Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) on 24 August 2010 and the Government’s reply thereon. The Committee further notes the comments made by the Confederation of Autonomous Trade Unions of Serbia (CATUS) received on 15 November 2010. The Committee requests the Government to provide its observations thereon in its next report.

Article 1 of the Convention. Protection against anti-union discrimination in practice. In its previous comments, the Committee had noted that, according to the ITUC and the CATUS, although the Labour Law of 2005 prohibits discrimination on the basis of trade union membership, it does not expressly prohibit discrimination for trade union activities and establishes no specific sanctions for anti-union harassment and, moreover, the right to organize is not protected in practice. The Committee had requested the Government to provide information on the application of the Convention in practice, including through statistical data on the number of complaints of anti-union discrimination brought to the competent authorities (labour inspectorate and judicial bodies), the outcome of any investigations and judicial proceedings and their average duration. The Committee notes that, while the Government recalls in its report that specific and dissuasive sanctions against anti-union discrimination are provided in sections 13, 18–21, 273 and 274 of the Labour Law, it does not provide the information previously requested by the Committee. In these circumstances, the Committee once again requests the Government to provide information, in its next report, on the application of the Convention in practice, including through statistical data on the number of complaints of anti-union discrimination brought to the competent authorities (labour inspectorate and judicial bodies) as well as on the outcome of investigations and judicial proceedings and their average duration.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had noted that, according to section 263 of the Labour Law, “[c]ollective agreements shall be concluded for a three-year term”. The Committee had recalled that the parties should be in a position to shorten this duration by mutual agreement, if they consider it appropriate. The Committee had requested the Government to indicate the measures taken or contemplated to amend section 263 of the Labour Law in accordance with the above. The Committee notes that the Government indicates in its report that: (i) section 264 of the Labour Law provides that the validity of a collective agreement may cease prior to the expiry of a three-year period, by mutual agreement of all parties, or by termination, in the manner stipulated by law; and (ii) in case of termination, collective agreements shall be applied for a maximum of six months after the termination and the parties are bound to commence the bargaining process within 15 days after the termination, at the latest.

In its previous comments, the Committee had raised the need to amend section 233 of the Labour Law – which imposes a time period of three years before an organization which previously failed to obtain recognition as most representative, or a new organization, may seek a new decision on the issue of representativeness. The Committee had emphasized the need to ensure that a new request may be made after a reasonable period has elapsed, sufficiently in advance of the expiration of the applicable collective agreement. The Committee had recalled that the Serbian Association of Employers (SAE) had criticized this provision in its communication of 7 April 2005 as imposing an excessively long period of time. The Committee had noted the Government’s indication that this provision is aimed at protecting unions and employers’ associations whose representativeness has been established by providing that their status may not be reviewed prior to the expiry of a three-year term. Moreover, according to the Government, this provision does not prevent trade unions and employers’ organizations, that had previously failed to establish their representativeness, from asking for a new decision on this issue at any moment, without having to wait for three years. The Committee notes the Government’s indication that amendments and addendums to the Labour Law are under way, which will address, inter alia, the conditions and procedures for the establishment and reconsideration of trade unions’ and employers’ associations’ representativeness. In these circumstances, the Committee hopes that due account will be taken of its comments concerning the amendment of section 233 of the Labour Law, in a manner which will reduce the three-year time span to a more reasonable period or allow explicitly the procedures for the determination of most representative status to take place in advance of the expiration of the applicable collective agreement and requests the Government to indicate any development in this regard in its next report.

Representativeness of workers’ and employers’ organizations. In its previous comments, the Committee had noted the comments made by the CATUS, according to which there is a lack of a mechanism for the identification of the number of members of representative workers’ and employers’ organizations, as well as for the verification of such data at the enterprise level. The Committee had noted that, according to section 227(4) and (5) of the Labour Law, “[t]he total number of employees and employers on a territory of a certain territorial unit, in a branch, group, subgroup or a line of business shall be determined on the basis of information supplied by the competent statistical body, or other body keeping the pertinent records” and “[t]he total number of employees with an employer shall be determined according to the certificate issued by the employer”. The bodies in charge of assessing representativeness are the employer, in the first place, and the tripartite panel for establishing representativeness, in the second place. The Committee had requested the Government to provide additional information on the mechanism for assessing representativeness of trade unions and employers’ organizations. The Committee notes the Government’s indication that the conditions and mechanism for the establishment of the representativeness of trade unions and employers’ organizations: (a) are decided by the Minister of Labour upon a proposal by a specific tripartite committee; and (b) will be subject to amendments in the process of the current revision of the Labour Law, in consultation with the social partners. The Committee requests the Government to provide information in its next report on any developments in this regard as well as a copy of the amended Labour Law once adopted.

The Committee recalls that, in its previous observations, it had requested the Government to lift the 10 per cent requirement for employers’ organizations to be able to engage in collective bargaining which is particularly high, especially in the context of negotiations in large enterprises, at the sector or national level. The Committee notes that section 222 of the Labour Law still requires employers’ associations to represent 10 per cent of the total number of employers and employ 15 per cent of the total number of employees in order to exercise collective bargaining rights. The Committee had noted that, according to the Government, the issue will be reconsidered in the framework of the revision of the Labour Law, with the participation of the representative workers’ and employers’ organizations. The Committee notes that the amendments to the Labour Law that are currently under way also address the representativeness of trade unions and employers’ organizations. In these circumstances, the Committee hopes that due account will be taken of its comments concerning the amendment of section 222 of the Labour Law so as to lower the percentage requirements which must be fulfilled by employers’ organizations in order to engage in collective bargaining and requests the Government to indicate any development in this regard in its next report.

The Committee expresses the hope that the Government will take the necessary measures without delay in order to bring the legislation into conformity with the requirements of the Convention and requests the Government to indicate the progress made in this respect.