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

Convention (n° 156) sur les travailleurs ayant des responsabilités familiales, 1981 - Bosnie-Herzégovine (Ratification: 1993)

Autre commentaire sur C156

Demande directe

2022
2017
2011
2007

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Legislative developments. The Committee notes the adoption of a new Labour Code of the Federation of Bosnia and Herzegovina in 2016 (Law No. 26/16), which introduces new provisions relevant to the application of the Convention, in particular Articles 4 and 8 of the Convention.

Article 3. National policy. In its previous request, the Committee had asked the Government to indicate the practical measures taken, under the Gender Equality Law of 2003 and the Gender Action Plan 2013–17, to enable men and women with family responsibilities to work, or those who wish to work, to exercise their right to do so without conflict between their employment and family responsibilities. The Government indicates in its report that progress has been made in this regard, through the adoption of both legislative and policy measures. The Law on Gender Equality was amended in 2009 and consolidated in 2010 (Law No. 32/10). It prohibits gender discrimination at work, including with regard to workers with family responsibilities (section 13). Furthermore, within the context of the Gender Action Plan of Bosnia and Herzegovina, adopted for the period 2013–17 (No. 98/13), the balancing of private and professional life is applied as a cross-cutting issue in all strategic areas, including labour, employment and access to economic resources (I.3.8). The Committee asks the Government to provide information on the practical application of section 13 of the Law on Gender Equality of Bosnia and Herzegovina, as consolidated in 2010, as well as on the results achieved under the Gender Action Plan of Bosnia and Herzegovina with regard to equality of treatment and opportunities of workers with family responsibilities.

Article 4. Leave entitlements for men and women workers with family responsibilities. The Committee notes that, pursuant to the Labour Code of 2016 (BiH Law No. 26/16), a woman is entitled to “maternity” leave of one year covering pregnancy, delivery, and care for the baby (section 62(1)), and that a father of a child is entitled to such leave only if the mother dies, abandons the baby, or is prevented from using the leave for other “justified reasons” (section 62(5) – previously section 56 of the Labour Law of 1999). The Committee had asked the Government to clarify what could be considered as “justified reasons” for the father or adoptive parent to be entitled to “maternity” leave. In its report, the Government indicates that, apart from the specific cases under section 62(5), the father is entitled to “maternity” leave from 42 days after the birth of the child and if agreed between the parents (section 62(4)). With regard to adoptive parents and a person entrusted with childcare, the Government indicates that, pursuant to section 70, they are entitled to one year’s paid “maternity” leave (sections 62(1) and (3), and 68), the right to work half time after taking “maternity” leave (sections 63, 64 and 69) or use unpaid leave until the baby has turned three years of age (section 67). The Government further indicates that an employee is entitled to paid leave of up to seven working days in a calendar year in the case of childbirth or a serious disease of a member of the close family or household. With regard to statistics relating to the extent to which men and women workers make use of the leave entitlements and reduce their working hours, the Committee notes the Government’s statement that no data exist, as the employer has no obligation to provide such information to the competent authorities. The Committee notes with interest the provisions on leave entitlements of the new Labour Code, and once again asks the Government to indicate what would be considered “justified reasons” for the father to be entitled, under section 62(5), to one year’s paid “maternity” leave. It also asks the Government to provide information on whether section 62(4) and (5) of the Labour Law of 2016 applies to adoptive parents or a person entrusted with childcare. In addition, recalling the importance of gathering information that would allow both the Government and the Committee to appreciate the progress made and difficulties encountered in the application of the Convention, the Committee encourages the Government to take the necessary steps to compile statistics, disaggregated by sex, on the extent to which men and women workers make use of the leave entitlements and reduced working hours under the Labour Code.

Article 5. Childcare and family services and facilities. The Committee recalls that it had asked the Government to provide information on the measures taken or envisaged to assist workers with family responsibilities with childcare and family services and facilities. It had, in particular, asked the Government to indicate whether the provisions on social protection for families with children, under the Law on Basic Social Protection, Protection of Civilian War Victims and Families with Children, envisages childcare facilities and services for workers with family responsibilities. The Government indicates in its report that, pursuant to the above Law, workers with family responsibilities cannot be beneficiaries of services and institutions for childcare and family assistance. The Law applies only to persons in social need, including the provision of facilities for specific categories of children, such as those with disabilities, without parental care, or those lacking access to education. The Government further recognizes that lack of services, such as nursery schools and kindergartens, prevents workers with family responsibilities, in particular, women, to fully participate in economic activities and in the society. With regard to preschool institutions in Bosnia and Herzegovina, the Government highlights that significant differences exist in the number of such institutions in urban and rural areas (14 per cent in urban areas and only 2.4 per cent in rural areas). The Committee takes due note of the detailed statistics provided by the Government. It notes, in particular, that while 17,293 children were enrolled in 223 preschool institutions in the school year 2011–12, 1,753 children were rejected due to lack of capacity. Noting that childcare facilities and social services are not meeting the demands, the Committee asks the Government to indicate the measures envisaged to assist workers with family responsibilities in order to enable them to join the work force or improve their career opportunities. It also asks the Government to indicate the progress made in extending coverage of care services and facilities for other dependent members of the family.

