Observation (CEACR) - adoptée 2001, publiée 90ème session CIT (2002)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

1. The Committee recalls that, at its 276th Session (November 1999), the Governing Body of the ILO approved the report of the Committee set up to examine the representation alleging non-observance by Bosnia and Herzegovina of Convention No. 111, made under article 24 of the ILO Constitution, by the Union of Autonomous Trade Unions of Bosnia and Herzegovina (USIBH) and the Union of Metalworkers (SM) and entrusted follow-up of its recommendations to the Committee of Experts (see GB.276/16/4, paragraph 23). According to the Committee of the Governing Body, the facts alleged by the USIBH and the SM - which were not contested by the Government - namely, the dismissal of workers solely on the grounds of their Serbian or Bosnian origin and their replacement by workers of Croatian origin, were corroborated by a consistent body of evidence. The Governing Body Committee therefore considered that the facts constituted a violation of Convention No. 111, since the type of discrimination described in the representation is of the kind prohibited by Article 1(a) of that instrument, in that it involved an exclusion based solely on national extraction or religious belief which had the effect of destroying equality of opportunity and treatment in employment and occupation between workers of Croatian extraction and the workers of Bosnian or Serbian extraction employed by the "Aluminium" and "Soko" undertakings. Although the representation refers only to Convention No. 111, the Governing Body Committee considered that the alleged facts also violated certain provisions of the Labour Inspection Convention, 1947 (No. 81), and the Termination of Employment Convention, 1982 (No. 158), both ratified by Bosnia and Herzegovina. The Committee of Experts therefore requested the Government to supply information on the manner in which it intended to apply the recommendations of the Governing Body Committee.

2. The Committee recalls that it had requested the Government to indicate in its next report the measures taken to ensure that the workers dismissed from the "Aluminium" and "Soko" factories solely on the grounds of their Bosnian or Serbian extraction or their religion: (a) receive adequate compensation for the damage that they have sustained; (b) receive payment of any wage arrears and any other benefits to which they would be entitled if they had not been dismissed; and (c) are as far as possible reinstated in their posts without losing length of service entitlements. It had also requested the Government to indicate whether a formal dismissal procedure, in accordance with the provisions of Convention No. 158, which has been ratified by Bosnia and Herzegovina, had been instituted, in the event that the reinstatement of all or some of the workers in question was not possible.

3. The Committee notes the communications sent to the Office by two workers’ organizations during the past 12 months under article 23, paragraph 2, of the ILO Constitution: the first is from the Autonomous Trade Union of Employees of the "Aluminium" Factory at Mostar in the Federation of Bosnia and Herzegovina (one of the two entities comprising Bosnia and Herzegovina) and consists of the workers currently employed by this factory; while the second communication is from the USIBH and the trade union organization of the iron mine "Ljubija", at Prijedor, in the Republika Srpska (the other constituent entity of Bosnia and Herzegovina).

4. Before addressing the communications the Committee considers it appropriate to note the adoption by the Federation of Bosnia and Herzegovina of a new Labour Code on 27 October 1999 (Act No. 271/1999) and particularly the content of sections 143 and 144, as amended in August 2000, concerning the severance pay due to workers who lost their employment because of the conflict which ravaged the country from 1992 onwards. Under section 143, a formal dismissal procedure must be initiated once a worker registered on the waiting list is still without employment six months after the date of entry into force of the new Labour Code (5 November 1999) or when a worker "on hold" (that is, who, at 31 December 1999, had found employment but requested clarification of his occupational status from his former employer in the three months following the entry into force of the Labour Code) so requested. Since the workers concerned had at least five years’ service, they will be entitled to severance pay calculated on the basis of the number of years of service and the average salary applied in the civil service of the Federation of Bosnia and Herzegovina. Sections 143(a), (b) and (c) describe the recourse open to workers who consider that their employer has violated the rights described in section 143 and provide, in particular, for a Cantonal Commission and a Federal Commission responsible for implementation of section 143. Section 144 affirms the entitlement of workers whose employment was "suspended" under the terms of the legislation in force before the entry into force of the new Labour Code (a suspension which is not recognized by the current Labour Code) to return to their former jobs or to other appropriate jobs within six months from the day of entry into force of Act No. 271/1999.

5. Communications of the Autonomous Trade Union of Employees of the "Aluminium" Factory. This organization states in its communication that (a) the adoption on 28 October 1999 of a new Labour Code, in particular sections 143 and 144, settles the problems raised by the USIBH in its representation concerning the workers who were unable to resume their employment at the end of the civil war because USIBH itself, citing sections 143 and 144, has brought this matter before the managers of the factory "Aluminium" who are in the process of examining it; and (b) that, if the recommendations of the Committee were to be implemented, the workers who were not covered by the USIBH representation would not have the same rights as those to whom the Committee’s recommendations were applied. On the one hand, there would be the former employees of the factory "Aluminium" who are currently unemployed and are of Croatian national extraction and could benefit only from application of the abovementioned provisions of the Labour Code; and, on the other, the former employees of the same factory, who are currently unemployed, but who would be able to benefit both from the new provisions of the Labour Code and from the recommendations of the ILO Governing Body Committee.

