Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

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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Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. In its previous comment, the Committee had noted that according to its section 2, the Labour Act only applies to employees, defined in section 5 as natural persons employed with an employer, and had therefore requested 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. The Committee notes the Government’s indication that the provisions of the Labour Act (sections 5, 6, 7, 206, 215 and 216) relate to the establishment of a trade union as an organization of employees who join the organization voluntarily to advocate, promote and protect individual and collective interests. Taking due note of the Government’s indication that unemployed persons have the right to establish and join organizations of their own choosing under the Act on Associations, which prescribes the establishment and legal status of an association, the Committee recalls that its comments concern workers without an employment contract, for instance, the self-employed and workers in the informal economy. The Committee therefore once again requests the Government to provide information on the manner in which it is ensured that all workers (with the sole possible exception of the armed forces and the police) including independent and outsourced workers as well as workers without an employment contract, enjoy the right, in law and in practice, to establish and join organizations for furthering and defending their interests.

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 Rulebook on trade union registration 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. The Committee had recalled that the long procedure creates serious obstacles for the establishment of a trade union and that a trade union’s obligation to obtain approval from a central trade union organization in order to be registered is not in accordance with the Convention. The Committee had therefore requested the Government to provide a copy of the Rulebook on trade union registration 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. The Committee notes the Government’s indication that the fact that 24,935 trade unions have been registered confirms that the trade unions registration procedure prescribed by the Labour Law and the Rulebook on trade union registration is not complex and does not hinder trade unions to organize. The Committee further notes the copy of the Rulebook on trade union registration provided by the Government. It welcomes the indication that section 5(3) of the Rulebook (concerning the documents that shall be submitted with the registration request) allows for an alternative to the submission of a certificate issued by the trade union established for the territory of the Republic, confirming that the trade union applying for registration is its member or will become its member. Section 5(3) acknowledges that a statement of the trade union that it is not a member of a trade union established for the territory of the Republic may be submitted instead.

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 had 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 had noted the Government’s indication that in amending the Act it would take into account the Act’s conformity with the Convention, and the Committee had therefore expressed its hope that the Government would take all the necessary measures, in full consultation with the social partners, to amend section 167 of the Criminal Code. The Committee notes the statement given by the Ministry of Justice through a letter, attached to the Government’s report, that for the criminal offence prescribed in section 167 to be committed, three conditions should be fulfilled: (i) that the strike is contrary to the law; (ii) that the offender is an organizer of illegal strikes; and (iii) that by organizing or leading the strike in a way contrary to law or other regulations, human life and health or property of considerable extent are endangered or grave consequences result therefrom. The Committee welcomes the Ministry of Justice’s concluding statement that section 167 of the Criminal Code cannot lead to the imposition of criminal sanctions for peaceful strikes. Duly noting the information provided by the Government, the Committee requests it to provide information on the application in practice of section 167 of the Criminal Code, including copies of the relevant court decisions and indication of the penalties imposed.

Furthermore, in its previous comments, the Committee had noted that sections 173–175 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 that statements made in the framework of the performance of trade union activities were not explicitly exempted from the prohibitions of sections 173–175 of the Criminal Code, and had requested the Government to provide information on whether sections 173–175 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 welcomes the Ministry of Justice’s indication that according to section 176, there shall be no punishment of the perpetrator for offences specified in section 173 through 175 if the statement is given, among other situations, in defence of a right or defence of justifiable interests, and that therefore the exclusion from liability set out in section 176 applies to the protection of legitimate trade union activities. The Committee takes further note of the Government’s indication that in the forthcoming period, a special meeting with the relevant institutions in the country will be organized to ensure that legitimate trade union activities do not fall under sections 173–175 of the Criminal Code and that, after the meeting, depending on the results, the Government will consider asking for the technical assistance of the Office. The Committee requests the Government to provide information on any further developments in this regard.

