Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bosnia and Herzegovina (Ratification: 1993)

The Committee takes note of the Government’s report.

Article 2. Right of employers and workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Foreign workers. In its previous comments, the Committee noted that, while section 9 of the Law on Labour of the Federation of Bosnia and Herzegovina, 1999, and section 6 of the Law on Labour of the Republika Srpska, 2000, seem to guarantee to all workers, including foreigners, the right to join trade unions, sections 3(1) and 9 of the Law on the Associations and Foundations of Bosnia and Herzegovina which is applicable throughout the Republic, appear to limit the right to establish a trade union to those foreign workers residing in Bosnia and Herzegovina. The Committee is of the view that the rights provided for in the Convention should be recognized to all workers without distinction based on nationality including anyone working in the territory of the State. The Committee asked the Government to clarify whether authorization of residence is a precondition for foreign worker membership in trade unions. The Government indicates in its report that there are no limitations to trade union organization rights for foreign workers working and residing in the Bosnia and Herzegovina territory. However, work permits are a precondition for residing legally in the country. Noting that this issue concerns fundamental rights of workers, the Committee requests the Government to take all necessary measures to ensure that all workers working on its territory have the right to form and join associations, regardless of their work permit or residence status.

Registration requirements. In its previous comments, the Committee noted that section 37 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides for the establishment of a complaints committee which is a permanent body consisting of three members appointed by the Council of Ministers and is authorized to hear complaints against, inter alia, a refusal to grant registration. Furthermore, the Committee noted that section 38 authorizes the Minister of Internal Affairs and Communication to examine the receivability of complaints and to decide whether to transmit them to the Committee and that section 42 provides that, although the Committee’s rulings cannot be the object of a complaint, recourse can be had to the Administrative Court of Bosnia and Herzegovina. The Committee considers that employers’ and workers’ organizations should have the right to appeal to independent courts against any administrative decision regarding their registration. However, the Committee also considers that the existence of the right to appeal to a court is not in itself an adequate safeguard; the competent judges should be able, on the basis of the record, to review the grounds for refusal given by the administrative authorities, which grounds should not be contrary to the principles of freedom of association, and should be empowered to give a ruling rapidly and, where necessary, order appropriate remedies (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 77). The Committee notes the Government’s indication that sections 32, 37 and 42 will be reviewed, taking into account the comments of the Committee. The Committee requests the Government to keep it informed in its next report of any legislative amendment in this respect.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. Right to elect representatives freely. Republika Srpska. In its previous comments, the Committee noted that section 28 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that this recent and generally applicable law does not automatically replace the previous laws and regulations except in the case of an insurmountable contradiction. The Committee also took note of section 4(3) of the Regulation on the registration of trade union organizations in the registry of the Republika Srpska, 1998, which includes among the documents necessary for the registration of a trade union a certificate of the employer stating that the trade union representative authorized to submit the registration form is employed by the specific enterprise. In that occasion, the Committee indicated that such a requirement may prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office (see General Survey, op. cit., paragraph 117). The Committee takes note of the Government’s indication that this registration with the Ministry of Labour is made for the needs of labour administration and has nothing to do with the registration to be made with the courts pursuant to the Law on the Associations and Foundations of Republika Srpska for acquisition of legal subjectivity and activity of the trade union organization and that activities are under way to harmonize the provisions of the Labour Law with the Law on the Associations and Foundations of Bosnia and Herzegovina and Republika Srpska, so that the Ministry would not have to maintain the record, or registry, in addition to the registry maintained by the competent court. The Committee hopes that this harmonization will take place in the very near future and requests that the Government keep it informed in this regard.

