Demande directe (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes the Government’s report and the comments submitted by the Association of Teachers’ Unions of Serbia (USPRS) in a communication dated 13 July 2006. The Committee further notes the Labour Law of 2005.

Article 2 of the Convention. 1. Foreign workers. The Committee notes that according to its section 2(3), the Labour Law applies to foreign nationals and stateless persons. 

2. Registration. The Committee takes note of the rule book on the entering the trade union into the register and the rule book on the registration of the employers’ association, which were issued in 2005 and set out the procedures for the registration of trade unions and employers’ organizations, respectively. The Committee notes that section 7 (with regard to trade unions) and section 8 (with regard to employers’ associations) of the rule books provide that the Ministry of Labour can reject the application for registration if the requirements prescribed by law, and/or, in case of a trade union, of the general act of trade union, have not been met. The Committee recalls that organizations should possess the right to judicial appeal against any administrative decisions concerning their registration and that such a right of appeal constitutes a necessary safeguard against unlawful or ill-founded decisions by the authorities responsible for registration (see General Survey on freedom of association and collective bargaining, 1994, paragraph 77). The Committee requests the Government to indicate whether trade unions and employers’ organizations can appeal the decision of the Ministry of Labour denying their registration to the courts.

3. Rights of representative organizations. The Committee notes that according to section 239 of the Labour Law, representative trade union organizations and employers’ associations have the right to collective bargaining, the right to participation in collective labour disputes, the right to participation in tripartite and multipartite bodies and other rights pursuant to the law. The Committee believes that the legislation granting certain rights to the representative organizations is not in itself contrary to the principle of freedom of association provided that these rights are limited to such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations. However, the workers’ freedom of choice would be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in the granting of privileges such as to influence unduly the choice of organization by workers. Therefore, this distinction should not have the effect of depriving those trade unions that are not recognized as being amongst the most representative of the essential means for defending the occupational interests of their members (for instance, making representations on their behalf, including representing them in case of individual grievances), for organizing their administration and activities, and formulating their programmes, as provided for in Convention No. 87 (see General Survey, op. cit., paragraphs 97-98). The Committee requests the Government to specify what other rights are considered to be exclusive rights of representative organizations.

Article 3. 1. 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 had previously requested the Government to 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. In this regard, the Committee notes the Government’s indications that trade unions pass their own statutes and by-laws independently, and that the election of trade union representatives is determined in accordance with the union’s by-laws, without legal restriction. The Committee further notes that under section 215 of the Labour Law a trade union may be established pursuant to its own general documents – that is to say, constitution and by-laws. The Committee takes note of this information.

2. Arbitration. The Committee recalls that it had previously requested the Government to amend section 136 of the previous Labour Law so as to allow the parties to freely decide whether to submit a dispute to a binding arbitration. The Committee notes with interest that the new Labour Law does not contain provision to the same effect.

3. Minimum service. The Committee notes the comments of the USPRS on section 82 of the Primary School Law and section 84 of the Secondary School Law which provide that teachers can exercise the right to strike on condition of providing minimum services set forth in these provisions. The Committee further notes the comments of the USPRS on sections 9 to 13 of the Law on Strikes concerning the provision of minimum services during strikes. The Committee notes that it follows from sections 9 and 10 of the Law on Strikes that the minimum services are determined by the employer after having taken into account the opinion, remarks and suggestions of the trade union. If such services are not determined within a five-day period prior to a strike, the competent public authority or the local self-government body takes the necessary decisions. The Committee considers that in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes, the authorities could establish a system of minimum service in other services which are of public utility. For example, the Committee considers that minimum services may be established in the education sector, in case of a strike of long duration. However, in the view of the Committee, such a service should meet at least two requirements. Firstly, and this aspect is paramount, it must genuinely and exclusively be a minimum service, that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear. Secondly, since this system restricts one of the essential means of pressure available to workers to defend their economic and social interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. It would be highly desirable for negotiations on the definition and organization of the minimum service not to be held during a labour dispute, so that all parties can examine the matter with the necessary objectivity and detachment. The parties might also envisage the establishment of a joint or independent body responsible for examining rapidly and without formalities the difficulties raised by the definition and application of such a minimum service and empowered to issue enforceable decisions (see General Survey, op. cit., paragraphs 160-161). The Committee therefore requests the Government to provide information on the manner in which the genuine participation of trade unions in the definition of the minimum service is ensured and to amend its legislation so as to ensure that in cases of disagreement the matter will be determined by an independent body. The Committee requests the Government to keep it informed in this respect.

The Committee takes note of the regulation on the minimum operation service during a strike in public company JAT Airways providing that, during a strike, full international traffic services must be provided and on a full-time basis and, as for domestic traffic, 30 per cent of planned services. The Committee further notes from the text of the regulation that the following services must be provided “in full scope”: charter flights; traffic centre; technical maintenance of aircraft; handling of aircraft, passengers, luggage, cargo; booking service; representative offices of JAT Airways abroad and in the country; financial operations (cash desk); medical service; safety of people and the company’s facilities and equipment; and fire-fighting service. The Committee further notes Case No. 2415, in which the Committee on Freedom of Association commented upon this regulation (see 340th Report, paragraphs 1254-1255). The Committee recalls that transport services are not essential services in the strict sense of the term, i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. It nevertheless considers that the transportation of passengers is a public service of primary importance where the requirement of a minimum service in the event of a strike can be justified. In view of the abovementioned principle on minimum services, the Committee requests the Government to take the necessary steps to amend the regulation in question, in consultation with the relevant employers’ and workers’ organizations and to keep it informed of the measures taken or envisaged in this respect.

Article 4 of the Convention. Dissolution and suspension of organizations by administrative authority. In its previous comments the Committee had requested the Government to provide information on the judicial safeguards accompanying the dissolution of trade unions by administrative order, in particular the possibility of having recourse to an independent and impartial body. The Committee notes the Government’s indications that trade unions and employers’ organizations may be dissolved when they cease to meet their founding conditions, or if they have submitted false data respecting their founding conditions: otherwise dissolution is only possible upon the organizations’ request. The Committee also notes in this regard that section 8 of the rule book on entering the trade union into the register and section 10 of the rule book on the registration of the employers’ association both provide for an organization’s dissolution where: (1) it ceases to meet the requirements for its establishment as prescribed by law; and (2) its registration has been carried out on the basis of false data. Neither rule book, however, makes provision for the right of judicial appeal for organizations dissolved pursuant to the relevant sections. Noting, moreover, the Government’s statement that a trade union can file an administrative lawsuit against the resolution on their deletion from the register, the Committee recalls 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 therefore be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee further recalls 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, op. cit., paragraph 185). The Committee is of the view that the right of trade unions to file an administrative lawsuit challenging their dissolution falls short of the guarantees against administrative dissolution required by Article 4 of the Convention. The Committee asks the Government to take the necessary measures to ensure that both trade unions and employers’ organizations enjoy due judicial safeguards against administrative dissolution – including the right to appeal administrative decisions to an independent judicial body and the right not to be dissolved until a final decision has been handed down. The Committee requests the Government to keep it informed in this respect.

Article 5 of the Convention. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee takes due note of the Government’s statement that trade unions and employers’ organizations are free to form federations and confederations, as well as to affiliate with international organizations.