Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Serbia (Ratification: 2000)

Other comments on C087

Observation

Direct Request

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The Committee takes note of the observations of the Union of Employers of Serbia (UES) received on 17 October 2014. It requests the Government to provide its comments in this regard.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee notes that according to its section 2, the Labour Act only applies to employees, defined in section 5 as natural persons employed with an employer. Recalling that the rights guaranteed by the Convention are granted to all workers and employers, without distinction whatsoever, with the sole possible exception of the armed forces and the police, the Committee requests the Government to indicate the measures taken to ensure that all workers, including independent and outsourced workers as well as workers without an employment contract, can fully benefit from the right to establish and join organizations of their own choosing.

Right of workers to establish and join organizations of their own choosing without previous authorization. In its previous comments, the Committee noted the Government’s reply to allegations of prolonged and complex trade union registration procedures, in which the Government stated that amendments were made to the Regulations on the registration of trade unions which provide that the application for registration, updating or deletion of trade unions that are members of a trade union at national level are submitted by the latter, with a view to accelerating the registration process by avoiding incomplete documentation. Recalling that a lengthy registration procedure creates a serious obstacle for the establishment of a trade union, and that the obligation for trade unions to obtain the consent of a central trade union organization in order to be registered is not in conformity with the Convention, the Committee requested the Government to ensure respect for these principles. The Committee notes the Government’s indications that: (i) according to section 215 of the Labour Act, a trade union may be established pursuant to the general trade union document; (ii) registration is made pursuant to the Regulations on the registration of trade unions and the Regulations on the registration of associations of employers; (iii) the Regulations specify the modalities of and the documents to be submitted with the application for registration; and (iv) the Ministry issues a decision on entry into the register if the trade union submitted the required documents and if the conditions for the establishment set out in national legislation are met. According to the Government, this procedure is not complex and does not prevent unions from organizing, as is demonstrated by the registration of 2,388 trade unions since the entry into force in 2010 of the Regulations on the registration of trade unions. The Committee takes due note of this information and requests the Government to provide a copy of the Regulations on the registration of trade unions and to ensure that trade unions affiliated to a national trade union do not need to obtain the latter’s consent in the registration procedure.

Article 3. Right of trade unions to organize their activities and formulate their programmes. Penal sanctions for strikes. The Committee had previously noted 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 recalled that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account, and that penal sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights have been committed, and could be imposed pursuant to legislation punishing such acts. The Committee further recalled that any sanction for strike action must be proportionate to the seriousness of the violation. The Committee notes that the Government informs that in amending the Act on strikes it will take into account all the principles of the Convention. The Committee firmly hopes that all necessary measures will be taken, in full consultation with the social partners, to amend section 167 of the Criminal Code to ensure conformity with the abovementioned principles.

Furthermore, in its previous comments, the Committee had noted 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 of which the Republic of Serbia is a member. The Committee had noted, however, that 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 had also noted that statements made in the framework of the performance of trade union activities were not explicitly exempted from the prohibitions of sections 173–176 of the Criminal Code. In its previous direct request, the Committee requested the Government to provide information on whether sections 173–176 of the Criminal Code were applied in relation to trade union activities and, if so, to take the necessary measures to ensure that legitimate trade union activities did not fall under these provisions. The Committee notes that the Government does not provide any clarification on these issues. The Committee once again requests the Government to provide information in this regard and take the necessary measures, possibly with ILO technical assistance, and in full consultation with the social partners, to ensure that legitimate trade union activities do not fall under sections 173–176 of the Criminal Code.

