Workers' Representatives Convention, 1971 (No. 135) - Bosnia and Herzegovina (RATIFICATION: 1993)

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The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the adoption in April 2016 of the Labour Act of the Federation of Bosnia and Herzegovina (FBiH Labour Act) and its amendment in November 2018, the adoption of the 2016 Labour Act of the Republika Srpska (the RS Labour Act) and its 2018 amendments, the adoption of the 2019 Labour Act of the Brčko District (BD Labour Act) and of the 2020 Act on Inspections of the Republika Srpska.

Article 1 of the Convention. Adequate protection of workers’ representatives against acts of discrimination related to their representative functions. The Committee refers to its 2016 comments made under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in which it noted the Government’s indication that the FBiH Labour Act, the RS Labour Act and the BD Labour Act provided for a comprehensive prohibition against anti-union discrimination and observed the detailed information provided by the Government on the relevant provisions applicable in this regard. The Committee further notes the Government’s indication with regard to the Republika Srpska that, in 2020, one arbitration proceeding has been brought to the Agency for Amicable Settlement of Labour Disputes on the issue of termination of employment of a trade union president but the procedure has not yet been completed (under section 191 of the RS Labour Act, a workers’ representative may be dismissed during his office or six months after only with the approval of the trade union or workers’ council and if such agreement is not given, the employer may request arbitration). It also notes the Government’s indication, concerning the Federation of Bosnia and Herzegovina that the competent authorities ensure protection of rights of workers’ representatives when deciding about employers’ requests for consent on intended terminations of employment of workers’ representatives. The Government states in this regard that, since June 2019, the Ministry of Labour and Social Policy received 16 requests to give consent to the dismissal of trade union representatives, out of which 12 were granted but 11 of these referred to dismissal with an offer to modify the worker’s employment contract resulting in practice in an amendment of the labour contract with more favourable conditions for the worker. Finally, as regards the Brčko District, the Committee notes with interest the Government’s indication that section 121 of the new BD Labour Act stipulates that the employer may not terminate the employment contract of trade union representatives organized at the employer nor put them in any less favourable position in comparison to the position they had before they were appointed representatives without the prior consent of the trade union and for as long as they hold that position, as well as for three months after they stop performing their duty. The Committee requests the Government to indicate whether this protection also extends to elected workers’ representatives other than trade union officers.

Article 2. Facilities granted to workers’ representatives. Federation of Bosnia and Herzegovina and Republika Srpska. In its previous comment, the Committee welcomed the Government’s indication on the facilities provided to workers’ representatives in the Federation of Bosnia and Herzegovina and the Republika Srpska. The Committee further noted that section 215(7) of the RS Labour Act allows external trade union representatives (not employed by the employer) to have free access to the concerned trade unions but that such activities and visits are subjected to prior announcement to the employer. The Committee requested the Government to provide information on the application in practice of this provision, in particular to indicate whether there have been cases in which the employer refused external trade union representatives not employed by the employer to have access to the concerned trade unions. The Committee notes the Government’s supplementary indication that it does not have data about the instances in which such access was refused.

Brčko District. The Committee previously requested the Government to provide information on the legislative or other provisions which give effect to Article 2 of the Convention in the Brčko District. The Committee notes the Government’s statement that the BD Labour Act does not foresee any benefits which would facilitate the performance of duties of workers’ representatives. The Committee therefore requests the Government to indicate whether any other measures are in place or foreseen to give effect to Article 2 of the Convention and if not, to take the necessary measures, including legislative, to grant such facilities to workers’ representatives so as to enable them to carry out their functions promptly and efficiently.

Articles 3, 4 and 5. Relations between trade union representatives and elected representatives. In its previous comments, the Committee had requested the Government to provide information on the provisions which give effect to Articles 3, 4 and 5 of the Convention in the Brčko District and on the content of the specific provisions governing relations between trade union representatives and elected representatives in the Brčko District and in Republika Srpska, indicating whether they preserve the position and rights of trade union representatives when there are elected representatives in the enterprise. With regard to the Republika Srpska, the Committee welcomes the Government’s clarification, provided under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that the legislation clearly and unambiguously distinguishes between trade unions and workers’ councils and that workers’ councils are subordinate to trade unions. Concerning the Brčko District, the Government indicates with respect to Articles 3, 4 and 5 that the basic provisions of the BD Labour Act do not define the term workers’ representative and do not set forth the types of workers’ representatives who are entitled to the protection and benefits, except for the protection of trade union officers against dismissal. The Committee observes, however, that under section 134 of the new BD Labour Act, workers may constitute a workers’ council, which is a form of workers’ representation, and points to its comments made in this regard under Convention No. 87, in which it requests the Government to clarify the relationship between workers’ councils and trade unions. In light of the above, the Committee requests the Government once again to clarify the relationship between trade unions and workers’ councils, or any other form of elected representatives, as a matter of law and practice, in the Brčko District.

