REPRESENTATION (article 24) - BOSNIA AND HERZEGOVINA - C111 - 1999

Report of the Committee set up to examine representation alleging non-observance by Bosnia and Herzegovina of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), made under article 24 of the ILO Constitution by the Union of Autonomous Trade Unions of Bosnia and Herzegovina

Decision

1. The Governing Body adopted the report of the tripartite committee. Procedure closed.

Complaint Procedure

1. I.Introduction
2. 1. In a letter dated 9 October 1998, the Presidents of the Union of Autonomous Trade Unions of Bosnia and Herzegovina and the Union of Metalworkers, referring to article 24 of the ILO Constitution, made a representation alleging non-observance by the Government of Bosnia and Herzegovina of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
3. 2. Convention No. 111 was ratified by Bosnia and Herzegovina on 2 June 1993 and is in force in that country.
4. 3. The provisions of the ILO Constitution relating to the submission of representations are as follows:
5. Article 24
6. In the event of any representation being made to the International Labour Office by an industrial association of employers or of workers that any of the Members has failed to secure in any respect the effective observance within its jurisdiction of any Convention to which it is a party, the Governing Body may communicate this representation to the government against which it is made, and may invite that government to make such statement on the subject as it may think fit.
7. Article 25
8. If no statement is received within a reasonable time from the government in question, or if the statement when received is not deemed to be satisfactory by the Governing Body, the latter shall have the right to publish the representation and the statement, if any, made in reply to it.
9. 4. The procedure to be followed for the examination of representations under articles 24 and 25 of the ILO Constitution is governed by the Standing Orders concerning the procedure for the examination of representations, as revised by the Governing Body at its 212th (March 1980) Session. In accordance with articles 1 and 2, paragraph 1, of those Standing Orders, the Director-General acknowledged receipt of the representation, informing the Government of Bosnia and Herzegovina thereof in a letter dated 23 October 1998, and brought the representation before the Officers of the Governing Body.
10. 5. At its 273rd Session (November 1998), the Governing Body, on the recommendation of its Officers, decided that the representation was receivable and set up a committee to examine it, composed of Mr. Konstantin F. Shakhmuradov (Government member, Russian Federation), Ms. Lucia Sasso Mazzufferi (Employer member, Italy) and Mr. Richard Falbr (Worker member, Czech Republic). 6.The Committee invited the Government to send its observations on the allegations made by the Union of Autonomous Trade Unions and the Union of Metalworkers by 16 February 1999. On 18 February 1999, the ILO received a request for an extension of that deadline from the Permanent Representative of Bosnia and Herzegovina to the United Nations Office at Geneva, on the grounds that the present Government had only just been formed. The Committee agreed to extend the deadline to 15 May 1999.
11. 7. To date, the Government has not sent any observations in reply to the allegations made by the Union of Autonomous Trade Unions and Union of Metalworkers.
12. 8. The Committee therefore met during the 276th Session (November 1999) of the Governing Body in order to consider the information supplied by the Union of Autonomous Trade Unions and Union of Metalworkers in their representation and to adopt its report.
13. II. Examination of the representation
14. A.Allegations made by the complainants
15. 9. In their joint representation, the Union of Autonomous Trade Unions and Union of Metalworkers maintain that the dismissals of 600 workers at the "Aluminium" factory and 950 workers at the "Soko" factory in Mostar (Federation of Bosnia and Herzegovina) (Endnote 1) was motivated solely by the nationality of those workers. According to the Union of Autonomous Trade Unions and Union of Metalworkers, the dismissed workers are all of Serbian or Bosnian nationality and have all been replaced by workers of Croatian origin. The organizations allege that after the war, when these workers went to their places of work, they were physically prevented from entering and that, since that time, the management of the factories in question has not issued any written document indicating a decision to dismiss them, but simply replaced them with Croatian workers. According to the Union of Autonomous Trade Unions and Union of Metalworkers, Mr. Mijo Brajkovic, the Director of the "Aluminium" factory, stated that "this factory belongs to the people currently working in it". Most of the workers employed in the factory when he spoke those words were of Croatian nationality and had never worked in the factory or lived in Mostar before. The Serbian and Bosnian workers at the "Soko" factory were also dismissed, prevented from entering their factory and replaced with Croatian workers. This situation continues to the present time without any resolution.
