Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

The Committee notes the information in the Government’s first report, including the legislation attached thereto. The Committee notes the Government’s indication that a number of laws are considered to promote the application of the Convention, but without copies of most of the legislation mentioned in the report and further specification of the relevant legal provisions and practical measures taken, it is difficult to assess the extent to which the Convention is being applied in law and in practice. The Committee, therefore, asks the Government to include in its next report full information, including the specific provisions in the laws and administrative regulations, collective agreements, court decisions and any other texts which give effect to the Convention, on the measures taken to promote the application of the principle of non-discrimination in employment and occupation of men and women workers with family responsibilities in accordance with Parts I to V of the report form approved by the Governing Body. The Committee in particular draws attention to the need for additional and detailed information on the following points:

1. Article 1. Definitions. Section 46(2) of the Labour Law of Bosnia and Herzegovina (BiH) and section 60(2), of the Labour Law of the Republika Srpska define “family member”. Please confirm whether these definitions cover “dependent child” and “other members of the immediate family who clearly need their care or support”, in relation to men and women workers with family responsibilities for the purpose of the Convention.

2. Article 3. National policy. The Committee notes that section 5 of the Labour Law of the Republika Srpska, section 5 of the Labour Law of the Federation of BiH and section 4 of the Labour Law of Brcko District of BiH provide for protection against discrimination based on sex. It also notes that the Gender Equality Law of BiH of 2003 prohibits direct and indirect gender discrimination and promotes equality of opportunities between men and women in education, employment and labour. Discrimination in employment includes different treatment on the grounds of pregnancy, childbirth or exercising the right to maternity leave; failure to enable an employee to return to the same job or another job of the same seniority after expiry of maternity leave; different treatment between men and women with respect to the decision to take up maternity leave; any unfavourable treatment of a parent or guardian in balancing their commitments in family and professional life; and organizing the work, tasks or conditions of work or dismissal in such a way that on the grounds of gender or marital status an employee is left in a less favourable position than other employees (section 8). While the abovementioned legislation may constitute part of a national policy, the Committee needs further information on the legal and practical measures taken at the federal level and the level of the entities to enable persons with family responsibilities to engage in employment without being discriminated against and to do so without conflict between their employment and family responsibilities. Noting from the Government’s report that currently the employment and labour legislation of the entities and the Brcko District of BiH is being brought into conformity with the Gender Equality Law for BiH, the Committee asks the Government to indicate in the next report how the provisions are being implemented at the level of the entities, and to provide information on the practical application of the provisions of the Law at the federal level.

3. The Committee notes that the Gender Equality Law of 2003 establishes a Gender Equality Agency of Bosnia and Herzegovina which has the mandate of monitoring the implementation of the Law and drafting periodically a state action plan to promote gender equality. The Committee asks the Government to indicate in its next report whether any state action plan on gender equality has been developed by the Gender Equality Agency, and if so, to indicate how the plan is promoting a policy to enable workers with family responsibilities to engage in employment without being discriminated against and to do so without conflict between their employment and family responsibilities.

4. Article 4. Free choice of employment. The Committee notes the provisions in section 8 of the Gender Equality Law that protect workers with family responsibilities against discrimination. Please indicate whether under the legislation in force, any claims have been brought to the Gender Equality Agency or the courts with respect to the practical application of these provisions. Please also provide information on any proactive measures taken at the federal level and at the level of the entities to enable workers with family responsibilities to exercise their right to free choice of employment.

5. Conditions of work (special leave entitlements to take care of a child). The Committee notes the special paid leave entitlements relating to maternity leave and leave to take care of a child in the Labour Law of the Federation of BiH and the Labour Law of the Republika Srpska. It notes in particular that section 55 of the Labour Law of the Federation of BiH provides that women shall be entitled to one year of maternity leave during pregnancy, childbirth and childcare. Section 56 provides that the father of the child, or the adoptive parent, is entitled to use the right to maternity leave in the case of the death of the mother, in the case where the mother abandons the child or if for justified reasons she is prevented from using this right. The Committee notes that the Labour Law of the Republika Srpska provides similar provisions but extends the right also to the person to whom the child has been entrusted for care (section 75). The Committee further notes that sections 57 to 62 of the Labour Law of the Federation of BiH give the right to a female worker with a child of up to 1 year to work half time. In the case of twins, the third or each following child, she shall be entitled to work half time until the child is 2 years of age. The employed father may use this right if the mother is working full time during that period. If the child requires intensive care, one of the parents, or the adoptive parent or person taking care of the child in the case of the death of both parents, is entitled to work half time until the child is 3 years of age. Section 63 provides for a parent to work half the normal hours in the case of a seriously disabled child. The Committee notes that section 76 of the Labour Law of the Republika Srpska provides for the right of one of the employed parents, the adoptive parent or the person to whom the child is entrusted, to work half time until the child is 2 years of age and needs intensive care. Finally, section 61 of the Labour Law of the Federation of BiH specifies that one of the parents may be absent from work until the child is 3 years of age, if stipulated in a collective agreement or the rulebook. The Committee welcomes these provisions and asks the Government to (1) provide detailed information, including statistics disaggregated by sex on the number of male and female workers with family responsibilities who have taken remunerated leave to care for a child as provided for in the Labour Law of the Federation of BiH and the Republika Srpska; (2) indicate what would be considered “justified reasons” for the father or adoptive parent to be entitled to paid leave to take care of a child and who would determine whether a reason is justified or not; (3) provide information on any other measures taken to take account of the needs of workers with family responsibilities in the public and private sectors in terms of conditions of work and social security.