Political activities. The Committee noted that section 3(3) of the Law on the Associations and Foundations of Bosnia and Herzegovina prohibits associations, including trade unions, from engaging in electoral campaigns, fund-raising or the financing of candidates or political parties. The Committee requested that the Government indicate whether this prohibition includes union statements of support for electoral candidates. In its report, the Government indicates that the ban of engagement in election campaigns, fund-raising or funding of candidates or political parties as well as trade union statements of support to election candidates is provided in section 3(3) of the Law on the Associations and Foundations of Bosnia and Herzegovina, the Law on the Associations and Foundations of the Federation of Bosnia and Herzegovina and the Law on the Associations and Foundations of Republika Srpska, as well as section 3 of the Law on the Associations and Foundations of the Brcko District of Bosnia and Herzegovina. The Committee considers that although the promotion of working conditions by collective bargaining remains a major feature of trade union action, it believes that the development of the trade union movement and the increasing recognition of its role as a social partner in its own right mean that workers’ organizations must be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy. The Committee is of the view that both legislative provisions which establish a close relationship between trade union organizations and political parties and those which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, op. cit., paragraphs 131 and 133). Taking into account the above considerations, the Committee requests the Government to take the necessary measures to amend the legislation and to keep it informed in its next report.

Interference in the activities of employers’ and workers’ organizations. In its previous comments, the Committee noted that section 20 of the Law on the Associations and Foundations of Bosnia and Herzegovina restricts the right to vote of officers in the internal bodies of associations, including employers’ and workers’ organizations, where a conflict of interest may exist. The Committee indicated that it was of the view that this is an internal matter of such organizations and should be dealt with in their by-laws rather than in the law. The Committee notes the Government’s indication that article 20 will be the subject of review under the activities carried out in relation to the amendments of the Law on the Associations and Foundations of Bosnia and Herzegovina. The Committee trusts that the announced review to section 20 will be done in the near future and requests the Government to keep it informed of any development in this respect.

Relationship with works councils. Federation of Bosnia and Herzegovina. In its previous comments, the Committee noted that section 108(2) of the Law on Labour provides that if no works council has been created in the establishment, the trade union shall have the same powers and obligations as the works council in accordance with the law. The Committee also noted that section 98 of the Law on Labour, as amended by section 41 of the Decree of 15 August 2000, enables the employer to organize collective dismissals in consultation with all trade unions representing 10 per cent of workers only if there is no works council in the enterprise. In this respect, the Committee requested the Government to provide information on the means of setting up works councils and the exact scope of their obligations and powers. The Committee also asked the Government to take all necessary steps to amend provisions which privilege works councils relative to trade unions. The Committee notes the Government’s report in which it indicates: (1) that the creation of works councils does not preclude or prevent the formation and activity of trade unions, but ensures that a higher degree of protection is established for the workers through joint and coordinated action; (2) the significance of works councils comes to expression in cases where there is no trade union; and (3) article 98 of the Labour Law will be reviewed. The Committee requests the Government to ensure that these provisions do not place trade unions in a secondary and subsidiary position in relation to works councils, thus involving the risk of weakening the institutional position of trade unions and to keep it informed of the announced review of article 98 of the Labour Law concerning prerogatives given to works councils.

The right to strike. Federation of Bosnia and Herzegovina. The Committee notes from the Government’s report that the Law on Labour Relations and Wages of Employees of Federal Administrative Bodies, 1998, has been repealed with the adoption of the Law on Civil Service in the Federation of Bosnia and Herzegovina, which is not governing issues of organizing and leading strikes. Article 1 of the Law on Strikes of the Federation of Bosnia and Herzegovina provides for passing a separate law governing the issue of strikes in the army of the Federation of Bosnia and Herzegovina, members of law enforcement ministries, administration bodies and administration services in the Federation of Bosnia and Herzegovina. The separate law has not yet been passed. The Committee requests the Government to keep it informed of any new legislation adopted.

Republika Srpska. In its previous comments, the Committee noted that sections 10 and 11 of the Law on Strikes, 1998, authorize the employer to determine the minimum service and to assign workers to posts at least three days before the beginning of the strike, taking into consideration the opinion, suggestions and comments of the trade union. The Committee also noted that section 12(2) of the Law on Strikes authorizes the competent public authority to secure the conditions for the provision of minimum service if the management fails to do so and to engage workers who are not employed by the enterprise if the minimum working process cannot be secured otherwise. The Committee takes note of the Government’s indication that activities have been undertaken in relation to amendments to the Law on Strikes in order to: (1) enable workers to define minimal services in the activities pertaining to the mentioned provisions; and (2) have an independent body that would decide in cases where the interested parties cannot agree. The Committee hopes that amendments will take place in the very near future and requests that the Government keep it informed in this regard.

