Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

A Government representative began by responding to the point raised in the 2011 observation of the Committee of Experts concerning the need to amend section 216 of the Labour Code, which provided that employers’ associations might be established by employers that employ no less than 5 per cent of the total number of employees in a certain branch, group, subgroup, line of business or territory of a certain territorial unit, in order to establish a reasonable minimum membership requirement. She indicated that in cooperation with the social partners, the draft amendment to the Labour Law was currently in preparation, which had been planned for adoption by the end of 2010. The adoption of the revised Labour Code, however, was now expected to take place after the parliamentary elections envisaged in 2012. The new Labour Code would define requirements for the establishment and official recognition of employers’ and workers’ organizations, which would be in line with the relevant comments of the Committee of Experts. As regards the comments made by the International Trade Union Confederation (ITUC) and the Confederation of Autonomous Trade Unions of Serbia (CATUS) alleging physical assaults against trade union officials and members, especially in the education and health sectors, she indicated that the Government was not aware of these attacks. It had tried to obtain additional information from the CATUS, but had not received any replies on this matter. The labour inspectorate had not received any complaints regarding this issue either, while it had taken appropriate steps as regards other reported cases.

With respect to the Serbian Chamber of Commerce, she clarified that in accordance with the Labour Code, chambers of commerce were not parties to social dialogue. The Law on Chambers of Commerce had been amended and it provided that membership to the Chamber of Commerce was no longer compulsory. Concerning the new employers’ organization, she stated that the Ministry of Trade and Services had indicated that the Ministry only intended to support the process of organization of interested actors in the trade sector, and had no intention to favour any particular employers’ organization whatsoever, or to exert any influence on the manner in which parties to social dialogue organized themselves, or to violate any national or international legislation. She also stated that the new employers’ organization had moved out of the premises of the Chamber of Commerce and now had its own premises and administrative structure. She emphasized that the Government would continue to ensure social dialogue took place on the basis of the freely expressed will of all parties without any pressure or influence from the State.

The Employer members recalled that this Committee had already discussed this case twice. For many years, the Committee of Experts had urged the Government to amend section 216 of the Labour Law to bring it into compliance with Article 2 of the Convention. The arbitrary threshold in the Labour Law concerned unacceptable State intervention, which was further aggravated by two other legal requirements: (i) in the event a request for representativeness was rejected because the conditions were not met, the organization in question could only renew the request after three years; and (ii) an employer organization was only recognized as a representative organization with the right to bargain collectively if the organization comprised at least ten per cent of all employers that employed at least 15 per cent of the total number of employees. These conditions were not in compliance with either Convention No. 87, or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In addition, the prominent role attributed to the Chamber of Commerce in social dialogue was not in compliance with the Convention. This problem had been raised since 2004 and was still not solved. The obligatory membership of employers in the Chamber of Commerce was objectionable. This situation was aggravated by the fact that the Chamber of Commerce was responsible for collective bargaining, thus effectively taking over the function of the employer organizations. As a result the right not to associate was not guaranteed and the establishment of employer organizations was obstructed due to this double membership. The information provided by the Government that obligatory membership would be abolished by 2013 did not change the current situation. Neither could the problem be solved by the newly established employers’ organization, which was using resources of the Chamber of Commerce to raise membership among Serbian enterprises. On the contrary, these measures seemed to indicate that the Government was trying to give the impression of applying the Convention, while continuing to suppress free employers’ organizations. This form of State intervention in the establishment of employers’ organizations was unacceptable. In this context, the Employer members did not trust the Government’s renewed announcement that the legislation would be amended and serious action had to be undertaken to prove that this was not, yet again, an empty promise.

The Worker members recalled that the case essentially concerned failure to respect Article 2 of the Convention. The system for registering a trade union did not guarantee freedom of association because registration procedures were very complicated and authorization was required from the Ministry of Labour. Furthermore, in order for a trade union to be recognized as a negotiating agent, it must represent at least 15 per cent of workers. Section 233 of the Labour Law imposed a time limit of three years before an organization that had already applied for registration unsuccessfully could request a new decision on its representativeness. The Worker members also reminded the Government of its obligations under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) with regard to involving the social partners fully in drafting any new legislation, which obviously implied that workers should not be subject to pressure from employers based on their trade union membership or activities. The Worker members asked the Government to provide explanations concerning the alleged physical aggressions against the trade unionists mentioned in the report of the Committee of Experts.

The Worker member of Serbia indicated that this case on tripartism was rather typical in countries in transition. It had resulted from the Government abusing the law and conferring on itself too much freedom in interpreting the legislation. The Government’s fundamental abuses commenced from the registration of new organizations, continuing with the decision regarding representativeness of organizations. This morning, the Ministry of Labour had convened a meeting where the social partners had been informed of a draft law addressing these matters. This draft was based on long standing and numerous complaints of the social partners. The Committee should send a clear message to the Government in order to prevent similar cases from arising in the future.

The Government representative reiterated that the provision under section 233 of the Labour Law concerned the request for revision of an established official recognition of representativeness of trade unions or employers’ organizations, but that with respect to those workers’ and employers’ organizations to which official recognition of representativeness had not been previously granted, requests for such recognition might be submitted at any moment. She indicated that the Government would continue to support all forms of employers’ associations and trade unions and strengthen social dialogue in compliance with ILO Conventions and other international instruments. The battle for growth, jobs and effective reform processes was not possible without social agreement at all levels.

The Worker members took note of the fact that the Government had acknowledged that a problem existed with registration and certification procedures and that it was prepared to amend the legislation in that regard. However, the Government had not been clear on the subject of the full participation of the social partners in the process. The Government should therefore engage in consultations with representative employers’ and workers’ organizations and accept technical assistance from the Office in reviewing registration and certification procedures.

The Employer members urged the Government to change the provisions of the Labour Law concerning the establishment of employer organizations as had repeatedly been requested by the Committee of Experts. Under the current laws, social dialogue was an empty shell. The practice that the Chamber of Commerce had effectively taken over the role of authoritative employer organizations had to be ended as soon as possible. Law and practice had to be brought into compliance with Conventions Nos 87 and 98. Employer organizations had to be formed and established free from State intervention. Considering the repeated empty promises by the Government, the Employer members had almost lost their patience. The Government had therefore to act quickly, otherwise the Employers’ group would file a complaint of violation of freedom of association with the ILO.

Conclusions

The Committee took note of the statement made by the Government representative and the discussion that followed.

The Committee recalled that the Committee of Experts had been making comments for a number of years concerning the restrictions placed on the right of employers to establish and join organizations of their own choosing. The Committee of Expert’s comments also referred to serious allegations of physical assaults of union officials and members, especially in the educational and health-care sectors. The Committee requested the Government to undertake, without delay, independent investigations into the allegations and report accordingly.

