Solicitud directa (CEACR) - Adopción: 2020, Publicación: 109ª reunión CIT (2021)

Convenio sobre la libertad sindical y la protección del derecho de sindicación, 1948 (núm. 87) - Bosnia y Herzegovina (Ratificación : 1993)

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Observación

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Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). In its previous comment, the Committee requested the Government to provide information on the outcome of the proceedings relating to a request for judicial review against the decision of the Court of Bosnia and Herzegovina for violation of the Act on Associations and Foundations of Bosnia and Herzegovina, 2001 linked to the previously examined issue of registration of the SSSBiH. The Committee notes that while the Government reiterates information provided previously on the successful registration of the SSSBiH in 2012, indicating that the Ministry of Justice had fully executed the judgement of the Court of Bosnia and Herzegovina, it does not elaborate on the outcome of the previously mentioned proceedings relating to a request for judicial review against the decision of the Court of Bosnia and Herzegovina for violation of the Act on Associations and Foundations. The Committee therefore requests the Government once again to indicate whether any judicial proceedings are pending in relation to the registration of the SSSBiH and the decision of the Court of Bosnia and Herzegovina and if so, to provide information on the outcome thereof.

Legislative reform. The Committee notes the 2018 amendments of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and of the Labour Act of the Republika Srpska, 2016 (RS Labour Act), and observes the Government’s indication that the changes do not affect sections relevant to the application of the Convention. The Committee also notes the 2020 amendments to the Act on Strikes in the Republika Srpska (RS Act on Strikes) and the adoption of the Labour Act of the Brčko District, 2019 (BD Labour Act).

Relationship with workers’ and employee councils. Federation of Bosnia and Herzegovina. In its previous comments, having noted that section 119 of the FBiH Labour Act seemed to place trade unions in a subsidiary position vis-à-vis work councils, the Committee requested the Government to take the necessary measures, including any legislative amendments, to prevent any risk of weakening the institutional position of trade unions. The Committee welcomes the Government’s clarification that section 119 should not be interpreted in a manner that would make trade unions dependent on work councils since this was not the objective of the provision. In comparison to work councils, trade unions have broader authority and the provision aims to assure that, apart from its existing obligations and competencies, the union would also assume additional competencies of work councils, should these not be formed in an establishment. The Committee takes due note of this information.

Relationship with workers’ and employee councils. Republika Srpska and the Brčko District. In its previous comment, the Committee requested the Government to clarify the relationship between a trade union and a workers’ council under the RS Labour Act and to take the necessary measures, including amendments of sections 83 and 93 of the BD Labour Act, to ensure that the existence of workers’ councils does not undermine trade unions and their activities. The Committee welcomes the Government’s clarification that the legislation in Republika Srpska clearly and unambiguously distinguishes between trade unions and workers’ councils in that workers’ councils are subordinate to trade unions – only a trade union is allowed to enter into collective agreements and if there is an obligation prescribed to consult workers, workers’ councils will only be consulted if no trade union has been organized at the employer (section 16(8) of the RS Labour Act). With regard to the Brčko District, the Committee notes the Government’s indication that section 134 of the new BD Labour Act regulates the right of employees of a company with at least 15 employees to form workers’ councils that will represent them before the employer with regard to protection of their rights and interests. It observes, however, that no additional information was provided to clarify the relationship between trade unions and workers’ councils. The Committee therefore requests the Government once again to clarify the relationship between workers’ councils and trade unions as a matter of law and practice, in section 134 of the BD Labour Act and should trade unions be in a subsidiary position vis-à-vis workers’ councils, to take the necessary measures, including amendments of the above provision, to ensure that the existence of workers’ councils does not undermine trade unions and their activities.

