Allegations: The complainant organization alleges violation of social dialogue by
the Federation of Bosnia and Herzegovina Government and marginalization of trade unions,
including the complainant, in the negotiation and adoption process of the new Labour
Act
- 85. The complaint is contained in a communication from the Confederation
of Independent Trade Unions of Bosnia and Herzegovina (SSSBIH) dated 18 August
2015.
- 86. The Government sent its observations in a communication dated 1
December 2015.
- 87. Bosnia and Herzegovina has ratified the Freedom of Association and
Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining
Convention, 1981 (No. 154).
A. The complainant’s allegations
A. The complainant’s allegations- 88. In its communication dated 18 August 2015, the complainant alleges
violation of social dialogue and marginalization of trade unions by the Federation of
Bosnia and Herzegovina (FBiH) Government in the negotiation and adoption process of the
new Labour Act, its intervention in collective bargaining, as well as decreased
protection of labour rights as a result of the adoption of the Labour Act. In
particular, the complainant indicates that: (i) the preparatory activities related to
the drafting of the new Labour Act intensively began in mid-April 2015, when
representatives of the Ministry of Labour and Social Policy (MLSP), trade unions and
employers defined the initial version of the Labour Act based on which further
negotiations were to be conducted and which was submitted to the negotiating parties for
comments and suggestions; (ii) the complainant submitted its recommendations to the
competent ministry within the agreed timeframe; (iii) on two occasions in June 2015, the
Government, in agreement with the International Monetary Fund and the World Bank,
unilaterally amended individual provisions of the draft Labour Act and delivered the new
wording in the form of a working document to the complainant; (iv) on 1 July 2015,
during a session of the Economic and Social Council for the territory of the FBiH (ESC)
it was clarified that the latest wording of the draft Labour Act as delivered to the
social partners by the competent ministry on 24 June 2015 would be the basis for further
negotiation; (v) it was agreed that the complete working document should be read at the
first hearing before the social partners discussed provisions on which there was no
agreement; (vi) the discussion on the working document began on 2 July 2015 while the
Government and representatives of employers exerted pressure on trade union
representatives to accept negotiating on a daily basis from 4 p.m. To 8 p.m. So that the
negotiations could be completed speedily; (vii) although trade union representatives
cautioned that the draft Labour Act was a very sensitive matter, the Government
responded that the law had to be negotiated “in whatever form” by the end of July 2015;
(viii) due to other obligations towards its members, the SSSBIH delegation to the ESC
could not and did not succumb to the pressure exerted, after which the Government and
the representatives of employers scheduled some sessions and Colleges of the ESC without
prior consultation with trade unions, in violation of the ESC Rules of Procedure and the
Agreement on the operation of the ESC (for instance, a College session was scheduled for
16 July 2015 and despite the ESC speaker having been notified in writing that the Chair
of the SSSBIH delegation would not be able to attend, the session was held without the
presence of trade union representatives, however, due to the lack of a quorum, the
College session was rescheduled); (ix) after inquiries made by the complainant at the
continuation of the ESC session on 15 July 2015, it was clarified that the Government
would adopt the document as the draft Labour Act, which suggests that it would be in the
form of a proposal and as such would be forwarded to the parliamentary procedure for
adoption; (x) on 21 July 2015, the directors of public institutions, companies and
institutions, which were, in majority, owned by the State submitted proposals and
suggestions to the draft Labour Act, which were not subject to any discussion at the
ESC; and (xi) the Government, at its session of 23 July 2015, changed some provisions
that had previously been agreed upon in the ESC and unanimously adopted the proposed
Labour Act without the consent of the ESC to its wording. The complainant thus alleges
that the Government breached Articles 7 and 8 of Convention No. 154 and that trade
unions were practically excluded from the social dialogue, even though a discussion
between the three social partners was held on 15 July 2015; however, by that date not
even the first reading of all legal provisions was completed.