The Committee took note of the Government representative’s statement that the Government was in the process of reviewing its Labour Law, in cooperation with the social partners. As regards the allegations of physical assaults against trade union leaders and members, she indicated that the Government was not aware of such attacks nor had they been reported to the labour inspectorate. Once provided with the relevant information, the Government would take the necessary steps to resolve the issue in accordance with the Convention. The Government asserted that a law had been adopted to eliminate the compulsory membership of the Serbian Chamber of Commerce, which would enter into force on 1 January 2013.

The Committee expressed its serious concern at the lack of progress made towards ensuring that the Chamber of Commerce did not, through its legislatively imposed compulsory membership, effectively interfere with the rights of employers to join the organization of their own choosing and carry out their activities freely. The Committee further observed with concern the serious allegations of difficulties encountered in the registration procedures and the lengthy period (three years) required before a determination of representativeness could be challenged. The Committee stressed that the Government must refrain from interference with the formation and the functioning of workers’ and employers’ organizations. The Committee expressed its serious concern at the favouritism by the Government of an employers’ organization which is closely connected to the Chamber of Commerce and which is using the financial and human resources of the Chamber.

The Committee took note of the indication that a new law on trade union registration and activity had been drafted. It urged the Government to take meaningful steps to strengthen social dialogue in the country and to submit any draft texts to the workers’ and employers’ organizations for full consultation. It considered that the Government should accelerate the long-awaited action on the outstanding matters raised under the Convention and the amendment of section 216 of the Labour Law, especially the repeal of the 5 per cent threshold. The Committee urged the Government to ask for the technical assistance of the ILO with a view to bringing the legislation and practice into full conformity with the Convention without any delay. It urged the Government to provide detailed information on the concrete and tangible progress made in this regard to the Committee of Experts with its next report.

Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

A Government representative stated that since the constitutional change in his country, there had been a significant decentralization. He indicated that his Government had provided further information to the Committee on Freedom of Association on 2 June 2004 on legal measures to address the situation. He recalled that the Yugoslav Chamber of Commerce and Industry had been dissolved by the Law on the Termination of the Law on the Yugoslav Chamber of Commerce and Industry, and had been replaced by the Chamber of Commerce and Industry of Serbia and the Chamber of Commerce and Industry of Montenegro. He conceded that, while some ambiguities still existed with regard to the functions of these bodies, the current law provided that these bodies did not participate in collective agreements and no longer required compulsory membership. The Labour Law of Serbia provided that employers' associations at all levels participate in collective agreements. He further indicated that no collective agreement had been concluded with the Chamber of Commerce since the Labour Law took effect at the end of 2001. In Montenegro, a tripartite council was examining draft legislation which would bring about similar rectifications to the problem in that part of the country. He noted that his country was undergoing a period of transition and looked forward to cooperation with the ILO to address the matters raised by the Committee of Experts.

The Employer members recalled that this case had been examined in 2003 by the Committee of Experts and the Conference Committee based on information submitted by the International Organization of Employers (IOE). During the previous discussion of the case, the Employer members had criticized the compulsory membership for employers in the Yugoslav Chamber of Commerce and Industry, which also retained the sole power to sign collective agreements. This was a clear violation of the principle of freedom of association for employers. At the 2003 discussion of the case, the Government representative had assured that the Law on the Termination of the Law of the Yugoslav Chamber of Commerce and Industry, adopted shortly before the Conference, had resolved this problem. The Employer members now had to conclude that they had been fully deceived. While the Yugoslav Chamber of Commerce had been dissolved, its successor bodies, the Chamber of Commerce of Serbia and the Chamber of Commerce of Montenegro, had taken over the requirements for compulsory membership and the sole power of collective bargaining. As a result, independent employer organizations could not exist. This was a violation of Conventions Nos. 87 and 98. The statement of the Government representative at the 2003 discussion of this case was an unprecedented intentional deception of this Committee. This was an extremely serious incident. The Employer members noted that the Government representative had again announced that new information regarding the situation was available. This information would have to be examined since they could not rely on the meagre words of the Government. They requested the Government to supply detailed written information to the Committee of Experts for further consideration.

The Worker members stated that the conclusions of last year's discussion had not been implemented by the Government, which made it impossible for workers' organizations to negotiate with legitimate and representative employers' organizations, thereby denying both partners the chance of solving disputes, improving working conditions, and increasing productivity. They fully agreed with the position of the Employer members and criticized the fact that the successor organizations to the Yugoslav Chamber of Commerce and Industry still required compulsory membership of employers and maintained the sole right to sign collective agreements. The Government's non-respect of the Convention not only affected independent employers' organizations, but had a negative impact on trade unions as well. Legislation obliged an employer to certify that a trade unionist worked for his or her particular company for the purposes of trade union registration, yet did not oblige the employer to actually issue such a certification. As a result, trade unions could only operate on the permission of the employer. They recalled that, with respect to the Nezavisnost trade union confederation, over 200 applications for the registration of local branches had been delayed, and that an ILO mission had called for changes in the registration procedures. Furthermore, even though trade union monopoly had been legally removed, it was still difficult for workers to disaffiliate from an old trade union, and the Government still permitted the use of state-owned premises by the old union while new independent trade unions had to pay high rents. They called for an urgent implementation in practice of the recommendations of the Committee of Experts and the end of government interference in trade union and employer organization affairs.

The Worker member of Serbia and Montenegro noted that his country had emerged from 45 years of one-party, one trade union and one employers' organization rule and a subsequent ten year brutal dictatorship. While his country had come a long way since then, there continued to be problems in the implementation of the Convention, especially with regard to registration of trade union members, obstacles to the establishment of independent workers' and employers' organizations, and difficulties in establishing full social dialogue. He noted that, despite the Government's claims to the contrary, the successor bodies to the Yugoslav Chamber of Commerce and Industry still participated in around 80 per cent of all collective agreements. Visiting delegations from other countries were steered exclusively to the Chamber of Commerce and not to independent organizations. The Chamber of Commerce used state property and appeared to be funded from the state budget, and it also played a predominant role in state enterprises. As a result, collective bargaining between trade unions and independent employers' organizations was rare, even at the branch level. Finally, he pointed to continuing difficulties in trade union member registration with regard to requirements to prove trade union membership before that very membership was registered.

The Government representative stated that he had followed the discussion with great interest and that he would duly report the comments made to his Government. With regard to the suggestion by the Employer members that his Government had intentionally deceived the Committee, he reassured the members that his country's dealing with this matter was transparent and that there was no intention to mislead. He recalled that his country was undergoing an important transition, although this did not excuse continuing problems. He concluded that his Government would supply full information to the Committee of Experts as requested.

