Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Article 1 of the Convention. Grounds of discrimination. With reference to its observation regarding the adoption of the Prohibition of Discrimination Act of Bosnia and Herzegovina (BiH), the Committee notes that a wide range of grounds of discrimination are enumerated in the Act, including a number of additional grounds, as foreseen in Article 1(1)(b) of the Convention, such as language, education, social status, sexual expression and sexual orientation (section 2). However, specific reference does not appear to be made to national extraction or political opinion, which are enumerated in Article 1(1)(a) of the Convention. The Committee also recalls that the Labour Law of the Republika Srpska does not specifically refer to “national extraction” as a prohibited ground of discrimination, and notes the Government’s statement that the term “ethnicity and/or origin” means the same as “nationality and/or origin in that sense”. The Committee also notes the Government’s indication that the draft amendments to the Labour Law of the Federation of BiH are still in the legislative process. The Government indicates that these amendments define and prohibit direct and indirect discrimination against employees and persons seeking employment; gender, sexual orientation, marital status, family responsibilities, age, pregnancy, language, religion, political or other opinion, nationality, social background, property, birth, race, colour, or non-membership in political parties and trade unions or any other personal characteristics are included as prohibited grounds of discrimination. The Committee notes that specific reference is not made to “national extraction” as a prohibited ground of discrimination. The Committee recalls the importance of including explicit reference to all the grounds of discrimination enumerated in Article 1(1)(a) of the Convention.

The Committee asks the Government to provide specific information on the following:

(i) the interpretation of “political or other persuasion” and “national origin” in the Prohibition of Discrimination Act of BiH, and on how protection against discrimination on the grounds of political opinion and national extraction is ensured in practice;

(ii) how protection against discrimination on the basis of national extraction is ensured in practice within the jurisdiction of the Republika Srpska;

(iii) the status of the adoption of the amendments to the Labour Law of the Federation of BiH, and any steps taken to include a specific reference to national extraction as a prohibited ground of discrimination;

(iv) any recent laws of the Brcko District addressing non-discrimination, including the prohibited grounds of discrimination.

Article 1(2). Inherent requirements of the job. The Committee notes that pursuant to section 5 of the Prohibition of Discrimination Act of BiH, there are a range of exceptions permitted to the protection against discrimination, broadly stated to be those based on an objective and reasonable justification. Section 5 goes on to refer to distinctions, exclusions or advancement “in compliance with doctrines, basic presumptions, dogmas, beliefs or learning of an actual confession or religion”. A further paragraph of section 5 refers to taking into account, when establishing an employment relationship or taking action, what is demanded by religious doctrines, beliefs and goals. The Committee recalls that Article 1(2) of the Convention which provides that a distinction, exclusion or preference “in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination”, is to be interpreted restrictively. The Committee considers that the breadth of exceptions permitted under section 5 appears to be broader than what is permitted under Article 1(2). The Committee asks the Government to provide information on the interpretation and application of section 5 of the Prohibition of Discrimination Act of BiH.

Discrimination on the grounds of race, colour or national extraction. The Committee recalls its previous comments concerning the widespread discrimination of the Roma in employment and education. The Committee also recalls that a revision of the Action Plan for Employment of the Roma was under way, with a view to addressing implementation gaps including insufficient development, and details of concrete measures, allocation of financial resources and monitoring mechanisms. The Committee notes that, while the Government indicates in general terms that measurable results have been achieved concerning the Action Plan, the Government’s report does not include information on the progress made concerning the revision of the Action Plan for Employment of the Roma. The Committee also notes that the Action Plan on Education Needs of Roma was revised and adopted by the Council of Ministers of BiH in 2010, and that Decade Action Plans in BiH include two activities which are specifically related to Roma women and employment. With regard to the Federation of BiH, the Committee notes that the Action Plan for Employment provides for subsidies to wages and tax reduction for employers who employ the Roma. The Committee again asks the Government to provide information on the status of the revision process of the Action Plan for Employment of the Roma, and on the conclusions and recommendations resulting therefrom. The Committee also asks the Government to provide information on the impact of the measures taken under the revised Action Plan on Education Needs of Roma. 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 taken in this regard.

Article 2. National policy on gender equality. The Committee recalls the various initiatives being taken, including by the Gender Equality Agency and the gender centres. The Committee notes the Government’s indication that a five-year financial programme for the implementation of the BiH Gender Action Plan (2009–14) has been set up, as a result of cooperation between the Agency for Gender Equality, the Ministry of Human Rights and Refugees, the gender centres of the Federation of BiH and the Republika Srpska and non-governmental organizations, and that the financial mechanism has been supported by a range of donors. The programme aims at building capacity for the Gender Equality Agency, gender centres and governmental institutions, strengthening partnership between civil society organizations and governmental institutions, and developing mechanisms for monitoring the progress of gender integration in annual plans and programmes. The Committee also notes the Government’s indication that under a Strategy for Employment in BiH for the period of 2010–14, raising the employment rate of women is envisaged. A project has been launched, which focuses on training of women aged over 40 years for active participation in the labour market, and 186 unemployed women over 40 years have received training in information communication technology, literacy and entrepreneurship. The Government also indicates that the employment strategies in the Federation of BiH and the Republika Srpska also focus on the employment of women. The Committee asks the Government to continue to provide information on the specific measures taken to increase access of women to the labour market. The Committee also asks the Government to continue to provide information on the various measures taken in support of the BiH Gender Action Plan, and the impact of such measures. The Committee also asks the Government to provide 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 3. Cooperation with workers’ and employers’ organizations, and collective agreements. The Committee recalls some initiatives of the trade unions in promoting the principles of the Convention, including adoption of a programme of activities on gender equality, and gender equality consideration in appointing members of committees. The Committee asks the Government to provide up-to-date information on the initiatives of the trade unions, as well as of employers’ organizations, in promoting the principles of the Convention. 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 up-to-date 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 that under section 23(1) of the Law on Gender Equality in BiH (Official Gazette of BiH No. 32/10), protection against discrimination can be sought in special proceedings in accordance with the Prohibition of Discrimination Act of BiH. The Committee also notes the Government’s indication that in 2010, the Gender Equality Agency of BiH initiated four proceedings to examine violations of the Law on Gender Equality of BiH, including cases of sexual harassment and promotion. In one case concerning the exercise of the right to maternity leave in the institutions of BiH, an appeal was filed with the Constitutional Court of BiH, which held that section 35 of the Law on Salaries and Allowances in Institutions of BiH is discriminatory and unconstitutional. The Committee also notes the Government’s indication that in 2010, concerning violations of the Law on Gender Equality of BiH, the Gender Centre of the Federation of BiH received a total of five requests for investigation, including cases of sexual harassment; the Gender Centre for the Republika Srpska conducted a total of 20 investigations including eight cases concerning labour relations. In 2010, the Human Rights Ombud, the Department for the Prevention of All Forms of Discrimination, received 135 complaints, of which six cases related to gender discrimination. The Committee further notes the Government’s indication that the Gender Equality Agency of BiH and the Gender Centres of the Federation of BiH and the Republika Srpska supported a project “Centre for legal assistance to women”, and that a “Legal guide for every woman” was drafted, providing practical guidance on protection against violation of rights. 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 asks the Government to continue to provide information on the measures taken or envisaged to ensure the protection afforded by the Gender Equality Agency and the Gender Centres as well as the difficulties faced, particularly by part-time workers, in bringing complaints of discrimination.