Individual Case (CAS) - Discussion: 2018, Publication: 107th ILC session (2018)

A Government representative indicated that social dialogue at the national level was a tripartite process between representatives of employers, workers and the Government, and that collective bargaining and the work of social and economic councils were the most important forms of social dialogue. The foundation of social dialogue had been set out in the Labour Code, primarily with respect to the establishment of trade unions and employers’ associations, as well as the method of and requirements for determining their representativeness. The establishment of the Social and Economic Council of the Republic of Serbia (SEC) in 2004 had created the conditions for a more successful social dialogue at the national level. Social dialogue was promoted by regular staff meetings and the SEC sessions. Four sessions of the SEC had been held in 2018, and eight in 2017. With respect to the remarks made by the social partners that draft laws had not been submitted for consultations, the speaker explained that in 2017, the following laws and other acts, which had been prepared by the Ministry of Labour, Employment, Veteran and Social Affairs (the Ministry of Labour), had been communicated to the SEC for its consideration and opinion: (1) the Draft Law on Amending the Law on Peaceful Settlement of Labour Disputes; (2) the Draft Law on Amending the Labour Code; (3) the Proposal for a Rulebook on Amending the Rulebook on previous and periodical medical examinations of employees in employment at increased risk; and (4) the Proposal for a Rulebook on acquiring new knowledge relating to occupational health and safety. In addition, also in 2017, the following draft laws prepared by the Ministry of State Administration and Local Self-Government had been considered by the SEC: (1) the Draft Law on Salaries of Civil Servants and State Employees in Autonomous Province Authorities and Local Government Units; (2) the Draft Law on Employees in the Public Service; and (3) the Draft Law on Amending the Public Sector Wage System Law. Apart from the SEC established at the national level, there were social and economic councils at the level of the autonomous territories and the local government. There were 19 councils in the registry maintained by the Ministry of Labour. One of the most important forms of social dialogue was collective bargaining. The amendments to the Labour Code made in July 2014 aimed to encourage social dialogue and collective bargaining for the purpose of concluding collective agreements at all levels (enterprise, industry, local government unit, as well as at the national level). Government representatives were involved in the negotiation procedures for collective agreements covering public enterprises and corporations funded by the Republic, and for special collective agreements for public enterprises and public services. Seventeen special collective agreements and five collective agreements covering economic sectors were currently registered by the Ministry of Labour and published in the Official Gazette. For instance, special collective agreements had been concluded covering institutions in the areas of health, culture and social protection; employees in elementary and secondary schools and student homes; police officers; state authorities; and pre-school institutions. Collective agreements covering economic sectors had been concluded for such industries as: chemistry and non-metals; agriculture, food, tobacco and water management; construction and construction materials; and road maintenance.

With respect to the observation that the social partners were excluded from the process of drafting labour and social legislation, the speaker reiterated that social dialogue was a very important part of the law-drafting process. In line with the Government’s workplan for 2016–18, a legal framework on strike and peaceful settlement of labour disputes was in the process of development. The working group had consisted of representatives of trade unions and of employers’ associations at national level and members of the SEC. At the session on 28 December 2017, the Government had finalized a draft Bill on Amending the Law on Peaceful Settlement of Labour Disputes, and had communicated it to the National Assembly for adoption. Public discussion on the Draft Law on Strikes had been finalized on 10 May 2018, and further activities had been undertaken for this Bill to be adopted by the Government. In response to the observations made by the social partners that the Representativeness Committee had ceased to function in May 2017, the speaker stated that since the new Government had been formed on 29 June 2017, new Government representatives to the Committee had to be nominated by the Ministry of Education, Science and Technological Development, the Ministry of Labour and the Ministry of Health. Following nominations on 19 April 2018, the Representativeness Committee had held its first session on 7 May 2018. With respect to the observations made by the social partners that no consultations on international labour standards had taken place, she stated that such consultations had been regularly held. The most obvious example of the consultation results was the ratification of the Maternity Protection Convention, 2000 (No. 183). This Convention had been ratified after the meeting between the Government representatives and the trade union representatives. The ratification procedure had started at the initiative of the Trade Union Confederation “Nezavisnost”, with the support of the Confederation of Autonomous Trade Unions of Serbia, and employers’ associations. All reports on the implementation of ILO Conventions had been regularly communicated to the social partners on a yearly basis for their opinion and comments. All comments received were forwarded to the ILO by the Government in a timely manner. In order to prepare the delegation of the Republic of Serbia to the International Labour Conference, the Government had delivered the following documents to the SEC: the invitation letter, information on the Conference and the guidelines for participation and a request to the SEC to transmit to the Government information on the social partners’ delegates to the Conference. Furthermore, the Government had delivered the following ILO documents to the social partners: the text of the newly adopted Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205); and a questionnaire on the implementation of the Social Protection Floors Recommendation, 2012 (No. 202). The SEC had met twice, in March and April 2018, concerning the participation in the International Labour Conference.

