Solicitud directa (CEACR) - Adopción: 2016, Publicación: 106ª reunión CIT (2017)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Bosnia y Herzegovina (Ratificación : 1993)

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Observación

Solicitud directa

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The Committee takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature. The Committee also notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2016 alleging a number of legislative shortcomings, as well as intimidation of workers during a protest. The Committee requests the Government to provide information in respect of the latest ITUC observations, as well as the ITUC observations received on 30 August 2013.

Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). In its previous comment, the Committee noted with satisfaction that the SSSBiH was registered on 8 May 2012. The Committee notes, however, the Government’s indication that in early 2014, it received observations from the SSSBiH alleging that the Ministry of Justice has not fully complied with the judgment of the Court of Bosnia and Herzegovina dated 20 April 2012 in that it did not conduct all the necessary activities in order to complete its registration. The Government enumerates the measures taken and states that the Ministry of Justice acted pursuant to the judgment of the Court of Bosnia and Herzegovina and informed the SSSBiH of its implementation by letter dated 8 May 2012. The Government also states that a request for judicial review against the decision of the Court of Bosnia and Herzegovina has been filed for violation of the Act on Association and Foundations of the Federation of Bosnia and Herzegovina and that the proceedings concerning this request are ongoing. The Committee trusts that the SSSBiH will be able to continue to conduct its activities and represent its members and requests the Government to provide information on the outcome of the ongoing proceedings.

Legislative reform. The Committee notes the Government’s indication that the following Acts were adopted: (i) Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act); (ii) Act on Inspections in the Federation of Bosnia and Herzegovina, 2014 (FBiH Act on Inspections); (iii) Labour Act of the Republika Srpska, 2016 (RS Labour Act); and (iv) Rulebook on registration of trade union organizations and employers’ associations in the Register of the Republika Srpska, 2016 (RS Rulebook). The Committee will conduct a full examination of the FBiH Act on Inspections and the RS Rulebook once the translations are available. The Committee requests the Government to provide a copy of the Act on Work in the Institutions of Bosnia and Herzegovina, 2004.

Article 2 of the Convention. Scope of the Convention. The Committee observes that under section 6 of the FBiH Labour Act and section 2(5) of the Labour Act of the Brčko District of Bosnia and Herzegovina, 2006 (the BD Labour Act – provided with the Government’s report), a worker is defined as a natural person employed on the basis of a contract of employment. The Committee further observes that section 5 of the RS Labour Act defines a worker as a natural person working with the employer and having the rights and obligations resulting from labour relations referred to in the Act – conclusion of a labour contract, a decision on hiring, selection or appointment – or another legal basis stipulated under a special law and who is registered in the Single System for Registration, Control and Collection of Contributions. Recalling that the right to organize should be guaranteed to all workers without distinction or discrimination of any kind, including to workers without an employment contract, domestic workers, workers in the informal economy and self-employed workers, the Committee requests the Government to indicate whether the abovementioned categories of workers enjoy, in law and practice, the rights guaranteed by the Convention, and if not, to take the necessary measures to amend the relevant labour legislation in this regard. The Committee requests the Government to provide information on any measures taken in this respect.

Relationship with workers’ and employee councils. Federation of Bosnia and Herzegovina. In its previous comments, the Committee expressed the expectation that in the revision process of the FBiH Labour Act, sections 98 and 108(2), which place trade unions in a secondary and subsidiary position vis-à-vis work councils, would be amended. The Committee notes the Government’s indication that: (i) section 109 of the new FBiH Labour Act places work councils and trade unions on an equal footing – it requires an employer who employs more than 30 workers and intends to dismiss at least five workers in the period of the next three months, to consult both the work council and the trade union; and (ii) section 119 stipulates that if a work council has not been formed, the trade union will have the duties and powers related to the powers of the work council. Observing in this regard that section 119 of the FBiH Labour Act continues to place trade unions in a subsidiary position vis-à-vis work councils, the Committee recalls that the existence of works councils should not be used in order to undermine trade unions and their activities. The Committee requests the Government, in consultation with the most representative organizations, to take the necessary measures, including any legislative amendments, in order to prevent any risk of weakening the institutional position of trade unions and to provide information on any developments in this regard.

