that the basic provisions of the BD Labour Act do not define the term workers’ representative and do not set forth the types of workers’ representatives who are entitled to the protection and benefits, except for the protection of trade union officers against dismissal. The Committee observes, however, that under section 134 of the new BD Labour Act, workers may constitute a workers’ council, which is a form of workers’ representation, and points to its comments made in this regard under Convention No. 87, in which it requests the Government to clarify the relationship between workers’ councils and trade unions. In light of the above, the Committee requests the Government once again to clarify the relationship between trade unions and workers’ councils, or any other form of elected representatives, as a matter of law and practice, in the Brčko District.

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 examined 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.

Articles 2 and 5. Effective tripartite consultations. The Committee recalls that each of the entities constituting Bosnia and Herzegovina (BiH) is autonomous with regard to employment and labour issues. It welcomes the detailed information provided in the Government’s report concerning the application of the Convention in the three entities established by the Dayton Agreement: the Federation of Bosnia and Herzegovina (FBiH), the Republic of Srpska (RS) and the Brčko District (BD). In response to the Committee’s previous comments, the Government of FBiH indicates that, as a result of its Decision on the Termination of the Collective Agreement for the Territory of the Federation of BiH adopted by the Association of Employers of the Federation of BiH, the General Collective Agreement for the Territory of the Federation of Bosnia and Herzegovina was replaced by the new Law on Amendments to the Labour Law which entered into force in 2018 and contains provisions relating to freedom of association. The Committee notes the Government’s indication that the Convention has been incorporated into the labour legislation of the FBiH. The Government also indicates that it consults with the social partners with regard to the matters covered by the Convention. The Committee notes the Government’s indication in its supplementary information that, during the period 2018-2019 there was a delay in the activities of the tripartite Social and Economic Council of Federation of BiH, and only one meeting of the Council took place in 2019. The Government adds that the report for the meetings of the Council during 2020 will be available only at the end of the calendar year. With regard to the BD, the Committee notes that sections 5, 6, 7 and 8 of the Labour Law pertain to freedom of association. With regard to the RS, the Committee notes that, during the reporting period, the social partners were consulted and participated in the formulation of the response to the ILO questionnaire on the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205), adopted at the 106th Session of the International Labour Conference. The social partners were also consulted with respect to the procedure for the abrogation of the Inspection of Emigrants Convention, 1926 (No. 21), the Recruiting of Indigenous Workers Convention, 1936 (No. 50), the Contracts of Employment (Indigenous Workers) Convention, 1939 (No. 64), the Penal Sanctions (Indigenous Workers) Convention, 1939 (No. 65), the Contracts of Employment (Indigenous Workers) Convention, 1947 (No. 86), the Abolition of Penal Sanctions (Indigenous Workers) Convention, 1955 (No. 104), the Hours of Work (Fishing) Recommendation, 1920 (No. 7), the Migration for Employment Recommendation, 1939 (No. 61) and the Safety Provisions (Building) Convention, 1937 (No. 62). The social partners of the RS were also consulted with regard to the procedure for withdrawal from the Sickness Insurance (Industry) Convention, 1927 (No. 24), the Sickness Insurance (Agriculture) Convention, 1927 (No. 25), the Workmen's Compensation (Accidents) Convention, 1925 (No. 17) and the Workmen's Compensation (Occupational Diseases) Convention, 1925 (No. 18). The Committee notes from the supplementary information provided by the Government that the social partners of the RS were also consulted with regard to the ratification of a number of ILO instruments. The social partners and the competent ministry agreed on the need to ratify the Labour Statistics Convention, 1985 (No. 160). Regarding the possible ratification of the Violence and Harassment Convention, 2019 (No. 190) and its accompanying Recommendation (No. 206), the workers’ representatives expressed the view that these instruments should be ratified, whereas the employers’ representatives did not concur. The Committee notes that the competent ministry has not yet rendered its opinion in this respect. The Government also indicates that the social partners of the RS are in agreement that there are no obstacles to initiating the procedure for denunciation of the Night Work (Women) Convention, 1948 (No. 89). The Committee notes that no information has been provided on the frequency of tripartite consultations in any of the entities. The Committee requests the Government to provide information on the impact of the Law on Amendments to the Labour Law on tripartite consultations in the Federation of Bosnia and Herzegovina, the Republic of Srpska and the Brčko District. The Committee further requests that the Government provide updated detailed information on the content, outcome and frequency of tripartite consultations held on all matters concerning international labour standards covered by the Convention, particularly relating to questionnaires on Conference agenda items (Article 5(1)(a)); the submission of instruments adopted by the Conference to the National Assembly (Article 5(1)(b)); the re-examination at appropriate intervals of unratified Conventions and Recommendations to which effect has not yet been given (Article 5(1)(c)); questions arising out of reports to be presented on the application of ratified Conventions (Article 5(1)(d)); and the possible denunciation of ratified Conventions (Article 5(1)(e)).