The Worker members recalled the need to organize social dialogue effectively to cover all of the problems that could arise in the context of the implementation of international labour instruments. Indeed, social dialogue was present in a cross-cutting manner in all ILO instruments, and particularly in the present Convention, which directly addressed the question of social dialogue within the context of tripartite consultation relating to international labour standards. The Convention benefited from broad support from ILO member States, as it had so far received 140 ratifications. They recalled that a ratification campaign had been launched with the aim of achieving universal ratification of the Convention for the ILO Centenary. States which had not yet done so should initiate the process to ratify the Convention. Indeed, while the ratification of the Convention was essential, compliance with it in law and practice was just as important. The application by Serbia of the Convention which it had ratified in 2005 had been problematic. As it was a relatively recent ratification, the failings were perhaps due to the relatively short period for which the Convention had been in force in the country. It appeared difficult to find an echo in Serbia of the Convention, which set out fundamental principles of social dialogue. According to the social partners, in practice social dialogue had been reduced to the strict minimum at all levels. Although the Convention was intended to promote effective tripartite consultation, it was clear that this was far from being the case in Serbia at present. It was not by reducing social dialogue to a minimum that effective consultations could be established in accordance with the requirements of the Convention. In that regard, the social partners reported that, in general, draft legislation on social and labour issues was not always submitted to the competent consultation mechanism. It was difficult to imagine how it could be otherwise for all of the items that had to be submitted for consultation with the social partners under Article 5 of the Convention. In practice, all draft legislation was submitted directly to the Legislative Assembly without any prior consultation in the competent tripartite advisory body. Article 2(1) of the Convention provided that each member State should undertake to establish procedures to ensure effective consultation, but this did not appear to be the case in Serbia. If the Government needed to establish or re-establish such procedures, it would need to consult the representative organizations of workers and employers in this regard, in accordance with Article 2(2) of the Convention. In this respect, the representative organizations of workers indicated that their representative was no longer allowed to participate in the drafting of legislative texts in the field of social and labour legislation. This situation was compounded by the lack of dialogue with the social partners, particularly with workers’ organizations. A Representativeness Committee had been established to determine the representativeness of workers’ and employers’ organizations, but had ceased functioning in May 2017. According to the social partners, the non-functioning of the above Committee had strongly affected social dialogue in that the Government was now determining the representativeness of organizations. The decisions taken by the Government in relation to representativeness were adopted without consulting the Committee. It was evident that this procedure, probably applied in response to the non-functioning of the competent body, should have been the subject of consultation with the social partners.

Contrary to Article 5(2), no schedule appeared to have been determined in consultation with the social partners in order to ensure tripartite consultation at regular intervals on the matters covered by the Convention. The absence of regular consultations meant that, in practice, consultations were held too late, or not at all. The Government should therefore be called upon to review the applicable procedures, in dialogue with the social partners. In light of the difficulties observed, it would appear to be useful for the Government to invite the competent authority to produce an annual report on the working of the consultation procedures, in accordance with Article 6 of the Convention. It was the responsibility of the Government to ensure that the competent authority had all the necessary resources for the preparation of the report. The report would make an assessment of the situation and would provide a basis for reviewing all of the elements which were paralysing social dialogue in the country. Serbia was already benefiting from an ILO technical assistance programme, which was intended to strengthen the capacities of the competent authority in relation to tripartite consultation. It was important to assess the progress achieved in their context and to encourage recourse to such assistance. A tripartite workshop had also been organized by the ILO in Belgrade in 2017 to train the tripartite partners on the implementation of the Convention. Despite this assistance, it was clear from the comments of the Committee of Experts that there remained many shortcomings in the application of the Convention. The Worker members considered that the situation could be improved significantly if the Government made efforts to this end. The measures that needed to be taken to resolve the difficulties noted and re-establish effective tripartite consultation were not excessively complex and required only a minimum of political will.

