Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee takes note with interest of the information contained in the first report of the Government and, in particular, the adoption of the new Law on the Associations and Foundations of Bosnia and Herzegovina of 30 November 2001.

Article 2. Right of employers and workers without distinction
whatsoever, to establish and join organizations of their own
choosing without previous authorization

Foreign workers. The Committee notes that while section 9 of the Law on Labour of the Federation of Bosnia and Herzegovina, 1999, and section 6 of the Law on Labour of the Republika Srpska, 2000, seem to guarantee to all workers, including foreigners, the right to join trade unions, sections 3(1) and 9 of the Law on the Associations and Foundations of Bosnia and Herzegovina which is applicable throughout the Republic, appear to limit the right to establish a trade union to those foreign workers who have authorization of residence. The Committee is of the view that the rights provided for in the Convention should be recognized to all workers without distinction based on nationality including anyone working in the territory of the State. The Committee asks the Government to clarify whether authorization of residence is a precondition for foreign worker membership in trade unions.

Registration requirements. The Committee notes that section 32 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that when the Minister of Internal Affairs and Communication takes no decision to accept or refuse a request for registration within 30 days from its submission, the request for registration shall be considered as rejected. The Committee considers that legislation which makes the registration and acquisition of legal personality a prerequisite for the existence and functioning of organizations and, at the same time, does not clearly define the reasons for refusal to grant a registration request, confers on the competent authority a genuinely discretionary power which is tantamount to a requirement for previous authorization (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 73-74 and 76). The Committee notes that this provision lays down a presumption against the registration of associations including employers’ and workers’ organizations, as such registration is refused if the authorities take no action within 30 days. The Committee requests that the Government take all necessary measures to repeal this provision.

The Committee further notes that section 37 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides for the establishment of a Complaints Committee which is a permanent body consisting of three members appointed by the Council of Ministers and is authorized to hear complaints against, inter alia, a refusal to grant registration. The Committee notes that section 38 authorizes the Minister of Internal Affairs and Communication to examine the receivability of complaints and to decide whether to transmit them to the Committee and that section 42 provides that, although the Committee’s rulings cannot be the object of a complaint, recourse can be had to the Administrative Court of Bosnia and Herzegovina. The Committee considers that employers’ and workers’ organizations should have the right to appeal to independent courts against any administrative decision regarding their registration. However, the Committee also considers that the existence of the right to appeal to a court is not in itself an adequate safeguard; the competent judges should be able, on the basis of the record, to review the grounds for refusal given by the administrative authorities, which grounds should not be contrary to the principles of freedom of association, and should be empowered to give a ruling rapidly and, where necessary, order appropriate remedies (see General Survey, paragraph 77). The Committee requests the Government to send a copy of the rules of procedure of the Complaints Committee and provide details on the substance and outcome of complaints examined by the Committee concerning the registration of employers’ and workers’ organizations. It further requests the Government to indicate whether the administrative ruling which may be issued by virtue of section 42 may be appealed, and whether the appeals court may review the grounds for refusal and order appropriate remedies.

Article 3. Right of employers’ and workers’ organizations to draw
up their constitutions and rules, to elect their representatives
in full freedom and to organize their administration and activities

  Right to elect representatives freely

Republika Srpska. The Committee notes that section 28 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that this recent and generally applicable law does not automatically replace the previous laws and regulations except in case of an insurmountable contradiction. The Committee also takes note of section 4(3) of the Regulation on the registration of trade union organizations in the registry of the Republika Srpska, 1998, which includes 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 is employed by the specific enterprise. The Committee is of the view that such a requirement may prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office (see General Survey, paragraph 117). The Committee requests that the Government indicate in its next report whether this provision is still applicable in the Republika Srpska after the adoption of the Law on the Associations and Foundations of Bosnia and Herzegovina and, if this is the case, to take all necessary measures to amend the law in accordance with Article 3 of the Convention.

Political activities. The Committee notes that section 3(3) of the Law on the Associations and Foundations of Bosnia and Herzegovina prohibits associations, including trade unions, from engaging in electoral campaigns, fund-raising or the financing of candidates or political parties. The Committee requests that the Government indicate whether this prohibition includes union statements of support for electoral candidates.

Interference in the activities of employers’ and workers’ organizations. The Committee notes that section 20 of the Law on the Associations and Foundations of Bosnia and Herzegovina restricts the right to vote of officers in the internal bodies of associations, including employers’ and workers’ organizations, where a conflict of interest may exist. The Committee is of the view that this is an internal matter of such organizations and should be dealt with in their by-laws rather than in the law. The Committee requests the Government to take all necessary measures to repeal this provision.

  Public order limitations

Republika Srpska. The Committee notes that article 30 of the Constitution of the Republika Srpska allows legal restrictions on freedom of association for the purpose of protecting the safety of persons and property. The Committee is of the view that provisions restricting freedom of association should be subject to a predictable and restrictive interpretation and apply in conditions of transparency and due process. The Committee requests that the Government provide information on the exact nature of restrictions on freedom of association envisaged in article 30 of the Constitution of the Republika Srpska and the conditions under which they apply.