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The Committee notes the adoption in April 2016 of the Labour Act of the Federation of Bosnia and Herzegovina (FBiH Labour Act) and its amendment in November 2018, as well as the adoption of the 2016 Labour Act of the Republika Srpska (the RS Labour Act). The Committee notes that a new labour law is in the process of being adopted in the Brčko District.

Article 1 of the Convention. Adequate protection of workers’ representatives against acts of anti-union discrimination. The Committee refers to its 2016 comments made under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in which it noted the Government’s indication that the FBiH Labour Act, the RS Labour Act and the Labour Act of the Brčko District of Bosnia and Herzegovina (BD Labour Act) provided for a comprehensive prohibition against anti-union discrimination and observed the detailed information provided by the Government on the relevant provisions applicable in this regard. The Committee further notes the Government’s indication with regard to the Republika Srpska that, since the adoption of the RS Labour Act, no arbitration proceedings have been brought to the Agency for Amicable Settlement of Labour Disputes on the issue of termination of employment of a workers’ representative (under section 191 of the RS Labour Act, a workers’ representative may be dismissed during his office or six months after only with the approval of the trade union or workers’ council and if such agreement is not given, the employer may request arbitration). It also notes, concerning the Federation of Bosnia and Herzegovina that, since 2016, the Ministry of Labour and Social Policy received 17 requests to give consent to the dismissal of trade union representatives, out of which eight were granted and three of them referred to dismissal with an offer to modify the worker’s employment contract.

Article 2. Facilities granted to workers’ representatives. Federation of Bosnia and Herzegovina and Republika Srpska. The Committee welcomes the Government’s indication on the facilities provided to workers’ representatives in the Federation of Bosnia and Herzegovina and the Republika Srpska. The Committee further notes that section 215(7) of the RS Labour Act allows external trade union representatives (not employed by the employer) to have free access to the concerned trade unions but that such activities and visits are subjected to prior announcement to the employer. The Committee requests the Government to provide information on the application in practice of this provision, in particular to indicate whether there have been cases in which the employer refused external trade union representatives not employed by the employer to have access to the concerned trade unions.

Brčko District. The Committee previously requested the Government to provide information on the legislative or other provisions which give effect to Article 2 of the Convention in the Brčko District. The Committee notes the Government’s statement that the BD Labour Act does not foresee any benefits which would facilitate the performance of duties of workers’ representatives. The Committee trusts that the new labour law which is in the process of being adopted will contain explicit provisions granting facilities to workers’ representatives and requests the Government to provide a copy of this legislation once adopted.

Articles 3, 4 and 5. Relations between trade union representatives and elected representatives. In its previous comments, the Committee had requested the Government to provide information on the provisions which give effect to Articles 3, 4 and 5 of the Convention in the Brčko District and on the content of the specific provisions governing relations between trade union representatives and elected representatives in the Brčko District and in Republika Srpska, indicating whether they preserve the position and rights of trade union representatives when there are elected representatives in the enterprise. The Government indicates with respect to Articles 3, 4 and 5 that the basic provisions of the BD Labour Act do not define the term workers’ representative and do not set forth the types of workers’ representatives who are entitled to the protection and benefits. The Committee observes, however, that under sections 83 and 93 of the BD Labour Act, workers may constitute a workers’ council, which is a form of workers’ representation and points to its comments made in this regard under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it requested the Government to clarify the relationship between workers’ councils and trade unions. The Committee further notes that in Republika Srpska, collective agreements often provide additional benefits for workers’ representatives and observes from the information provided under Convention No. 87 that workers’ councils are subordinate to trade unions. In light of the above, the Committee requests the Government once again to clarify the relationship between trade unions and workers’ councils, or any other form of elected representatives, in the Brčko District.