Republika Srpska and the Brčko District. The Committee observes that section 208 of the RS Labour Act provides for the establishment of “workers’ councils” to issue opinions and participate in decision-making on economic and social rights, as well as on the interests of workers, but does not specify the relationship of such workers’ councils with trade unions. The Committee further observes that section 93 of the BD Labour Act provides for the establishment of workers’ councils to represent employees, protect their rights and interests and engage in collective bargaining with the employer and states that if a workers’ council is not established, the trade union will assume its powers and duties, and that section 83 of the BD Labour Act sets out, in relation to large-scale dismissals, an obligation to consult the workers’ council and if such a council has not been formed, the trade union. The Committee requests the Government to clarify the relationship between a trade union and a workers’ council under the RS Labour Act. Noting that sections 83 and 93 of the BD Labour Act place trade unions in a subsidiary position vis-à-vis workers’ councils, the Committee requests the Government, in consultation with the most representative organizations, to take the necessary measures, including amendments of these provisions, to ensure that the existence of workers’ councils does not undermine trade unions and their activities.

Trade union diversity. Higher-level trade unions. Republika Srpska. The Committee had previously noted that section 2(2) of the Regulations on the registration of trade unions, 2006 (Regulations on registration) identified a single central organization – the Union of Trade Unions – as the broadest form of trade union organization in the Republika Srpska and made no provision concerning the registration of additional organizations at that level. However, in its previous comment, the Committee noted with interest that the Regulations on registration, as amended in 2012, provided that associations of trade unions organized at the level of the Republika Srpska were also considered as trade unions (at the broadest level). The Committee requested the Government to provide a copy of the Regulations on registration and further information concerning the relevant provisions ensuring trade union diversity in the Republika Srpska. The Committee notes the Government’s statement that the 2016 RS Rulebook guarantees absolute freedom in the formation of trade unions and their activities at all levels (employer, region, area or sector and Republika Srpska levels): section 3(1) defines a trade union organization as any form of trade union organization of workers established in accordance with the RS Labour Act, the statute and the rules of the trade union, and section 3(3) provides for the establishment of higher-level organizations of workers and employers at the levels of regions, sectors or the Republika Srpska. The Committee notes with satisfaction that the applicable labour legislation allows workers to organize at all levels.

Articles 2 and 4. Act on Associations and Foundations. The Committee notes the Government’s indication with regard to the Federation of Bosnia and Herzegovina that the general provisions governing the right of association, conditions and procedure for establishment, internal organization, registration and termination of associations are included in the FBiH Act on Associations and Foundations and that the associations of workers are specifically regulated by the provisions of the FBiH Labour Act. The Committee understands that the same approach is applicable to the Republika Srpska and the Brčko District.

Failure to register. Brčko District. The Committee notes that while section 25(1) of the BD Act on Associations and Foundations states that registration is voluntary, its section 45(1)(a) penalizes failure to fulfil the entry in the Register. In this regard, the Committee recalls that although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, as it is the first measure to be taken so that organizations can fulfil their role effectively, the exercise of legitimate trade union and employer organization activities should not be dependent upon registration, and failure to register should not be subject to sanctions. The Committee requests the Government to indicate whether the above provisions are applicable to workers’ and employers’ organizations, and if so, to amend section 45(1)(a) of the BD Act on Associations and Foundations in line with the mentioned principle.