Act on Associations and Foundations. Failure to register. Brčko District. In its previous comment, the Committee requested the Government to indicate whether sections 25(1) (voluntary registration) and 45(1)(a) (penalization of the failure to register) of the Act on Associations and Foundations in Brčko District (the BD Act on Associations and Foundations) were applicable to workers’ and employers’ organizations and if so, to amend these provisions to ensure that the exercise of legitimate trade union and employer organization activities is not dependent upon registration. In its supplementary report, the Government indicates in general terms that the BD Act on Associations and Foundations regulates material requirements which associations and trade unions have to meet in order to be registered and obtain legal personality. The Committee understands from the above that sections 25(1) and 45(1)(a) of the BD Act on Associations and Foundations would be applicable to workers’ and employers’ organizations and therefore requests the Government to amend these provisions to ensure that the exercise of legitimate trade union and employer organization activities is not dependent upon registration, and failure to register is not subject to sanctions.

Act on Associations and Foundations. Suspension of activities and dissolution of trade unions. In its previous comment, the Committee requested the Government to indicate whether sections 43 and 44 of the Act on Associations and Foundations in the Federation of Bosnia and Herzegovina (the FBiH Act on Associations and Foundations), sections 40 and 41 of the Act on Associations and Foundations in the Republika Srpska (the RS Act on Associations and Foundations) and sections 26 and 37 of the BD Act on Associations and Foundations were applicable to workers’ and employers’ organizations, and if so, to take the necessary measures to amend these provisions to ensure that trade unions and employers’ organizations can be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure.

The Committee welcomes the Government’s indication with regard to Republika Srpska, that the RS Labour Act, which prohibits the temporary or permanent suspension of lawful activities of trade unions and employers’ organizations (section 212(1)), is lex specialis in relation to provisions of the RS Act on Associations and Foundations, the provisions of which would thus not apply to trade unions.

Concerning the Federation of Bosnia and Herzegovina, the Committee welcomes the Government’s supplementary indication that section 17 of the FBiH Labour Act, which prohibits the temporary or permanent suspension of lawful trade union activities, may be interpreted as lex specialis with regard to the FBiH Act on Associations and Foundations, as it regulates exclusively the activities of trade unions and employers’ associations.

In relation to the Brčko District, the Committee observes, on the one hand, the Government’s general indication that the BD Act on Associations and Foundations regulates material requirements which associations and trade unions have to meet in order to be registered. The Committee recalls in this regard that section 37, read in conjunction with section 45, provides for the possibility of suspension of trade union activity for reasons that do not appear to justify the severity of such sanctions, including for repeated failure to: use the registered name of the association in legal transactions, use profits in a way prescribed by the laws and the statute and notify the relevant authority about a change of data to be entered into the registry. On the other hand, the Committee notes the Government’s statement that by virtue of section 14 of the BD Labour Act, legal activities of trade unions and employers’ associations may not be permanently or temporary prohibited. In light of the foregoing, the Committee requests the Government: (i) to clarify whether workers’ and employers’ organizations in the Brčko District can be suspended or dissolved under section 37 of the BD Act on Associations and Foundations, or whether provisions of the Labour Act effectively preclude such suspension or dissolution, and (ii) if necessary, to take the pertinent measures to amend the relevant provisions, in consultation with the social partners, in order to ensure that trade unions and employers’ organizations can be suspended or dissolved only in cases of serious breaches of the Act and following a normal judicial procedure.

Article 3. Right of employers’ and workers’ organizations to elect their representatives in full freedom and to organize their administration and activities. Act on Strikes. Institutions of Bosnia and Herzegovina. In its previous comment, having noted the adoption of the Act on Strikes in the Institutions of Bosnia and Herzegovina, the Committee requested the Government to provide information on the exact scope of its application and the nature of the public servants concerned. The Committee notes the Government’s indication that: (i) section 45 of the Act on Civil Service in the Institutions of Bosnia and Herzegovina stipulates that the Labour Act in the Institutions of Bosnia and Herzegovina and other laws regulating employee rights and obligations are applicable to civil servants unless otherwise provided; (ii) pursuant to section 2 of the Act on Strikes, employees are private persons employed in the institutions of Bosnia and Herzegovina; and (iii) the provisions of the Act on Strikes therefore apply to all employees in the institutions of Bosnia and Herzegovina, including civil servants. Taking due note of the above, the Committee requests the Government to provide information on the application in practice of the Act on Strikes in the Institutions of Bosnia and Herzegovina, in particular on the number of strikes undertaken and the categories of public servants concerned.