- 89. The complainant states that as a result of the unacceptable manner in
which the Labour Act was adopted by the FBiH Government, on 30 July 2015 it organized
protests in front of the Parliament building which, according to the assessment of trade
unions, assembled around 12,000 workers. The complainant further specifies that with the
aim of preventing the adoption of the proposed Labour Act in the FBiH Parliament House
of Peoples, it invited representatives of political parties to sign the Joint
Declaration and condemn the Government decision to submit the Labour Act to
parliamentary procedure since it was not agreed upon by the ESC. The Joint Declaration
also expressed the need to draft a series of other relevant laws prior to the adoption
of the Labour Act, such as Act on Amendments to the Act on Strikes. According to the
complainant, the appeals of the gathered workers who asked for additional time to
harmonize the legal provisions were disregarded and the House of Peoples adopted the
proposed Labour Act in a tight majority and in violation of the Parliament Rules of
Procedure and the constitutional rights of the delegates (the proposed Labour Act was on
the agenda two days before the House of Peoples session, and since section 177(3) of the
House of Peoples Rules of Procedure provides that the amendments are to be submitted in
the period which cannot be shorter than three days from the scheduled House of Peoples
session, the House of Peoples delegates were prevented from submitting amendments to the
proposed Labour Act). The complainant further indicates that on the following day, in an
urgent procedure, the FBiH Parliament House of Representatives, in a tight majority,
adopted the proposed Labour Act, in violation of the House of Representatives Rules of
Procedure (according to section 192(2) the proponent has to clarify in writing the
reasons for adoption of an act in an urgent procedure, which was not done in this case,
and in line with section 191(2) urgent procedure can only be used if the adoption in
regular procedure could have detrimental consequences for the Federation). The
complainant also claims that at the session of the House of Representatives, the FBiH
Government rejected all 45 amendments to the proposed Labour Act just for the reason
that in case of the acceptance of any of them, the act would be adopted in two different
wordings in the House of Peoples and the House of Representatives and would have to be
harmonized, which would be an additional “waste” of time.
- 90. In addition, the complainant alleges that the Government intervened
in collective bargaining as the Prime Minister (Chair of the Government FBiH delegation
in the ESC) stated that the amendments of the representatives of two smaller political
parties in the House of Representatives would be incorporated in the collective
agreements in exchange for their support for the adoption of the Labour Act, by which a
simple majority was secured. According to the complainant, this intervention violates
Conventions Nos 87 and 98 and causes a prejudice towards the outcome of collective
bargaining, which has not even begun, and is a total disregarding and marginalization of
the role of trade unions in the process, given that the Government is not a party to the
General Collective Agreement.
- 91. Furthermore, the complainant insists that the new Labour Act reduces
certain rights and protection of workers and jeopardizes free collective bargaining. The
complainant provides a summary of 26 problematic issues in an annex to the complaint,
suggesting in relation to freedom of association that:
- – collective agreements
for an indefinite period of time cannot be concluded while fixed term collective
agreements may be concluded for a maximum period of three years (section
140);
- – employers decide on the representativeness of trade unions with the
employer (section 129(1));
- – public companies may not conclude collective
agreements (section 138);
- – applicable collective agreements have to be
harmonized with the Labour Act within 120 days from its coming into force otherwise
they cease to apply (section 182).
- For this reason the complainant addressed a letter to the ITUC
requesting assistance and explaining that the SSSBIH was excluded from negotiations of
the Act and that it became obvious that there would be no social dialogue in relation to
the Labour Act. The complainant indicates that the ITUC Secretary-General addressed a
communication to the Prime Minister of the FBiH in which she expressed her deep concerns
over the marginalization of trade unions in the process of negotiation, and called on
the Government to bring the policy and legislative process back to a responsible and
efficient social dialogue on the basis of full respect for all social partners.