  Relationship with works councils

Federation of Bosnia and Herzegovina. The Committee notes that section 108(2) of the Law on Labour provides that if no works council has been created in the establishment, the trade union shall have the same powers and obligations as the works council in accordance with the law. The Committee also notes that section 98 of the Law on Labour as amended by section 41 of the Decree of 15 August 2000 enables the employer to organize collective dismissals in consultation with all trade unions representing 10 per cent of workers only if there is no works council in the enterprise. The Committee considers that these provisions seem to place trade unions in a secondary and subsidiary position in relation to works councils, thus involving the risk of weakening the institutional position of trade unions. Noting that the existence of works councils should not be used in order to undermine trade unions and their activities, the Committee requests that the Government provide information on the means of setting up works councils and the exact scope of their obligations and powers. The Committee also asks the Government to take all necessary steps to amend provisions which privilege works councils relative to trade unions.

  The right to strike

Federation of Bosnia and Herzegovina. The Committee notes that section 134 of the Law on Labour Relations and Wages of Employees of Federal Administrative Bodies, 1998, establishes that workers shall be ordered to interrupt a strike if the authorities consider that there is a serious threat to the provision of essential services which could give rise to an immediate danger or very serious repercussions for the life and safety of persons and the security of property, or other irreversible consequences. Section 134 further provides that such interruption will be decided by common agreement between the strike committee and the chief of the administrative organ or service where the strike takes place. The Committee asks the Government to provide information on the manner in which disagreements on interrupting a strike are resolved and to specify in particular whether there is a possibility of recourse to an independent body having the confidence of the parties concerned for a final determination.

Republika Srpska. The Committee notes that sections 10 and 11 of the Law on Strike, 1998, authorize the employer to determine the minimum service and to assign workers to posts at least three days before the beginning of the strike, taking into consideration the opinion, suggestions and comments of the trade union. The Committee also notes that section 12(2) of the Law on Strike authorizes the competent public authority to secure the conditions for the provision of minimum service if the management fails to do so and to engage workers who are not employed by the enterprise if the minimum working process cannot be secured otherwise. The Committee is of the view that organizations of workers should be able, if they so wish, to participate along with the employers and the public authorities in defining the minimum service, which must be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, the only possible exception being the case of essential services in the strict sense of the term, i.e. those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee also notes that, in case of disagreement, the minimum service should be defined by an independent body (see General Survey, paragraph 161). The Committee requests that the Government take all necessary measures to amend the legislation so that workers may participate in the definition of the minimum service and so that an independent body may make the determination when the parties concerned cannot agree.

Article 4. Dissolution and suspension of organizations by administrative authority. The Committee notes that section 51(1) of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Internal Affairs and Communication to order the dissolution of an association that abstains from its main activity for the realization of its objectives for at least two years without valid reason. The Committee notes that it is normally a matter for the employers’ and workers’ organizations themselves to decide on their dissolution and that the matters set out in this section are not an issue for the Government to evaluate. The Committee requests the Government to indicate in its next report the measures taken or envisaged to repeal this provision.

The Committee notes furthermore that subsections 1 to 3 of section 51 of the Law on the Associations and Foundations of Bosnia and Herzegovina authorize the Minister of Internal Affairs and Communication to order the cessation of the activities of an association in case of recurrent and serious irregularities in its functioning, and that sections 35 and 37 allow the filing of a complaint before the Complaints Committee against such a decision. The Committee considers that measures of dissolution or suspension of organizations by administrative authority involve a serious risk of interference by the authorities in the very existence of organizations and that it is preferable for legislation not to allow this possibility. If it does, such measures should be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee notes that the organization affected must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure. Moreover, the Committee recalls that the administrative decision should not take effect until a final decision is handed down (see General Survey, paragraph 185). The Committee requests the Government to provide details on any decisions of the Minister of Internal Affairs and Communication ordering the dissolution of employers’ and workers’ organizations and on any complaints brought by these organizations before the Complaints Committee. The Committee also requests the Government to indicate whether appeals may be lodged to the courts against the decisions of the Complaints Committee and whether such appeals have the effect of suspending the execution of the Minister’s order.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee notes that there is no provision in the Law on the Associations and Foundations of Bosnia and Herzegovina on the right of employers’ and workers’ organizations to affiliate with international organizations. The Committee asks the Government to specify whether employers’ and workers’ organizations have full freedom to affiliate with international organizations of their own choosing.

Republika Srpska. The Committee notes that section 2(2) of the regulation on the registration of trade union organizations in the registry of the Republika Srpska identifies a single central organization, the Union of Trade Unions, as the broadest form of trade union organization in the Republika Srpska and makes no provision concerning the registration of additional organizations at that level. The Committee notes furthermore that sections 1-4 of the instructions on the implementation of the regulation authorize this single organization to carry out all the administrative tasks necessary for the registration of trade union federations at the branch, city or communal levels and to countersign and certify the relevant documents before their submission to the authorities. The Committee also notes that a corresponding authority is accorded to trade union federations at the city or communal levels for the registration of trade unions which operate at the enterprise level or in the public sector. The Committee points out that trade union diversity should remain possible in all cases and freedom of choice must be safeguarded even where employers’ and workers’ organizations have chosen a single central organization - a situation which should not be institutionalized by legislation (see General Survey, paragraphs 96 and 194). Noting that section 28 of the recent Law on the Associations and Foundations of Bosnia and Herzegovina provides that this law does not automatically replace the previous laws and regulations except in case of an insurmountable contradiction, the Committee asks the Government to indicate whether these provisions continue to apply in the Republika Srpska after the adoption of the new Law on the Associations and Foundations of Bosnia and Herzegovina.

The Committee requests that the Government transmit in its next report the information requested on the above points including the measures taken to amend its legislation so as to bring it into full conformity with the Convention.