Determination of minimum services. Institutions of Bosnia and Herzegovina. In its previous comment, the Committee also requested the Government to provide information on the application of sections 15 and 26 of the Act on Strikes in the Institutions of Bosnia and Herzegovina in practice, in particular, on the manner in which trade unions can participate in the determination of the minimum services and on the manner of resolution of any disputes. The Committee notes the Government’s indication that section 15 prescribes that the Council of Ministers of Bosnia and Herzegovina issues a decision concerning the minimum service on the basis of a proposal submitted by the employer to which the trade union gave its consent. Therefore, according to the Government, trade unions participate in defining the minimum service with the employer and the decision on establishing the minimum work process is then published and made available to everyone. While taking due note of the above information, the Committee observes that the Government did not indicate what are the applicable mechanisms for the resolution of disputes arising among the parties during the determination of minimum services under the Act on Strikes in the Institutions of Bosnia and Herzegovina. Recalling that any disagreement among the parties on the scope of the minimum service should be resolved by a joint or independent body, the Committee requests the Government once again to provide information in this respect.

Trade union representatives. Republika Srpska. The Committee had previously noted that as a result of the 2012 amendment of the Regulations on registration, the word “permanent” had been deleted from its section 4(3) but observed that the text of the provision had not been otherwise altered – the application for registration must include a certificate indicating that the person authorized to act on behalf of the trade union is employed by that employer. The Committee noted the adoption of the 2016 RS Labour Act and the Rulebook on registration and requested the Government to clarify whether the 2012 Regulations on registration continued to be in force. The Committee notes the Government’s indication that section 6 of the Rulebook on registration provides that the application for registration must be accompanied by a certificate issued by the employer confirming that the person authorized to represent the union is employed with the employer, or, if the employer refuses to provide such a certificate, the person can provide the employment contract or a statement to prove that he or she is employed with the employer. The Government clarifies that: (i) this requirement is only applicable at the lowest level of organization, that is, at the level of the employer and not at the level of branches, industry or Republika Srpska, in which cases, the unions are generally managed by professionals; (ii) allowing a third party to represent the union at the level of the enterprise may be counterproductive since it requires daily contact with the employer; (iii) trade unions can hire lawyers or other professionals to represent the union before all competent bodies and courts; and (iv) section 215(7) of the RS Labour Act allows external trade union representatives to have access to trade unions with prior announcement to the employer. The Committee observes from this information that the requirements under section 6 of the 2016 Rulebook on registration are essentially the same as those previously examined by the Committee in section 4(3) of the 2012 Regulations on registration, in that the application for registration at the level of the enterprise must, in the form of a certificate, employment contract or personal statement, confirm that the person authorized to act on behalf of the trade union is employed by that employer. While noting the Government’s detailed explanation on the rationale behind this rule and on the participation of workers’ representatives in its elaboration, the Committee recalls that such a requirement could prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office. The Committee therefore encourages the Government to revise the applicable rules so as to remove this requirement and allow trade unions to freely determine the eligibility of trade union representatives.