The Employer members, referring to the Government representative's declaration to the effect that the Government never had the intention to deceive the Conference Committee, stated that intentions were difficult to prove, and that the Committee could only refer to facts. According to the facts at the disposal of this Committee, the Government had not taken the measures it had indicated. They noted the Government representative's declaration with regard to further measures on which information had been submitted recently, and which applied only to Serbia, but not yet to Montenegro. The Government was urgently required to take the necessary measures in order to extend the coverage of the Convention to Montenegro. They hoped that the Government would provide full information in writing on the issue in the near future. Turning to the statement of the Worker members which mentioned points which had not been raised by the Committee of Experts in its report, they emphasized that this case was the only one which dealt with the violation of the right of employers to establish organizations of their own choosing. The case should not be watered down by introducing other information of concern to the workers. In this respect they recalled that employers' associations also had the right to comment on the application of Conventions. Moreover, they recalled that the Committee of Experts had not referred in substance to the comments provided by the International Confederation of Free Trade Unions (ICFTU). This information was contained in a direct request not available to this Committee. Therefore, since the Conference Committee was not informed of the content of the ICFTU comments, it was not admissible for this Committee to discuss them.

The Worker members stated that they would carefully examine the new measures reported by the Government. They also hoped that, in addition to resolving problems with regard to the establishment of independent employers' organizations, the Government would address other matters related to the Convention, such as restrictive registration procedures, obstacles to disaffiliation, threats to inspectors, and continued state support to certain unions. They wished to have these concerns addressed in the conclusions.

The Committee took note of the information provided by the Government representative and of the discussion which ensued. The Committee noted that the Committee of Experts' comments again referred to compulsory membership in, and financing of, chambers of commerce, which had been vested with the powers of employers' organizations. The Committee observed in particular that, though the old Law on the Yugoslav Chamber of Commerce and Industry was modified in 2003, thus having dissolved the said Chamber, in fact all the rights, obligations and activities of the Yugoslav Chamber were taken over by the Chambers of Commerce and Industry of Serbia and of Montenegro. The Committee noted with concern that legislative measures announced by the Government last year and adopted in June 2003 had not resolved any of the problems raised. The Committee took note of the Government's statement concerning measures contemplated to ensure that the employers' organizations could fully benefit from the guarantees provided for in the Convention. The Committee firmly urged the Government to take, in the near future, the necessary measures to ensure that membership in and financing of the Chambers of Commerce and Industry of Serbia and of Montenegro were not compulsory and that employers' organizations were free to choose the organization to represent their interests. More generally, the Committee trusted that in the near future the employers' and workers' organizations would enjoy the rights laid down in the Convention. The Committee noted a request by the Worker members that the Government provide without delay a detailed reply in relation to the issues raised by the ICFTU. The Committee requested the Government to communicate detailed information on the concrete measures taken in this regard, in law and in practice, in its next report to be sent this year for examination by the Committee of Experts.

Individual Case (CAS) - Discussion: 2003, Publication: 91st ILC session (2003)

A Government representative stated that according to section 5, paragraph 2, of the Labour Law, in force since 21 December 2001, the term "association of employers" meant an organization that the employers joined voluntarily for the purpose of promoting their interests. Therefore, this provision indicated that the membership in employers' associations was voluntary. According to section 136, paragraph 1, of the Law, a collective agreement must be concluded between the employer or the representative association of employers and the representative trade union. Therefore, the Chamber of Commerce and Industry did not participate in collective bargaining, this being the role of the voluntary association of employers.

The speaker added that the Social-Economic Council had been established with the agreement of the social partners. The agreement had been concluded on 1 August 2001 between the Government of the Republic of Serbia, three trade unions (ASNS, United Branch Trade Unions "Nezavisnost" and the Independent Trade Unions of Serbia - SSSS) and the Union of the Employers of Serbia. The Chamber of Commerce and Industry was not a member of the Social-Economic Council nor did it participate in collective bargaining. At the invitation of the Minister of Labour and Employment and as agreed by the social partners, the Chamber of Commerce and Industry was present at council sessions as an observer. The presence of the Chamber of Commerce and Industry had been positive since the process of privatization had not yet been completed and a number of companies were still publicly owned. With regard to Chapter 6 of the Law on the Chamber of Commerce and Industry of Yugoslavia, he wished to inform the Committee that the Law repealing the Law on the Chamber of Commerce and Industry of Yugoslavia had entered into force on 4 June 2003. By this, the Law on the Chamber of Commerce and Industry of Yugoslavia had been repealed.

The Worker members stated that it was important to take into consideration the outstanding role of the social partners and the enhancement of the social dialogue in the development of the new legislative framework and the social and economic development of the country, especially in light of the plan for privatization of all publicly owned enterprises. As mentioned in the conclusions of the Committee on Freedom of Association, the Federal Republic's Law on the Yugoslav Chamber of Commerce and Industry set restrictions that should be removed in order to grant freedom of association in accordance with Convention No. 87, which was a key instrument promoting social dialogue and ensure the participation of the social partners in the reconstruction of a democratic State. The Worker members supported the comments of the Committee of Experts which requested the repeal of all the provisions that limited the right to organize. Freedom of association should be granted fully by eliminating all obstacles that hindered trade union registration and undermined such a right. Workers had the right to organize in most sectors but the procedures to implement such rights in many cases prevented the exercise of this right. The Worker members made reference to specific cases where the trade unions encountered obstacles towards the implementation of such rights. Therefore, all forms of government administrative interference in trade union matters should be stopped. They understood that the Government had asked for assistance to prepare the draft trade union law and that one of the conclusions of the recent ILO mission was that the registration procedures should be simple and short and not used to undermine the right to organize. It seemed that the Government wished to use the same criteria for registration and representation, which were totally different issues. Another still pending problem was the allocation of trade unions assets.

In conclusion, it was stressed that the process of legislative revision needed to be accelerated in full consultation with the social partners and that all potential restrictions or administrative obstacles to the right to organize should be removed by the new law, thus creating the condition for the full implementation of this right. The ILO was requested to continue to support this process.

The Employer members recalled that this case was particular for several reasons. It was a pure case involving employers' rights emanating from Convention No. 87. For a number of years, the Committee considered it to be a violation of the Convention where a national law indicated a specific trade union in the text itself. This was a clear violation of the right to freedom of association, as the establishment of another trade union or association would be a breach of the national law in question which only recognized one trade union. The Employer members recalled that the Yugoslav Chamber of Commerce and Industry exercised by law the powers of employers' organizations within the meaning of the Convention. In addition, the Federal Republic's law on the Yugoslav Chamber of Commerce and Industry established compulsory membership in the Chamber of Commerce. Although it was customary in many countries to establish a compulsory membership in the respective chambers of commerce, it was not acceptable that the chambers of commerce exercised the functions of employers' organizations. If the ability of collective bargaining belonged exclusively to the chamber of commerce, this would violate the core functions of employers' associations. They considered that the new laws referred to by the Government representative seemed to go in the right direction. However, it was not possible to determine the extent to which the new laws would solve the problem, since the Committee had not examined the laws the Government representative referred to. Therefore it was necessary that the new laws be transmitted to the Office for examination by the Committee of Experts. With reference to the intervention of the Worker members, the Employer members stated that while it was clear that this Convention concerned both the freedom of association of workers and employers, the basis for discussions of this case were the comments of the Committee of Experts, which referred exclusively to the problem of freedom of association of employers.