The Employer members emphasized the importance of States complying with this governance Convention. Serbia had ratified the Convention on 13 May 2005 and, to date, the Committee of Experts had already issued seven comments, the last three dating from 2012, 2015 and 2017. In 2001, the SEC had been created as a tripartite advisory body. The legislation provided for the representation of the social partners and the Government on an equal footing. The SEC therefore appeared to be the competent national authority par excellence to assume an advisory role on ILO instruments. It seemed, however, to be well established that it was rarely consulted by the authorities, particularly with regard to the obligations laid down in the Convention. The content, procedure, time limits for consultation, outcome and frequency of the consultations were clearly still posing problems. The Employer members had expressed their concern with regard to the comments of the Committee of Experts. Having taken note of the Government’s explanations, they considered that specific action was needed to apply the Convention at the national level.

The Employer members attached great importance to the Convention, given that, as stated in the ILO Constitution, tripartism was one of the pillars of the Organization. It was what distinguished the ILO from other international organizations. The Convention had the merit of flexibility, leaving it to national practice to determine the nature as well as the form of consultation procedures. Very different tripartite consultation procedures and methods could therefore satisfy the aims of the Convention. Nevertheless, to be meaningful, consultations must not be simply a matter of form, but should command the full attention of representative employers’ and workers’ organizations so as to assist the Government in decision-making. In that respect, tripartism was not an easy road to travel. It required appropriate means of keeping organizations informed so that they had a sufficient basis for consultation, the exchange of information on different points of view and the settlement of disputes, taking into account the positions of the social partners before any final decision was made. It was essential for final Government decisions concerning their obligations towards the ILO to take into account the points of view expressed by employers and workers. Article 5(2) of the Convention provided that consultations should be held at least once a year. It was difficult to envisage consultations being held less frequently, bearing in mind the diversity of issues warranting consultation at different times of the year. However, Governments were under no obligation to publish annual reports on how the procedure was functioning; they were required to hold consultations on whether such a report was appropriate. That being said, the burden of government reporting obligations was heavy and sometimes delayed or reduced the time available for tripartite consultation, or even prevented consultations from taking place within the time limits. The Employer members supported any initiative that eased the administrative burden of governments, while maintaining the quality of the information they communicated. Such rationalization would facilitate the holding of tripartite consultations. With regard to the observations made by the Committee of Experts, the Employer members recalled that tripartite consultations by the Government could not be confined to draft legal texts or a purely formal consultation. It was not enough to organize the travel for employer and worker delegates to participate in the International Labour Conference, nor to provide them pro forma, selectively or at the last minute with general notes that were not conducive to meaningful consultation. Instead, a basic process of effective consultation needed to be established. Certain issues examined by the Committee of Experts had been raised on many occasions. It was therefore important for the Government to provide full, detailed and useful information in writing on the effective functioning of the SEC.