Right to strike in the civil service. Federation of Bosnia and Herzegovina. In its previous comments, the Committee noted the adoption of the Act on Civil Service in the Federation of Bosnia and Herzegovina, 2003 which allows civil servants to go on strike in accordance with law, but does not govern issues of organizing and leading strikes, and observed the Government’s indication that separate laws governing the issue of strikes in administration bodies and services would be adopted. The Committee has therefore been requesting the Government to provide information on the regulation of the right to strike (in collective agreement or legislation) in the civil service in the Federation of Bosnia and Herzegovina. The Government indicates that a special law regulating the issue of strikes in the civil service has not yet been adopted but that the matter of strike and the conditions of work in trade unions of officers in the administrative and judicial authorities are regulated by the 2020 collective agreement in force. Taking due note of this information, the Committee requests the Government to continue to provide information on any legislative provisions adopted in this respect.

Act on Strikes. Republika Srpska. Determination of minimum services. In its previous comment, having noted that under the RS Act on Strikes the determination of minimum services continued to be a prerogative of the employer, the Committee requested the Government once again to take the necessary measures to amend section 12, so as to allow trade unions along with the employers and the public authorities, to participate in defining the minimum services and, in case of disagreement among the parties, to provide for a joint or independent body to define the minimum services. The Committee requested the Government to provide information on the instances in which the determination of the minimum services was the subject of collective bargaining. The Committee welcomed the Government’s indication that the draft Act on Amendments to the RS Act on Strikes was being developed, in consultation with the social partners, that the Committee’s proposals would be reviewed and that the Government would define the optimum legal solution in cooperation with the social partners. The Committee notes, however, from the supplementary information provided by the Government, that the July 2020 Act on Amendments to the RS Act on Strikes did not amend section 12 and understands that the determination of minimum services thus continues to be a prerogative of the employer. The Committee therefore requests the Government once again to take the necessary measures to amend section 12 of the RS Act on Strikes, so as to allow trade unions, along with the employers and the public authorities, to participate in defining minimum services and, in case of disagreement among the parties, to provide for a joint or independent body to determine them. The Committee requests the Government to provide information on any progress made in this regard, as well as on the instances in which the determination of the minimum services was the subject of collective bargaining.

Strike vote. The Committee further requested the Government to provide information on the application in practice of section 4(1) and (2) of the RS Act on Strikes, which sets the requirements for taking a decision to begin a strike action or a warning strike (the decision must be taken by the authorized body of the relevant majority representative trade union or by more than 50 per cent of the workers of that employer or by another trade union which has the support of more than 50 per cent of the workers of the employer). The Government indicated that the term “majority” refers to 50 per cent plus 1 employee, whereby workers freely decide on whether they participate or not in a strike irrespective of their vote. In its supplementary report, the Government further informs that during the July 2020 amendments to the RS Act on Strikes, technical changes were introduced to section 4(1) to harmonize it with the terminology used in the Labour Act, which does not use the term “majority representative”, so that the decision to go on company-level strike or warning strike is issued either by the competent authority of a representative trade union, or by more than half of the employees at the company. While taking note of this terminological amendment, the Committee recalls that if a country deems it appropriate to require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast (in other words, workers participating in the respective meeting as opposed to all workers of the employer) and that the required quorum and majority are fixed at a reasonable level. While observing that a strike can also be declared by the authorized body of a representative union, the Committee considers that for a strike to be declared by workers, the requirement of an absolute majority of all workers of the employer, as currently stated in the law, may be excessive (see the 2012 General Survey on the fundamental Conventions, paragraph 147). Therefore, the Committee requests the Government to provide information on the application in practice of this provision and requests it to take the necessary measures to revise the voting requirements in line with the above, for example by setting a reasonable quorum, so as not to unduly hinder the workers’ exercise of the right to strike.

