Demande directe (CEACR) - adoptée 2017, publiée 107ème session CIT (2018)

Convention (n° 158) sur le licenciement, 1982 - Bosnie-Herzégovine (Ratification: 1993)

Autre commentaire sur C158

Observation

2001

Demande directe

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Article 2 of the Convention. Scope of application. The Committee notes the new labour legislation adopted in the three entities during the reporting period. The Government indicates that the new Labour Law for the Federation of Bosnia and Herzegovina (the Federation), which entered into force on 14 April 2016, excludes directors and members of the management body of an enterprise from application of the provisions on termination in Part XI of the Law, even if they work under an employment contract. With regard to the use of contracts for a specified period of time, section 22 of the Law stipulates that an employment contract that does not contain information regarding its duration will be deemed to be a permanent contract. Moreover, a fixed-term employment contract cannot be concluded for a period in excess of three years. If an employer successively renews an employee’s fixed-term contract for an uninterrupted period in excess of three years, the contract will be considered to be a permanent contract. The Government indicates that the Labour Law for the Brčko District does not exclude any categories of employees from the application of the Convention and that, pursuant to sections 12(5) and 14 of that Law, fixed-term contracts are automatically deemed to be permanent after 24 months. The new Labour Law for the Republika Srpska, which entered into force on 20 January 2016, provides in section 33 that, where not otherwise specified, employment contracts are deemed to be concluded for an unlimited duration of time. Section 39 stipulates that fixed-term contracts in the Republika Srpska are generally limited to a maximum of 24 months, but can be extended to replace a temporarily absent worker until the worker’s return, for up to a maximum of five years for project work, or in the case of an unemployed person who lacks up to five years of employment to fulfil the requirements for an old-age pension. The Committee requests the Government to provide information on the reasons for the exclusion of directors and managers from the scope of application of the termination provisions of the 2016 Law of the Federation and to indicate the manner in which it is ensured that they are provided protections that are at least equivalent to those afforded under the Convention. The Committee further requests the Government to continue to provide information on the manner in which the provisions of the Convention are applied in practice in the three entities of the country, including statistics on the activities of the appellate bodies, such as the number of appeals lodged against unjustified dismissals, the nature and outcome of such proceedings, and extracts of judicial.

Article 5(b). Invalid reason for termination of employment: seeking office as, acting or having acted as a workers’ representative. Further to the Committee’s previous request, the Government indicates that section 103 of the 2016 Law of the Federation prohibits an employer from terminating the employment of a trade union commissioner while the worker is serving in that capacity and for six months following the cessation of this activity. The 2016 Law also prohibits discrimination on the basis of trade union affiliation or non-affiliation. In this regard, the Committee notes the information provided by the Government regarding the decision issued by the Supreme Court of the Federation on 6 November 2012 concerning the termination of a trade union commissioner (Decision No. 63 0 Rs 006467 11). Section 191 of the new Labour Law of the Republika Srpska provides that an employer must obtain prior approval from the trade union in order to terminate the employment contract of the trade union representative while the representative is serving in this capacity and for six months after he or she ceases to do so. The Government further indicates that section 78 of the Labour Law for the Brčko District requires that an employer obtain prior approval from the trade union before it may terminate the employment contract of a trade union commissioner. The Committee requests the Government to provide information regarding the application in practice of the above-referenced provisions regarding termination of a workers’ representative at the initiative of the employer.

Article 5(c), (d) and (e). Invalid reasons for termination of employment The Government indicates that section 98 of the new Labour Law of the Federation and section 183 (1)(5) of the Labour Law of the Republika Srpska prohibit employers from terminating the employment of a worker for seeking redress or participating in proceedings against an action taken by the employer. In respect of protections from discriminatory grounds for termination, the Government indicates that, in the Federation, the Law on Prohibition of Discrimination, the Law on Gender Equality and section 8 of the 2016 Labour Law all prohibit discrimination in employment, including protection from termination. The Committee notes with interest that section 8 includes additional prohibited grounds of discrimination, such as harassment, mobbing, sexual orientation, health status and disability and that section 9 defines harassment, sexual harassment, mobbing and gender-based violence. Protections from discrimination in employment, including from dismissal on the grounds specified are also contained in sections 19–23 and 183 of the new Labour Law for the Republika Srpska. The Government indicates that section 60(1) of the 2016 Labour Law of the Federation prohibits employers from refusing to employ or terminating the employment of a women due to pregnancy or while she is absent from work during maternity leave. Section 105 of the 2016 Labour Law of the Republika Srpska provides for similar protections. In respect of the application of the provisions of Article 5(c), (d) and (e) in the Brčko District, the Government refers to sections 105(2), 4 and 42–52 of the Labour Law, respectively. The Committee requests the Government to provide information on the practical application of Article 5 (c), (d) and (e) in the three entities in the country, including copies of relevant court decisions, particularly those interpreting the new provisions on mobbing and harassment.

