Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

1. The Committee notes the information provided in the reports received in May and December 2006. The Committee draws the attention of the relevant authorities of the Federation of Bosnia and Herzegovina and of the Republika Srpska on the importance of regularly providing practical information on the manner in which effect is given to the provisions of the Convention (Part V of the report form). Please also report in detail on the following points.

2. Article 4 of the Convention. Valid reason for termination of employment. The Committee notes that Section 87, paragraph 2, of the Labour Code of the Federation of Bosnia and Herzegovina, as amended by the Act of 15 August 2000 No. 01-447, stipulates that an employee can be dismissed when no longer able to perform the job. The Committee refers to its 2005 direct request and asks the Government to indicate how the provisions of sections 87 and 88 of the Labour Code of the Federation of Bosnia and Herzegovina and section 113 of the Labour Act of the Republika Srpska, ensure that employment is not terminated unless there is a valid reason connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service, providing copies of relevant decisions taken by the competent courts in this regard.

3. Article 5(b). Invalid reason for termination of employment: Seeking office as, or acting or having acted in the capacity of, a workers’ representative. In response to the 2005 direct request, the Government states in its report, received in May 2006, that there are “explicit legal provisions offering sufficient protection” for the worker representative against termination of employment. Please indicate, for each entity, the provisions that are referred to in this response, especially those ensuring that the act of an employee seeking representative office does not constitute a valid ground for the termination of his/her employment.

4. Article 5(c). Invalid reason for termination of employment: Filing of a complaint or participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities. The Government indicates that filing of a complaint or participation in proceedings against an employer, or addressing the competent administrative and court authorities, pursuant to the labour laws in Bosnia and Herzegovina, does not constitute a justified reason for termination of employment. Please indicate the provisions ensuring this principle.

5. Article 5(d). Invalid reason for termination of employment: Race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The Government states in its report received in May 2006 that there is no information of any dispute brought before its courts due to termination of employment on the grounds prohibited by the labour laws. The Committee refers to its 2006 comments on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and requests the Government to provide, in its next report on the application of Convention No. 158, information on the implementation of section 5 of the Labour Code of the Federation of Bosnia and Herzegovina and of the Labour Act of the Republika Srpska, including any court decisions delivered.

6. Article 5(e). Invalid reason for termination of employment: Absence from work during maternity leave. The Committee notes, according to the Government’s report received in May 2006, the provisions of the Labour Laws of Republika Srpska and Brcko District prohibited the termination of employment during maternity leave. The Government also indicates that, with the exception of section 53 of the Labour Code of the Federation of Bosnia and Herzegovina prohibiting the termination of employment while a worker is pregnant, no other measure protects a worker during pregnancy. The Committee requests the Government to specify in its next report the provisions in force in the Republika Srpska and Brcko District which prohibits termination of employment during maternity leave. Please also indicate how it is ensured in the Federation of Bosnia and Herzegovina that absence from work during maternity leave is not a valid reason for termination of employment, providing copies of decisions of the competent courts.

7. Article 6, paragraph 2. Temporary absence from work because of illness or injury. The Government indicates that, despite the fact that the Labour Code of the Federation of Bosnia and Herzegovina does not provide a definition of temporary absence from work, there are legal provisions in the health insurance regulations that specify medical documentation, duration of sick leave, payment of compensation and all other issues related to this type of absence. The Committee requests the Government to specify in its next report how temporary absence from work is defined by these legal provisions, the extent to which medical certification is required, and what limitations, if any, have been placed on the application of temporary absence from work because of illness or injury.

8. Article 7. Procedure prior to termination. The Committee recalls that the purpose of Article 7 of the Convention is to ensure that any decision to terminate employment is preceded by dialogue and reflection between parties (paragraph 148 of the General Survey of 1995). The Committee again requests the Government to indicate the manner in which the right to defend themselves prior to termination is ensured for all workers, as required by this provision of the Convention, in the Federation of Bosnia and Herzegovina and in the Republika Srpska.

9. Article 12. Severance pay or other income protection. The Government states in its report received in May 2006 that dismissed workers who do not have two years of permanent work with the employer have no right to severance pay, but are entitled, under conditions provided for in the labour laws, to pecuniary compensation during unemployment, to health insurance and sometimes pension insurance. Please provide further information indicating the conditions under which such compensation (pecuniary and health insurance) is granted in each entity and how they are evaluated.

10. Article 14. Notification to the competent authority. The Government reports that notice of termination of employment due to economic, technological, structural or similar reasons shall be submitted to the employment services in Bosnia and Herzegovina. The Committee would appreciate examining information from the next report on how laws or regulations specify the minimum period of time in which the employer shall notify to the employment services the terminations, before carrying out the terminations.

11. Illegally dismissed workers. In the report received in May 2006, it is indicated that this particular issue is being resolved pursuant to the provisions of sections 151 to 159 of the Labour Law of Republika Srpska, as amended by the decision of 12 November 2000, and that a commission is resolving individual applications. A report concerning the exercise of rights for the illegally dismissed workers was to be discussed in June 2006 before the National Assembly and the Government of the Republic Srpska is making efforts to secure the funds for severance pay. The Committee refers to its previous comments and reiterates its interest in examining how adequate reparation was provided to unfairly dismissed workers and how those workers placed on waiting lists have already benefited from the measures adopted following the abovementioned deliberations by the National Assembly.

[The Government is asked to reply in detail to the present comments in 2009.]