Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the comments made by the Serbian and Montenegrin Employers’ Association (UPSCG) in a communication dated 7 April 2005. It observes that most of these comments concern issues which have already been raised by the Committee in previous observations. The Committee will examine these comments at its next session, along with the Government’s report which is due in 2006.

Article 4 of the Convention. The Republic of Serbia. 1. The Committee notes that according to the UPSCG, sections 231 and 232 of the Labour Law give excessively wide discretion to the minister to decide, after consultation with a board (that has not yet been established) the representativeness of trade unions and employers’ organizations. The Committee notes that section 222 contains objective and pre-established criteria (percentage of affiliates) for determining the most representative organization. However, recalling that trade unions and employers’ organizations should have the right to appeal to independent courts against administrative decisions regarding their status, the Committee requests the Government to indicate whether appeals can be brought before the courts against the Minister’s decision on the issue of the representativeness of employers’ and workers’ organizations.

2. The Committee notes moreover that according to UPSCG, the Minister’s decision on the issue of representativeness cannot be challenged by other organizations, which might wish to seek recognition for three years (section 233). The Committee recalls that when national legislation provides for a compulsory procedure for recognizing unions or employers’ organizations as an exclusive bargaining agent, it should safeguard the right of an organization which, in a previous trade union election failed to secure a sufficiently large number of votes, or of a new organization, to demand a new election after a reasonable period had elapsed (see General Survey on freedom of association and collective bargaining, 1994, paragraph 240). In the Committee’s view, depending on the circumstances, three years could be an excessively long period of time (section 233 of the Labour Law). The Committee requests the Government to take the necessary legislative measures so as to ensure that an organization which previously failed to obtain recognition, or a new organization, may request a new decision on the issue of representativeness after a reasonable period has elapsed, and in any case, may do so sufficiently in advance of the expiration of the applicable collective agreement.

3. The Committee finally requests the Government to provide in its next report its response to the other questions addressed in the previous observation (see 2004 observation, 75th Session).