B. The Government’s reply
B. The Government’s reply- 92. In a communication dated 1 December 2015, the Government of Bosnia
and Herzegovina provides the response from the FBiH Government which contests the
statements made by the complainant on neglecting it as a social partner and denies any
violation of Convention No. 154 in the elaboration process of the new Labour Act. It
claims that the workers’ representatives were involved in all stages preceding the
drafting of specific versions of the Labour Act in the period until its final adoption,
both through their participation in working groups and in the work of the ESC, which
constitutes an institutionalized form of social dialogue. The Government also indicates
that it did not interfere in the social dialogue between the social partners but
encouraged their cooperation in order to reach agreement through consultations based on
mutual respect and affirms that it will continue to promote and give full support to the
freedom of association of workers and employers and to conducting social dialogue.
- 93. With regard to the elaboration and adoption process of the Labour
Act, the Government indicates that: (i) the drafting process of the new Labour Act
started in 2008–09, and in November 2012, after a broad and comprehensive public debate
which lasted 60 days, the Government prepared the Labour Act proposal and communicated
it to the ESC for reconsideration and to allow the social partners to agree on certain
controversial points; (ii) a meeting of delegations of the Government, the Association
of Employers and the SSSBIH was held, during which the complainant demanded to first
address the text of section 182 of the proposed Act, which the complainant considered
unacceptable, and which regulates the harmonization of collective agreements with the
provisions of the new Labour Act and the cessation of their application if it is not
done within the time limits established by the Act; (iii) consultations were held with
the Prime Minister of the FBiH with the aim of finding a compromise solution for draft
section 182 and a new text was proposed to the social partners who requested to hold
additional consultations on the proposed text within their bodies but failed to provide
any opinion on it despite written requests from the MLSP; (iv) all further negotiations
and work on drafting a final text of the Labour Act were interrupted and the proposed
Act was not submitted to Parliament; (v) although workers’ representatives were involved
in all stages of the negotiating and drafting process they made public statements
alleging that the new Act would reduce workers’ rights, thus creating an atmosphere of
distrust and disregard; (vi) in April 2015, the newly appointed Government relaunched
negotiations with the social partners on the previously established draft Labour Act,
which was considered as a key step on the path to reforms; (vii) an active social
dialogue was agreed upon between the representatives of the social partners and the ESC
met four times in July 2015 when sections of the new Labour Act were individually
analysed; (viii) at a meeting on 15 July 2015, the trade unions’ delegation questioned
the form of the proposed legal solution, even though the document was submitted to it
several times with clear indications that the Act was in the form of a draft; (ix) in
addition to the public debate conducted in 2012 with the participation of
representatives of trade unions, employers, chambers of commerce, banks, public
institutions, non-government organizations (NGOs) and inspection authorities, the
examination of the text at the sessions of the ESC is considered as a form of public
debate; and (x) during the sessions of the ESC, the complainant repeatedly stated that
it did not provide support for adopting the new Labour Act, it led a media campaign to
misinform the public on matters relating to the basic principles of the Labour Act in
order to prevent its adoption, and continued to oppose section 182 of the new Act.
- 94. The Government further explains that since 2012, the social partners
were given enough time, methods and mechanisms for harmonization of contentious
provisions and the draft Labour Act was thus put on its agenda in July 2015 in order to
establish its final version and submit it to Parliament. The Government points out that
while preparing the Act, the relevant ministry as a drafting authority and the
Government as the Act proposer had to take account of the objectivity of the requests
made by trade unions, employers and other stakeholders of the public and private
sectors, horizontal alignment with other regulations, the law system in force,
commitments in international instruments as well as the obligations arising from
European Union legislation. All proposed initiatives were considered and the drafting
authority ultimately decided what was acceptable and what would be incorporated into the
text. Denying the allegation that it wanted to negotiate the Act by the end of July 2015
whatever the outcome, the Government suggests that the need to implement labour market
reforms in line with the Reform Agenda 2015–2018 and the Work Programme of the
Government 2015–18, impelled it to submit the new Labour Act to Parliament. The
Government also contests the allegation that it did not address the demands of workers
for additional time for harmonization, as after the establishment of the Labour Act
proposal on 23 July 2015, another meeting was held with workers’ representatives during
which the complainant was offered an additional seven days for negotiations and
agreement but this offer was not accepted by the workers’ representatives. Concerning
the allegation relating to the irregularities in the adoption process of the Labour Act,
the Government states that the Act was considered and adopted in both Parliament Houses
on 30 and 31 July 2015 and that the allegations are irrelevant as the process of
adopting laws cannot be the subject of discussion before the Committee.
