Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Bosnia and Herzegovina (Ratification: 1993)

Legislative developments. The Committee notes from the information provided by the Government in response to its request for information on the process of harmonizing state and entity legislation with sections 1–3, 8, 21 and 23 of the Law on Gender Equality 2003 that there appears to be new legislation addressing discrimination in the Republika Srpska and the Brcko District. According to the Government’s report, the Labour Law of the Republika Srpska prohibits discrimination on the basis of race, ethnicity, skin colour, sex, language, religion, political or other opinions and convictions, social origin, financial status, membership and non-membership in trade unions or political organizations, physical or mental health and other characteristics that are not in immediate connection with the nature of employment. From the Government’s report, it appears that in the legislation of the Brcko District, there are now provisions regulating the prohibition of discrimination in the field of labour and employment, harassment or sexual harassment, violence based on gender and systematic harassment, including mobbing. With respect to the Federation of Bosnia and Herzegovina, the Committee notes that draft amendments have been prepared to the Labour Law, with provisions similar to those of the Brcko District. The Committee notes that the Government also refers to a draft law on the prohibition of discrimination prepared by the Ministry of Human Rights and Refugees and the Gender Equality Agency of Bosnia and Herzegovina.

The Committee notes that the list of prohibited grounds set out in the new legislation of the Republika Srpska does not include “national extraction”, and it is not clear what are the prohibited grounds enumerated in the legislation of the Brcko District or the draft amendments of the Federation of BiH. The Committee recalls the importance of including explicit reference to all the grounds enumerated in Article 1(1)(a) of the Convention in legislation prohibiting discrimination (see paragraph 206 of the Special Survey on equality in employment and occupation, 1996). The Committee requests the Government to ensure that the draft amendments to the Labour Law of the Federation of BiH explicitly define and prohibit direct and indirect discrimination, on all the grounds enumerated in Article 1(1)(a) of the Convention, with respect to all aspects of employment and occupation, and covering all workers, and to provide information on steps taken in this regard. Noting the Government’s indication that sexual harassment is being addressed in the amendments, the Committee hopes that it will define and prohibit both quid pro quo and hostile environment harassment, in line with the Committee’s 2002 general observation. The Committee also requests the Government to provide the following:

(i)    a copy of the recent laws of the Brcko District and the Republika Srpska addressing non-discrimination;

(ii)   information on whether “national extraction” is a prohibited ground of discrimination in the Republika Srpska, and if not, what steps are being taken to ensure protection against discrimination on this ground; and

(iii) information on the status of the adoption of the law on the prohibition of discrimination, and on the amendments to the Labour Law of the Federation of BiH, and to provide copies once they are adopted.

Article 2 of the Convention. National policy on gender equality. The Committee had previously noted the adoption in 2007 of the Gender Action Plan. The Committee notes the submission of the Ministry of Human Rights and Refugees, the Gender Equality Agency of Bosnia and Herzegovina attached to the Government’s report, as well as the report of the Gender Centre of the Federation of BiH on the application of the Convention. The Committee notes with interest the range of activities and initiatives being taken in the various jurisdictions, including the role of the gender centres of the Republika Srpska and the Federation of BiH, including examining draft laws related to labour and employment, and making recommendations regarding planning, implementing monitoring and enforcement of measures for the promotion of gender equality and for gender statistics. Initiatives at the federal level include training of civil servants on the Gender Action Plan and programmes to stimulate women’s entrepreneurship and reduce women’s unemployment. Information is also provided regarding cantonal initiatives, including an analysis of the representation of women and men, gender budgeting, and gender-sensitive database. The Committee notes that a joint agreement on financing has been prepared with donors with the aim of supporting the implementation of the Gender Action Plan. The Committee welcomes the various initiatives being taken, including by the Gender Equality Agency and the gender centres, and requests the Government to continue to provide information on the various measures taken in support of the Gender Action Plan, and the impact of such measures. The Committee would also welcome further information on the content and status of the project under the Joint Agreement on Financing to implement the Gender Action Plan. Please also provide a summary of the most recent annual report of the Gender Equality Agency.

Article 2. Discrimination on the grounds of race, colour, religion or national extraction. In reply to its previous request for information on the progress made in implementing the Law on the Protection of Rights of Persons Belonging to National Minorities, and on the practical measures to protect minorities against discrimination, the Committee notes the Government’s indication that significant progress has been made. With respect to migrant workers, the Committee notes from the concluding observations of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) that Bosnia and Herzegovina has a significant and increasing number of migrant workers in transit or living on its territory (CMW/C/BIH/CO/1). The CMW also raises concerns regarding the lack of consistency of laws, undermining the ability to protect the rights of migrant workers. The Committee again requests the Government to provide specific information on the progress made in implementing the Law on the Protection of Rights of Persons Belonging to National Minorities, as amended, in particular section 18, including relevant statistics. Please provide a copy of the Law on the Protection of Members of National Minorities of the Republika Srpska, and any recent legislation on this topic of the Federation of BiH. The Committee also requests information on the concrete measures taken or envisaged to protect minorities against discrimination on the grounds of race, colour, religion and national extraction. The Committee again asks the Government to provide specific information on how protection of migrant workers against discrimination, including on the grounds of race, colour, religion and national extraction, is ensured.