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Article 1 of the Convention. Protection of workers’ representatives. In its previous comments, the Committee requested the Government to clarify whether the Labour Law of Brcko District or any other legislation pertaining to Brcko District afforded protection against acts of anti-union discrimination, and if so to specify the relevant provisions. The Committee notes from the information provided by the Government that, according to section 78 of the Labour Law of Brcko District, an employer may terminate the employment contract of a union representative during his/her term of office and within three months after its expiration, only after having consulted the trade union; in case of violations, section 111 establishes a fine of 1,000 to 7,000 Bosnian Convertible Marka (BAM) (US$630 to $4,440). The Committee notes the practical information supplied by the Government concerning the number of requests for dismissal of union representatives approved or rejected by the Ministry and refers to its comments made in 2013 under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), requesting information on the application in practice.

Article 2. Facilities granted to workers’ representatives in the Federation of Bosnia and Herzegovina. In its previous comments, the Committee had noted the facilities provided in the Federation of Bosnia and Herzegovina under section 139 of the Labour Act (right to return to work after end of mandate); under sections 33 to 36 of the Works Council Act (time off from work, right to return to work after end of mandate, right to compensation of salary and premises, administrative and technical support for the performance of trade union representative functions); and sections 27 and 28 of the General Collective Agreement (access of trade union representatives not employed by the employer if trade union has members in the undertaking; conditions for work and activity of the trade union to be stipulated and ensured in the employer’s employment policy in compliance with the general and collective agreements in the specific industries). The Committee had requested the Government to provide a copy of the General Collective Agreement for the territory of the Federation of Bosnia and Herzegovina. The Committee notes that section 28 of the General Collective Agreement supplied by the Government additionally provides for check-off facilities.

Facilities granted to workers’ representatives in the Republika Srpska and Brcko District. In its previous comments, the Committee requested the Government to provide information on the legislative or other provisions which give effect to Article 2 of the Convention concerning facilities granted to workers’ representatives in the Republika Srpska. The Committee notes from the information transmitted by the Government that section 51 of the General Collective Agreement of Republika Srpska provides for paid time off for trade union representatives. It also notes that, in the Brcko District, facilities for elected representatives are governed by the Works Councils Act. The Committee asks the Government to provide information on the legislative or other provisions concerning facilities granted to trade union representatives in the Brcko District.

Articles 3, 4 and 5. Relations between trade union representatives and elected representatives. In its previous comments, the Committee noted that, according to the Government, the conditions for work of trade unions and the rights of labour or trade union representatives are regulated by sections 52 to 56 of the General Collective Agreement of the Republika Srpska as well as through individual industry-specific collective agreements. The Committee had requested the Government to provide information on the provisions which give effect to Articles 3, 4 and 5 of the Convention in the Brcko District. In the absence of any new information provided by the Government, the Committee asks the Government to provide information on the content of the specific provisions governing relations between trade union representatives and elected representatives in the Brcko District and in Republika Srpska, indicating whether they preserve the position and rights of trade union representatives when there are elected representatives in the enterprise.

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Article 1 of the Convention. Protection of workers’ representatives. The Committee had previously recalled that it had taken note of the comments communicated by the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) and the Confederation of Trade Unions of the Republika Srpska (CTURS) with regard to dismissals of trade union representatives without the mandatory approval from the Federal Ministry of Labour; the workers’ organizations mentioned that although the Labour Law contained provisions on the prohibition of discrimination, it was impossible to prove the breaches of these provisions at court because discrimination often occurred in a hidden manner. The Committee had further requested the Government to specify the provisions in the Labour Law which provide that the dismissal of workers’ representatives shall be subject to approval by the Federal Ministry of Labour, as indicated by the SSSBiH and CTURS in their comments. It also requested the Government, while the Labour Code and Law on changes and amendments to the Labour Code of Brcko District (Official Gazette of Brcko District of BiH, Nos 7/00 and 33/04) were being translated, to specify the provisions which afford protection against anti-union discrimination to workers’ representatives in the Brcko District.

While the Committee is still awaiting the translation of the Labour Code and Law on changes and amendments to the Labour Code of Brcko District (Official Gazette of Brcko District of BiH, Nos 7/00 and 33/04), it notes with interest the Government’s statement that section 93 of the Labour Law of the Federation of Bosnia and Herzegovina (FBiH) provides that only with the prior approval of the Federal Ministry of Labour may an employer terminate the employment agreements of trade union commissioners during their period of service, and for six months after having completed their period of service. Furthermore, the General Collective Agreement for the FBiH also includes this requirement of prior approval for the termination of trade union commissioners’ employment agreements. The Committee also notes with interest that, according to the Government, section 26 of the Law on the Works Council provides that only with the previous consent of the works council may an employer terminate the employment of a works council member; the termination of a works council member’s employment without such consent is an offence punishable by a fine.

