Demande directe (CEACR) - adoptée 2005, publiée 95ème session CIT (2006)

1. The Committee notes the communication transmitted by the International Confederation of Free Trade Unions by which the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) submitted comments on the application of the Convention. The Office forwarded the observation by the SSSBiH to the Government in September 2005.

2. In its observation, the SSSBiH indicates that decisions on termination of work contracts are most frequently made without explanation or  without giving the opportunity to employees to defend themselves. In the case of termination due to serious failure to fulfil its duties, the employer does not have any responsibility to observe a period of notice nor to pay the severance payment. The SSSBiH also indicates that the courts fail to uphold the rights protected by the Convention. The proceedings last too long without justification. Requests for interim measures, such as reinstatement of the workers until the end of the court proceedings, are ignored or rejected by employers.

3. In its 2003 direct request, the Committee asked the respective authorities of the Federation of Bosnia and Herzegovina and of the Republika Srpska to describe the measures adopted to give effect to  various provisions of the Convention. In light of the observations of the SSSBiH, the Committee requests the Government to provide detailed information on the following issues.

4. Article 4 of the Convention. Please indicate how the provisions of sections 87 and 88 of the Labour Act of the Federation of Bosnia and Herzegovina and section 113 of the Labour Act of the Republika Srpska are applied in practice, supplying copies of the leading decisions taken in their application.

5. Article 5(b). The Committee notes the provisions of section 93 of the Labour Act of the Federation of Bosnia and Herzegovina and section 118 of the Labour Act of the Republika Srpska, protecting employees who are acting or have acted in the capacity of a workers’ representative. Please indicate, for each entity, the measures ensuring that the act of an employee seeking representative office does not constitute a valid ground for termination.

6. Article 5(c). Please indicate, for each entity, the measures ensuring that the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities do not constitute valid reasons for termination.

7. Article 5(d). Under the terms of this provision, the race, colour, sex, marital status, family responsibilities, religion, political opinion, national extraction or social origin of a worker shall not constitute valid reasons for termination. The Committee notes that section 5 of the Labour Act of the Federation of Bosnia and Herzegovina and section 5 of the Labour Act of the Republika Srpska now give effect to this provision of the Convention. It hopes that the next report will provide further information on the implementation of these legislative provisions including any court decisions handed down.

8. Article 5(e). The Committee notes that section 53 of the Labour Act of the Federation of Bosnia and Herzegovina prohibits employers from terminating an employment contract while a worker is pregnant. It requests the Government to indicate the measures which also prohibit the dismissal of a worker during her absence from work on maternity leave, in accordance with this provision.

9. Article 6, paragraph 1. The Committee notes that employers may not dismiss a worker during temporary absence because of an occupational disease or employment accident. It requests the Government to indicate the manner in which effect is given to this paragraph, which prohibits termination on account of temporary absence for reasons of illness or injury.

10. Article 6, paragraph 2. The Committee refers to the provisions of section 64 of the Labour Act of the Federation of Bosnia and Herzegovina and section 80 of the Labour Act of the Republika Srpska, and requests the Government to indicate how "temporary absence from work" is defined and the extent to which medical certification is required and what limitations, if any, have been placed on the application of this Article of the Convention.

11. Article 7. Please indicate the manner in which the right to defend themselves prior to termination is ensured for all workers, as required by this important provision of the Convention, in the Federation of Bosnia and Herzegovina and in the Republika Srpska.

12. Article 12. The Committee notes the provisions of section 100 of the Labour Act of the Federation of Bosnia and Herzegovina and section 127 of the Labour Act of the Republika Srpska concerning entitlement to a severance allowance for workers with an uninterrupted employment relationship of two years with the employer. Please indicate the nature of the allowance or other forms of income protection (unemployment insurance or assistance benefits or other social security benefits under a general scheme) granted to dismissed workers without a two-year uninterrupted employment relationship with their employer.

13. Article 14. The Committee would be grateful to be provided with information on how effect is given to this Article of the Convention, and particularly on the competent authority to be notified of terminations for reasons of an economic, technological, structural or similar nature, the nature of the information that has to be supplied to the above authority and also the minimum period of time for this notification.

14. Illegally dismissed workers. In its previous comments, the Committee recalled the conclusions, approved by the Governing Body in November 1999, of the committee set up to examine the representation made under article 24 of the ILO Constitution in October 1998 by the Union of Autonomous Trade Unions of Bosnia and Herzegovina (USIBH) alleging non-observance of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111). The Committee also recalls its comments on the application of Convention No. 111 in which, further to the communications by the USIBH and the trade union organization of the "Ljubija" iron mines concerning the dismissal of miners during the civil war, it noted that these constituted dismissals of workers based solely on their national extraction. The Committee indicated at that time that it was the responsibility of the parties concerned (the Government, the managers of the enterprises and the workers who had made the complaints) to implement the legislation so as to ensure that the workers who have not been able to return to their former jobs, for the sole reason of their national extraction and/or religion, can receive appropriate compensation.

Recalling the requirements of Article 12 of the Convention concerning the entitlements of dismissed workers to a severance allowance or other forms of income protection, the Committee notes that the transitional provisions of the Labour Act of the Federation of Bosnia and Herzegovina (sections 143 and 144) and of the Labour Act of the Republika Srpska (sections 151-159, as amended by the decision of 12 November 2000 of the High Representative in Bosnia and Herzegovina) envisage addressing the issue of compensation for workers illegally dismissed as a result of the conflict which affected the country as from 1992. The Committee would be grateful to be provided with information on the implementation of these transitional provisions, including the statistics available on the number of workers who have benefited from the measures adopted and, where appropriate, information on any difficulties encountered.