Compulsory arbitration. The Committee also requested the Government to clarify whether arbitration under the RS Act on Peaceful Settlement of Labour Disputes, 2016 was voluntary, based on the agreement of both parties, or whether it could be imposed by the authorities or at the request of one of the parties. The Committee notes the Government’s clarification that, in line with sections 27-31, the procedure for peaceful resolution of interest disputes is voluntary. The Government explains that when a dispute is submitted to the Agency for Amicable Settlement of Labour Disputes by one party, the Agency delivers the proposal and documents to the other party to the dispute. If the other party does not reply within the anticipated deadline or if the proposal is not accepted, the procedure is stopped. If the other party accepts the proposal for peaceful resolution of a labour dispute, a peace council is appointed, where either an agreement is reached and becomes binding or the parties do not reach an agreement and the procedure is closed. The Government further states that exceptions are possible only in cases of collective disputes arising in activities of general interest regulated by the law or activities where suspension of work could endanger life and health of people or cause major damage, where the parties are obliged to submit a proposal for peaceful resolution of the dispute to the Agency (sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes). If parties to the dispute do not submit the proposal, the director of the Agency will initiate the procedure of dispute resolution ex officio and pursuant to the law. Taking due note of the above, the Committee requests the Government to provide further information on activities or industrial sectors that fall within sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes. It also requests the Government to provide more details on the possibility to establish an arbitration commission referred to in sections 34-36 of the Act, in particular whether this mechanism can be used in case of interest disputes and can lead to a binding arbitration at the request of one party.

Right to assembly in the context of a strike. Republika Srpska and the Brčko District. In its previous comment, the Committee requested the Government to take the necessary measures to amend section 5(2) of the RS Act on Strikes and section 4(1)(d) of the Act on Strikes in the Brčko District (the BD Act on Strikes), which did not seem to allow the gathering of workers in case of a strike outside the company in which the strike takes place, so as not to restrict freedom of assembly or impede the lawful exercise thereof. The Committee notes the Government’s indication, with regard to Republika Srpska, that any assembly of workers outside of the workplace is considered as a public gathering, assembly or protest, regulated by the Act on Public Assembly. In accordance with this law, there is no limitation for the organizer of a strike to organize a public gathering outside the work area of the employer. In its supplementary report, the Government adds that section 5(2) of the RS Act on Strikes prescribes that if a strike is manifested by the gathering of employees, the place of gathering may not be outside of the “work environment” of the employer. It clarifies, however, that under section 8 of the RS Labour Act “work environment” is defined as a space where work is performed including workplaces, working conditions, operational procedures and relations in the work process and that “workplace” is defined as a place intended for doing jobs at company level where an employee carries out work tasks or to which they have access while performing work and which is under direct or indirect management of the employer. The Committee observes that, according to the Government, the definitions of “work environment” and “workplace” in the RS Labour Act suggest that employees may gather freely in front of the employer’s workplace in order to strike, as this would be within the definition of “work environment”. The Government also states in general terms that the BD Labour Act provides that any lawful trade union activity may not be prohibited and assures that section 4(1)(d) of the BD Act on Strikes will be amended in line with the Committee’s comments to allow the full exercise of the right to strike (information contained in the Government’s 2019 report on the Collective Bargaining Convention, 1981 (No. 154)). The Committee therefore trusts that, as indicated by the Government, workers during a strike in the Republika Srpska may gather outside the company where the strike takes place and that section 4(1)(d) of the BD Act on Strikes will be amended so as not to restrict freedom of assembly as part of the lawful exercise of the right to strike.

Article 5. The right of workers’ and employers’ organizations to form federations and confederations. Brčko District. In its previous comment, having noted that the BD Labour Act does not contain any provisions on the possibility for workers’ organizations to form federations and confederations, the Committee requested the Government to clarify whether workers’ and employers’ organizations can, in law and practice, form federations and confederations of workers and to indicate the relevant legal provisions. Noting the Government’s indication that the BD Labour Act does not regulate the right of organizations of workers and employers to establish and join federations and confederations or to affiliate with international organizations, the Committee requests the Government to provide information on whether, even in the absence of legislation in this respect, workers’ and employers’ organizations can, in practice create and join higher-level organizations and affiliate to international organizations, and requests the Government to endeavour to take the necessary measures to recognize these rights in the legislation.