The Government representative thanked the Worker and Employer members for their comments. Serbia and Montenegro would provide the text of the new legislation to the Office and appreciated the assistance from the ILO on the matter discussed.

The Worker members stated that they had found it important to raise some of the key points that the workers had highlighted during the ILO mission. It was important that Convention No. 87 was not only enshrined in the new legislation but was also applied in practice. Moreover, in the context of social dialogue, workers and employers should be treated on an equal footing.

The Employer members did not wish to add anything to their initial statement except to emphasize that the voluntary exercise of collective bargaining was of importance and should be reflected in the conclusions.

The Committee took note of the statement made by the Government representative and of the subsequent discussion. The Committee of Experts had pointed out that the Federal Republic's Law on the Chamber of Commerce and Industry is contrary to Article 2 of the Convention, as it limited the employers' right to establish and join organizations of their own choosing by imposing on them compulsory membership of the Chamber. The Committee noted the Government's statement that the Chamber of Commerce and Industry had been dissolved. The Committee expressed a strong hope that at its next session the Committee of Experts would be able to observe real progress towards the full application of the Convention in law and in practice. It also hoped that in this case there would be no restrictions on the employers' right to free and voluntary collective bargaining and that, in general, employers and workers would be fully covered by the rights enshrined in the Convention. The Committee asked the Government to supply in its next report detailed and precise information, including the text of the new law on the Chamber of Commerce and Industry, to allow a comprehensive assessment of the situation and its evolution by the Committee of Experts.

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

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

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

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

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Direct Request (CEACR) - adopted 2010, published 100th ILC session (2011)

Article 3 of the Convention. Right of trade unions to organize their activities and to formulate their programmes. Penal sanctions for strikes. In its previous comments, the Committee had 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 there from, 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; that such sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. The Committee notes that the Government indicates in its report that it is still waiting for an opinion of the Ministry of Justice on this issue. The Committee requests the Government to provide information in its next report on the opinion of the Ministry of Justice in this respect.

Penal sanctions for statements. 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. The Committee notes that the Government indicates in its report that it is still waiting for the response of the Ministry of Justice to the question whether sections 173–176 can apply in relation to trade union activities and to which effect. The Committee once again requests the Government to provide information in its next report on whether sections 173–176 of the Criminal Code have been applied in relation to trade union activities and to which effect and, if it is the case, to take the necessary measures to ensure that legitimate trade union activities may not fall under these provisions.

Minimum services. In its previous comments, the Committee had noted that, according to section 10 of the Law 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 had further noted that according to the Government: (i) the Law on Strikes stipulates that the minimum services should be determined in accordance with objective criteria (e.g. 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 services 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 opinions, remarks and proposals of the union in the process of determining the minimum services; and (iii) in case of dispute, the parties have an obligation to bring the matter to the Reconciliation Commission. The Committee had further noted that the District Court had also handed down decisions on matters related to strikes. The Committee notes that the Government indicates in its report that: (i) a working group has been established to prepare amendments to the Law on Strikes and that it will take into particular consideration the issue of the minimum services; and (ii) section 23, paragraph 1, item 8 of the Law on Court Organization (Official Gazette of RD Nos 116/08 and 104/09) provides that the Higher Court shall judge at first instance the cases concerning strike action and that, accordingly, each dispute over strike action, including making decisions on minimum work process, may be subject matter of court proceedings. The Committee requests the Government to provide information in its next report on the outcomes of the working group as well as a copy of the amendments to the Law on Strikes once adopted.

Compulsory arbitration. In its previous comments, the Committee had noted that the Government indicated 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. It also noted that, while the new Labour Act of 2005 provides that the parties to a dispute can make an independent decision on whether to bring their dispute to arbitration, in the activities of general interest (i.e. power-generating industry, water supply, transportation, radio–television media founded by the State, 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 State), there is an obligation for the parties to bring the dispute to this Agency for conciliation. The Committee also noted that the Government indicated that the law does not however prevent employees from going on strike while their dispute is being settled peacefully. The Committee had requested 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. The Committee notes that the Government indicates in its report that: (i) according to the amendments made to the Law on Labour Dispute Mediation dated 24 December 2009, in case of dispute in activities of general interest, the parties are bound to initiate a mediation proceeding before the Mediation Committee; (ii) the decision which the Mediation Committee shall take in the form of a recommendation is not binding for the parties, nor is a condition for beginning a strike or for its continuance; and (iii) in 2009, the National Mediation Agency mediated in 12 collective disputes implying a threat of strike or in which large-scale strikes had already started. The Committee requests the Government to provide a copy of the Law on Labour Dispute Mediation as amended on 24 December 2009, with its next report.

Finally, the Committee notes the adoption, in July 2009, of the Law on Associations. The Committee understands that this law does not apply to trade unions and employers’ organizations, since these organizations are already covered by special laws (section 2, paragraph 2). The Committee requests the Government to confirm in its next report that the 2009 Law on Association does not apply to trade unions and employers’ organizations.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the Confederation of Autonomous Trade Unions of Serbia (CATUS) received on 15 November 2010 and by the International Trade Union Confederation (ITUC) dated 24 August 2010. The Committee requests the Government to provide its observations thereon in its next report.

In its previous comments, the Committee had requested the Government to provide its observations on the comments made by the ITUC and the CATUS concerning alleged physical assaults against union officials and members, especially in the educational and health-care sectors. The Committee takes note that the Government indicates, in its report, that it has no knowledge of physical attacks on trade union officials or members in these sectors. 

Article 2 of the Convention. Right of employers to establish and join organizations of their own choosing. The Committee recalls that for a number of years, it has been commenting upon the need to amend section 216 of the Labour Act which provides that employers’ associations may be established by employers that employ no less than 5 per cent of the total number of employees in a certain branch, group, subgroup, line of business or territory of a certain territorial unit, in order to establish a reasonable minimum membership requirement. In its previous observation, the Committee had noted the Government’s indication that the Committee’s comments on section 216 will be taken into consideration in the course of amendment of the Labour Act. The Committee notes that the Government indicates in its report that the work on amendments and addendums to the Labour Act is under way and that the completion of the work is planned for the end of 2010. The Committee hopes that in the process of revising the legislation, due account will be taken of its comments concerning the amendment of section 216 of the Labour Code and requests the Government to provide a copy of the amendments and addendums to the Labour Act as soon as adopted.

The Committee is raising other points in a request addressed directly to the Government.

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.