Article 6. Information and education. With reference to its previous comments, the Committee notes the absence in the Government’s report of information on measures taken to promote greater awareness and public understanding of the principle of equality of opportunity and treatment for men and women workers and of the problems encountered by workers with family responsibilities. The Committee once again asks the Government to provide information on the concrete measures taken or envisaged, and the specific results achieved, under the Gender Action Plan for the period 2013–17, to promote a broader public understanding of the need for a more equitable sharing of family responsibilities between men and women. It also asks the Government to provide information on the action taken by the competent authorities at the federal and entity level in this respect.

Article 7. Vocational guidance and training. The Committee recalls that it had asked the Government to indicate specific measures taken or envisaged to enable workers with family responsibilities to integrate and remain in the labour market as well as to reintegrate after an absence due to family responsibilities. In this respect, the Committee takes due note of the Government’s indication that various projects were implemented under the Financial Mechanisms for Implementation of the Gender Action Plan of Bosnia and Herzegovina (FIGAP programme), with the aim of promoting women entrepreneurship and providing training in line with labour market requirements. It also notes other projects in the Government’s report, one of which supported the integration of mothers of children with special needs in the society and another which contributed to the promotion of the role of fathers in raising their children. The Committee asks the Government to indicate how the above projects are taking into account the specific needs of men and women workers with family responsibilities, and to provide statistics, disaggregated by sex, on the number of men and women participating in these projects. It also asks the Government to provide information on any other measures taken or envisaged to enable men and women workers with family responsibilities to become and remain integrated in the labour force, as well as to re-enter the labour force after an absence due to family responsibilities.

Article 8. Protection against dismissal on the grounds of family responsibilities. In its previous comments, the Committee had asked the Government to provide information on the specific measures taken or envisaged to explicitly protect men and women workers against dismissal on the ground of family responsibilities. In its report, the Government states that the Labour Law (Law No. 26/16) enhances the protection from termination of employment with regard to employees with family responsibilities. Unlike the previous legislation, section 53 of the Labour Law of 1999, which prohibited termination of employment only during pregnancy, section 60(1) of the Law 26/16 extends such prohibition with regard to employees who are on “maternity” leave or work half time after “maternity” leave (sections 63–65). The Government also indicates that, pursuant to section 60(2) of Law No. 26/16, termination of a fixed-term labour contract shall not be considered a termination of a labour contract in terms of section 60(1). The Committee notes the Government’s indication that statistics on workers with family responsibilities, including with regard to section 60 (Law No. 26/16), are not available, as the employer has no obligation to provide such information to the competent authorities. Noting that section 60 of Law No. 26/16 applies only to permanent employees, the Committee asks the Government to indicate how the protection against dismissal is provided to an employee with family responsibilities who has concluded a fixed-term contract of employment, and to indicate, in particular, whether such employee is entitled to any rights and benefits if the fixed-term contract expires during pregnancy or maternity leave. It once again asks the Government to provide statistics, disaggregated by sex, on any cases dealt with by the competent authorities relating to dismissal of fixed-term employees because of their family responsibilities.

Article 11. The Committee notes that the Government reiterates that employers’ and workers’ organizations participate in the design and implementation of measures that apply the Convention through the work of the Economic and Social Council and the activities of the non-governmental organizations. The Committee once again asks the Government to provide information on the concrete measures taken or envisaged, at the federal and entity level, to promote social dialogue and tripartite cooperation in order to strengthen the laws, measures and policies giving effect to the Convention, and on the manner in which workers’ and employers’ organizations have exercised their right to participate in the design and implementation of such measures, including through collective bargaining and the adoption and implementation of workplace policies on work and family reconciliation.

Enforcement In its previous request, the Committee had asked the Government to indicate progress made, including statistical information, in addressing inequalities between men and women workers and workers with family responsibilities, as well as to provide specific information on the supervisory authorities and enforcement mechanisms which give effect to the provisions of the Convention. In this respect, the Committee takes due note of the information provided by the Government in its report that according to the statistics there is a trend for women to delay giving birth due to various social and economic factors, including due to lack of state funds to support services for childcare. The Gender Equality Agency of Bosnia and Herzegovina has initiated, in this respect, a study “Balancing Personal and Professional Life”, with the aim of identifying the best practices for the elimination of the current stereotypes with regard to women employees with family responsibilities. According to the data provided by the Public Fund for Child Protection of Republika Srpska, for the period 2012–15, the right to be absent from work with full salary compensation for the purpose of childcare was used by an average of approximately 3,300 workers per year (in 2015, 3,402 women and 21 men exercised this right) and the right to work half time for care of a child with disabilities was used by an average of approximately 126 workers per year (in 2015, 135 women and 15 men exercised this right). The Committee notes the Government’s indication that the respective Ministries of Labour of Bosnia and Herzegovina and Republika Srpska have no information regarding any disputes relating to non-compliance with the Convention, and that the Gender Centre of Bosnia and Herzegovina has not received, in the reporting period, any complaints involving discrimination of workers due to their family responsibilities. The Committee asks the Government to continue to provide information, including on statistics, disaggregated by sex, as well as studies, surveys or reports that may enable the Committee to assess how the principles of the Convention are applied in practice, as well as to indicate any judicial and administrative decisions relating to the application of the Convention.