The Worker member of Serbia indicated that the Law on the Social and Economic Council had defined the SEC as an independent body, composed of representatives of the Government, representative employers’ associations and representative trade unions. Pursuant to the Law, the SEC should take positions on issues such as development and improvement of collective bargaining, impact of economic policy and measures for its implementation with regard to social development and stability, employment policy, wage and price policies, competition and productivity, privatization and other structural adjustment issues, protection of working and living conditions, education and vocational training, health care and social welfare, demographic trends and other issues. These positions should be taken by consensus of the members of the SEC. Regarding the implementation of the Convention, the speaker regretted that draft laws in the area of labour and social legislation or those that regulated the right to work were not submitted to the SEC for review. Instead, the Government had directly submitted these bills to the National Assembly. In the course of 2017, 18 bills had been submitted to the National Assembly without having first consulted the SEC. With respect to representativeness, the speaker indicated that, pursuant to section 224 of the Labour Code, representativeness of a trade union at national level was determined by the Minister on the recommendation of the Representativeness Committee. The Committee should be composed of three representatives of each group: the Government; the trade unions; and the employers’ organizations. The Committee had ceased to function from May 2017 to April 2018, due to the Government’s failure to nominate its representatives. Moreover, section 229 of the Labour Code had been amended in July 2014, to provide that the Representativeness Committee could only operate and adopt proposals if at least two-thirds of its members were present at the meeting (prior to the amendment all decisions had to be taken by consensus). As a result, the representative trade union, as one of the social partners, did not have equal status in the Committee, since the Government, together with the representative employers’ organizations, could make decisions and proposals even without the trade union, which was contrary to the Convention. Pursuant to section 229(7) of the Labour Code, as amended, the Government had taken over the determination of representativeness, as the Minister could take decisions in this regard without seeking the Representativeness Committee’s views. With regard to sectoral collective agreements, he regretted that these were non-existent in the industrial sector. Moreover, those that were signed were not implemented or failed to obtain approval for extending its application. The speaker added that there were no employers’ organizations in Serbia that met the representativeness requirement prescribed by the Labour Code as amended (more than 50 per cent of employees in a specific sector), and collective agreements could not be implemented without extending its application. The speaker therefore called on the Government to: (i) introduce a provision in its Rules of Procedure to the effect that a draft law could not be submitted to the Government for review unless it was accompanied by an opinion of the SEC; and (ii) ensure the full implementation of the Convention through an amendment of the relevant laws. 

The Employer member of Serbia highlighted that the Convention called for “effective consultations” for the purpose of exchanging opinions before the Government took a final decision. The Serbian Association of Employers (SAE) had never been provided with information regarding the majority of the topics covered by the Convention. There had been no exchange of opinions or consultations with employers. For example, the Convention had been ratified by Serbia in 2005, and since then, six additional Conventions had been ratified without consulting the social partners on the benefits of ratification, the improvements expected, or the changes required in national legislation. The laws related to ratification were submitted directly to the National Assembly. Hence, the employers were not given the opportunity to express their opinion on matters concerning ILO activities. The allocation of sufficient time to examine the information provided was also an important element. The Government’s requests for comments from the workers’ and employers’ organizations on ratified Conventions were usually accompanied by an extremely short deadline for within which to reply. In response to complaints made by the social partners in this regard, the Government had introduced the practice of approving additional time where requested. Subsequently, the Government had stopped requesting comments. In 2017, bearing in mind the deadline set by the ILO, the SAE had prepared its comments in a timely manner and had sent them directly to the ILO. The scope of issues that should be subject to tripartite consultations had been selectively implemented. The Government’s comments on proposed texts to be discussed by the Conference were in the form of a document called “Platform”. However, this document contained only general notes and short descriptions about the Conference agenda and the relevant committees, without including any remarks on the Government’s position regarding any issue on the agenda. There was nothing to comment on or add to. This year’s Platform had been received by the social partners only on 25 May 2018, and no information had been included about Serbia being on the preliminary list of cases to be discussed by the Committee. The Conference was put on the agenda of the SEC, the national tripartite body, but only for formal approval of the composition of the delegation. Furthermore, there had been no requests for consultation from the Government on the denunciation of ratified Conventions, even in the case of automatic denunciation, for example, when the Maritime Labour Convention (MLC, 2006), had been ratified in 2006. There had been no consultations on examining non-ratified Conventions or Recommendations to which effect had not yet been given. With regard to reports on ratified and non-ratified Conventions, apart from the typically short deadline, which could occur during the holiday season, the speaker was not aware of any “questions arising out of reports to be made” to the Office, as required under Article 5(d) of the Convention. The employers had never been given the opportunity to read all of the comments provided by the Government, trade unions and employers in one document. In addition, they had never received the final copies of the reports that had been sent to the ILO, either on ratified or on non-ratified Conventions, pursuant to article 23, paragraph 2, of the ILO Constitution. Furthermore, no consultations had ever been held after the Conference, related to the Conference Committees’ conclusions and decisions, not even when Serbia had been the subject of the discussion. In 2017, the SAE had filed a complaint to the Credentials Committee. However, a discussion on the Credential Committee’s request to the Government to act in accordance with the ILO Constitution had taken place only upon the employers’ initiative, during a meeting of the SEC. The Government’s comments had revealed that it had not taken the request into consideration, and that it did not intend to do so in the future.