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

In its previous comments, the Committee had taken note of comments made by the International Trade Union Confederation (ITUC) in 2006 concerning alleged physical assaults against union delegates. The Committee notes that, according to the comments of the Confederation of Autonomous Trade Unions of Serbia (CATU) forwarded with the Government’s report, this problem applies to educational as well as health care personnel. The CATU proposes, as a way to address this problem, to increase sanctions against possible attacks on workers employed in the education and health sectors. The Committee regrets that the Government has not communicated any observation with regard to these comments. The Committee recalls that the rights of workers’ and employers’ organizations can only be exercised in a climate that is free from violence, pressure or threats of any kind against the leaders and members of these organizations and it is for governments to ensure that this principle is respected. The Committee requests the Government to communicate its observations on the comments concerning physical assault against union officials and members.

Article 2 of the Convention. Right of employers to establish and join organizations of their own choosing. The Committee recalls that, for a number of years, it has been commenting on section 216 of the Labour Act which provides that employers’ associations may be established by employers that employ no less than 5 per cent of the total number of employees in a certain branch, group, subgroup, line of business or territory of a certain territorial unit. The Committee notes with interest that the Government indicates in its report that it will take into consideration the Committee’s comments on section 216 of the Labour Act in the course of amendment of the Labour Act. Considering that the 5 per cent requirement at all levels may hinder the establishment of employers’ organizations, the Committee requests the Government to indicate in its next report the measures taken or contemplated to amend section 216 of the Labour Act so as to retain a reasonable minimum membership requirement for the establishment of employers’ organizations.

The Committee is addressing a request on certain other points directly to the Government.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the comments submitted by the Association of Teachers’ Unions of Serbia (USPRS) in a communication dated 13 July 2006. The Committee further notes the Labour Law of 2005.

Article 2 of the Convention. 1. Foreign workers. The Committee notes that according to its section 2(3), the Labour Law applies to foreign nationals and stateless persons. 

2. Registration. The Committee takes note of the rule book on the entering the trade union into the register and the rule book on the registration of the employers’ association, which were issued in 2005 and set out the procedures for the registration of trade unions and employers’ organizations, respectively. The Committee notes that section 7 (with regard to trade unions) and section 8 (with regard to employers’ associations) of the rule books provide that the Ministry of Labour can reject the application for registration if the requirements prescribed by law, and/or, in case of a trade union, of the general act of trade union, have not been met. The Committee recalls that organizations should possess the right to judicial appeal against any administrative decisions concerning their registration and that such a right of appeal constitutes a necessary safeguard against unlawful or ill-founded decisions by the authorities responsible for registration (see General Survey on freedom of association and collective bargaining, 1994, paragraph 77). The Committee requests the Government to indicate whether trade unions and employers’ organizations can appeal the decision of the Ministry of Labour denying their registration to the courts.

3. Rights of representative organizations. The Committee notes that according to section 239 of the Labour Law, representative trade union organizations and employers’ associations have 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. The Committee believes that the legislation granting certain rights to the representative organizations is not in itself contrary to the principle of freedom of association provided that these rights are limited to such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations. However, the workers’ freedom of choice would be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in the granting of privileges such as to influence unduly the choice of organization by workers. Therefore, this distinction should not have the effect of depriving those trade unions that are not recognized as being amongst the most representative of the essential means for defending the occupational interests of their members (for instance, making representations on their behalf, including representing them in case of individual grievances), for organizing their administration and activities, and formulating their programmes, as provided for in Convention No. 87 (see General Survey, op. cit., paragraphs 97-98). The Committee requests the Government to specify what other rights are considered to be exclusive rights of representative organizations.

Article 3. 1. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee had previously requested the Government to provide information on the manner in which employers’ and workers’ organizations are guaranteed the right to draw up their constitutions and rules without interference from the public authorities and the right to elect their representatives in full freedom. In this regard, the Committee notes the Government’s indications that trade unions pass their own statutes and by-laws independently, and that the election of trade union representatives is determined in accordance with the union’s by-laws, without legal restriction. The Committee further notes that under section 215 of the Labour Law a trade union may be established pursuant to its own general documents – that is to say, constitution and by-laws. The Committee takes note of this information.

2. Arbitration. The Committee recalls that it had previously requested the Government to amend 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 with interest that the new Labour Law does not contain provision to the same effect.

3. Minimum service. The Committee notes the comments of the USPRS on section 82 of the Primary School Law and section 84 of the Secondary School Law which provide that teachers can exercise the right to strike on condition of providing minimum services set forth in these provisions. The Committee further notes the comments of the USPRS on sections 9 to 13 of the Law on Strikes concerning the provision of minimum services during strikes. The Committee notes that it follows from sections 9 and 10 of the Law on Strikes that the minimum services are determined by the employer after having taken into account the opinion, remarks and suggestions of the trade union. 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 considers that in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility. For example, the Committee considers that minimum services may be established in the education sector, in case of a strike of long duration. However, in the view of the Committee, such a service should meet at least two requirements. Firstly, and this aspect is paramount, 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. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of 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, op. cit., paragraphs 160-161). The Committee therefore requests the Government to provide information on the manner in which the genuine participation of trade unions in the definition of the minimum service is ensured and to amend its legislation so as to ensure that in cases of disagreement the matter will be determined by an independent body. The Committee requests the Government to keep it informed in this respect.

The Committee takes note of the regulation on the minimum operation service during a strike in public company JAT Airways providing that, during a strike, full international traffic services must be provided and on a full-time basis and, as for domestic traffic, 30 per cent of planned services. The Committee further notes from the text of the regulation that the following services must be provided “in full scope”: charter flights; traffic centre; technical maintenance of aircraft; handling of aircraft, passengers, luggage, cargo; booking service; representative offices of JAT Airways abroad and in the country; financial operations (cash desk); medical service; safety of people and the company’s facilities and equipment; and fire-fighting service. The Committee further notes Case No. 2415, in which the Committee on Freedom of Association commented upon this regulation (see 340th Report, paragraphs 1254-1255). The Committee recalls that transport services are not essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. It nevertheless considers that the transportation of passengers is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified. In view of the abovementioned principle on minimum services, the Committee requests the Government to take the necessary steps to amend the regulation in question, in consultation with the relevant employers’ and workers’ organizations and to keep it informed of the measures taken or envisaged in this respect.

Article 4 of the Convention. Dissolution and suspension of organizations by administrative authority. In its previous comments the Committee had requested the Government to provide information on the judicial safeguards accompanying the dissolution of trade unions by administrative order, in particular the possibility of having recourse to an independent and impartial body. The Committee notes the Government’s indications that trade unions and employers’ organizations may be dissolved when they cease to meet their founding conditions, or if they have submitted false data respecting their founding conditions: otherwise dissolution is only possible upon the organizations’ request. The Committee also notes in this regard that section 8 of the rule book on entering the trade union into the register and section 10 of the rule book on the registration of the employers’ association both provide for an organization’s dissolution where: (1) it ceases to meet the requirements for its establishment as prescribed by law; and (2) its registration has been carried out on the basis of false data. Neither rule book, however, makes provision for the right of judicial appeal for organizations dissolved pursuant to the relevant sections. Noting, moreover, the Government’s statement that a trade union can file an administrative lawsuit against the resolution on their deletion from the register, the Committee recalls that measures of dissolution or suspension of organizations by administrative authority involve a serious risk of interference by the authorities in the very existence of organizations, and should therefore be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee further recalls that the organization affected must have the right of appeal to an independent and impartial judicial body, which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure. Moreover, the administrative decision should not take effect until a final decision is handed down (see General Survey, op. cit., paragraph 185). The Committee is of the view that the right of trade unions to file an administrative lawsuit challenging their dissolution falls short of the guarantees against administrative dissolution required by Article 4 of the Convention. The Committee asks the Government to take the necessary measures to ensure that both trade unions and employers’ organizations enjoy due judicial safeguards against administrative dissolution – including the right to appeal administrative decisions to an independent judicial body and the right not to be dissolved until a final decision has been handed down. The Committee requests the Government to keep it informed in this respect.

