Observación (CEACR) - Adopción: 2021, Publicación: 110ª reunión CIT (2022)

Convenio (revisado) sobre el trabajo nocturno de los menores (industria), 1948 (núm. 90) - Bosnia y Herzegovina (Ratificación : 1993)

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Observación

2021

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Article 1(1) and (2) of the Convention. Definition of “industrial undertaking”. Federation of Bosnia and Herzegovina (FBiH). The Committee previously noted that the Labour Law of the FBiH No. 62 of 2015 (Labour Law of the FBiH, 2015) prohibits minors from performing particularly hard manual labour, underground or underwater works, or other jobs, which could have a harmful effect or pose increased risks to their life and health, development or morality, given their psychological and physical capacities (section 57(1)). In addition, section 42(1) of the Labour Law of the FBiH, 2015 prohibits night work of minors, and section 42(2) states that for minors employed in industry, “night work” includes work between 7 p.m. and 7 a.m. According to section 42(5), the Federal Minister of Labour and Social Policy shall prescribe the activities considered to be industrial in terms of night work for minors by virtue of a Rulebook.

The Committee notes with regret the Government’s reply in its report that the Rulebook, pursuant to section 42(5) of the Labour Law of the FBiH, 2015, has not been adopted yet. The Committee also takes note of the Government’s intention to harmonize the national legislation with the Convention on this point. The Committee therefore once again expresses the firm hope that a Rulebook, prescribing the activities considered as industrial for night work for minors and which will take into account the compliance with Article 1(1) and (2) of the Convention will be adopted in the near future. The Committee requests the Government to provide information on any progress made in this regard.

Brčko District. The Committee previously noted the Government’s statement that in the Brčko District, activities that fall under the term “industrial undertakings” are regulated by collective agreements based on the laws regulating agricultural, commercial and other activities and which determine the boundary that separates industry from other activities. The Committee requested the Government to clarify whether the classification by collective agreement in the Brčko District includes all the activities mentioned under Article 1(1) of the Convention, in particular activities related to mining and quarrying.

The Committee notes an absence of information in the Government’s report in this respect. The Committee observes, however, that section 2(a) of the new Labour Law of the Brčko District No. 34/19 of 2019 (the Labour Law of the Brčko District, 2019) defines the term “employer” as a domestic or foreign legal entity or entrepreneur who employs persons in accordance with the Labour Law. The Committee observes therefore that an employer is determined regardless of the business performed and that the prohibition on night work of young persons under the age of 18 years set out by section 57(1) of the Labour Law of the Brčko District, 2019 is applied in industry and in other branches of business activities. The Committee further observes that the Classification of Activities in Bosnia and Herzegovina of 8 June, 2010 (KD BIH 2010) includes the activities established by Article 1(1) of the Convention.

Articles 2(1) and 3(1) of the Convention. Period during which night work is prohibited for persons under 18 years. Republika Srpska. The Committee previously noted that section 72(1) of the Labour Law of the Republika Srpska, 2015, read in conjunction with section 70(2), prohibits the night work of young persons under the age of 18 years between 7 p.m. and 6 a.m., that is for a period of 11 consecutive hours, which is inconsistent with Article 2(1) of the Convention. The Committee recalled that Article 2(1) of the Convention, read in conjunction with Article 3(1), stipulates that the prohibition on night work of young persons under the age of 18 years shall constitute a period of at least 12 consecutive hours.

The Committee notes with regret the indication by the Government, according to which there were no changes during the reporting period in this respect. The Committee once again requests the Government to take the necessary measures to bring the Labour Law of the Republika Srpska, 2015 into line with Articles 2(1) and 3(1) of the Convention thereby prohibiting night work of a period of at least 12 consecutive hours for young persons under the age of 18 years.

Articles 4(2) and 5. Exemptions from the prohibition of night work of persons of 16–18 years of age in case of emergencies. FBiH, Republika Srpska and Brčko District. The Committee previously noted with regret that the Labour Law of the FBiH, 2015 and the Labour Law of the Republika Srpska, 2015 had not taken into account the Committee’s comments related to the age of young persons for whom temporary exceptions from the prohibition of night work in case of emergencies may be granted, according to Articles 4(2) and 5 of the Convention. In particular, the Committee observed that the exceptions from the prohibition of night work under section 42(4) of the Labour Law of the FBiH, 2015 refer to minor employees (between 15 and 18 years of age), and under section 72(2) of the Labour Law of the Republika Srpska, 2015, apply to workers younger than 18 years of age. In addition, the Committee noted that section 28(3) of the Labour Law of the Brčko District No. 19/06 of 2006 exempted temporarily minor employees (between 15 and 18 years of age) from night work in case of major breakdowns and force majeure, based on the approval of the competent authority of the canton. The Committee recalled that pursuant to Articles 4(2) and 5 of the Convention, the prohibition of night work shall not apply or may be suspended only with regard to young persons between the ages of 16 and 18 years in case of emergencies.

The Committee notes with regret that the new Labour Law of the Brčko District, 2019 did not take into account the Committee’s comments on this matter. In particular, section 57(2) of the Labour Law of the Brčko District, 2019 allows minor employees under the age of 18 years to be temporarily exempted from the prohibition of night work in the event of elimination of the consequences of force majeure and accidents or for the purpose of protection of general interests, based on the approval of the labor inspector. The Committee further notes the indication by the Government that the Committee’s comments will be taken into consideration during the next review of the Labour Law of the FBiH, 2015. The Government also indicates that in the Republika Srpska and the Brčko District, there were no cases of the work carried out at night by young persons under 18 years of age in case of emergencies. The Committee once again requests the Governments of the FBiH, the Republika Srpska and the Brčko District to take the necessary measures to ensure that the exemption on the prohibition of night work shall be applicable only to children between the ages of 16 and 18 years in accordance with Article 4(2) in case of emergencies which could not have been controlled or foreseen or suspended in accordance with Article 5 when in case of serious emergency, the public interest demands it. The Committee requests the Government to provide information on any measures taken in this regard.