Public order limitations. Republika Srpska. In its previous comments, noting that article 30 of the Constitution of the Republika Srpska allows legal restrictions on freedom of gathering for the purpose of protecting the safety of persons and property, the Committee requested the Government to provide information on the exact nature of restrictions on freedom of association envisaged in this article and the conditions under which they are applied. Noting that the Government did not provide the information, the Committee requests the Government to communicate it in its next report.

Article 4. Dissolution and suspension of organizations by administrative authority. In its previous comments, the Committee noted that section 51(1) of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Internal Affairs and Communication to order the dissolution of an association that abstains from its main activity for the realization of its objectives for at least two years without valid reason. The Committee noted furthermore that subsections 1 to 3 of section 51 of the Law on the Associations and Foundations of Bosnia and Herzegovina authorize the Minister of Internal Affairs and Communication to order the cessation of the activities of an association in cases of recurrent and serious irregularities in its functioning, and that sections 35 and 37 allow the filing of a complaint before the complaints committee against such a decision. The Committee considered that measures of dissolution or suspension of organizations by the administrative authority involve a serious risk of interference by the authorities in the very existence of organizations and that it is preferable for legislation not to allow this possibility. If it does, such measures should be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee noted that the organization affected must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure. Moreover, the Committee recalled that the administrative decision should not take effect until a final decision is handed down (see General Survey, op. cit., paragraph 185). The Committee notes the Government’s indication that it will take into consideration the comments of the Committee regarding section 51 under the activities related to review the Law on the Associations and Foundations of Bosnia and Herzegovina. The Committee requests the Government to indicate in its next report the measures taken or envisaged to amend this provision.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. In its last comments, the Committee noted that there is no provision in the Law on the Associations and Foundations of Bosnia and Herzegovina on the right of employers’ and workers’ organizations to affiliate with international organizations. The Committee asks the Government to specify whether employers’ and workers’ organizations have full freedom to affiliate with international organizations of their own choosing.

Republika Srpska. In its previous comments the Committee noted that section 2(2) of the regulation on the registration of trade union organizations in the registry of the Republika Srpska identifies a single central organization, the Union of Trade Unions, as the broadest form of trade union organization in the Republika Srpska and makes no provision concerning the registration of additional organizations at that level. The Committee noted furthermore that sections 1 to 4 of the instructions on the implementation of the regulation authorize this single organization to carry out all the administrative tasks necessary for the registration of trade union federations at the branch, city or communal levels and to countersign and certify the relevant documents before their submission to the authorities. The Committee also noted that a corresponding authority is accorded to trade union federations at the city or communal levels for the registration of trade unions which operate at the enterprise level or in the public sector. The Committee pointed out that trade union diversity should remain possible in all cases and freedom of choice must be safeguarded even where employers’ and workers’ organizations have chosen a single central organization – a situation which should not be institutionalized by legislation (see General Survey, op. cit., paragraphs 96 and 194). Furthermore, the Committee noted that section 28 of the recent Law on the Associations and Foundations of Bosnia and Herzegovina provides that this law does not automatically replace the previous laws and regulations except in the case of an insurmountable contradiction, and requested the Government to indicate whether these provisions continue to apply in the Republika Srpska after the adoption of the new Law on the Associations and Foundations of Bosnia and Herzegovina. The Committee takes note that the Government indicates that activities are under way to harmonize the provisions of the Labour Law with the Law on the Associations and Foundations of Bosnia and Herzegovina and Republika Srpska. The Committee hopes that this harmonization will take place in the very near future and requests that the Government keep it informed in this regard.

The Committee requests that the Government transmit in its next report the information requested on the above points including the measures taken to amend its legislation so as to bring it into full conformity with the Convention.