6. Special leave entitlements to take care of other members of the family. The Committee notes the provisions of the Labour Law of BiH and the Labour Law of the Republika Srpska providing for a paid leave of absence from work in the case of serious disease or death of a family or household member, or confinement of his or her spouse. The Committee asks the Government to provide an indication in its next report on the number of men and women who have taken this type of leave. Please also provide information on any other measures that take account of the needs of workers with family responsibilities in terms of conditions of work and social security.

7. Article 5. Community planning. The Committee notes the Government’s indication that child and family care institutions and services have been established in Bosnia and Herzegovina. It notes that there are ten social welfare cantonal centres and 71 municipal centres in Bosnia and Herzegovina and that 44 social welfare centres and 18 child protection services are functioning in the Republika Srpska. There is one social welfare centre in the Brcko District of BiH. The Committee asks the Government to provide information in its next report on (1) the number of workers with family responsibilities making use of the existing child and family care institutions; (2) the number and age of children requiring care; and (3) whether the childcare facilities and social services meet the present demand for such facilities.

8. Article 6. Awareness raising and education. Noting the mandate of the Gender Equality Agency of Bosnia and Herzegovina, the Committee requests the Government to indicate any activities of the Gender Equality Agency to promote broader public understanding of the principle of gender equality and work and family issues, as well as the need to address the problems that workers with family responsibilities face. The Committee also asks the Government to indicate whether any measures are being taken to encourage the sharing of family responsibilities between men and women, as recommended in Paragraph 11 of the Workers with Family Responsibilities Recommendation, 1981 (No. 165).

9. Article 7. Measures to enable workers with family responsibilities to enter, re-enter and remain integrated in the workforce. The Committee would be grateful if the Government would provide more concrete information on any practical and legal measures taken to assist persons with family responsibilities to gain access to education and vocational training, and enter or re-enter the labour market in accordance with Article 7.

10. Article 8. Protection against dismissal on the grounds of family responsibilities. The Committee notes the Government’s statement that the Labour Laws of the Federation of BiH and of the Republika Srpska provide that family responsibilities cannot be a prerequisite for the breach of an employment relationship. However, the Committee notes that section 53 of the Labour Law of the Federation of BiH only protects pregnant women against termination of their employment and that section 71 of the Labour Law of the Republika Srpska only prohibits the termination of the employment contract of a woman because of pregnancy or maternity leave. The said legislation does not protect male workers against dismissal because of family responsibilities nor does it protect women from dismissal for reasons attributable to family responsibilities other than pregnancy or maternity leave. While noting that section 8 of the Gender Equality Law of 2003 protects workers with family responsibilities against unfavourable or different treatment in certain areas, it is unclear whether this provision affords protection against termination of employment on the basis of family responsibilities. The Committee asks the Government to provide information on whether any cases have been brought to courts or to the Gender Equality Agency on the basis of section 8 of the Gender Equality Law regarding the use of family responsibilities as a ground of termination of employment. Please also provide information on any other measures taken which explicitly protect male and female workers against dismissal on the ground of family responsibilities.

11. Article 11. Cooperation with the workers’ and employers’ organizations. The Committee asks the Government to indicate the measures taken or envisaged to seek the cooperation of workers’ and employers’ organizations to promote the application of the Convention.

12. Parts III to V of the report form. The Committee asks the Government to provide more specific information on the supervisory authorities and enforcement mechanisms, including the labour inspectorate, which are involved in giving effect to the provisions of the Convention. The Committee also invites the Government to provide information on any administrative or judicial decisions or any complaints received by the Ministry of Human Rights and Refugees and the Gender Equality Agency concerning the application of the principle of the Convention.

13. Part V of the report form. The Committee asks the Government to continue to provide information, including statistical data disaggregated by sex, studies, surveys or reports that may enable the Committee to assess how the principles of the Convention are applied in practice, and how progress is being made to address existing inequalities between men and women workers with family responsibilities and between these workers and workers without family responsibilities.

14. Legislation. The Government is requested to provide copies of the Family Law of the Federation of Bosnia and Herzegovina No. 35/5, the Law on Child Protection of the Republika Srpska No. 4/02, the Law on Basics of Social Care, Protection of Civil Victims of War and Protection of Families with Children of the Federation of Bosnia and Herzegovina No. 36/99 and 54/04, the Law on Social Welfare of Brcko District of Bosnia and Herzegovina No. 1/03, 4/00 and 4/04, and the Law on Child Protection of Brcko District of Bosnia and Herzegovina No. 1/03, 4/04 and 1/05, with a specific indication of the relevant provisions applying the Convention.