Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes the Government’s first report and the legislation attached thereto.

Article 1 of the Convention. Information on national policies. The Committee notes from the Government’s report under the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families that, although Bosnia and Herzegovina was, until recently, a mere transit country from Eastern countries to Western Europe, at present it represents a country of final destination, especially as regards labour migration (CMW/C/BIH/1, 6 November 2007, paragraph 73). In spite of that, the Committee notes the Government’s indication that there are no policies at the level of Bosnia and Herzegovina concerning migration. The Committee notes that, pursuant to article 3(1) of the Constitution of Bosnia and Herzegovina, immigration policy is the responsibility of Bosnia and Herzegovina, while employment would fall within the competence of the Entities. The Committee requests the Government as follows:

(i)    to clarify how the competence of the central institutions regarding immigration policy is coordinated in practice with the Entities’ competences concerning employment; and

(ii)   to provide information on any developments concerning the formulation and adoption of a national policy on labour migration. In this regard, the Committee refers the Government to the ILO Multilateral Framework on Labour Migration, especially to principle 4, and encourages it to seek the cooperation of the social partners in elaborating the national policy.

Information on legislation. The Committee notes that the Federation of BiH, the Republika Srpska and the Brčko District have all adopted legislation specifically concerning the employment of foreigners which subordinates the possibility of a foreigner working in the country to the condition that a specific work permit is issued by the Federal Institute for Employment (BiH Federation), the Department for Specialized Administrative Affairs (Brčko District) or the Institute for Employment (Republika Srpska). According to section 5 of the Law on employment of foreign citizens and persons without citizenship in the Republika Srpska, sections 3 and 4 of the Law on employment of foreign citizens in the Brčko District and section 7 of the Law on employment of foreign citizens in the Federation of BiH, the issuance of the work permit is conditional upon the observance of the laws regulating the entry and stay of non-citizens in the country as well as the absence of other persons among the unemployed suitable to the post. The Committee requests the Government to provide copies of the laws regulating the entry and stay of non-citizens in Bosnia and Herzegovina. The Committee also requests the Government to gather and submit statistical data, disaggregated by sex and nationality, on migration flows from and to the country as well as any other relevant information regarding the situation of migrant workers in the labour market.

Articles 2, 4 and 7. Migration information and assistance services. Despite the Government’s indication that public employment offices provide services free of charge to migrant workers, the Committee notes that no specific information is provided with regard to any assistance services available to migrant workers. The Committee recalls the indications on this point contained in paragraph 5(2) of the Migration for Employment Recommendation (Revised), 1949 (No. 86). It also wishes to stress that, in light of the increasing feminization of migration and the particularly vulnerable position in which many female migrants can find themselves, information campaigns specifically directed towards women may be appropriate. The Committee requests the Government as follows:

(i)    to provide full information on the measures taken or envisaged to give effect to Article 2 of the Convention;

(ii)   to consider signing specific agreements with countries of destination or origin of the migration flows affecting Bosnia and Herzegovina with a view to addressing different aspects of labour migration, including admission procedures, so as to facilitate the departure, journey and reception of migrant workers; and

(iii) to supply information on any measures taken to assist migrants upon arrival in the country.

Article 3. Misleading propaganda. The Committee notes from the Government’s report that public employment services are the only bodies entitled to provide information on migration. The Committee also notes that the national employment services cooperate with the World Association of Employment Services (WAPES) through the conclusion of bilateral protocols. The Committee draws the Government’s attention to paragraphs 214 ff. of its 1999 General Survey on migrant workers, pointing out that the existence of official information services in itself is not enough to guarantee that migrant workers are sufficiently and objectively informed on migration-related issues. Workers must also be protected from misleading information stemming from intermediaries who may have an interest in encouraging migration in any form to take place, regardless of the consequences for the workers involved. The Committee encourages the Government to take adequate measures to combat misleading propaganda relating to immigration and emigration and to provide information on the implementation of these measures and their impact on protecting migrant workers from any abuses due to misleading information on the migration process. Please also provide information on any activities carried out in this regard within the framework of the WAPES or under the bilateral protocols mentioned by the Government in its report.

Article 5. Medical services. The Committee notes that, pursuant to section 4 of the Law on employment of foreign citizens in the Brčko District, the work permit can be denied when the foreigner has provided wrong information on his or her state of health. The Committee notes that the implications of this provision are not clear; in particular it is unclear whether there are any requirements related to the foreigner’s state of health to which the issuance of the residence or the work permit would normally be subordinated. The Committee wishes to draw the Government’s attention to the fact that the refusal of entry or repatriation, on the basis that the worker concerned is suffering from an infection or illness of any kind which has no effect on the task for which the worker has been recruited, constitutes an unacceptable form of discrimination and is contrary to the Convention. The Committee requests the Government to clarify whether any requirements linked to a foreigner’s health exist with regard to entry into the country, and to ensure that they only regard infections or illnesses affecting a foreigner’s ability to work.