Article 5 of the Convention. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee takes due note of the Government’s statement that trade unions and employers’ organizations are free to form federations and confederations, as well as to affiliate with international organizations.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report and the comments submitted by the Association of Teachers’ Unions of Serbia (USPRS) and the International Confederation of Free Trade Unions (ICFTU) on 13 July and 10 August 2006, respectively, concerning issues previously raised by the Committee. The ICFTU also alleges physical assault against union delegates. The Committee requests the Government to provide its observations thereon. The Committee takes due note of the new Labour Law of 2005.

Article 2 of the Convention. Right of employers’ and workers’ to establish and join organizations of their own choosing without previous authorization. Registration requirements. Minimum membership requirement for employers’ organizations. The Committee had previously commented upon section 216 of the Labour Law, which provides that employers’ associations may be established by employers that employ no less than 5 per cent of the total number of employees in a certain branch, group, subgroup, line of business or territory of a certain territorial unit, and had asked the Government to amend that section so as to establish a reasonable minimum membership requirement. In this respect, the Committee notes that the Government indicates that employers’ organizations may be established at the level of the Republic or within a branch, group, subgroup, or line of activity, so that the requirement of employing 5 per cent of the total employees could, depending on the level at which an employer’s organization wished to be established, be easily met – particularly if the total number of employees at that particular level was a fairly low figure. In this respect, the Committee is of the view that the 5 per cent requirement at all levels contained in section 216 of the Labour Law may hinder the establishment of employers’ organizations. In these circumstances, the Committee once again requests the Government to take measures to amend section 216 of the Labour Law so as to establish a reasonable minimum membership requirement and keep it informed in this respect.

The Committee is raising other points in a request addressed directly to the Government.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the comments made by the Serbian and Montenegrin Employers’ Association (UPSCG) in a communication dated 7 April 2005. It observes that most of these comments concern issues which have already been raised by the Committee in previous observations. The Committee will examine these comments at its next session, along with the Government’s report which is due in 2006.

Article 2 of the Convention. The Republic of Serbia. 1. The Committee notes that the UPSCG criticizes the new Labour Law as it contains provisions which allow for organizations of employers to be established only if the founding members employ approximately 650,000 workers.

The Committee observes in this respect that article 216 of the Labour Law provides that in order to establish an association of employers, the founding members must employ no less than five per cent of employees of the total number of employees in a certain branch, group, subgroup, line of business or territory of a certain territorial unit.

The Committee considers that, although a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations may not be hindered (see General Survey on freedom of association and collective bargaining, 1994, paragraph 81). The Committee is of the view that the minimum membership requirement found in article 216 of the Labour Law amounts to a denial of the right to organize for employers, especially in micro, small and medium enterprises. The Committee requests that the Government amend article 216 of the Labour Law so as to establish a reasonable minimum membership requirement.

2. The Committee further asks the Government to provide its response to the other pending questions addressed in its previous observation (see 2004 observation, 75th Session) and previous direct request (see 2004 direct request, 75th Session.)

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the observations of the International Confederation of Free Trade Unions (ICFTU) dated 18 September 2002 and 19 July 2004 with regard to certain issues dealt with in the Committee’s previous direct request, as well as the Government’s observations on certain of these comments.

The Committee notes that the ICFTU states with regard to the Republic of Serbia that: (1) trade union registration is subject to a very complicated procedure and approval by the Ministry; before applying for registration the union leader must have a certificate from the employer, or an "authorized person", stating that the leader is in full-time employment at the enterprise; (2) the Ministry can dissolve a trade union if false data are supplied during the registration procedure; (3) disputes are subject to compulsory arbitration; (4) participation in a strike can lead to suspension of social security rights, which should be independent of the exercise of the right to strike; and (5) the Nezavisnost national trade union centre reported that two-thirds of applications for the registration of local branches have been delayed by the authorities for longer than the time limit set by law. Concerning Montenegro, the ICFTU states that trade union registration is subject to approval by the Ministry.

The Committee notes that, according to the Government, there is no need to submit an employment certificate prior to a trade union’s registration as of 15 June 2004. The Rules on the Change of the Rules on the Inscription of Trade Union Organizations into the Register (No. 64/2004) abolished the requirement of a certificate of employment in order to apply for trade union registration. The Committee takes note of this information and requests the Government to transmit the Rules on the registration of trade unions as well as any amending texts.

The Committee also notes that the Government rejects the claim concerning the Nezavisnost national trade union centre and points out that trade unions are being registered in the Ministry in accordance with deadlines set by the law. Some registrations may have possibly been delayed by incomplete and/or inappropriate documentation of which the applicants have been advised in a timely fashion. The Committee trusts that the Government will take all necessary measures to ensure that the registration of the branches of the Nezavisnost national trade union centre will be concluded as soon as possible and requests the Government to keep it informed of progress made in this respect.

The Committee notes that the Government provides no reply to the ICFTU comments concerning trade union dissolution and the right to strike which had already been raised by the Committee in a previous direct request. The Committee once again requests the Government to specify the manner in which trade unions are guaranteed the right to strike in the Republic of Serbia and to amend section 136 of the Labour Law so as to allow the parties to freely decide whether to submit a dispute to binding arbitration. It also requests the Government to indicate the manner in which genuine participation of trade unions in the definition of minimum service is ensured and to amend its legislation so that this matter may be determined by an independent body in case of disagreement. Furthermore, the Committee once again requests the Government to amend section 14(2) of the Law on Strikes so that participation in a strike will not lead to a suspension of the rights of employees as concerns social security benefits.

Finally, the Committee requests the Government to provide its response to the other pending questions addressed in its previous direct request which related to:

-  the adoption of legislation on the right of employers to establish and join organizations of their own choosing;

-  the application of national law on trade unions to foreign workers;

-  information on the laws and regulations concerning the registration of employers’ and workers’ organizations at the level of the federal Republic and the level of the Republic of Serbia;

-  information on the exercise of the right to draw up constitutions and rules and to be elected to office without interference;

-  the safeguards which accompany the dissolution of trade unions by administrative order;

-  the right to establish federations and confederations and to affiliate with international organizations of employers and workers.

