Demande directe (CEACR) - adoptée 2002, publiée 91ème session CIT (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.