Observation (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

Article 1 of the Convention. Protection of workers’ representatives. The Committee had previously recalled that it had taken note of the comments communicated by the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) and the Confederation of Trade Unions of the Republika Srpska (CTURS) with regard to dismissals of trade union representatives without the mandatory approval from the Federal Ministry of Labour; the workers’ organizations mentioned that although the Labour Law contained provisions on the prohibition of discrimination, it was impossible to prove the breaches of these provisions at court because discrimination often occurred in a hidden manner. The Committee had further requested the Government to specify the provisions in the Labour Law which provide that the dismissal of workers’ representatives shall be subject to approval by the Federal Ministry of Labour, as indicated by the SSSBiH and CTURS in their comments. It also requested the Government, while the Labour Code and Law on changes and amendments to the Labour Code of Brcko District (Official Gazette of Brcko District of BiH, Nos 7/00 and 33/04) were being translated, to specify the provisions which afford protection against anti-union discrimination to workers’ representatives in the Brcko District.

While the Committee is still awaiting the translation of the Labour Code and Law on changes and amendments to the Labour Code of Brcko District (Official Gazette of Brcko District of BiH, Nos 7/00 and 33/04), it notes with interest the Government’s statement that section 93 of the Labour Law of the Federation of Bosnia and Herzegovina (FBiH) provides that only with the prior approval of the Federal Ministry of Labour may an employer terminate the employment agreements of trade union commissioners during their period of service, and for six months after having completed their period of service. Furthermore, the General Collective Agreement for the FBiH also includes this requirement of prior approval for the termination of trade union commissioners’ employment agreements. The Committee also notes with interest that, according to the Government, section 26 of the Law on the Works Council provides that only with the previous consent of the works council may an employer terminate the employment of a works council member; the termination of a works council member’s employment without such consent is an offence punishable by a fine.

The Committee notes the Government’s indication that the Labour Law of the Brcko District includes a prohibition on discrimination on the basis of the following: membership or non-membership of a trade union; the choice of trade union; the opting in or out of trade union membership; and involvement in trade union activities. The prohibition, furthermore, extends to discriminatory dismissals. While noting this information, the Committee nevertheless recalls that, in the information submitted by the Government on the application of Convention No. 98, the Government indicates that the legislation of the Brcko District contains no sanctions against employers for acts of anti-union discrimination. In these circumstances, the Committee requests the Government to clarify whether the Labour Law of Brcko district or any other legislation pertaining to Brcko District affords protection against acts of anti-union discrimination, and if so to specify the relevant provisions.

Article 2. Facilities granted to workers’ representatives. The Committee had previously noted with interest the numerous facilities provided to workers’ representatives according to the Government in the Federation of Bosnia and Herzegovina (time off from work, right to return to work after end of mandate, right to compensation of salary and premises, administrative and technical support for the performance of trade union representative functions). The Committee requested the Government to specify the legal texts on the basis of which these facilities were provided (e.g. law, collective agreement, etc.) in the Federation of Bosnia and Herzegovina, as well as to provide a copy of the General Collective Agreement for the territory of the Federation of Bosnia and Herzegovina (Official Gazette of the Federation BiH, No. 54/05).

In respect of the above, the Committee notes that the Government indicates the following: (1) section 139 of the Labour Law of the FBiH provides that for employees elected to a professional trade union post, upon their request the rights and obligations arising from employment shall be on stand-by for no longer than four years from the day of election or appointment; (2) section 15 of the Law on the Works Council prescribes that the cost of elections of works council members shall be borne by the employer; (3) section 33 of the Law on the Works Council provides that the works council shall perform tasks and hold session during work hours. Each member of the works council shall be entitled to carry out the tasks from the scope of competencies of the works council several times per week, provided that members may assign work hours to each other. The tasks of the president or members of the works council may be carried out during full-time work hours if the sum of the assigned work hours so permits; (4) section 34 of the Law on the Works Council provides that council members shall be entitled to compensation for council-related work in the amount of the salary they would have earned for work done pursuant to their employment agreement; (5) section 35 of the Law on the Works Council provides that the president or members of the works council who have carried tasks for the works council during full-time work hours shall, once the said tasks have ceased, be entitled to return to the tasks they had previously performed or, if no such tasks remain, to other tasks corresponding to their professional qualifications; (6) section 36 of the Law on the Works Council provides that the employer shall be required to ensure to the works council the necessary space, administrative and technical conditions for work, which is more closely governed through an agreement between the employer and the works council; and (7) sections 27 and 28 of the General Collective Agreement for the territory of the FBiH provide that trade union representatives not employed by the employer but whose trade union includes members employed by the employer shall be allowed access when so required for carrying out trade union activities. Also, the employer’s employment policy must stipulate and ensure the conditions for work and activity of the trade union in compliance with the general and collective agreements in the specific industries. Noting this information, the Committee once again requests the Government to provide a copy of the General Collective Agreement for the territory of the Federation of Bosnia and Herzegovina (Official Gazette of the Federation BiH, No. 54/05).

Facilities granted to workers’ representatives in the Republika Srpska and Brcko District. In respect of the Committee’s previous request to provide information on the legislative or other provisions which give effect to Article 2 of the Convention in the Republika Srpska and the Brcko District, the Committee notes that, in respect of the Brcko District, the Government states that the Labour Law of the Brcko District provides that, where an employer hires more than 15 workers, the workers shall be entitled to form the works council to represent them with the employer for the protection of their rights and interests. The Government further indicates in this regard that method and procedure of formation of the works council, as well as other issues related to the work and activity of the works council, are governed in the Law on the Works Council of Brcko District. The Committee notes this information. While it awaits the translation of the General Collective Agreement of Republika Srpska (Official Gazette of the Republika Srpska, No. 27/06) the Committee once again requests the Government to provide information on the legislative or other provisions which give effect to Article 2 of the Convention concerning facilities granted to workers’ representatives in the Republika Srpska.

Articles 3, 4 and 5. Relations between trade union representatives and elected representatives. The Committee had previously requested the Government to provide information on the provisions which give effect to the provisions of Articles 3, 4 and 5 of the Convention in the Republika Srpska and Brcko District. In this regard the Committee notes that, according to the Government, the conditions for work of trade unions and the rights of labour or trade union representatives are regulated by sections 52 to 56 of the General Collective Agreement (Official Gazette of the Republika Srpska, No. 27/06, as well as through individual industry-specific collective agreements. The Committee once again requests the Government, while it awaits the translation of the General Collective Agreement of Republika Srpska (Official Gazette of the Republika Srpska, No. 27/06), to indicate the provisions which give effect to the provisions of Articles 3, 4 and 5 of the Convention in the Brcko District.