- 95. With regard to the allegation of interference in collective
bargaining by promising to members of two small political parties in FBiH Parliament to
include their proposals in collective agreements in exchange for their support for the
draft, the Government claims that this allegation is ungrounded since the conclusion of
collective agreements is exclusively subject to bipartite social dialogue between
workers’ and employers’ representatives and the role of the Government is restricted to
the provision of the necessary legal framework for the negotiating process and
improvement of voluntary collective bargaining.
- 96. Concerning the allegation that the provisions of the new Labour Act
reduce the rights of workers, the Government states that these allegations are unfounded
and inaccurate and provides a list of 18 areas in which the Labour Act improves the
position of workers, including in relation to freedom of association and collective
bargaining:
- – The requirement to obtain the consent of the competent Ministry
of Labour for the protection of a trade union representative is applicable not only
against dismissal but also against unfavourable transfers.
- – The Act
regulates the representativeness of workers’ and employers’ organizations, the
criteria and procedure to determine representativeness.
- – The Act defines
collective bargaining participants, the procedure for concluding collective
agreements, form, duration and content of collective agreements.
- The Government further clarifies that while under the previous Labour
Act collective agreements were generally concluded for indefinite duration without
conditions prescribed for their termination and amendment (termination of a collective
agreement without the consent of the social partners was thus prevented), under the new
Act, collective agreements would be concluded for a definite duration and would be
harmonized with the provisions of the Act. The Government emphasizes that the amendment
of section 182 was required by broader economic interests, budget burdened due to the
multi-million lawsuits of workers, as well as numerous requests and initiatives
expressed both during the public debate and addressed to the relevant Ministry
individually. According to the Government, the complainant’s refusal to accept the need
for concluding collective agreements for a definite duration and their harmonization
with the Labour Act showed that the complainant was refusing any negotiations and sought
to maintain the existing situation, which was classified as unsustainable according to
the Government’s assessment.
C. The Committee’s conclusions
C. The Committee’s conclusions- 97. The Committee notes that this case concerns allegations of violation
of social dialogue and marginalization of trade unions by the FBiH Government in the
negotiation and adoption process of the new Labour Act, Government intervention in
collective bargaining, as well as decreased protection of labour rights as a result of
the adoption of the new Labour Act.
- 98. In relation to the allegation of violation of social dialogue and
marginalization of trade unions, the Committee notes the following relevant information
as provided by the complainant: (i) the preparatory activities relating to the drafting
of the new Labour Act intensively began in April 2015 when representatives of the MLSP,
trade unions and employers defined the initial version of the Labour Act based on which
further negotiation was to take place and on which the complainant submitted comments
and recommendations to the competent ministry; (ii) on two occasions in June 2015, the
FBiH Government, in agreement with the International Monetary Fund and the World Bank,
unilaterally modified individual provisions of the draft Labour Act and delivered the
new wording in a form of a working document to the complainant; (iii) the discussion on
the working document began on 2 July 2015 while the Government and the representatives
of employers exerted pressure on trade union representatives to accept negotiating on a
daily basis from 4 p.m. to 8 p.m. so that the negotiations could be completed speedily
and even though the trade unions cautioned that the Labour Act was a very sensitive
matter, the Government responded that the law had to be negotiated “in whatever form” by
the end of July 2015; (iv) the complainant did not succumb to the pressure exerted,
after which the Government and the representatives of employers scheduled some sessions
and Colleges of the ESC without prior consultation with trade unions, in violation of
the ESC Rules of Procedure and the Agreement on the Operation of ESC; (v) following the
complainant’s enquiries at the continuation of the ESC session on 15 July 2015, it was
clarified that the Government would adopt the document as the draft Labour Act, which
suggests that it would be in the form of a proposal and as such would be forwarded to
the parliamentary procedure for adoption; (vi) proposals and suggestions submitted by
public institutions, companies and institutions, which were in majority owned by the
State were not discussed in the ESC; (vii) at its session of 23 July 2015, the
Government changed some provisions of the text that had previously been agreed upon in
the ESC and unanimously adopted the proposed Labour Act without the consent of the ESC
to its wording; and (viii) the trade unions were thus practically excluded from the
social dialogue, even though a discussion between the three social partners was held on
15 July 2015, however, by that date not even the first reading of all legal provisions
was completed.