The Committee trusts that the Government will transmit full and detailed information on all the above points in its next report (which is due in 2006).

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s report as well as the written and oral information provided by the Government representative during the discussion that took place at the Conference Committee in June 2004. The Committee also takes note of the comments of the International Confederation of Free Trade Unions (ICFTU), as well as the Government’s observations thereon.

Article 2 of the Convention. Right of employers to establish organizations of their own choosing. In its previous comments the Committee had noted that the Yugoslav Chamber of Commerce and Industry, which benefited from compulsory membership and financing by employers and enjoyed the power to sign collective agreements, had been dissolved by the law on the termination of the law of the Yugoslav Chamber of Commerce and Industry; however, the repealing law provided that its rights, obligations, financial resources and activities would be taken over by the Chamber of Commerce and Industry of Serbia and the Chamber of Commerce and Industry of Montenegro. The Committee therefore requested the Government to ensure that membership in and financing of the Chambers of Commerce and Industry of Serbia and Montenegro are not compulsory.

The Committee takes note of the written and oral information provided by the Government, according to which: (1) under the Law on Chambers of Commerce and Industry (No. 65/2001), the Chambers of Commerce and Industry of Serbia and Montenegro have no right to participate in collective agreements nor is this right taken over from the Yugoslav Chamber of Commerce and Industry under the Law on the Termination of the Law on the Yugoslav Chamber of Commerce and Industry; (2) the Labour Law (Nos. 70/2001 and 73/2001) explicitly provides (sections 5 and 139) that voluntarily established representative employers’ associations, participate in the conclusion of collective agreements at all levels (republic, autonomous province, local self-government) and rules out the participation of Chambers in collective bargaining; and (3) no collective agreement has been concluded by the Chamber of Commerce and Industry of Serbia or by the Yugoslav Chamber of Commerce and Industry since the entry into force of the Labour Law on 21 December 2001. The Committee takes note of this information with interest.

With regard to Montenegro, the Committee notes that according to the written and oral information provided by the Government, the transfer of the competences of the Yugoslav Chamber of Commerce and Industry to the Chamber of Commerce and Industry of Montenegro made it possible for the latter to figure in labour laws as an employers’ representative and placed a legal obligation on companies to become members and finance this Chamber. The adoption of the Law Amending the Labour Law which is a basic Government priority for 2004 will regulate, inter alia, the question of representativeness of employers’ representatives in accordance with ILO standards and rules. The Government adds that it requested ILO technical assistance in this framework and a seminar was held in May 2004. A tripartite working group has been working very actively on drafting the law which is nearing completion and will be submitted to the Assembly at its next session. The Committee takes note of this information with interest and trusts that the Government will make every effort to bring its legislation into conformity with the Convention without any delay and ensure in particular that employers are able to choose freely the organizations they wish to represent their interests in the collective bargaining process. It requests the Government to keep it informed of steps taken in this respect and to communicate the text of the Law Amending the Labour Law once adopted.

The Committee also takes note of the observations made by the ICFTU on issues concerning trade union registration and dissolution and the right to strike. The Committee examines these issues in a request addressed directly to the Government.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the observation communicated by the International Organisation of Employers (IOE) dated 7 October 2002 concerning the application of the Convention, as well as the written and oral information provided by the Government representative during the discussion that took place at the Conference Committee in June 2003. The Committee also takes note of the text of the Law on the Termination of the Law on the Yugoslav Chamber of Commerce and Industry which came into force on 4 June 2003.

Article 2 of the Convention. Right of employers to establish organizations of their own choosing. The Committee recalls that in its previous comments it had noted, pursuant to the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2146 (327th Report, paragraphs 893-898), that the Law on the Yugoslav Chamber of Commerce and Industry was contrary to Article 2 of the Convention as it established compulsory membership in, and financing of, chambers of commerce, and vested such chambers with the powers of employers’ organizations in the meaning of Article 10 of the Convention, like the power to sign collective agreements. The Committee recalls that it had requested the Government to repeal these provisions and to refrain from adopting any other legislative measure which would have a comparable effect.

The Committee takes note of the observations made by the IOE, to the effect that the Government had not taken any measures to repeal the above provisions, while the Chamber of Commerce was trying to bypass any obstacles by creating parallel employers’ organizations.

The Committee notes that, according to the written and oral information provided by the Government representative to the Conference Committee in June 2003, the Yugoslav Chamber of Commerce and Industry had been dissolved by the Law on the Termination of the Law on the Yugoslav Chamber of Commerce and Industry. The Committee observes, however, that section 2, paragraph 1, of the repealing law provides that the rights, obligations, financial resources and activities of the dissolved Yugoslav Chamber of Commerce and Industry shall be taken over by the Chamber of Commerce and Industry of Serbia and the Chamber of Commerce and Industry of Montenegro. The Committee observes, therefore, that to the extent that these provisions enable the new chambers to continue to have compulsory membership and to exercise powers which pertain to employers’ organizations, the new Law does not depart from the previous legislation but simply reproduces its provisions at the level of the Republic’s constitutive entities.

The Committee once again recalls that it would be contrary to Article 2 of the Convention to establish compulsory membership in chambers of commerce when such chambers have the powers of employers’ organizations in the meaning of Article 10 of the Convention. Moreover, questions concerning the financing of employers’ organizations as regards both their own budgets and those of federations and confederations should be governed by the by-laws of the organizations themselves. Finally, granting the right to sign collective agreements to the Chamber of Commerce which is created by law and to which affiliation is compulsory, impairs the employers’ freedom of choice in respect of the organization to represent their interests in collective bargaining. The Committee therefore requests the Government to take all necessary legislative measures without delay so as to ensure that membership in and financing of the Chambers of Commerce and Industry of Serbia and Montenegro are not compulsory and so that employers’ organizations may be free to choose the organization to represent their interests in collective bargaining. The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

The Committee also takes note of the observations made by the International Confederation of Free Trade Unions (ICFTU) in 2002 which raised a certain number of issues dealt with in the Committee’s previous direct request. The Committee requests the Government to provide information as to the progress made in respect of these questions in its report due in 2004.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note with interest of the information contained in the Government’s first report and of the adoption of the Labour Law of the Republic of Serbia, 2001. The Committee observes that the report contains no information on the application of the Convention in the Republic of Montenegro. It requests the Government to transmit in its next report information in this respect.

Article 2 of the Convention. Right of employers and workers,
without distinction whatsoever, to establish and join organizations
of their own choosing without prior authorization

Employers’ organizations. With reference to its observation, the Committee observes that article 41 of the Constitution of the Federal Republic of Yugoslavia guarantees freedom of association but makes explicit reference only to trade unions in this context. The Committee recalls that Article 2 of the Convention covers employers as well as workers, so that employers, without distinction whatsoever, have the right to establish and join organizations of their own choosing. The Committee requests the Government to provide the text of the law on associations in force, both in the federal Republic and its federated states. The Committee also requests the Government to transmit information in its next report on any steps taken or envisaged to consider the adoption of legislation on employers’ organizations so that those organizations may be fully guaranteed the exercise of their rights under the Convention.