In the context of the global COVID-19 pandemic, the Committee recalls the comprehensive guidance provided by international labour standards. It encourages the Government to engage in tripartite consultation and social dialogue more broadly as a solid foundation for developing and implementing effective responses to the profound socio-economic impacts of the pandemic. The Committee invites the Government to provide updated information in its next report on measures taken in this respect, in accordance with Article 4 of the Convention and Paragraphs 3 and 4 of Recommendation No. 152, including with regard to steps taken to build the capacity of the tripartite constituents and strengthen mechanisms and procedures, as well as challenges and good practices identified.

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 notes the 2018 amendment of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and of the Labour Act of the Republika Srpska, 2016 (the RS Labour Act), as well as the adoption of the Act on Civil Service in Administrative Bodies of the Brčko District, 2018 (BD Act on Civil Service), the Labour Act of the Brčko District, 2019 (BD Labour Act) and the Act on Inspections of the Republika Srpska, 2020.

Article 4 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comment, having noted the general protection against anti-union discrimination provided in the legislation, the Committee requested the Government to indicate which protection mechanisms were contemplated, at the level of the Institutions of Bosnia and Herzegovina (BiH), as well as the Federation of Bosnia and Herzegovina and the Republika Srpska, in order to ensure adequate protection for all public employees covered by the Convention against anti-union dismissal, including, inter alia, the requirement to obtain prior authorization from an independent authority, as well as compensation and sufficiently dissuasive sanctions. The Committee notes the Government’s indication in its supplementary report that section 45 of the Act on Civil Service in the Institutions of Bosnia and Herzegovina stipulates that the Labour Act in the Institutions of Bosnia and Herzegovina and other laws regulating employee rights and obligations are applicable to civil servants unless otherwise provided. The Government reiterates the general measures of protection provided by section 3(3) of the Labour Act in the Institutions of Bosnia and Herzegovina (prohibition to put into less favourable position because of trade union membership or non-membership) and indicates that section 102 of the Labour Act stipulates fines from Bosnia and Herzegovina Convertible Mark (KM) 800 to 3,000 (US$485–1,817) for an employer who puts a person looking for employment with the company into a less favourable position then its employees (section 6 of the Labour Act). While taking note of the general measures of protection against anti-union discrimination applicable to the recruitment of public employees, the Committee requests the Government to indicate any concrete protection mechanisms contemplated at the level of the Institutions of Bosnia and Herzegovina to ensure adequate protection for all active public employees covered by the Convention, in particular against anti-union dismissal, including, inter alia, the requirement to obtain prior opinion or authorization from an independent authority, adequate compensation for any damage suffered and sufficiently dissuasive sanctions.

Regarding the Federation of Bosnia and Herzegovina, the Government indicates that the Collective Agreement for Officers in Administrative and Judicial Authorities, 2020 contains a number of protective provisions, including in section 62 (prohibition of imposing a less favourable position on grounds of performance of trade union activity). The Government adds that: (i) under section 63 of the agreement, employment of a trade union representative may not be terminated during the performance of trade union activity without prior consent from the Ministry of Labour and Social Policy and the representative may not be put in a less favourable position in respect of the post prior to appointment as trade union representative; and (ii) under section 64, prior to adopting any decision on resolution of the employment of a civil servant or employee, the head of the civil service authority must obtain and review the opinion of the trade union or the trade union representative. The Government also indicates that section 171(1)(1)–(2) of the FBiH Labour Act, which is of general application, provides for fines against the employer (legal person) for putting a worker in an unfavourable position by reason of trade union membership or non-membership. The fines for a legal person vary from KM1,000 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), whereas for a natural person they vary from KM2,000 to 5,000 (US$1,204–3,012). The Government further informs that, according to the Independent Trade Union of Civil Servants and Employees in Civil Service Authorities, Judicial Bodies and Public Institutions in the Federation of Bosnia and Herzegovina, signatories of the collective agreement fully comply with the provisions concerning anti-union discrimination and cases of such discrimination occur only occasionally.