The Committee notes the Government’s indication that the Labour Law of the Brcko District includes a prohibition on discrimination on the basis of the following: membership or non-membership of a trade union; the choice of trade union; the opting in or out of trade union membership; and involvement in trade union activities. The prohibition, furthermore, extends to discriminatory dismissals. While noting this information, the Committee nevertheless recalls that, in the information submitted by the Government on the application of Convention No. 98, the Government indicates that the legislation of the Brcko District contains no sanctions against employers for acts of anti-union discrimination. In these circumstances, the Committee requests the Government to clarify whether the Labour Law of Brcko district or any other legislation pertaining to Brcko District affords protection against acts of anti-union discrimination, and if so to specify the relevant provisions.

Article 2. Facilities granted to workers’ representatives. The Committee had previously noted with interest the numerous facilities provided to workers’ representatives according to the Government in the Federation of Bosnia and Herzegovina (time off from work, right to return to work after end of mandate, right to compensation of salary and premises, administrative and technical support for the performance of trade union representative functions). The Committee requested the Government to specify the legal texts on the basis of which these facilities were provided (e.g. law, collective agreement, etc.) in the Federation of Bosnia and Herzegovina, as well as to provide a copy of the General Collective Agreement for the territory of the Federation of Bosnia and Herzegovina (Official Gazette of the Federation BiH, No. 54/05).

In respect of the above, the Committee notes that the Government indicates the following: (1) section 139 of the Labour Law of the FBiH provides that for employees elected to a professional trade union post, upon their request the rights and obligations arising from employment shall be on stand-by for no longer than four years from the day of election or appointment; (2) section 15 of the Law on the Works Council prescribes that the cost of elections of works council members shall be borne by the employer; (3) section 33 of the Law on the Works Council provides that the works council shall perform tasks and hold session during work hours. Each member of the works council shall be entitled to carry out the tasks from the scope of competencies of the works council several times per week, provided that members may assign work hours to each other. The tasks of the president or members of the works council may be carried out during full-time work hours if the sum of the assigned work hours so permits; (4) section 34 of the Law on the Works Council provides that council members shall be entitled to compensation for council-related work in the amount of the salary they would have earned for work done pursuant to their employment agreement; (5) section 35 of the Law on the Works Council provides that the president or members of the works council who have carried tasks for the works council during full-time work hours shall, once the said tasks have ceased, be entitled to return to the tasks they had previously performed or, if no such tasks remain, to other tasks corresponding to their professional qualifications; (6) section 36 of the Law on the Works Council provides that the employer shall be required to ensure to the works council the necessary space, administrative and technical conditions for work, which is more closely governed through an agreement between the employer and the works council; and (7) sections 27 and 28 of the General Collective Agreement for the territory of the FBiH provide that trade union representatives not employed by the employer but whose trade union includes members employed by the employer shall be allowed access when so required for carrying out trade union activities. Also, the employer’s employment policy must stipulate and ensure the conditions for work and activity of the trade union in compliance with the general and collective agreements in the specific industries. Noting this information, the Committee once again requests the Government to provide a copy of the General Collective Agreement for the territory of the Federation of Bosnia and Herzegovina (Official Gazette of the Federation BiH, No. 54/05).

Facilities granted to workers’ representatives in the Republika Srpska and Brcko District. In respect of the Committee’s previous request to provide information on the legislative or other provisions which give effect to Article 2 of the Convention in the Republika Srpska and the Brcko District, the Committee notes that, in respect of the Brcko District, the Government states that the Labour Law of the Brcko District provides that, where an employer hires more than 15 workers, the workers shall be entitled to form the works council to represent them with the employer for the protection of their rights and interests. The Government further indicates in this regard that method and procedure of formation of the works council, as well as other issues related to the work and activity of the works council, are governed in the Law on the Works Council of Brcko District. The Committee notes this information. While it awaits the translation of the General Collective Agreement of Republika Srpska (Official Gazette of the Republika Srpska, No. 27/06) the Committee once again requests the Government to provide information on the legislative or other provisions which give effect to Article 2 of the Convention concerning facilities granted to workers’ representatives in the Republika Srpska.