Suspension of activities and dissolution of trade unions. While noting the Government’s indication that section 17 of the FBiH Labour Act, section 212(1) of the RS Labour Act and section 8 of the BD Labour Act prohibit the temporary or permanent suspension of lawful activities of trade unions and employers’ organizations, the Committee observes that under section 43 of the FBiH Act on Associations and Federations, section 40 of the RS Act on Associations and Federations and section 26 of the BD Act on Associations and Federations, an association can be dissolved or its operation suspended for a number of reasons, including for repeated failure to: convene regular assembly meetings for a certain period, use the registered name of the association in legal transactions, use the surplus generated from economic activities in a way prescribed by the laws and the statute, and notify the relevant authority about the change of data to be entered into the registry (section 44 of the FBiH Act on Associations and Federations, section 41 of the RS Act on Associations and Federations and section 37 of the BD Act on Associations and Federations). The Committee considers that the abovementioned sections provide for dissolution and suspension of associations on grounds which do not appear to justify the severity of such sanctions, and that, in some cases, the decision to dissolve a union is entrusted to an administrative body. Recalling that dissolution and suspension of trade union and employer organizations constitute an extreme form of interference by the authorities, the Committee requests the Government to indicate whether the mentioned provisions are applicable to workers’ and employers’ organizations, and if so, to take the necessary measures to amend these provisions, in consultation with the social partners, in order to ensure that trade unions and employer organizations can be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure.

Article 3. Right of employers’ and workers’ organizations to elect their representatives in full freedom and to organize their administration and activities. Bosnia and Herzegovina. Noting the adoption of the Act on Strikes in the Institutions of Bosnia and Herzegovina, the Committee requests the Government to provide information on the exact scope of its application and the nature of the public servants concerned.

Determination of minimum services. Bosnia and Herzegovina. The Committee observes that under section 15 of the new Act on Strikes in the Institutions of Bosnia and Herzegovina, the minimum services are determined by a decision of the Council of Ministers of Bosnia and Herzegovina on the basis of a previously submitted proposal of the employer who has obtained consent of the trade union, and that under section 26 of the Act, the determination of the minimum services is to be done within 90 days from the date of entry into force of the Act. Recalling that trade unions should be able to participate in defining the minimum services along with the employers and the public authorities and that any disagreement among the parties should be resolved by a joint or independent body, the Committee requests the Government to provide information on the application of these provisions in practice, in particular, on the manner in which trade unions can participate in the determination of the minimum services and on the manner of resolution of any disputes in this regard.

Right to strike in the civil service. Federation of Bosnia and Herzegovina. In its previous comments, while noting that collective agreements in force regulated the right to strike for employees of administrative bodies and judicial authorities, the Committee trusted that the Government would continue to provide information if and when legislative provisions were adopted on this matter. The Committee notes the Government’s indication that a special law regulating the issue of strikes in the civil service has not been adopted but that the previously mentioned collective agreements regulate the right to strike and the conditions of work of trade unions. The Committee requests the Government to continue to provide information in this regard.

Trade union representatives. Republika Srpska. The Committee had previously noted that section 4(3) of the Regulations on registration included among the documents necessary for the registration of a trade union a certificate of the employer stating that the trade union representative authorized to submit the registration form was permanently employed in the specific enterprise. The Government had previously indicated in relation to this requirement in the 1998 version of the Regulations that registration with the Ministry of Labour was made for the purposes of labour administration and had no connection to the registration to be made in courts for the purpose of acquiring legal personality under the RS Act on Associations and Foundations. The Committee had, however, recalled that such a requirement could prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office. In its previous comment, the Committee noted that the 2006 Regulations on registration would be amended so as to allow for trade union representatives not permanently employed by the employer. The Committee observes that as a result of the 2012 amendment of the Regulations on registration, the word “permanent” had been deleted from section 4(3) but the text of the provision has not been otherwise altered; the application for registration must include a certificate indicating that the person authorized to act on behalf of the trade union is employed by that employer. Noting the adoption of the 2016 RS Labour Act and the Rulebook on registration, the Committee requests the Government to clarify whether the 2012 Regulations on registration continue to be in force and if so, to take the necessary measures to amend the text so as to ensure that persons not employed by the employer may, in accordance with trade union by-laws, be candidates for trade union office.