  Foreign workers

Republic of Serbia. The Committee notes that according to section 2, the Labour Law of the Republic of Serbia applies to foreign nationals unless otherwise provided by the law and that according to section 15, foreign nationals or persons without citizenship may establish employment relations under the conditions provided by this law and a special law. The Committee considers that the rights provided by the Convention should be guaranteed to all workers, without distinction based on nationality, including anyone working in the territory of the State. The Committee requests the Government to indicate whether all foreign workers are covered by the Labour Law and to provide a copy of any special laws concerning these workers which may be relevant to their rights under the Convention.

Registration requirements. The Committee notes that article 41 of the Constitution of the Federal Republic of Yugoslavia guarantees freedom of association subject to registration with the competent body. The Committee requests the Government to transmit in its next report the texts of any laws or regulations on the registration of employers’ and workers’ organizations at the level of the federal Republic.

Republic of Serbia. The Committee notes from the Government’s report that freedom of association is guaranteed by article 44(1) of the Constitution of the Republic of Serbia without any requirement of previous authorization, subject to registration with the competent authority. The Committee also notes that sections 130 and 179 of the Labour Law provide that trade unions shall be registered with the Ministry of Labour and that the rules on the registration of trade union organizations in the register will apply in this framework. The Committee notes from the Government’s report that certain conditions are established in the rules for the registration of trade unions and their federations and that an application for registration must be accompanied by the trade union’s constitution and documents containing certain details on the person authorized to make the application. The Committee requests that the Government specify the details which, according to its report, are required for the registration of trade unions, and to transmit a copy of the rules on the registration of trade union organizations in the register so that the Committee can examine their conformity with the Convention. It also requests the Government to transmit information on the registration of employers’ organizations.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee notes that there is no information in the Government’s report on the right of employers’ and workers’ organizations to draw up their constitutions and rules and to elect their representatives freely. The Committee requests that the Government provide information on the manner in which employers’ and workers’ organizations are guaranteed the right to draw up their constitutions and rules without interference from the public authorities and the right to elect their representatives in full freedom, and to provide any relevant legal texts. In addition to this, the Committee requests that the Government specify whether foreigners have the right to become trade union officers at least after a reasonable period of residency.

  The right to strike

Republic of Serbia. The Committee observes that according to section 136 of the Labour Law, if the parties negotiating for a collective contract have not reached agreement within 30 days from the beginning of negotiations, they are obliged to go to arbitration for the settlement of their dispute. The Committee notes that although this section allows the parties to determine the effect of the arbitral award by mutual consent, it also requires that recourse be had to arbitration with the purpose of settling the dispute at the end of a relatively short period of negotiations. The Committee also notes that section 153 provides that disputes arising during the process of negotiating a collective contract or making amendments thereto shall be settled amicably and that no reference is made to strike action under the Law. The Committee recalls that the right to strike is one of the essential means available to workers’ organizations for the formation and protection of their economic and social interests (Articles 3 and 10 of the Convention). The Committee requests that the Government specify the manner in which trade unions are guaranteed the right to strike in the Republic of Serbia and, in particular, to clarify the relationship between the Strike Law of the Federal Republic of Yugoslavia and the Labour Law of the Republic of Serbia in this respect and to provide any other relevant legal texts. It also asks the Government to amend section 136 of the Labour Law so as to allow the parties the freedom to conduct negotiations as long as they so wish, and to decide whether to submit to binding arbitration.

Definition of the minimum service. The Committee notes that sections 9 and 10 of the Law on Strikes of the Federal Republic of Yugoslavia, 1996, provide that the minimum service shall be determined by the employer in a general act after having taken into account the opinion, complaints and suggestions of the trade union. The Committee considers that workers’ organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. The Committee trusts that it would be desirable in case of disagreement to have such disputes settled by a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of minimum service and empowered to issue enforceable decisions (see General Survey on freedom of association and collective bargaining, 1994, paragraph 161). The Committee requests that the Government provide information on the manner in which genuine participation of trade unions in the definition of the minimum service is ensured and to amend its legislation to ensure that in case of disagreement the matter will be determined by an independent body.

The Committee notes that paragraph 2 of section 14 of the Law on Strikes provides that participation in a strike will lead to a suspension of the rights of employees to wages and social security. The Committee notes that social security rights are independent of the exercise of the right to strike or the suspension of wages. The Committee is of the view that this provision could unduly penalize workers for their participation in a strike. The Committee requests the Government to repeal this provision.

Article 4. Dissolution and suspension of organizations
by administrative authority

Republic of Serbia. The Committee notes from the Government’s report that the deletion of a trade union from the register by administrative order may take place if a union submits false information for registration. The Committee considers that measures of dissolution or suspension of organizations by administrative authority involve a serious risk of interference by the authorities in the very existence of organizations and should be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee notes that the organization affected must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure. Moreover, the administrative decision should not take effect until a final decision is handed down (see General Survey, 1994, paragraph 185). The Committee requests the Government to provide information on the safeguards which accompany the dissolution of trade unions by administrative order and in particular, the possibility of having recourse to an independent and impartial judicial body.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee notes that the Government refers in its report to the possibility of registration of trade union federations. The Committee requests the Government to provide further information in its next report, including any legal texts, on the manner in which trade unions and employers’ organizations are guaranteed the right to establish federations and confederations of their own choosing and to affiliate with international organizations.

The Committee trusts that the Government will transmit in its next report the information requested on the above points including the measures taken to amend its legislation so as to bring it into full conformity with the Convention.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information contained in the Government’s first report. The Committee also takes note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2146 (327th Report, paragraphs 893-898 and 329th Report, paragraphs 152-155) and the comments communicated by the International Organisation of Employers (IOE) in this respect. The Committee asks the Government to submit its observations in this respect.

Article 2 of the Convention. Right of employers to establish organizations of their own choosing. The Committee notes from the conclusions of the Committee on Freedom of Association in Case No. 2146 that the federal Republic’s Law on the Yugoslav Chamber of Commerce and Industry is contrary to Article 2 of the Convention as it establishes compulsory membership in the chamber of commerce and vests it with the powers of employers’ organizations within the meaning of Article 10 of the Convention, such as the power to sign collective agreements. The Committee notes from the latest examination of this case by the Committee on Freedom of Association that no progress has yet been made in amending this Law.

The Committee requests that the Government take the necessary measures in the very near future to repeal all provisions of the Law on the Yugoslav Chamber of Commerce which give rise to compulsory membership or financing and to refrain from adopting any other legislative measure which would have a comparable effect. The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

The Committee is also addressing a request on certain other points directly to the Government.