The Committee previously raised concerns regarding the widespread discrimination of the Roma in employment and education, and noted in particular the 2005 Strategy of Bosnia and Herzegovina for the resolution of the Roma issues. The Committee notes the adoption of the Strategy of employment of the Roma 2007–15, referred to in the Government’s report, as well as plans to implement the Action Plan for Employment of the Roma. The Committee notes further that in 2008, the Council of Ministers adopted the action plan for addressing the problems of the Roma in the fields of employment, housing and health insurance, and signed the Roma Decade Declaration, formally acceding to the Decade of Inclusion of Roma. The Committee also notes the information provided by the Government to the Committee on the Elimination of Racial Discrimination (CERD) regarding the gaps in the implementation of the Action Plan, which have been acknowledged by the Ministry of Human Rights and Refugees, such as insufficient development and details of concrete measures, allocation of financial resources, monitoring mechanisms, etc. As a result, a revision of the action plan is under way, with members of the working group for its revision having been appointed, including representatives of government authorities at all levels and representatives of the Roma non-governmental sector, and possibilities for financing are being examined (CERD/C/BIH/CO/6/Add.2, 16 July 2009, paragraph 47). On the issue of multiple discrimination facing Roma women, the Committee notes the report of the Gender Equality Agency, indicating that the representatives of the Agency are involved in the working group for employment on drafting the development and social inclusion strategies. The Committee welcomes the revision of the Action Plan with a view to addressing implementation gaps, undertaken with the participation of representatives of the Roma community, and requests the Government to provide information on the status of the revision process and on the conclusions and recommendations resulting therefrom. The Committee also asks the Government to provide information on the impact of the measures taken in the implementation of the Roma strategy, relating to education, employment and occupation. Please also provide information on the status of the development and social inclusion strategies with respect to addressing multiple discrimination against Roma women, as well as any other measures being taken in this regard.

Article 3. Cooperation with workers’ and employers’ organizations, and collective agreements. The Committee previously noted the important role of collective agreements, as well as Rulebooks, and requested information on the status of the process of harmonizing collective agreements with the Law on Gender Equality with respect to non-discrimination. The Committee notes that the report of the Gender Equality Agency states that the Rulebook on records in the area of employment of the Federation of BiH has been harmonized with the Law on Gender Equality. The Committee also notes from the same report that the Independent Industry Trade Union of Health Workers in the Federation of BiH has adopted a programme of activities on gender equality, and the Trade Union of Metal Workers of Bosnia and Herzegovina has developed a special plan for gender equality. The report also notes that all the trade unions have reported taking gender equality into account in appointing members of committees. The Committee welcomes the initiatives of the trade unions in promoting the principles of the Convention, and invites the Government to continue to provide information in this regard. The Committee also requests the Government to provide a copy of the relevant provisions of the Rulebook of the Federation of BiH and any other Rulebooks, as well as examples of collective agreements addressing non-discrimination on the grounds set out in the Convention.

Parts III and IV of the report form. Enforcement. The Committee notes from the report of the Gender Equality Agency that seminars have been held to sensitize male and female labour inspectors regarding gender equality to strengthen their capacity to address cases of violation of rights arising from employment, with a focus on the gender dimension. The Committee notes that the Gender Centre of the Republika Srpska received four applications for review of violations of the Law on Gender Equality in 2007, and the Gender Centre of the Federation of BiH processed 15 cases, which mainly dealt with discrimination against women in employment. The Committee notes the views of the Gender Equality Agency that many people do not file complaints due to the fear of losing their jobs, and because they have no trust in the efficient protection by the institutions. The Agency notes further that as many people work on a part-time basis or illegally, it is difficult, if not impossible, to apply the legislation. The Committee asks the Government to continue to provide information on the number and nature of complaints received under the Law on Gender Equality, and also requests information on complaints of discrimination on grounds other than sex brought to the attention of the courts or the labour inspectors. The Committee also requests information on any measures taken or envisaged to address the concerns raised by the Gender Equality Agency regarding the lack of trust in protection afforded by the institutions and the difficulties faced particularly by part-time workers in bringing complaints of discrimination.