16. 10. The Union of Autonomous Trade Unions and the Union of Metalworkers state that, before bringing the matter to the attention of the ILO, it had already exhausted available domestic remedies at national level, at the level of the Federation of Bosnia and Herzegovina and at cantonal level, and describe a number of the actions taken as follows:
17. (a) firstly, the organizations asked for a meeting with Mr. Mijo Brajkovic and Mr. Dragan Covic, the Directors of the factories at the centre of the allegations, but they turned down the request and refused to allow trade union representatives to enter the factories;
18. (b) the Union of Autonomous Trade Unions then notified the Federal and Cantonal Labour Inspectorates, which have never been given permission by the Cantonal Deputy Minister of Labour, Social Policy, Displaced Persons and Refugees to enter the "Aluminium" and "Soko" factories to conduct an inspection and verify the allegations made by the Union of Autonomous Trade Unions and the Union of Metalworkers;
19. (c) the President of the Union of Metalworkers also contacted his counterpart in the French trade union representing workers employed by the company "Pechiney France" because that company had concluded a contract for technical maintenance and metal purchase with the "Aluminium" factory. His counterpart, Mr. Jean François Carré, passed on information that he had obtained from Mr. Claude Labbé, a member of the company's Board of Directors, which indicated that "the Croats do not want any Muslims in the factory"; (Endnote 2)
20. (d) on 13 May 1998, the Union of Metalworkers had a meeting with Mr. Edhem Bicakcic, Prime Minister of the Federation of Bosnia and Herzegovina, during which the union asked the Government to do whatever was necessary without delay to bring about the reinstatement of the dismissed workers at the "Aluminium" and "Soko" factories. At the end of the meeting, the Prime Minister promised to arrange a joint meeting during the following month between the management of the two factories and trade union representatives;
21. (e) the Union of Autonomous Trade Unions and Union of Metalworkers have regularly, orally and in writing, brought the situation of Bosnian and Serbian workers in the two factories to the attention of Mr. Carlos Westendorp, High Representative responsible for monitoring the application of all the provisions of the Dayton Agreement in Bosnia and Herzegovina (Endnote 3) (in particular the implementation of equal rights for all citizens of that country) asking him to take the necessary measures to end the discrimination which they have suffered;
22. (f) on 29 July 1998, a trade union delegation met with Mr. Haris Silajdjic, one of the two Co-Prime Ministers of Bosnia and Herzegovina. On that occasion, the delegation also had talks with Mr. Jacques Klein, Deputy High Representative, and asked him to intervene in order to: (1) stop the increase in the capital of the "Aluminium" factory, following the establishment of a special commission to monitor the privatization process; and (2) end the discriminatory behaviour of the two factory Directors. According to the complainants, Mr. Klein promised that he would "try to solve the problem".
23. 11. Despite these actions, the dismissed workers were not reinstated and the Union of Autonomous Trade Unions and Union of Metalworkers therefore made a representation to the ILO in accordance with article 24 of the ILO Constitution.
24. B.The Government's reply
25. 12. The Government has not sent any observation concerning the substance of the allegations made by the Union of Autonomous Trade Unions and Union of Metalworkers. Under these circumstances, the Committee considers that the allegations must be taken into consideration inasmuch as they are supported by relevant evidence. Consequently, the Committee has examined the representation in the light of all the information made available to it by the Union of Autonomous Trade Unions and Union of Metalworkers.
26. III. The Committee's conclusions
27. 13. The Committee notes that the situation which is the subject of the representation concerns the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in particular the application of Article 1, paragraph (a), of said Convention, which states that: 1.For the purpose of this Convention, the term discrimination includes: (a)any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
28. 14. According to the allegations made by the Union of Autonomous Trade Unions and Union of Metalworkers, the dismissal of 600 workers from the "Aluminium" factory and of 950 workers from the "Soko" factory was motivated solely by the "nationality" - Bosnian or Serbian - of the workers concerned. Furthermore, it would appear that no formal dismissal proceedings were ever initiated since, also according to the Union of Autonomous Trade Unions and Union of Metalworkers, "no written document indicating that they were dismissed" was issued to the workers, who learned of their "dismissal" on the day when they were physically prevented from entering their factories. Lastly, it would appear that the Labour Inspectorate, which was notified by the trade union organizations concerned, was prevented from doing its work of verifying the truth of the allegations made by the Union of Autonomous Trade Unions and Union of Metalworkers by the inaction of higher authorities.