- 99. The Committee further notes that the complainant indicates that as a
result of the unacceptable manner in which the Labour Act was adopted by the FBiH
Government, it organized protests in front of the FBiH Parliament building, which
assembled around 12,000 workers. The Committee notes the complainant’s statement that in
order to prevent the adoption of the proposed Labour Act in the House of Peoples, it
invited political parties to sign the Joint Declaration and condemn the Government
decision to submit the Labour Act to the parliamentary procedure since it was not agreed
upon in the ESC. The Committee also observes the complainant’s claim that despite the
appeal of the gathered workers for additional time to harmonize legal provisions, both
the House of Peoples and the House of Representatives adopted the proposed Labour Act in
a tight majority and in violation of the House of Peoples and the House of
Representatives Rules of Procedure. The Committee further notes that the complainant
alleges that at the session of the House of Representatives, the Government rejected all
45 amendments to the proposed Labour Act in order to avoid that the Act would be adopted
in two different wordings in the House of Peoples and the House of Representatives and
would have to be harmonized, which would be an additional “waste” of time.
- 100. The Committee notes that the Government contests the allegations of
violation of social dialogue and claims that the workers’ representatives were involved
in all stages preceding the drafting of specific versions of the Labour Act in the
period until its final adoption, both through their participation in working groups and
in the work of the ESC. The Committee notes the Government’s indication that: (i) the
drafting process of the new Labour Act started in 2008-09, and in 2012, following a
comprehensive public debate, the Labour Act Proposal was communicated to the ESC for
reconsideration and to allow the social partners to agree on certain controversial
points; (ii) the complainant demanded to first address the text of section 182 which it
considered unacceptable and which regulates the harmonization of collective agreements
with the provisions of the new Labour Act and the cessation of their application if it
is not done within the time limits established by the Act; (iii) after consultations
with the Prime Minister, a new text of section 182 was proposed to the social partners
who requested to hold additional consultations on the wording within their bodies but
failed to provide any opinion on the proposal despite written requests from the MLSP and
as a result, all negotiations and work on drafting a final text of the Labour Act were
interrupted and the proposed Act was not submitted to Parliament; (iv) in April 2015,
the newly appointed FBiH Government relaunched negotiations with the social partners on
the previously established draft Labour Act and an active social dialogue was agreed
upon; (v) the ESC met four times in July 2015 when sections of the new Labour Act were
analysed; (vi) at a meeting on 15 July 2015, the trade unions delegation questioned the
form of the proposed legal solution even though the draft Labour Act was submitted to it
several times with clear indications that the Act was submitted as a draft; (vii) in
addition to the public debate conducted in 2012 with the participation of
representatives of trade unions, employers, chambers of commerce, banks, public
institutions, NGOs and inspection authorities, the examination of the text at the
sessions of the ESC is considered as a form of public debate; and (viii) during the
sessions of the ESC, the complainant repeatedly stated that it did not support the
adoption of the new Labour Act and led a media campaign to misinform the public on
matters relating to the basic principles of the Labour Act in order to prevent its
adoption. According to the Government, the complainant continued to oppose section 182
of the new Act, thus refusing to negotiate.