The nature and form of consultations would have to be determined according to national practice. As the Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152), explained in more detail, the Government was free to organize consultations in the most time-efficient and non-bureaucratic manner, taking into consideration cost-effectiveness. Consultations would have to be related to ILO standards, be effective and be held before a decision could be taken, and should take place at least once a year. In Serbia, there was a national tripartite body with an equal representation of government, trade unions and employers, the SEC, which had been established in 2001 based on an agreement signed by all three social partners. The SEC’s purpose was to enable the development of tripartite dialogue at the national level. Considering the purpose and composition of the SEC, the speaker believed that it should be considered as the body where the discussions and consultations should be taking place among the social partners, in line with the Convention, and should not be used only for the formal approval of the composition of the delegation to the Conference. With regard to the absence of determined intervals for consultations on issues related to the Convention, the administrative capacity of all three constituents did not correspond to the scope and variety of their tasks. For this reason, it would be useful to establish such intervals. This would enable sufficient time for planning and preparation, particularly bearing in mind that, on the one hand, the reporting cycle and deadlines introduced by the ILO, as well as the items on the Conference agenda, were well known in advance and, on the other hand, that the SEC met on a regular basis. Serbia was fully equipped with an excellent framework to implement the Convention and Recommendation No. 152, but there was a lack of will to use this framework.

The Worker member of Sweden, speaking on behalf of the Worker members of the Nordic countries and the United Kingdom, highlighted the importance of tripartite consultations, which enabled the full inclusion of workers’ and employers’ representatives in legislative processes and in the implementation of international labour standards. Tripartite consultations, as set out in the Convention, were the cornerstone of the ILO and its supervisory mechanisms. Tripartite consultations could take place in various forms, but had to meet the preconditions established in the country concerned. The speaker referred to the European Economic and Social Committee (EESC), a European Union (EU) advisory body made up of representatives of workers’ and employers’ organizations, which delivered opinions on relevant EU legislative projects and policy initiatives. Moreover, one of the priorities of the EU was to promote social dialogue, as evidenced by the European Pillar of Social Rights, which included the promotion of social dialogue among its 20 principles. According to this pillar, social partners had to be consulted on the design and implementation of economic, employment and social policies, and were encouraged to negotiate and conclude collective agreements. In this context, the EU had identified closer cooperation with the Western Balkans, including Serbia, as one of its priorities. Serbia had recently committed to such closer cooperation as part of the measures taken toward EU accession. Highlighting that social dialogue was one of the fundamental values of the EU, the speaker urged the Government to comply with international labour standards, particularly this Convention, thus demonstrating its true commitment in practice.

An observer representing Education International (EI) recalled that the Convention lay at the heart of tripartism. The Teachers’ Union of Serbia (TUS) was affiliated to Education International and wanted the claims and expectations of its members to be taken into account in collective bargaining. Collective agreements had been concluded in all education sectors, apart from higher education where bargaining had begun in 2015 and had not yet been concluded. Higher education teachers did not therefore enjoy the same rights as their colleagues. The situation was problematic from the point of view of democracy and equality. According to the TUS, various ministers involved in the negotiations were obstructing the agreements, namely the Minister of Education and the Ministers of Labour and Finance, who had referred to financial difficulties. However, high-quality education was vital to economic and social development and required State investment, as recognized in the 1966 and 1997 ILO/UNESCO recommendations. Furthermore, the TUS had not been consulted on various draft laws. That had been the case, for example, with the Education Act adopted at the end of 2017. Teachers’ trade unions had been consulted initially, and then excluded from negotiations. They had also been excluded from discussions on the reform of the school system, despite the inevitable consequences on the status and rights of the staff. In fact, the majority of teachers were employed under precarious conditions, especially on short-term contracts. Teachers’ salaries had been reduced by 10 per cent in 2014 and, although they had increased since that time, they remained 16 per cent below the national average. With regard to the Bill on the right to strike, the TUS regretted that its voice had not been heard and questioned the functioning of the Social and Economic Council and the Representativeness Committee, which had not been operational since May 2017. Similarly, the TUS was concerned at the criteria established by the Government to assess representativeness. In conclusion, she called for full and permanent dialogue to be restored with the TUS so that its voice could be heard on those issues on an equal footing with other parties.

