Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee takes note of the Act on the Peaceful Settlement of Labour Disputes and the Criminal Code of Serbia (Official Gazette Nos 85/2005, 88/2005 and 107/2005).

Articles 2 and 4 of the Convention. Right of judicial appeal against decisions of the Ministry concerning the registration or dissolution of employers’ and workers’ organizations. The Committee’s previous comments concerned the need to ensure that there is a right of judicial appeal against an eventual decision by the Ministry of Labour to reject an application for registration of a trade union or employers’ organization (section 7 of the rule book on the registration of trade unions and section 8 of the rule book on the registration of employers’ associations, respectively) as well as a decision by the Ministry to dissolve a workers’ or employers’ organization. The Committee notes that, according to the Government, an administrative dispute may be raised against all decisions and other resolutions of the Ministry of Labour and Social Policies during the registration, modification of registration, or deregistration of a union or employers’ organization. The relevant procedures are regulated in the Law on State Administration and the General Administrative Procedure Act. In accordance with these laws, an aggrieved party may file a complaint against the decision of the Ministry to the Supreme Court, which is authorized to confirm or repeal the Ministry’s decision if it finds it to be illegal. The Committee takes note of this information.

Article 3. Right of trade unions to organize their activities and to formulate their programmes. Penal sanctions for strikes. The Committee notes that, according to section 167 of the Criminal Code, whoever organizes or leads a strike in a way which is contrary to the law or regulations and thereby endangers human life and health or property to a considerable extent, or if grave consequences result therefrom, shall be punished with imprisonment of up to three years unless other criminal offences prevail. The Committee recalls that, even where the prohibitions of strike action are in conformity with the principles of freedom of association, the existence of heavy sanctions may create more problems than it solves, especially since any criminal activity is already the subject of penal sanctions under the ordinary criminal law. The Committee emphasizes that the application of disproportionate penal sanctions for trade union activities does not favour the development of harmonious and stable industrial relations and that sanctions should not be disproportionate to the seriousness of the violations. In any case, peaceful strikes should not be sanctioned by imprisonment. The Committee requests the Government to indicate in its next report any measures taken or contemplated so as to ensure that any sanctions for strike action in section 167 of the Criminal Code are proportionate to the seriousness of the violations and that, in any case, peaceful strikes are not sanctioned by imprisonment.

Penal sanctions for statements. The Committee notes that sections 173–176 of the Criminal Code punish with a fine, or imprisonment of up to three months, anyone who publicly ridicules the Republic of Serbia, another nation, national or ethnic group living in the Republic of Serbia, a foreign state, its flag, coat of arms or anthem, or the United Nations, International Red Cross or other international organization to which the Republic of Serbia is a member; however, section 176 exempts from this punishment those who perform journalistic duties or political activities in defence of a right, or of justifiable interests, if it is evident that the statements made were not intended to disparage or if the person concerned proves the veracity of the statement or if he/she had reasonable grounds to believe that the statement was true. The Committee notes that statements made in the framework of the performance of trade union activities are not explicitly exempted from the prohibitions of sections 173–176. The Committee requests the Government to indicate in its next report whether sections 173–176 of the Criminal Code have been applied in relation to trade union activities and to which effect.

Rights of representative organizations. In its previous comments, the Committee had raised the need to ensure that the legislation granting certain rights to the representative organizations, in particular section 239 of the Labour Law granting representative trade unions and employers’ associations the right to collective bargaining, the right to participation in collective labour disputes, the right to participation in tripartite and multipartite bodies and “other rights pursuant to the law” do not lead to the granting of privileges which might influence unduly the choice of organization by workers. The Committee notes that the Government communicates a list of rights pertaining to all unions, regardless of whether they have been established as representative or not, as well as the rights of representative unions. The Government emphasizes that the rights granted to the representative unions put no restrictions on the other unions’ right to protect the professional interests of their members, since all unions are entitled to file complaints and represent their members in judicial proceedings, to organize their activities independently and to formulate their programmes. The Committee takes note of this information.

Minimum service. In a previous direct request, the Committee had noted that, according to section 10 of the Law on Strikes, in case of strikes involving “activities in the general interest” the employer has the power to determine unilaterally the minimum service after having consulted with the union and in case of disagreement. This power pertains to the competent public authority or the local self-government body. The Committee had also noted the minimum service which had been established by regulation in JAT Airways in an excessively wide manner.

The Committee takes note of the Government’s reply, according to which: (i) the Law on Strikes stipulates that the minimum service should be determined in accordance with objective criteria (the nature of the activity, the degree to which the life and health of people is endangered and other circumstances such as the season of the year, the tourist season, the school year, etc.); (ii) the minimum service should be limited to the activities necessary for the purpose of satisfying the basic needs of the population and the employer must take into account the opinion, remarks and proposals of the union in the process of determining the minimum service; and (iii) in case of dispute the parties have an obligation to bring the matter to the Reconciliation Commission. The District Court also hands down decisions on matters related to strikes.

The Committee also notes the comments made by the Confederation of Autonomous Trade Unions of Serbia, forwarded with the Government’s report, according to which, management tends to abuse the discretion it has under the law to determine the minimum service in a wide range of sectors. The Committee finally notes that this issue has also been raised in the comments made by the Trade Union Confederation “Nezavisnost” in 2006 and 2008.

The Committee recalls that, in general, in order to ensure that a minimum service is genuinely minimum – that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear – workers’ organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. Furthermore, in case of disagreement, the issue should be brought to a joint or independent body responsible for examining rapidly, and without formalities, the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey of 1994 on freedom of association and collective bargaining, paragraphs 160–161).

The Committee requests the Government to specify whether trade unions have the right to appeal a dispute on the determination of the minimum service to an independent body like the District Court, whether this body has the competence to make binding decisions on the substance of the matter and the average duration of these proceedings.

Compulsory arbitration. In its previous comments, the Committee had noted that the new Labour Law does not reiterate the provisions of section 136 of the previous Labour Law, so as to allow the parties to freely decide whether to submit a dispute to a binding arbitration. The Committee notes from the Government’s report that the new Labour Act of 2005 has introduced an amendment to previous provisions so that now the parties to a dispute can make an independent decision on whether to bring their dispute to arbitration. However, the activities of general interest (the power-generating industry; water supply; transportation; radio–television media founded by the Republic of Serbia, the autonomous provinces or local self-administration units; the postal, telegraph and telecommunication services; utilities; production of basic food products; medical and veterinary protection; education; social care of children and social protection and activities of special importance for the defence and security of the Republic of Serbia) are exempted from this provision and there is an obligation to institute proceedings before the Reconciliation Commission in case of disputes over the conclusion, amendment and implementation of collective agreements. The Committee also notes that, according to section 18 of the Law on the Peaceful Settlement of Labour Disputes, the parties to a dispute in an activity which is of general interest are under an obligation to achieve a peaceful resolution of their dispute. Finally, the Committee notes, that in answer to the comments made in 2008 by the International Trade Union Confederation (ITUC) on the issue of compulsory arbitration, the Government indicates that the Law on the peaceful settlement of labour disputes establishes a National Mediation Agency before which disputes pertaining to the exercise of the right to strike are settled. In the activities of general interest, there is an obligation, as noted above, for the parties to bring the dispute to this Agency for conciliation. However, the Law on the peaceful settlement of labour disputes does not prevent employees from going on strike while their dispute is being settled peacefully. The Committee requests the Government to specify whether the decisions issued by the National Mediation Agency are final and binding on the parties, thus rendering the continuation of a strike impossible.