Demande directe (CEACR) - adoptée 2010, publiée 100ème session CIT (2011)

Article 3 of the Convention. Right of trade unions to organize their activities and to formulate their programmes. Penal sanctions for strikes. In its previous comments, the Committee had noted that, according to section 167 of the Criminal Code, whoever organizes or leads a strike in a way which is contrary to the law or regulations and thereby endangers human life and health or property to a considerable extent, or if grave consequences result there from, shall be punished with imprisonment of up to three years unless other criminal offences prevail. The Committee had recalled that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account; that such sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. The Committee notes that the Government indicates in its report that it is still waiting for an opinion of the Ministry of Justice on this issue. The Committee requests the Government to provide information in its next report on the opinion of the Ministry of Justice in this respect.

Penal sanctions for statements. In its previous comments, the Committee had noted that sections 173–176 of the Criminal Code punish with a fine, or imprisonment of up to three months, anyone who publicly ridicules the Republic of Serbia, another nation, national or ethnic group living in the Republic of Serbia, a foreign State, its flag, coat of arms or anthem, or the United Nations, International Red Cross or other international organization of which the Republic of Serbia is a member. The Committee had noted, however, that section 176 exempts from this punishment those who perform journalistic duties or political activities in defence of a right, or of justifiable interests, if it is evident that the statements made were not intended to disparage or if the person concerned proves the veracity of the statement or if he/she had reasonable grounds to believe that the statement was true. The Committee had also noted that statements made in the framework of the performance of trade union activities were not explicitly exempted from the prohibitions of sections 173–176. The Committee notes that the Government indicates in its report that it is still waiting for the response of the Ministry of Justice to the question whether sections 173–176 can apply in relation to trade union activities and to which effect. The Committee once again requests the Government to provide information in its next report on whether sections 173–176 of the Criminal Code have been applied in relation to trade union activities and to which effect and, if it is the case, to take the necessary measures to ensure that legitimate trade union activities may not fall under these provisions.

Minimum services. In its previous comments, the Committee had noted that, according to section 10 of the Law on Strikes, in the case of strikes involving “activities in the general interest”, the employer has the power to determine unilaterally the minimum services after having consulted with the union and that, 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 had further noted that according to the Government: (i) the Law on Strikes stipulates that the minimum services should be determined in accordance with objective criteria (e.g. the nature of the activity, the degree to which the life and health of people is endangered and other circumstances such as the season of the year, the tourist season, the school year, etc.); (ii) the minimum services should be limited to the activities necessary for the purpose of satisfying the basic needs of the population and the employer must take into account the opinions, remarks and proposals of the union in the process of determining the minimum services; and (iii) in case of dispute, the parties have an obligation to bring the matter to the Reconciliation Commission. The Committee had further noted that the District Court had also handed down decisions on matters related to strikes. The Committee notes that the Government indicates in its report that: (i) a working group has been established to prepare amendments to the Law on Strikes and that it will take into particular consideration the issue of the minimum services; and (ii) section 23, paragraph 1, item 8 of the Law on Court Organization (Official Gazette of RD Nos 116/08 and 104/09) provides that the Higher Court shall judge at first instance the cases concerning strike action and that, accordingly, each dispute over strike action, including making decisions on minimum work process, may be subject matter of court proceedings. The Committee requests the Government to provide information in its next report on the outcomes of the working group as well as a copy of the amendments to the Law on Strikes once adopted.

Compulsory arbitration. In its previous comments, the Committee had noted that the Government indicated that the Law on the Peaceful Settlement of Labour Disputes establishes a National Mediation Agency before which disputes pertaining to the exercise of the right to strike are settled. It also noted that, while the new Labour Act of 2005 provides that the parties to a dispute can make an independent decision on whether to bring their dispute to arbitration, in the activities of general interest (i.e. power-generating industry, water supply, transportation, radio–television media founded by the State, the autonomous provinces or local self-administration units, the postal, telegraph and telecommunication services, utilities, production of basic food products, medical and veterinary protection, education, social care of children and social protection and activities of special importance for the defence and security of the State), there is an obligation for the parties to bring the dispute to this Agency for conciliation. The Committee also noted that the Government indicated that the law does not however prevent employees from going on strike while their dispute is being settled peacefully. The Committee had requested the Government to specify whether the decisions issued by the National Mediation Agency are final and binding on the parties, thus rendering the continuation of a strike impossible. The Committee notes that the Government indicates in its report that: (i) according to the amendments made to the Law on Labour Dispute Mediation dated 24 December 2009, in case of dispute in activities of general interest, the parties are bound to initiate a mediation proceeding before the Mediation Committee; (ii) the decision which the Mediation Committee shall take in the form of a recommendation is not binding for the parties, nor is a condition for beginning a strike or for its continuance; and (iii) in 2009, the National Mediation Agency mediated in 12 collective disputes implying a threat of strike or in which large-scale strikes had already started. The Committee requests the Government to provide a copy of the Law on Labour Dispute Mediation as amended on 24 December 2009, with its next report.

Finally, the Committee notes the adoption, in July 2009, of the Law on Associations. The Committee understands that this law does not apply to trade unions and employers’ organizations, since these organizations are already covered by special laws (section 2, paragraph 2). The Committee requests the Government to confirm in its next report that the 2009 Law on Association does not apply to trade unions and employers’ organizations.