The Government representative thanked all participants in the discussion for their comments and indicated that the Government had already tackled most of the issues that had been mentioned. A new meeting of the Representativeness Committee, the authority responsible for determining the representativeness of workers’ and employers’ organizations, would be held on 6 June 2018. Referring to the intervention of the Worker member of Serbia in relation to a law in the field of education, the speaker stated that she was not in a position to provide concrete answers at this time, but that the Government would provide information on this matter in its next report under article 22 of the ILO Constitution, or in a separate letter to the ILO. The next report on the application of the Convention would contain a copy of the request that had been sent to the social partners. The Ministry of Labour, which was the authority responsible for drafting the report, would do its best to respond to all comments made by the Committee of Experts.

The Employer members reiterated that tripartism was one of the pillars of the ILO. It was fundamental for tripartism to be implemented effectively at the national and international levels. If a government was envisaging the ratification of an ILO Convention, it should examine not only its own capacity to implement the Convention in law and practice at the national level, but also its capacity to fulfil the administrative obligations arising out of ratification, particularly those relating to reporting on the implementation of the Convention and the related tripartite consultations. Taking into account this administrative burden, governments were, however, free to organize the consultations in the most effective manner possible to avoid unnecessary bureaucracy, on condition that the following requirements of the Convention were respected: (i) the consultations had to cover all ILO standards, as indicated in Article 5(1), but there was no obligation under the Convention to consult the social partners on general economic and social matters; (ii) under Article 2(1), the consultations needed to be effective, or in other words be organized in such a way that the views of the respective organizations were taken into consideration by the Government before it took any decisions; and (iii) pursuant to Article 5(2), tripartite consultations should be held at least once a year. Having taken due note of the explanations provided by the Government, the Employer members recommended that the national authorities take the necessary and appropriate measures to ensure effective and efficient tripartite consultations with the national social partners, as required by the Convention. More specifically, they called on the Government to: (i) take the necessary measures to ensure meaningful, effective and timely consultations on all the questions covered by the Convention; (ii) take the opportunity offered by the existing tripartite social dialogue body, the SEC, to organize the tripartite consultations required by the Convention, without having to establish other bodies; and (iii) provide in writing all relevant information on the outcome of such tripartite consultations. Finally, they called on the Government to continue availing itself of ILO technical assistance in relation to their recommendations.

The Worker members thanked the Government representative for the information provided to the Committee. It was essential for the Government to take decisive measures to bring its law and practice into line with the Convention. While the ILO had set the objective of achieving universal ratification of the Convention, the Government’s concern lay elsewhere: that of ensuring the respect and effective application of the Convention. Indeed, the recommendations made to the Government could easily be implemented if the political will existed. The Government should establish or re-establish procedures to hold effective consultations between its representatives and the social partners, particularly within the SEC. It was essential to hold consultations with the social partners with a view to establishing or re-establishing such procedures so that they could express their views. In that regard, it was important for the Representativeness Committee to resume its activities so that it could discuss issues of representativeness and advise the Government accordingly. The Government could not, without the advice of an independent body, make valid decisions on the representativeness of organizations. This situation could not continue. The Worker members welcomed the Government’s indication that the Committee had held its first meeting on 7 May 2018, following the appointment of the Government representatives. The Government was invited to ensure the operation of the Committee in future, even if a new government was being formed. It was also important for the Government to ensure that regular consultations were established or re-established on the items covered by Article 5(1)(a) to (e) of the Convention and to establish an annual schedule for the tripartite consultations. A report on the situation, as provided for in Article 6 of the Convention, could inform the Government and the social partners with regard to compliance with the procedures set out in the Convention. The Government was requested to make every effort to ensure that the SEC had the resources to produce such a report. As the Government had benefited from an ILO technical assistance programme (the ESAP Project), it should also report on the progress achieved by the programme. Following that such an assessment, and in view of the persistent difficulties in the implementation of the Convention, the Worker members called on the Government to participate more actively in the technical assistance programme.

Conclusions