- 101. The Committee further notes the Government’s opinion that since
2012, the social partners were given enough time, methods and mechanisms for
harmonization of contentious provisions and that the draft Labour Act was thus put on
its agenda in July 2015 in order to establish its final version and submit it to the
FBiH Parliament, taking into account the objectivity of the requests made by trade
unions, employers and other stakeholders of the public and private sectors, as well as
other national regulations, laws and international commitments. The Committee notes
that, denying the allegation that it wanted to negotiate the Act by the end of July 2015
whatever the outcome, the Government suggests that the need to implement labour market
reforms in line with the Reform Agenda 2015–18 and the Work Programme of the Government
2015–18, impelled it to submit the new Labour Act to the FBiH Parliament. The Committee
observes that the Government also contests the allegation that it did not address the
demands of workers for additional time for harmonization, as after the establishment of
the Labour Act Proposal on 23 July 2015, another meeting was held with workers’
representatives during which the complainant was offered an additional seven days for
negotiations and agreement but this offer was not accepted by the workers’
representatives. Concerning the allegation relating to the irregularities in the
adoption process of the Labour Act, the Committee notes that the Government states that
the Act was considered and adopted in both Parliament Houses on 30 and 31 July 2015 and
that the allegations are irrelevant as the process of adopting laws cannot be the
subject of discussion before the Committee.
- 102. With respect to the allegation of violation of social dialogue and
marginalization of trade unions, the Committee welcomes the detailed information
provided by both the complainant and the Government on the negotiation, drafting and
adoption process of the new Labour Act. In this regard, the Committee notes that the
initial debate on the draft Labour Act began in 2008-09 and that in 2012 a public debate
was conducted with the participation of representatives of trade unions, employers,
chambers of commerce, banks, public institutions, NGOs and inspection authorities. The
Committee further notes that the debate was interrupted in 2012 due to the need to
further harmonize contested provisions, after which more intensive negotiations between
the social partners within the ESC resumed in July 2015 during which the social
partners, including the complainant, were consulted and offered an opportunity to
discuss and harmonize the text of the draft Labour Act on several occasions. Despite the
opposition of the complainant, the Labour Act was adopted by both Parliament Houses at
the end of July 2015. The Committee observes that there is a disagreement between the
complainant and the Government on the level of inclusion of trade union representatives
in the social dialogue preceding the adoption of the Labour Act. While the complainant
argues that trade unions were marginalized and practically excluded from the social
dialogue due to the pressure exerted upon them by the Government and representatives of
employers and the Government’s unilateral modifications to the wording of the draft
Labour Act which had been previously agreed upon in the ESC, the Government claims that
workers’ representatives were involved in all stages of the negotiation and drafting
process until the final adoption of the Labour Act, both through their participation in
working groups and in the work of the ESC and were given enough time, methods and
mechanisms for harmonization of contentious provisions.
- 103. The Committee also notes that the complainant insists on the hasty
nature of the negotiations but that the Government explains that the need to implement
labour market reforms in line with the national work and reform programme impelled it to
submit the new Labour Act to Parliament. While noting with interest the indications that
public debate and social dialogue were established in relation to the draft Labour Act
and that trade unions, including the complainant were given the opportunity to harmonize
the legal provisions, the Committee notes with concern the specific allegations made by
the complainant according to which the Government unilaterally modified the text of the
draft Labour Act, exerted pressure on the representatives of trade unions to negotiate
on a daily basis from 4 p.m. to 8 p.m. in order to speed up the negotiations, scheduled
some Colleges and sessions of the ESC without prior consultation of representatives of
trade unions, modified individual provisions of the draft Labour Act which had been
previously agreed upon by the social partners and submitted the draft Labour Act for
adoption in a wording that had not been approved by the ESC.