Minimum services. In its previous comments, the Committee had noted that, according to section 10 of the Act on strikes, in the case of strikes involving “activities in the general interest”, the employer has the power to determine unilaterally the minimum services after having consulted with the union, and that, if such services are not determined within a five-day period prior to a strike, the competent public authority or the local self-government body takes the necessary decisions. The Committee recalled that, in order to ensure that users’ basic needs are met or that facilities operate safely or without interruption, the introduction of a negotiated minimum service could be appropriate in the event of strikes but should only be possible in certain situations, namely: (i) in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (essential services in the strict sense of the term); (ii) in services which are not essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population; and (iii) in public services of fundamental importance. The Committee emphasized that such a service should meet at least two requirements: (i) it must genuinely and exclusively be a minimum service, 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; and (ii) since this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. The Committee further recalled that any disagreement on minimum services should be resolved, not by the government authorities, but by a joint or independent body which has the confidence of the parties, is responsible for examining rapidly and without formalities the difficulties raised and is empowered to issue enforceable decisions. In its previous direct request, the Committee noted the Government’s indications that a working group established to prepare amendments to the Act on strikes was working on the issue and would take into particular consideration the issue of minimum services. The Committee also notes that the Government has not provided further information on this issue. The Committee trusts that the process of revising the Act on strikes will be conducted soon in full consultation with the most representative workers’ and employers’ organizations and that due account will be taken, possibly with the technical assistance of the ILO, of the abovementioned principles. Hoping that it will soon be in a position to observe progress on this matter, the Committee requests the Government to provide information on any developments in this regard, and to provide a copy of any amendments to the Act on Strikes once adopted and of any regulations relating to the exercise of the right to strike.

Article 4. Dissolution of organizations. The Committee had previously noted that: (i) under section 49 of the Act on Associations, an association is erased from the register if a competent authority makes a decision on the termination of its work; (ii) according to the Confederation of Autonomous Trade Unions of Serbia (CATUS), the Act on Associations is in practice applied to trade unions; and (iii) the Trade Union Confederation “Nezavisnost” alleged that one of its affiliates, the Trade Union Alliance of Musical Artists of Serbia, had been deleted from the register by the Ministry of Labour and Social Policy. Recalling that the cancellation of registration of an organization by administrative authority is tantamount to its dissolution, and that the administrative dissolution of trade union organizations constitutes a clear violation of Article 4 of the Convention, the Committee requested the Government to take steps to ensure that section 49 of the Act on Associations did not apply to trade unions and employers’ organizations, so as to ensure that the cancellation of their registration is only possible through judicial channels. The Committee notes that in its report the Government advises that: (i) the Act on Associations only applies to trade unions in matters not regulated by a special law on trade unions (section 2(1) of the Act on Associations); and (ii) section 217 of the Labour Act and the Regulations on the registration of trade unions issued by the Minister are such special laws which regulate registration and dissolution of trade unions. The Government further advises that section 9 of the Regulations on the registration of trade unions allows the Minister to issue a decision on removal of the union from the register ex officio or upon request in what appears to be three distinct circumstances: (i) based on the termination of work or an act of dissolution; (ii) in case of cessation of a company’s activities for a trade union established within that company; (iii) if it does not meet the conditions for the establishment in accordance with the law or the general rules of the union; and (iv) if the registration is performed on the basis of incorrect data as regards compliance with the conditions for establishment. The Government also indicates that the Constitutional Court may only ban such associations the activity of which is aimed at violent overthrow of constitutional order, violation of guaranteed human or minority rights, or inciting of racial, national and religious hatred (article 55(4) of the Constitution). The Committee further notes that the Government states that the Ministry of Labour does not in practice apply the Act on Associations to trade unions as is demonstrated by the decision to remove the Trade Union Alliance of Musical Artists of Serbia from the register, which was based on section 10 of the Regulations on the registration of trade unions. The Government also specifies that an appeal may be filed against a decision to remove a trade union from the register at the competent court. The Committee requests the Government to provide further details on the possibility of removing a trade union from the register based on a decision of the Minister pursuant to the Regulations, in particular: (i) to provide copies of the provisions authorizing removal and an explanation of their meaning; and (ii) to indicate whether, in case of appeal to the competent court, the appeal has the effect of a stay of execution. The Committee also requests the Government to indicate the specific reasons for removing the Trade Union Alliance of Musical Artists of Serbia from the register and to provide the decision on the removal.