Article 6. Equality of treatment. The Committee notes that article 2(3) of the Constitution of Bosnia and Herzegovina, confers on “all persons within the territory of Bosnia and Herzegovina” the rights and freedoms enshrined in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, including Protocol No. 12, prohibiting discrimination on the grounds, among others, of race, colour, national or social origin, and association with a national minority, in respect of the enjoyment of any rights set forth by law. Paragraph 4 of the same article further prohibits discrimination in respect of the rights provided for in the international agreements listed in Annex I to the Constitution. The Committee also notes that article 2 of the Constitution of the Federation of BiH stipulates that “all persons within the territory of the Federation” shall enjoy the right to equality before the law, freedom to work and freedom from discrimination based on race, colour and national or social origin. By contrast, article 10 of the Constitution of the Republika Srpska only sets out that “citizens” are equal in their freedoms and rights. However, the Committee notes that article 44 recognizes that foreigners shall have the human rights and freedoms provided for in the Constitution, the law and international agreements. Article 39 further stipulates that “everyone” shall have the right to work and freedom to work. The Committee also notes that the laws specifically regulating the employment of foreigners do not contain any specific provision in this regard, with the exception of the Law on employment of foreign citizens and persons without the citizenship in Republika Srpska stipulating that foreigners employed in the country enjoy the same rights as citizens. The Committee further notes that the Labour Code of the District of Brčko covers “any matter deriving from employment in the territory”, seemingly extending its provisions to migrant workers as well. The Committee requests the Government as follows:

(i)    to confirm whether labour legislation fully applies to immigrants lawfully in the country so that it is ensured that they enjoy treatment no less favourable than that applied to national workers with respect to the matters enumerated in Article 6(1)(a)–(d);

(ii)   to supply information on the distribution of competences between the central authorities and the Entities with regard to the matters covered by Article 6 of the Convention; and

(iii) to provide information on any cases of discrimination regarding the subjects covered by Article 6(1) of the Convention, notably equality of treatment in respect of conditions of work, social security and trade union rights, brought before national courts and on the decisions handed down.

Article 8. Continued residence in case of incapacity for work. The Committee notes the Government’s indication that Article 8 of the Convention is applied and that no agreements have so far been signed for the regulation of migrant workers’ return to their territory of origin or the territory from which they emigrated in case of incapacity for work due to illness contracted or injury sustained subsequent to their entry. The Committee would appreciate receiving more precise information on the legal provisions ensuring that migrant workers admitted maintain their right of residence in the case of incapacity for work and on their practical application.

Article 9. Transfer of earnings and savings. The Committee notes from the Government’s report that the transfer of a part of migrant workers’ earnings and savings is allowed under specific terms stipulated by law. The Committee requests the Government to indicate the specific provisions regulating the issue and the terms under which the transfer of migrant workers’ earnings and savings is permitted. Please also indicate whether any special agreements exist for this purpose.

Article 10. Agreements. The Committee notes the Government’s indication that no agreements have been signed. The Committee encourages the Government to examine whether it would be desirable or necessary to enter into agreements with other concerned States in light of the dimension of the migration flows going from or to their respective territories.

Article 11. Frontier workers. The Committee notes from the Government’s report that the legislation does not contain any definition of frontier workers. The Committee invites the Government to specify which categories of migrant workers would be regarded as “frontier workers”.

Annexes I and II. Noting that no information is provided on the application of the annexes to the Convention, the Committee hopes that the Government will provide this information in its next report.

Parts III and IV of the report form. Enforcement. The Committee notes the Government’s indication that the Ministry of Security of Bosnia and Herzegovina, the ministries in charge of employment at the level of the Entities and the department of Brčko District, as well as the Ministries of Interior of the Entities, the police of Brčko District and the employment and labour inspectorate services are all responsible for the application of the legislation and regulations relevant to the Convention. The Committee further notes that no information concerning any decisions delivered by courts is available. The Committee requests the Government to provide information on the monitoring activities, especially those carried out by the labour inspectorate services, relating to the application of the Convention as well as information on any relevant decisions involving issues relating to the application of the Convention handed down by the courts or other competent administrative bodies.

Part V. The Committee notes the Government’s statement that, in practice, there are difficulties in implementing the Convention owing to the sharing of competences and responsibilities relating to the regulation of migration between the various horizontal and vertical levels of government. The Committee encourages the Government to take the necessary steps to coordinate the regulation of migration and ensure that it is uniformly and coherently applied throughout the country.