Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

1. With reference to its previous comments on the fundamental importance of establishing the rule of law and formulating and implementing a genuine national policy of equality of opportunity and treatment in all spheres, including in employment and occupation, in order to promote national reconciliation and peace, the Committee notes the Government’s first report on the application of the Convention, which outlines the legal and institutional framework intended to give effect to provisions of the Convention. The Committee takes note in particular of section 5 of the Labour Code and section 3 of the Employment Act of the Republica Srpska, as well as section 5 of the Labour Code (as amended in August 2000) and section 2 of the Employment and Social Security of the Unemployed Act of the Federation of Bosnia and Herzegovina. The Committee welcomes that these provisions prohibit discrimination in employment and occupation, including in the context of employment services, on all the grounds enumerated in Article 1(1)(a) of the Convention and that, as stated by the Government, all employers’ and workers’ organizations had been consulted in the process leading to the adoption of the laws in question.

2. Nevertheless, the Committee recalls that, while the affirmation of the principle of equality in legal provisions is an important element of the national policy to promote equality of opportunity and treatment in employment and occupation as required by Article 2 of the Convention, it is equally important to take measures to ensure that the Convention’s provisions are fully applied in practice. Aware of the enormous challenge rebuilding a multi-ethnic, peaceful and prosperous society in Bosnia and Herzegovina, the Committee emphasizes the need to take decisive steps to ensure that equality and non-discrimination in employment become a reality for men and women throughout the country, irrespective of their sex, religion, race or national extraction, or any other criteria enumerated by the Convention. The Government is therefore requested to provide in its next report information on the practical measures taken to ensure the application of the Convention in the public and private sectors, including sensitization and training of labour market actors.

3. 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). The Governing Body considered that the facts involved constituted a violation of Convention No. 111, since the type of discrimination described in the representation was of the kind prohibited by Article 1(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.

4. The Committee previously noted with interest sections 143 and 144 of the new Labour Code (as amended in August 2000) which are designed to provide various levels of compensation to workers who lost their employment during the civil war which ravaged the country from 1992 onwards. The Committee considered that it was too soon to affirm that the provisions in question settle conclusively the situation of workers in the "Aluminium" and "Soko" factories and insisted 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.

5. The Committee notes from the Government’s report that as of 31 March 2000 there were 740 employees at "Aluminium" factories out of which 692 were Croats (93.5 per cent), 27 Serbs (3.9 per cent), and 21 Bosnians (2.8 per cent). Before the civil war the "Aluminium" workforce of 3,278 employees had the following composition: 1,455 Croats (44.4 per cent), 1,082 Bosnians (33 per cent) and 742 Serbs (22.6 per cent). The Government states that an inspection carried out in the "Soko" undertaking displayed a similar situation, with a composition of the 433 employees as of 31 March 2000 as follows: 414 Croats, nine Bosnians, and five Serbs. According to the Government, measures were taken concerning the obligations of the two enterprises in question to establish the legal status required of all employees who did meet the conditions set forth in section 143 of the Labour Code and who submitted applications in this respect. According to the findings at the disposal of the Government of the Federation of Bosnia and Herzegovina, this process has only led to severance payments, while there were no cases of return of such employees to work. The Committee notes this information and requests the Government to provide with its next report detailed information on those workers of the "Aluminium" and "Soko" factories whose employment relationship has formally been terminated in accordance with section 143, include their number, national extraction, and whether they received severance payments. The Government is also requested to provide detailed information on any claims brought by affected employees of these factories before the cantonal and federal commissions for the implementation of section 143 of the Labour Code, including the results of these proceedings.

6. The Committee also recalls the communications of the USIBH and the trade union organization of the "Ljubija" iron mine according to which the managers of the mine in question dismissed all the miners who were not Serbs, namely some 2,000 workers, during the civil war which ravaged the country from 1992 onwards. The Committee noted that the facts alleged by the USIBH are similar to those examined by the Governing Body within the context of the abovementioned representation under article 24, namely that there was dismissal (or non-reinstatement) of workers based solely on their national extraction and stressed that the principle laid down in the Convention is of universal application, that applies whatever the national extraction of the worker discriminated against may be. The Committee once again hopes that it will be possible to resolve this case, and trusts that in its next report the Government will make its comments in reply to these communications, indicating any progress made in respect of this case.

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

In addition, a request regarding other points is being addressed directly to the Government.