- 104. The Committee has considered it useful to refer to the Consultation
(Industrial and National Levels) Recommendation, 1960 (No. 113), Paragraph 1 of which
provides that measures should be taken to promote effective consultation and cooperation
between public authorities and employers’ and workers’ organizations without
discrimination of any kind against these organizations. In accordance with Paragraph 5
of the Recommendation, such consultation should aim at ensuring that the public
authorities seek the views, advice and assistance of these organizations, particularly
in the preparation and implementation of laws and regulations affecting their interests
[see Digest of decisions and principles of the Freedom of Association Committee, fifth
(revised) edition, 2006, para. 1068]. Tripartite consultation should take place before
the Government submits a draft to the Legislative Assembly or establishes a labour,
social or economic policy [see Digest, op. cit., para. 1070]. It is important that
consultations take place in good faith, confidence and mutual respect, and that the
parties have sufficient time to express their views and discuss them in full with a view
to reaching a suitable compromise. The Government must also ensure that it attaches the
necessary importance to agreements reached between workers’ and employers’ organizations
[see Digest, op. cit., para. 1071]. The Committee does not consider that the adoption
process of the new Labour Act was in violation of the principles of freedom of
association. Nevertheless, the Committee encourages the Government to promote the
continuation of tripartite social dialogue in the FBiH to assure the follow-up of the
implementation of the legislative provisions mentioned.
- 105. Concerning collective bargaining, the Committee notes the
complainant’s allegations that the FBiH Government intervened in collective bargaining
by stating that the amendments of the representatives of two smaller political parties
in the House of Representatives would be incorporated in the collective agreements in
exchange for their support for the adoption of the draft Labour Act, by which a simple
majority was secured. The Committee observes that, according to the complainant, such
intervention causes a prejudice towards the outcome of collective bargaining, which had
not even begun, and totally disregarded and marginalized the role of trade unions in the
process, given that the Government is not a party to the General Collective Agreement.
The Committee also notes, however, the Government’s assertion that this allegation is
ungrounded since the conclusion of collective agreements is exclusively subject to
bipartite social dialogue between workers’ and employers’ representatives and the role
of the Government is restricted to the provision of the necessary legal framework for
the negotiating process and improvement of voluntary collective bargaining. Given the
contradictory nature of the complainant’s allegations and the Government’s reply, the
Committee simply recalls the principle that state bodies should refrain from intervening
in free collective bargaining between workers’ and employers’ organizations.
- 106. Concerning the level of protection of labour rights, the Committee
notes that the complainant provides a summary of 26 problematic issues and argues that
the Labour Act diminishes certain rights and protection of workers and jeopardizes free
collective bargaining. The Committee notes in particular that the complainant states
that collective agreements for an indefinite period of time cannot be concluded while
fixed-term collective agreements may be concluded for a maximum period of three years
(section 140) and that applicable collective agreements have to be harmonized with the
Labour Act within 120 days from its coming into force otherwise they cease to apply
(section 182). The complainant suggests that this annuls the effects of prior collective
agreements, because if workers do not want to stay without collective agreements, trade
unions will have to accept all changes in the Act based on “take it or leave it” basis.
The Committee also notes the allegations of the complainant stating that the new Act
does not allow for collective agreements to be concluded in public companies (section
138) and that the determination of representativeness of a trade union at the company
level by the employer is illogical and can serve as a method of abuse (section
129(1)).