6. The Committee notes with interest the provisions of the new Labour Code which are designed to provide various levels of compensation to workers who lost their employment during the civil war. In the absence of information from the Government indicating how the managers of the "Aluminium" and "Soko" undertakings intend to link the application of the recommendations made by the ILO Governing Body with these new provisions or of how these workers have actually been compensated, the Committee considers that it is too soon to affirm that the provisions in question settle conclusively the situation of workers in the "Aluminium" and "Soko" factories which made a representation to the ILO under article 24 of the ILO Constitution. In regard to the argument proffered by the Autonomous Trade Union of Employees of the "Aluminium" Factory, namely that workers having made a representation to the ILO Governing Body would benefit not only from payment of the compensation provided in the Labour Code but also from that recommended by the ILO Governing Body, the Committee must insist that it is for the various parties concerned - the Government, the management of the two undertakings, and the workers who made the representation - to apply the provisions of the Labour Code and the recommendations of the Governing Body in such a way that the workers of the "Aluminium" and "Soko" factories who were unable to resume their former employment - solely on the basis of their ethnic origin and/or religious beliefs - can receive appropriate compensation.

7. In the light of the foregoing, the Committee requests the Government to indicate in its next report the measures taken to ensure that the workers dismissed from the "Aluminium" and "Soko" factories solely on the grounds of their Bosnian or Serbian extraction or their religion: (a) receive adequate compensation for the damage they have sustained; (b) receive payment of any wage arrears and any other benefits to which they would be entitled if they had not been dismissed; and (c) are as far as possible reinstated in their posts without losing length of service entitlements. Finally, the Committee would be grateful if the Government would supply statistical data on the national extraction of the current workforce in the "Aluminium" and "Soko" factories.

8. Communications of the USIBH and the trade union organization of the "Ljubija" iron mine. According to these organizations, the managers of the mine in question dismissed all the miners who were not Serbs from the abovementioned mine, namely some 2,000 workers, during the civil war which ravaged the country from 1992 onwards. The numerous internal appeals brought by the dismissed workers have not resulted in their reinstatement and the USIBH has placed the matter before the competent bodies of the ILO. The communication was transmitted to the Government for comment on 10 November 2000. Without entering into the substance of the allegations, the Committee can do no more than note that the facts alleged by the USIBH are similar to those examined by the Governing Body Committee within the context of the abovementioned article 24, namely that there was dismissal (or non-reinstatement) of workers based solely on their national extraction: in the "Aluminium" and "Soko" mines, the dismissed workers were all of Serbian or Bosnian origin; in the "Ljubija" mine, the dismissed workers are apparently all of Bosnian or Croatian origin. The Committee trusts that in its next report the Government will make its comments in reply to these communications. In any event, the Committee wishes to recall that the principle of equality of opportunity and treatment in employment and occupation, laid down in Article 1 of the Convention, is of universal application; namely, it applies whatever the national extraction of the worker discriminated against: be it Bosnian, Croatian or Serbian. The Committee expresses the hope that it will be possible to resolve this case in accordance with the developments set out in paragraphs 4 to 6 above.

9. The Committee is aware of the complexity of the situation in Bosnia and Herzegovina and that the country has recently emerged from a civil war fuelled essentially by ethnic and religious conflict. It is convinced that one of the best means of promoting national reconciliation and peace is the establishment of the rule of law and the formulation and implementation of a genuine national policy of equality of opportunity and treatment in all spheres, including employment and occupation. The Committee therefore reiterates the hope that a genuine national policy to promote equality of opportunity and treatment in respect of employment and occupation will be formulated and implemented so as to eliminate all discrimination in this sphere - as called for under Article 2 of the Convention - and that the Government will supply detailed information on the measures taken or envisaged in this connection in its next report. It also hopes to receive information on the measures taken to inform and train magistrates, labour inspectors and all other public servants concerned in the application of the Convention and trusts that the Government will send it a copy of the Ombudsman’s most recent report, taking into account his action in favour of human rights and the institution of the rule of law, referred to by the United Nations Committee for the Elimination of Racial Discrimination in Decision 6(53). Finally, the primary responsibility incumbent on the State to define and apply a national policy of equality of opportunity and treatment should not make it forget the essential role which must be played by employers’ and workers’ organizations in the promotion and application of the principle at the workplace, and the Committee would be grateful if the Government would supply detailed information on its methods of cooperation with employers’ and workers’ organizations to encourage acceptance and observance of this policy.

10. The Committee refers also to the comments made under Conventions Nos. 81 and 158.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.