As to Republika Srpska, the Government reiterates information provided previously that all relevant provisions of the RS Labour Act also apply to public service and adds that, in terms of special protection against dismissal of trade union representatives, section 191 provides that dismissal during office or six months after can only be taken with the approval of the trade union or workers’ council and, if such agreement is not given, the employer may request an arbitration. Concerning the Brčko District, the Government indicates that trade union membership does not constitute a ground of discrimination for employment of public servants. Given the Government’s indication above, that both the FBiH Labour Act and the RS Labour Act are of general application and thus also apply to public employees, the Committee recalls, from its previous comments regarding the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that it had noted with interest that the applicable legislation explicitly provided for reinstatement coupled with compensation either as a remedy to anti-union dismissal (section 124 of the FBiH Labour Act) or as a remedy to unlawful dismissal in general (section 106 of the FBiH Labour Act, section 189 of the RS Labour Act and section 81 of the BD Labour Act). Taking due note of the above, the Committee understands that reinstatement coupled with compensation would also apply to anti-union dismissal of public employees. The Committee requests the Government to provide information on the practical application of the sanctions foreseen for breach of provisions prohibiting acts of anti-union discrimination against public employees, in particular anti-union dismissal, with respect to all administrative divisions.

Article 5. Independence from public authorities and adequate protection against acts of interference by a public authority. In its previous comment, the Committee noted that under section 43 of the Act on Associations and Federations in the Federation of Bosnia and Herzegovina, section 40 of the Act on Associations and Federations in the Republika Srpska and section 26 of the Act on Associations and Federations in the Brčko District, an association could be dissolved or its operation suspended for a number of reasons, which, under the Convention, could amount to interference by public authorities in their role as employers. The Committee requested the Government to ensure that public employees’ organizations could be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure. The Committee takes note of the information provided by the Government and refers to its comments on this issue under the Freedom of Association and the Right to Organize Convention, 1948 (No. 87).

Article 6. Facilities to be afforded to public employees’ organizations. Federation of Bosnia and Herzegovina. In its previous request, the Committee noted the provisions providing facilities to public employees’ organizations and observed that under section 59 of the Collective Agreement for Officials in Public Administration and Judicial Authorities in the Federation of Bosnia and Herzegovina, an agreement concluded between the head of the civil service institution and the trade union commissioner may regulate in more detail the conditions related to the performance of trade union duties. The Committee thus requested the Government to indicate whether in practice, in the Federation of Bosnia and Herzegovina, organizations of civil servants have entered into collective agreements defining the necessary conditions and facilities to be granted under Article 6 of the Convention. The Committee welcomes the Government’s indication that the Independent Trade Union of Civil Servants and Employees in Civil Service Authorities, Judicial Bodies and Public Institutions in the Federation of Bosnia and Herzegovina has 155 trade union organizations and 96 branches and that the majority of them concluded agreements regulating conditions and tasks of trade unions, pursuant to section 61 of the Collective Agreement for Officers in Administrative and Judicial Authorities, 2020. The Government also states that, according to the above mentioned trade union, provisions of the FBiH Labour Act and the 2020 Collective Agreement are completely adhered to, also where there is no signed agreement between the director of the body of administration and the trade union commissioner. The Committee takes due note of the above.

Application of the Convention. Brčko District. In its previous comment, the Committee requested the Government to provide information concerning the application of the Convention in the Brčko District for each of the Articles of the Convention mentioned above. The Committee notes the Government’s indication that a new Act on Civil Service was adopted in 2018 and that its provisions apply to civil servants and employees of administrative bodies, the Office for Audit of Public Administration and Institutions of the Brčko District and other bodies and institutions funded from the budget of the District unless regulated differently by another law. The Committee notes, however, the Government’s indication that the law does not regulate the scope of guarantees and observes that most of the information provided by the Government remains vague as to the actual provisions of the law, or any other legislation, which give effect to the Convention and that the implementation of the BD Act on Civil Service is not supervised by the labour inspection. The Committee therefore requests the Government to provide concrete information concerning the application of the Convention in the Brčko District for each of the Articles of the Convention mentioned above, to provide a copy of the Act on Civil Service and to indicate what entity is in charge of supervising the implementation of the Act.

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 notes the 2018 amendment of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and of the Labour Act of the Republika Srpska, 2016 (the RS Labour Act), as well as the adoption of the Act on Civil Service in Administrative Bodies of the Brčko District, 2018 (BD Act on Civil Service), the Labour Act of the Brčko District, 2019 (BD Labour Act) and the Act on Inspections of the Republika Srpska, 2020.