Act on Strikes. Republika Srpska. In its previous comment, the Committee also requested the Government to indicate the steps taken or envisaged to amend section 12 of the Act on Strikes of Republika Srpska, 2008 (the RS Act on Strikes – translation was made available) so as to ensure that trade unions could participate in defining the minimum services and that in case of disagreement between the parties, the minimum service was determined by a joint or independent body, and to supply further information on the provisions of the 2009 RS Act on the Peaceful Settlement of Labour Disputes and a copy of the text. The Committee notes the Government’s indication that: (i) in line with section 25(2) of the RS Act on Strikes, employers are obliged to adopt documents defining minimum services within 60 days from the date of entry into force of the Act, and all employers in essential services thus adopted such documents in 2008; (ii) even though employers adopt the documents establishing minimum services before a strike actually takes place, this issue may also be a subject of collective bargaining; (iii) the RS Act on Strikes provides for conciliation, mediation and voluntary arbitration in case of collective labour disputes (sections 7 and 14); (iv) the RS Act on Peaceful Settlement of Labour Disputes has also been applied in settling labour disputes, as it regulates the procedure for resolving individual and collective labour disputes, including disputes in determining the minimum work process, through mediation or arbitration; and (v) a new Act on Peaceful Resolution of Labour Disputes, which will give special attention to resolving disputes regarding strikes, is in the parliamentary procedure. Noting that under the RS Act on Strikes, the determination of minimum services continues to be a prerogative of the employer, the Committee requests the Government once again to take the necessary measures to amend section 12, so as to allow trade unions along with the employers and the public authorities, to participate in defining the minimum services and, in case of disagreement among the parties, to provide for a joint or independent body to define the minimum services. The Committee requests the Government to provide information on any measures taken or envisaged in this regard and on the instances in which the determination of the minimum services was the subject of collective bargaining. The Committee further requests the Government to clarify whether arbitration under the RS Act on Peaceful Settlement of Labour Disputes is voluntary, based on the agreement of both parties, or whether it can be imposed by the authorities or at the request of one of the parties. The Committee also requests the Government to provide a copy of the new RS Act on Peaceful Resolution of Labour Disputes once adopted.

The Committee further notes that under section 4(1) and (2) of the RS Act on Strikes, the decision to begin a strike action or a warning strike may be taken by the authorized body of the relevant majority trade union or by more than 50 per cent of the workers of that employer or by another trade union which has the support of more than 50 per cent of the workers of the employer. Recalling that, if legislation establishes provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level, the Committee requests the Government to provide information on the application of this provision in practice.

Right to assembly in the context of a strike. Republika Srpska and the Brčko District. The Committee further observes that section 5(2) of the RS Act on Strikes and section 4(d) of the Act on Strikes of the Brčko District, 2005 (the BD Act on Strikes – translation was made available) state that if a strike action involves the gathering of workers, such action may not be outside the premises of the company in which the strike is taking place. The Committee recalls that the authorities should refrain from any interference which would restrict freedom of assembly or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order. The Committee therefore requests the Government to take the necessary measures to amend section 5(2) of the RS Act on Strikes and section 4(d) of the BD Act on Strikes accordingly.

Article 5. The right of workers’ and employers’ organizations to form federations and confederations. Brčko District. The Committee notes the Government’s indication that the BD Labour Act does not contain any provisions on the possibility for workers’ organizations to form federations and confederations. The Committee requests the Government to clarify whether workers’ and employers’ organizations can, in law and practice, form federations and confederations of workers and to indicate the relevant legal provisions.

Application of the Convention. Brčko District. In its previous comment, the Committee requested the Government to supply a copy of the Law on Associations and Foundations of the Brčko District, and provide detailed information on the specific legislative provisions giving effect to each Article of the Convention. The Committee takes note of the information provided by the Government in this regard.