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; or (iii) in public services of fundamental importance. The Committee had further recalled that any disagreement on minimum services should be resolved, not by the Government authorities, but by a joint or independent body that has the confidence of the parties, is responsible for examining rapidly and without formalities the difficulties raised and is empowered to issue enforceable decisions. The Committee had noted the Government’s indication 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 notes the Government’s indication that: (i) there was a public debate, conducted between 20 April and 10 May 2018 with the participation of the stakeholders, on the Draft Law on Strike, prepared by the Ministry of Labour, Employment, Veteran and Social Affairs; (ii) the working group tasked with the developments of the Draft Law met on 7 May 2018, having reviewed and agreed upon the remarks, suggestions and proposals to the Draft made during the public debate; (iii) the Ministry gathered the opinions on the Draft Law from the public administration authorities and other organizations and the Bill is expected to be adopted by the Government; and (iv) the Draft Law on Strike was delivered to the European Commission on 28 June 2018. On the other hand, the Committee notes that: (i) the Trade Union Confederation “Nezavisnost” (TUC Nezavisnost) states that the definition of essential services in the proposed Draft Law is too broad and did not receive the approval of the social partners; and (ii) the Confederation of Autonomous Trade Unions of Serbia (CATUS) alleges that the trade unions’ opinions have not been taken into consideration in the discussions and all changes in the area of legislation are being made in agreement with institutions that are not registered as representative social partners. The Committee expects that the process of revising the relevant legislation will be conducted in full consultation with the social partners and that due account will be taken of the Committee’s comments. The Committee requests the Government to provide information on any further progress made in this regard, particularly concerning the amendment of section 10 of the Act on strikes, and to provide a copy of the Law once adopted.

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 CATUS, the Act on Associations is, in practice, applied to trade unions; and (iii) the TUC 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. It had further noted the Government’s indication that: (i) section 9 of the Rulebook on trade union registration allows the Minister to issue a decision on removal of the union from the register ex officio or upon request; (ii) the Ministry of Labour does not in practice apply the Act on Associations to trade unions; and (iii) an appeal may be filed against a decision to remove a trade union from the register at the competent court. The Committee had therefore requested 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 Rulebook, 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 had also requested the Government to indicate the specific reasons for removing the Trade Union Alliance of Musical Artists of Serbia from the register and to provide a copy of the decision. The Committee notes that the Government recalls that section 9 of the Rulebook on trade union registration prescribes that a trade union shall be removed from the register in specific circumstances: (i) based on an act on dissolution of the trade union; (ii) in case of a dissolution of the employer – for the trade union established at that employer; (iii) if it ceases to meet the conditions for its establishment pursuant to the law, and general act of the trade union; or (iv) if the registration of the trade union was made based on incorrect data. It further notes the Government’s indication that in line with section 10 of the Rulebook, the Ministry is obliged to pass the decision on the removal of the trade union from the register if the conditions referred to in section 9 are met. Concerning the decision of the Ministry of Labour and Social Policy to remove the Trade Union Alliance of Musical Artists of Serbia from the register, the Committee notes that the Government states that, on 27 November 2015, the Administrative Court in Belgrade decided to cancel the mentioned decision, and that during a new procedure the Ministry decided, on 2 of August 2016, to accept the remarks and the opinions of the Administrative Court and therefore rejected the request for removal of the above-mentioned trade union from the register. The Committee further notes that the TUC Nezavisnost alleges that in June 2019 it received from the Ministry of Labour a decision to remove two of its affiliates from the register, by applying section 9(2) of the Rulebook. In light of the information provided by the Government, the Committee recalls that: (i) 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; (ii) a union may have a legitimate interest to continue to operate after the dissolution of the enterprise concerned (for example, to defend any claims of its members); (iii) the dissolution of an organization should only be decided upon procedures laid down by the organizations by-laws, or by a court ruling; and (iv) any appeal from the decision should have the effect of a stay of execution until a judicial ruling is handed down on the matter. The Committee requests the Government to: (i) indicate the specific reasons for removing the trade unions affiliated to the TUC Nezavisnost from the register, in June 2019, and to provide a copy of the decision, as well as information on any other instance in which the rule has been applied; and (ii) to review section 9 of the Rulebook on trade union registration in light of the above, including to ensure that the dissolution of the employer does not lead to the automatic dissolution of the trade union concerned and that appeals to registration removal decisions have the effect of a stay of execution.