29. 15. The Committee notes, first, that the Union of Autonomous Trade Unions and Union of Metalworkers do not indicate in their representation the precise date of the "dismissal" of the 1,550 (600 plus 950) Serbian and Bosnian workers at the "Aluminium" and "Soko" factories. An examination of the various documents supplied with the representation does not allow precise dating of the dismissals. According to one of the documents provided, the dismissed workers worked until at least April 1992, while another document suggests that they were dismissed following the Dayton Agreement, that is, in 1995 or 1996. Convention No. 111 came into force in Bosnia and Herzegovina in 1994. Whatever the case may be, the Committee notes that in the case in question the detrimental consequences of the alleged violations have continued to be felt since the entry into force of Convention No. 111, in the sense that the dismissed workers have to date not been reinstated in their posts, nor have they received the arrears of wages owed to them or any compensation. The Committee therefore considers that these continuing effects can be considered to confirm the preceding acts which it is alleged were committed by the management of the "Aluminium" and "Soko" factories. Consequently, the Committee concludes that it was not prevented ratione temporis from examining the representation made by the trade union organizations concerned.
30. 16. The Committee further notes that the representation makes constant reference to discrimination based on the Bosnian or Serbian "nationality" of the dismissed workers. As already indicated in paragraph 13 above, nationality is not one of the seven discrimination criteria expressly prohibited by Convention No. 111. However, it should be kept in mind that certain countries draw a distinction between "citizenship" and "nationality", the latter sometimes referring to membership of various ethnic or other communities within a given country. In this case, it would appear that the situation described by the Union of Autonomous Trade Unions and Union of Metalworkers is not in fact one of discrimination based on nationality in the classical sense of the term, but rather, of discrimination on the grounds of the national extraction of the workers concerned, which, as indicated above, is strictly prohibited by Convention No. 111. Moreover, in the present case, the ethnic identity of the workers concerned is closely linked to their religion, which is also one of the seven types of discrimination in employment or occupation which are prohibited by the Convention.
31. 17. It appears to the Committee, the allegations made by the Union of Autonomous Trade Unions and Union of Metalworkers, concerning the dismissals of workers solely because of their Bosnian or Serbian origin and their replacement by Croatian workers, are corroborated by a coherent body of evidence. This emerges from an examination of the supporting documents supplied with the representation, in particular the minutes of the meeting that took place on 13 May 1998 between (a) (for the trade union side) the Union of Metalworkers and representatives of workers dismissed from the "Aluminium" and "Soko" factories; and (b) (for the Government side) the Prime Minister of the Federation of Bosnia and Herzegovina, the Federal Minister and Deputy Minister of Energy, Mines and Industry, the Federal Minister of Labour, Social Policy, Displaced Persons and Refugees and his Deputy, and the Director of the Privatization Agency. These minutes, which were drafted by the Head of the Cabinet Office (a copy was transmitted to the ILO by the complainants) show that the fact that the workers were dismissed is not denied, since the trade union representatives "requested rapid action by the Government of the Federation of Bosnia and Herzegovina and the federal authorities responsible for examining issues relating to the reinstatement of former workers of the "Aluminium" and "Soko" enterprises". The question of discrimination was also raised during this meeting, since the government representatives considered that the growth in production will inevitably mean that discriminatory attitudes in employment, a practical consequence of which is the conclusion of a labour agreement with one ethnic group, will become outdated. Lastly, the Prime Minister and the Federal Minister of Energy, Mines and Industry undertook, also according to the minutes, to arrange a meeting between representatives of the trade unions and the management of the two undertakings at the centre of the complaints. (Endnote 4)
32. 18. The persistence of discriminatory practices in employment (based essentially on national extraction and/or religion) in Bosnia and Herzegovina is also corroborated by the 1998 report of the three Ombudsmen (Endnote 5) for Bosnia and Herzegovina, which confirms that violations of workers' rights often take the form of discrimination based on ethnic extraction, and that workers have little chance of obtaining protection from the courts.
33. 19. The Committee recalls the primary responsibility of any State that ratifies an ILO Convention to ensure that it is actually applied. As regards Convention No. 111, incorporating the principle of non-discrimination in employment into the Constitution or legislation, is not in itself enough to ensure that the principle is applied in practice; it is also necessary to provide practical guarantees of non-discrimination. The Convention guarantees to all workers that their national extraction or religion shall not be considered a reason for dismissal. Furthermore, none of the exceptions given in Articles 4 and 5 of the Convention are applicable in this particular case. (Endnote 6)
34. 20. The Committee is cognizant of the complexity of the situation in Bosnia and Herzegovina, and that it has recently emerged from a civil war. Nevertheless, the facts, as reported by the Union of Autonomous Trade Unions and Union of Metalworkers, which have not been contested by the Government, in the Committee's view constitute a violation of Convention No. 111, since the type of discrimination described in the representation is of the kind prohibited by Article 1, paragraph (a), of that instrument, in that it involves an exclusion based solely on national extraction or religious belief which has the effect of destroying equality of opportunity and treatment in employment and occupation between workers of Croatian extraction and workers of Bosnian or Serbian extraction employed by the "Aluminium" and "Soko" undertakings.
