Demande directe (CEACR) - adoptée 2009, publiée 99ème session CIT (2010)

1. The Committee notes the information provided in the Government’s report received in August 2009 in reply to the 2007 direct request.

2. Article 4 of the Convention. Valid reason for termination of employment. The Committee noted in its 2007 direct request that section 87, paragraph 2, of the Labour Code of the Federation of Bosnia and Herzegovina provides that when no longer able to perform the job, an employee can be dismissed. Furthermore, section 88 of the Labour Code provides that an employee may be dismissed for serious misconduct or a serious breach of obligations. The Committee also notes that the Labour Act of the Brcko District provides that the employer may terminate the employment agreement if the employees are not able to fulfil their obligations arising from the employment agreement. The Committee asks the Government to provide copies of the leading court decisions on valid reasons for termination, in particular court decisions applying sections 87 and 88 of the Labour Code of the Federation of Bosnia and Herzegovina, section 113 of the Labour Act of the Republika Srpska, and the relevant provisions of the Labour Act of the Brcko District.

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 2007 direct request, the Government indicates that sections 5, 9, 10 and 10a of the Labour Code of the Federation of Bosnia and Herzegovina contain the prohibitions of discrimination, which include membership or non-membership in a trade union. Furthermore, section 93 of the Labour Code provides that an employer may terminate the employment contract of a trade union representative during the conduct of their duties and six months after performing these duties, only with the prior consent of the federal ministry responsible for labour. The Government indicates that the Labour Act of the Brcko District contains similar provisions concerning membership and non-membership in trade unions. The Government also indicates that section 126 of the Labour Act of the Republika Srpska enumerates the cases in which the employer may terminate the employment agreement of an employee – the employer has no legal authority to terminate the employment agreement beyond the cited cases. The Committee invites the Government to provide practical information on the manner in which effect is given to this provision of the Convention in the three entities.

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 reports that filing a complaint against an employer, pursuant to the labour laws in Bosnia and Herzegovina, does not constitute a justified reason for termination of employment. The Committee once again asks the Government to provide concrete examples of the manner in which this provision is applied in the three entities.

5. Article 5(d). Invalid reasons for termination of employment: Race, colour, sex, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The Government reiterates that it has no information of any dispute brought before its courts due to termination of employment contrary to section 5 of the Labour Code of the Federation of Bosnia and Herzegovina. The Government further indicates that there are dozens of courts at the municipal level, as well as cantonal courts, dealing with individual disputes stemming from a violation of the rights arising from employment. The only information which is publicly available are the decisions from the Supreme Court of the Federation of Bosnia and Herzegovina, and according to the published information, there have been no disputes conducted before this court for breach of section 5 of the Labour Code. The Committee once again requests the Government to provide 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 court decisions from the Supreme Court of the Federation of Bosnia and Herzegovina as they become available.

6. Article 5(e). Invalid reason for termination of employment: Absence from work during maternity leave. The Government reports that section 132 of the Labour Act of the Republika Srpska provides that the employer may not terminate the employment agreement during pregnancy, maternity leave, parental leave, or during periods or shorter working hours for the purpose of child care. The Government also reports that the right to maternity leave is guaranteed in the Labour Act of the Brcko District, which provides that termination of employment is not possible during this period. The Government further indicates that it is not aware of any court decisions concerning section 53 of the Labour Code of the Federation of Bosnia and Herzegovina prohibiting the termination of employment while a worker is pregnant or on maternity leave. The Committee requests the Government to provide information on the application of this provision of the Convention in the three entities.

7. Article 6, paragraph 2. Temporary absence from work because of illness or injury. The Government reports that section 64 of the Labour Code of the Federation of Bosnia and Herzegovina provides that an employer may not terminate the employment contract of a worker who has suffered an injury or has developed a professional illness, which has resulted in the employee being temporarily unable to work. The Committee asks the Government to provide information on whether there have been any court cases concerning dismissal as a result of temporary absence from work because of illness or injury. If so, please provide copies of the leading court cases on this matter.

8. Article 7. Procedure prior to termination. The Government indicates that section 90 of the Labour Code of the Federation of Bosnia and Herzegovina provides that if the employer terminates the employment contract due to the behaviour or work performance of the employee, the employer is required to allow the employees to present their defence, unless there are circumstances for which the employer cannot be reasonably expected to permit such. The Government further reports that section 128 of the Labour Act of the Republika Srpska provides that, prior to termination, the employer is required to enable the worker to be heard and present their defence, if this is possible given the circumstances. The employer should also consider the opinion of trade unions or works councils, if such an opinion has been submitted before passing the final decision on termination. The Committee asks the Government to continue to provide information concerning the procedure prior to termination in the three entities, and to provide copies of court decisions on the application of the abovementioned provisions as they become available.

9. Article 12. Severance pay or other income protection. The Committee recalls that the Government stated 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, and to health insurance and partly pension insurance. The Government indicates that section 23 of the Labour Code of the Republika Srpska stipulates that an unemployed person who had been terminated without their request, consent or fault, and who possesses at least eight months of continuous insurance record in the last 12 months, or 12 months with interruptions over the past 18 months, shall be entitled to monetary compensation, health insurance, pension and disability insurance. The Committee asks the Government to provide in its next report detailed information on the practical application of this provision of the Convention in the three entities.

10. Article 14. Notification to the competent authority. The Government reports that, in the Federation of Bosnia and Herzegovina, the Placement Agencies Act and social security for unemployed persons provide that, in case of termination of employment based on sections 98 and 99 of the Labour Code, the employer is obliged, within 15 days of the date of termination, to notify the employment services in writing about the employees that will be affected by the terminations. The Committee requests the Government to specify in its next report the provisions in force in the Republika Srpska and Brcko District which give effect to this provision of the Convention.

11. Illegally dismissed workers. In its previous comments, the Committee noted that 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 Republika Srpska was making efforts to secure the funds for severance pay. The Committee invites the Government to indicate 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 deliberations by the National Assembly.