Article 6(2). Definition of temporary absence from work. The Government indicates that section 71 of the new Labour Law of the Federation provides that a worker who has experienced an occupational accident or illness may not be terminated during the period of temporary incapacity. Section 72 provides that an employee who has been unable to work for up to six months may return to the position he or she occupied previously. In relation to the Brčko District, the Government indicates that sections 53–56 of the new Labour Law extend protection from termination to certain categories of employees, such as those with an occupational injury or illness, pregnant women, women on maternity leave, and persons exercising their right to parental leave. Section 183(1)(1) of the new Labour Law of the Republika Srpska prohibits the dismissal of persons who are temporarily prevented from working due to occupational illness or injury. In its General Survey on termination of employment, 1995, paragraph 137, the Committee recalls that Article 6 of the Convention refers more broadly to temporary absence because of illness or injury, and is not limited to occupational illness or injury. The Committee requests the Government to indicate how the term “temporary absence of work” is defined in all three entities and to provide information on the practical application of Article 6(2) of the Convention in the three entities.

Article 7. Procedure prior to termination. The Committee notes that section 101 of the new Labour Law of the FBiH, section 76 of the Labour law of the Brčko District and sections 180 and 182 of the new Labour Law of the Republika Srpska provide that in case of termination, workers must be provided with an opportunity to defend themselves against the allegations made. It further notes that, pursuant to section 182 of the Law of the Republika Srpska, workers may attach to their defence the opinion of the trade union of which they are a member, which must be taken into consideration by the employer. The Committee requests the Government to provide information on the manner in which Article 7 of the Convention is applied in practice in the three entities of the country, including copies of relevant judicial decisions as they become available.

Article 11. Notice period and compensation in lieu of notice. The Government indicates that, based on section 105 of the new Labour Law for the Federation, a minimum notice period of seven days is foreseen in the event of termination. The Committee requests the Government to provide information on the notice periods contemplated in the legislation for the three entities, indicating whether these are established in calendar or working days.

Article 12. Severance pay or other income protection. The Committee notes that the legislation in all three entities provides for severance payments upon termination (section 111 of the Labour Law of the Federation, section 85 of the Labour Law of the Brčko District and section 194 of the new Labour Law of the Republika Srpska). The Committee further notes the Government’s reference to certain decisions of the Supreme Court of the Federation in this area. The Committee requests the Government to continue to provide information on the practical application of this Article of the Convention in all three entities.

Article 14. Notification to the competent authority. The Government refers to section 160 of the Labour Law of the Republika Srpska, which establishes the notification procedure. The Committee reiterates its request that the Government indicate the manner in which Article 14 of the Convention is given effect in all three entities.

Part V of the report form. Practical application. The Committee notes that the information provided by the Government on inspections as well as on terminations is limited to the Republika Srpska. The information provided indicates a decrease of 51 per cent in the number of controls conducted by the labour inspectorate relative to termination from 574 in 2011 to 295 in 2015. The Committee also notes that the number of workers terminated at the initiative of their employers decreased by 67.5 per cent, from 11,665 in 2011 to 7,850 in 2015. The Committee requests the Government to provide information regarding the activities of the labour inspectorate in all three entitles relevant to application of the Convention, including statistics on the number of inspections, the number of violations detected and the outcome of the inspections. In addition, the Committee requests the Government to indicate the reasons for the significant decrease in the number of terminations at the initiative of the employer in the Republika Srpska.