35. 21. In this regard, the Committee wishes to draw attention to the fact that the acts described violate not only ILO Convention No. 111 but also Article 5, paragraph (d), of the Termination of Employment Convention, 1982 (No. 158), which has been ratified by Bosnia and Herzegovina, and which states that "The following, inter alia, shall not constitute valid reasons for termination: (...) race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin". The Committee also notes that the fact that the cantonal labour inspector has to request authorization from the cantonal Minister before making an inspection visit is not compatible with Article 12, paragraph 1, of the Labour Inspection Convention, 1947 (No. 81), which has been ratified by Bosnia and Herzegovina. (Endnote 7)
36. 22. The facts described by the Union of Autonomous Trade Unions and Union of Metalworkers also violate the provisions of the Constitution of Bosnia and Herzegovina, in particular: (a) Article 2, paragraph 1(c), which prohibits all discrimination based on race, colour, sex, language, religion or beliefs, political or other opinions, and national or social origin; and (b) the provisions of many international human rights instruments which have been incorporated into the Constitution of Bosnia and Herzegovina. (Endnote 8)
37. IV. The Committee's recommendations
38. 23. Having reached the conclusions set out in the present report on the matters raised in the representation, the Committee recommends to the Governing Body:
39. (a) that it approve this report and, in particular, the conclusions in paragraphs 13-22, in the light of the information presented to the Committee;
40. (b) that it invite the Government of Bosnia and Herzegovina to take the necessary measures to ensure that workers dismissed from the "Aluminium" and "Soko" factories solely on the grounds of their Bosnian or Serbian extraction or their religion:
41. (i) receive adequate compensation for the damage that they have sustained;
42. (ii) receive payment of any wage arrears and any other benefits to which they would be entitled if they had not been dismissed; and
43. (iii) are as far as possible reinstated in their posts without losing length of service entitlements;
44. (c) that it invite the Government to ensure that a formal dismissal procedure be instituted, in accordance with the provisions of Convention No. 158 which has been ratified by Bosnia and Herzegovina, if the reinstatement of all or some of the workers in question is not possible;
45. (d) that it entrust the follow-up on this matter to the Committee of Experts on the Application of Conventions and Recommendations, in implementation of article 22 of the ILO Constitution, for the purpose of monitoring the application of Convention No. 111 and also of Conventions Nos. 81 and 158; and
46. (e) that it declare closed the procedure initiated following the representation made by the Union of Autonomous Trade Unions of Bosnia and Herzegovina and the Union of Metalworkers alleging non-observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
47. Endnote 1
48. Bosnia and Herzegovina is a federal State comprising two distinct entities: the Federation of Bosnia and Herzegovina and the Republika Srpska.
49. Endnote 2
50. The copy of Mr. Labbé's letter was not transmitted to the ILO.
51. Endnote 3
52. On 21 November 1995, in Dayton (United States), a General Framework Agreement for Peace in Bosnia and Herzegovina was finalized; the Peace Agreement was accepted by the belligerents (Bosnians, Croats and Serbs) on 14 December 1995 in Paris. The Agreement included provisions for the appointment of a foreign diplomat or High Representative responsible for monitoring the application of all the provisions of the Agreement.
53. Endnote 4
54. Although it is not stated explicitly in the representation made by the Union of Autonomous Trade Unions and Union of Metalworkers, it appears that this meeting never took place.
55. Endnote 5
56. The institution of Ombudsmen was created above all to help to mitigate the consequences of ethnic cleansing, by facilitating the repatriation of prisoners forced out of their homes and to prevent any discrimination based on national origin, religion or any other such reasons. The words of one of the Ombudsmen eloquently expressed the problem: "All citizens who have lost their jobs illegally or who, because of other absurd reasons cannot get their jobs, on our suggestion to start a procedure before the court, give the same answer - that it will last for ever, and they are right."
57. Endnote 6
58. According to Article 4, "any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State, shall not be deemed to be discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice"; and according to Article 5, paragraph 1, "special measures of protection or assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference shall not be deemed to be discrimination".
59. Endnote 7
60. According to Article 12, paragraph 1, of Convention No. 81, "Labour inspectors provided with proper credentials shall be empowered: (a) to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection...".
61. Endnote 8
62. Such as the International Covenant on Economic, Social and Cultural Rights; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention for the Protection of Human Rights and Fundamental Freedoms; the European Social Charter, etc.