Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Serbia (Ratification: 2000)

Other comments on C098

Observation

Direct Request

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The Committee takes note of the observations provided by the following workers’ and employers’ organizations: (i) the Confederation of Autonomous Free Trade Unions of Serbia (CATUS) and the Trade Union of Judiciary Employees of Serbia (TUJES) (2 April 2013) alleging irregularities in collective bargaining; (ii) the International Organisation of Employers (IOE) and the Serbian Association of Employers (SAE) (1 September 2013) concerning the determination of trade union representativeness; (iii) the Union of Employers of Serbia (UES) (18 November 2014) relating to employers’ participation in the Health Insurance Fund; and (iv) the International Trade Union Confederation (ITUC) (1 September 2015) relative to the Government’s refusal to consult trade unions over labour changes. The Committee also notes the Government’s comments received in 2013 in reply to the observations from the CATUS and the TUJES and in reply to the observations from the IOE and the SAE.

The Committee had previously requested the Government to provide its comments on the observations – forwarded to the Committee by the Government – from the following workers’ and employers’ organizations: (i) the Trade Union Confederation “Nezavisnost” (5 September 2012) alleging anti union discrimination, flaws in labour inspection, initiative for the establishment of courts specialized in labour relations, and irregularities in collective bargaining; (ii) the UES (5 September 2012) concerning delays in legislative amendments; and (iii) the Confederation of Free Trade Unions (CFTU) (30 October 2012) alleging anti-union harassment, pressure on trade union members and general non-respect of collective agreements by employers and claiming that the three-year period of validity of collective agreements, as provided in the Labour Act, has adverse consequences on the continuity of workers’ rights. The Committee notes that, in its report, the Government provides comments on some of the observations made by the workers’ and employers’ organizations. It requests the Government to reply to the outstanding observations made by these organizations as well as to the observations received from the ITUC on 1 September 2015.

Article 1 of the Convention. Protection against anti-union discrimination in practice. In its previous comments, the Committee had requested the Government to provide information on the application of the Convention in practice, including statistical data on the number of complaints of anti-union discrimination brought before the competent authorities (labour inspectorate and judicial bodies), as well as on the outcome of investigations and judicial proceedings and their average duration. The Committee notes that in its report the Government provides detailed information on the activities of the labour inspectorate, in particular its meetings with the social partners in order to strengthen social dialogue and control compliance with collective agreements and inspection of allegations of anti-union discrimination, including cases relative to expulsion from union membership, termination of affiliation fee deduction or irregularities relating to the payment of union dues. The Committee notes the information provided and requests the Government to provide further details on proceedings particularly related to anti-union discrimination, including judicial proceedings, and their average duration.

Article 4. Promotion of collective bargaining. Representativeness of workers’ and employers’ organizations. The Committee had previously raised the need to amend section 233 of the Labour Act which imposed a time period of three years before a trade union, an employer or an employers’ association could submit a request for reassessment of an already determined representativeness of a trade union. The Committee had requested the Government to take the necessary measures to amend section 233 of the Labour Act so that the three-year time span is reduced to a more reasonable period or to explicitly allow the procedure for determination of the most representative status to take place in advance of the expiration of the applicable collective agreement. The Committee notes with satisfaction that amendments were made to section 233 of the Labour Act, which reduce the period during which it is not possible to challenge an already determined representativeness of a trade union.

The Committee had previously noted the Government’s indications that: (i) the conditions and mechanism for the establishment of the representativeness of trade unions and employers’ organizations are decided by the Minister of Labour upon a proposal by a specific tripartite board, the Representativeness Board; (ii) since this Board was not functional due to its method of decision-making (consensus), the Ministry established an independent commission, which was dismantled in view of the huge discontent of the members of the Representativeness Board; and (iii) the Ministry noted that the issue could be addressed by the adoption of the amendments to the Labour Act or of a separate law. The Committee notes the observations received from the IOE and SAE on 1 September 2013, in which the organizations allege that the Government bypassed the existing legal process for determining representativeness of trade unions by creating a new entity to assess the representativeness of trade unions, in particular of the CFTU, and that the Minister of Finance unduly intervened and put pressure on the secretary and members of the Social and Economic Council (SEC) by requesting them to include the CFTU in the SEC. The Committee notes that in its reply the Government reiterates what it had previously stated in respect of the developments relative to the Representativeness Board and further specifies that the Ministry of Labour will propose a revision of the Labour Act to ensure that applications for representativeness are resolved in a more efficient and timely manner, following clearly defined criteria that will enable any organization to prove its eligibility for representativeness. According to the Government, the issues of concern with the current system are that: (i) it is not possible for an organization to become recognized unless representative social partners, members of the Representativeness Board, reach an agreement on it; and (ii) the current social partners only cease to be recognized if they vote against themselves. The Committee observes that new paragraphs were added to section 229 of the Labour Act which establish decision-making by majority and allow the Minister to decide upon a request for representativeness without the Board’s approval if it fails to submit a proposal to the Minister within 30 days from the date of the request. Recalling that methods for the determination of the most representative organizations should be based on objective, pre-established and precise criteria, the Committee requests the Government to indicate whether the new amendments have improved the Representativeness Board’s operation and efficiency when dealing with requests to grant representativeness and whether the Government is developing any further amendments to the Labour Act in this regard.

Percentage required for collective bargaining. The Committee had previously noted that section 222 of the Labour Act required 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 requested the Government to lift the 10 per cent requirement for employers’ organizations to be entitled to engage in collective bargaining, which is particularly high, especially in the context of negotiations in large enterprises, at the sectoral or national level. The Committee had noted that, according to the Government, this issue would be reconsidered in the framework of the revision of the Labour Act. The Committee notes that the Government indicates that the Ministry of Labour and the social partners have started to analyse the effect of the Labour Act, including its compliance with the Convention. Welcoming this initiative to review the Labour Act in consultation with the social partners, the Committee trusts that the necessary measures will be taken so as to lower the abovementioned percentages and to provide information on any developments in this regard.

The Committee had also previously noted, that according to the observations of the CFTU received on 30 October 2012, an agreement to achieve representativeness may only be signed by two or more unrepresentative trade unions at company level in order to be able to be party to collective bargaining, and that this is not possible for trade unions and employers’ associations at higher levels. The Committee notes that according to the Government, section 249 of the Labour Act does not restrict the conclusion of agreements between trade unions and employers’ associations at any level as it stipulates that if none of the trade unions or employers’ associations meet the requirements of representativeness within the meaning of the law, trade unions and employers’ associations may conclude an agreement on association in order to meet the conditions for representativeness and participation in collective agreements. The Committee takes note of this information.

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, taking into account the preceding comments, and requests the Government to indicate the progress made in this respect.

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