Articles 3, 4 and 5. Relations between trade union representatives and elected representatives. The Committee had previously requested the Government to provide information on the provisions which give effect to the provisions of Articles 3, 4 and 5 of the Convention in the Republika Srpska and Brcko District. In this regard the Committee notes that, according to the Government, the conditions for work of trade unions and the rights of labour or trade union representatives are regulated by sections 52 to 56 of the General Collective Agreement (Official Gazette of the Republika Srpska, No. 27/06, as well as through individual industry-specific collective agreements. The Committee once again requests the Government, while it awaits the translation of the General Collective Agreement of Republika Srpska (Official Gazette of the Republika Srpska, No. 27/06), to indicate the provisions which give effect to the provisions of Articles 3, 4 and 5 of the Convention in the Brcko District.

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The Committee takes note of the Government’s first report.

The Committee is awaiting the translation of the following texts: Law on Employees’ Councils of Republika Srpska (No. 649 of 7 June 2001); General Collective Agreement of the Republika Srpska (Official Gazette of the Republika Srpska, No. 27/06); Labour Code and Law on changes and amendments to the Labour Code of Brcko District (Official Gazette of Brcko District of BiH, No. 7/00 and 33/04) in order to examine their conformity to the provisions of the Convention.

Article 1 of the Convention. The Committee notes that sections 5 and 10 of the Labour Law of the Federation of Bosnia and Herzegovina as well as section 5 of the Labour Law of the Republika Srpska establish a prohibition of acts of discrimination by reason of trade union membership and allows grievances in this regard to be brought before the courts which may order appropriate remedies.

The Committee also recalls, however, that in its 2005 direct request under Convention No. 98, it has taken note of comments communicated by the Confederation of Independent Trade Unions of Bosnia and Herzegovina (CITU BiH) and the Confederation of Trade Unions of the Republika Srpska (CTURS), with regard to dismissals of trade union representatives without the mandatory approval from the Federal Ministry of Labour; the workers’ organizations mention that although the Labour Law contains provisions on the prohibition of discrimination, it is impossible to prove the breaches of these provisions at court because discrimination often takes place in a hidden manner.

The Committee takes due note of the Government’s observations in this regard, communicated in its report under Convention No. 135, to the effect that although the administration pays due attention to the protection of workers’ representatives, it is sometimes difficult to differentiate between cases of dismissal due to violations of obligations at work, or due to the performance of the workers’ representative function.

While noting that the issue is being treated under Convention No. 98, the Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials and workers’ representatives because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representative in full freedom.

The Committee requests the Government to specify the provisions in the Labour Law which provide that the dismissal of workers’ representatives shall be subject to approval by the Federal Ministry of Labour, as indicated by the CITU BiH and CTURS in their comments. Moreover, while the Labour Code and Law on changes and amendments to the Labour Code of Brcko District (Official Gazette of Brcko District of BiH, No. 7/00 and 33/04) is being translated, it also requests the Government to specify the provisions which afford protection against anti-union discrimination to workers’ representatives in the Brcko District.

Article 2. The Committee notes with interest the numerous facilities provided to workers’ representatives according to the Government in the Federation of Bosnia and Herzegovina (time off from work, right to return to work after end of mandate, right to compensation of salary and premises, administrative and technical support for the performance of trade union representative functions). The Committee requests the Government to specify the legal texts on the basis of which these facilities are provided (e.g. law, collective agreement etc.) in the Federation of Bosnia and Herzegovina. In this regard, the Committee requests the Government to provide a copy of the General Collective Agreement for the territory of the Federation of Bosnia and Herzegovina (Official Gazette of the Federation BiH, No. 54/05).

Moreover, while the general collective agreement of Republika Srpska (Official Gazette of the Republika Srpska, No. 27/06) is being translated, the Committee requests the Government to provide information on the legislative or other provisions which give effect to Article 2 of the Convention in the Republika Srpska and the Brcko District.

Articles 3, 4 and 5. The Committee takes note of the provisions of the Law on Employees’ Councils of the Federation of Bosnia and Herzegovina No. 38 of 2004. While the Law on Employees’ Councils of the Republika Srpska (No. 649 of 7 June 2001) is being translated, the Committee requests the Government to provide information on the provisions which give effect to the provisions of Articles 3, 4 and 5 of the Convention in the Republika Srpska and Brcko District.