- 107. The Committee observes that the Government indicates that the Labour
Act improves the position of workers in 18 areas, in particular that it defines
collective bargaining participants, the procedure for concluding collective agreements,
form, duration and content of collective agreements as well as regulates the
representativeness of workers’ and employers’ organizations, the criteria and the
procedure to determine representativeness. In relation to the disputed section 182, the
Committee observes the Government’s explanation: while under the previous Labour Act,
collective agreements were generally concluded for indefinite duration without
conditions prescribed for their termination and amendment (termination of a collective
agreement without the consent of the social partners was thus prevented), under the new
Act, collective agreements are concluded for a definite duration and need to be
harmonized with the provisions of the Act. The Committee also observes the Government’s
reasoning that the amendment of section 182 was required by broader economic interests,
budget burdened due to the multi-million lawsuits of workers, as well as numerous
requests and initiatives expressed both during the public debate and addressed to the
relevant Ministry individually.
- 108. In this regard, the Committee notes differences of opinion between
the complainant who argues that the Labour Act diminishes certain rights and protection
of workers and jeopardizes free collective bargaining and the Government, who asserts
that these allegations are unfounded and inaccurate as the Labour Act contains a number
of provisions that improve the position of workers in comparison to the previous Act.
The Committee takes note of the list of issues considered as problematic by the
complainant as well as the areas in which, according to the Government, the Labour Act
strengthens the rights of workers.
- 109. In light of the above, the Committee does not consider that the
provision subjecting existing collective agreements to harmonization with the new
legislation (section 182) is contrary to the principles of freedom of association and
collective bargaining.
- 110. As regards section 140, while recalling the general principle
according to which the duration of collective agreements is primarily a matter for the
parties involved, but if government action is being considered any legislation should
reflect tripartite agreement [see Digest, op. cit., para. 1047], the Committee
nevertheless understands the need to have clear rules relating to the validity of
collective agreements and considering that the Act provides that collective agreements
may be extended by the parties, does not consider this provision to be in violation of
the freedom of association principles.
- 111. Regarding the representativeness of trade unions at the company
level, the Committee observes that the Act provides pre-established, objective and
precise criteria and that section 129(1) provides that representativeness is determined
by the employer. In this regard, the Committee wishes to underline that the
determination to ascertain or verify the representative character of trade unions can
best be ensured when strong guarantees of secrecy and impartiality are offered. Thus,
verification of the representative character of a union should be a priori carried out
by an independent and impartial body [see Digest, op. cit., para. 351]. In light of
these considerations and the concerns raised by the complainant, the Committee notes
that the determination of representativeness by the employer, although subject to an
appeal with the federation or a canton ministry in charge of labour, could give rise to
trade union discrimination, especially if it is compulsory to provide the employer with
a list of trade union members. The Committee, therefore, invites the Government to
encourage the initiation of consultations with the social partners, within the framework
of the ESC for the territory of the FBiH, with a view to establishing an independent and
impartial mechanism for determining the representativeness of trade unions at the
company level.
- 112. With regard to the right to conclude collective agreements in public
companies, the Committee observes that the text of section 138 does not provide that
collective agreements may not be concluded in public companies, and therefore trusts
that workers in public companies will be able to bargain collectively. The Committee
recalls that the complainant may provide further detailed information on any remaining
aspects relating to the application of Conventions Nos 87 and 98 to the Committee of
Experts on the Application of Conventions and Recommendations.
The Committee’s recommendations
The Committee’s recommendations- 113. In light of its foregoing conclusions, the Committee invites the
Governing Body to approve the following recommendations:
- (a) The Committee has
not observed a violation of the principles of freedom of association in relation to
the adoption process of the new Labour Act. Nevertheless, the Committee encourages
the Government to promote the continuation of tripartite social dialogue in the FBiH
to assure the follow-up of the implementation of the legislative provisions
mentioned.
- (b) The Committee invites the Government to encourage the
initiation of consultations with the social partners, within the framework of the
Economic and Social Council for the territory of the FBiH, with a view to
establishing an independent and impartial mechanism for determining the
representativeness of trade unions at the company level.
- (c) The Committee
recalls that the complainant may provide further detailed information on any
remaining aspects relating to the application of Conventions Nos 87 and 98 to the
Committee of Experts on the Application of Conventions and
Recommendations.