Article 1 of the Convention. Collective bargaining in the public sector at the level of the Republic. In its previous comments, the Committee requested the Government to provide information on any progress made with regard to the elaboration of the collective bargaining agreement for employees in the Institutions of Bosnia and Herzegovina and on the number of collective agreements concluded in the public sector at the level of the Republic, as well as the number of workers covered. The Committee further requested the Government to indicate the legal provisions granting civil servants at the level of Bosnia and Herzegovina the right to collective bargaining. The Committee notes the Government’s indication that under sections 90 and 91 of the Labour Act in the Institutions of Bosnia and Herzegovina, collective agreements can be concluded by one or more trade unions and one or more employers or employers’ associations and that the Trade Union of Civil Servants and Employees in the Institutions of Bosnia and Herzegovina has initiated a collective bargaining procedure. The Government also informs that apart from this trade union, the Association of Trade Unions of the Police Authorities of Bosnia and Herzegovina and the Trade Union of the Employees of the Indirect Taxation Authority of Bosnia and Herzegovina also acquired the status of a collective bargaining agent in the registry of associations and foundations. The Committee further observes that despite having previously referred to an inter-sectoral working group established in 2013 to draft a collective bargaining agreement for workers in the Institutions of Bosnia and Herzegovina, the Government reports that no collective bargaining agreements have been concluded. In light of the above, the Committee requests the Government to indicate the outcome of the bargaining process initiated by the Trade Union of Civil Servants and Employees in the Institutions of Bosnia and Herzegovina and to continue to provide information on any other collective agreement concluded and in force in the public sector at the level of the Republic, 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.

Collective bargaining in the public sector in the Federation of Bosnia and Herzegovina, Republika Srpska and Brčko District. The Committee previously requested the Government to provide statistics on the number of collective agreements concluded in the public sector in the Federation of Bosnia and Herzegovina, in the Republika Srpska and in the Brčko District, and on the institutions in 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, 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, healthcare, local self-government, judicial institutions, welfare institutions, utilities and service sector and in the State-owned forest enterprise “Šume Republike Srpske”). It further welcomes the Government’s indication in its supplementary report 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 validity and preserving the level of rights that had been gained. The Committee also notes with interest the Government’s indication that, in the Federation of Bosnia and Herzegovina, collective bargaining is the main mechanism for determining conditions of employment and working conditions between public authorities and civil servants’ organisations, as demonstrated by the Collective Agreement for Employees in Administrative Authorities and Judicial Bodies in the Federation of Bosnia and Herzegovina, 2020. The Committee notes the Government’s statement that no collective agreements have yet been concluded in the Brčko District and refers to its more detailed comments below.

The Committee previously observed from the detailed information provided on the amendments of section 138 and 138(a) of the FBiH Labour Act that the applicable legislation regulates in detail the parties to collective bargaining at 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 takes note of the information provided by the Government in its supplementary report and refers to its comments made under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

Application of the Convention in practice. In its previous comment, having noted that under section 182 of the FBiH Labour Act, all collective agreements must be amended to comply with the Labour Act within 120 days from its entry into force, otherwise they cease to apply, the Committee requested the Government to indicate whether any collective agreements have been affected by the application of this section and, if so, whether the provisions of existing collective agreements that were not contrary to the new Labour Act, continued to apply until the conclusion of a new collective agreement. The Committee regrets to observe, from the Government’s supplementary report, that following the amendment of the FBiH Labour Act, a certain number of collective agreements ceased to apply either because they were not harmonized with the law within 120 days (section 182) or because the unions lacked representativeness according to the criteria introduced by the new law. It also notes that the exact number of repealed agreements is unclear as there was no register of collective agreements at the time in the Federation of Bosnia and Herzegovina. The Committee considers that more flexibility could have been applied to ensure that only provisions of collective agreements contrary to the new Labour Act were abrogated or replaced by the law, whereas provisions that were not contrary to the Labour Act continued to apply until the conclusion of a new collective agreement. The Committee therefore invites the Government to adopt this approach in the future and trusts that the parties to the repealed collective agreements are able to freely negotiate and conclude new agreements. The Committee requests the Government to continue to provide information on the number of collective agreements concluded and in force in the Federation of Bosnia and Herzegovina and the Republika Srpska, 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.

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 under section 152, the Government may, for justified reasons, at the request of an employer or an employers’ association, decide that certain provisions of a general or branch collective agreement relating to wages or wage compensations, do not apply to individual employers or individual branches of activity in a particular period, especially in the event that the application of these provisions would jeopardize the current liquidity or overall business and financial results of the employer. The Committee recalls in this regard that interventions by the public authorities which have the effect of cancelling or modifying the content of collective agreements freely concluded by the social partners would be contrary to the principle of free and voluntary negotiations. The Committee therefore requests the Government to provide information on the practical application of section 152 of the BD Labour Act and to consider reviewing this provision, in consultation with the representative organizations of workers and employers, so as to remove the possibility for the authorities to intervene in collective agreements freely concluded by the social partners. The Committee further requests the Government to continue to provide information on the number of collective agreements concluded and in force, 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.

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Comments adopted by the CEACR: Bosnia and Herzegovina

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