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

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Serbia (Ratification: 2000)

The Committee notes the comments made by the Government in reply to the observations made by the Confederation of Autonomous Trade Unions of Serbia (CATUS), dated 26 August 2011, and by the International Trade Union Confederation (ITUC), dated 24 August 2010. The Committee also notes the comments made by ITUC dated 4 August 2011 and 31 July 2012 and observations submitted by the Trade Union Confederation Nezavisnost (TUC Nezavisnost) on the application of the Convention in practice, with particular regard to anti-union dismissals and limited social dialogue. It takes note of the Government’s reply of 20 November 2012 to the 2011 and 2012 ITUC comments, especially the information provided concerning inspection visits carried out by labour inspectors in the relevant companies and the measures of redress taken as a result. The Committee further notes the comments of the Union of Employers of Serbia dated 5 September 2012 and the comments of the Confederation of Free Trade Unions received on 30 October 2012. The Committee requests the Government to reply in its next report to all pending comments.

Article 1 of the Convention. Protection against anti-union discrimination in practice. On several occasions, the Committee had requested the Government to provide information on the application of the Convention in practice, including statistical data on the number of complaints of anti-union discrimination brought before the competent authorities (labour inspectorate and judicial bodies), as well as on the outcome of investigations and judicial proceedings and their average duration. The Committee urges the Government to provide the abovementioned information.

Article 4. Promotion of collective bargaining. The Committee had raised the need to amend section 233 of the Labour Law which imposes a time period of three years before an organization which previously failed to obtain recognition as most representative, may seek a new decision on the issue of representativeness. The Committee had requested the Government to take the necessary measures to amend section 233 of the Labour Law so that the three-year time span is reduced to a more reasonable period or explicitly allows the procedure for determination of the most representative status to take place in advance of the expiration of the applicable collective agreement. The Committee notes that, according to the Government’s reply received on 29 October 2012, the legislation establishes that every trade union or employers’ association whose representativeness had not been established may at any moment, when it has fulfilled requirements for representativeness, apply for establishment of representativeness. Furthermore, the Committee notes that the Government indicates that the legislation allows the review of collective agreements under certain circumstances, when the representativeness of a non-signatory trade union or employers’ association of the agreement is established. The Committee recalls that this issue was raised by ITUC some years ago and invites it to send its comments with regard to the Government’s statement.

Representativeness of workers’ and employers’ organizations. The Committee had previously noted the Government’s indication that the conditions and mechanism for the establishment of the representativeness of trade unions and employers’ organizations: (a) are decided by the Minister of Labour upon a proposal by a specific tripartite committee; and (b) will be subject to amendments in the process of the current revision of the Labour Law, in consultation with the social partners. In this regard, the Committee also takes note of the comment of the Union of Employers of Serbia, which indicates that, despite the existing Panel for Establishment of Representativeness of Trade Unions and Employers Associations (tripartite body), the Minister for Labour and Social Policy established the so-called “Independent Committee” for assessing the requirements for representativeness, which is not independent at all and interferes in social dialogue and collective bargaining; and that on the basis of one recommendation of this “Independent Committee”, the Ministry of Labour and Social Policy established, on 3 May 2012, the representativeness of the Confederation of Free Trade Unions, a matter which had been previously examined by the abovementioned panel which had requested additional supportive documents. In this regard, the Committee notes from the Government’s reply to the ITUC communications that: (i) due to its method of decision-making (consensus), the panel was not operational and is currently not able to examine all pending applications nor to adopt new rules of procedure; (ii) the Ministry attempted to find a way out of this situation by establishing an independent committee; (iii) in view of the huge discontent of the panel members, the Ministry dismissed this method of determining representativeness; and (iv) the Ministry is aware that the current issue may be addressed by the adoption of the amendments to the Labour Law or of a separate law. The Committee notes this information and requests the Government to provide information in its next report on any developments relating to the process of revision of the Labour Law as well as a copy of the amended Labour Law once adopted.

Percentage required for collective bargaining. Moreover, the Committee had noted that section 222 of the Labour Law required employers’ associations to represent 10 per cent of the total number of employers and employ 15 per cent of the total number of employees in order to exercise collective bargaining rights. The Committee had noted that, according to the Government, this issue would be reconsidered in the framework of the revision of the Labour Law, with the participation of the representative workers’ and employers’ organizations. The Committee recalls that, in its previous observation, it had requested the Government to lift the 10 per cent requirement for employers’ organizations to be entitled to engage in collective bargaining, which is particularly high, especially in the context of negotiations in large enterprises, at the sectoral or national level. The Committee notes that, according to the Government, when employers’ or workers’ organizations do not fulfil the representativeness requirements, they can conclude an association agreement with another organization in order to fulfil the abovementioned requirement. The Committee notes that, according to the comments of the Confederation of Free Trade Unions received on 30 October 2012, an agreement on association to achieve representativeness may only be signed by two or more unrepresentative trade unions at company level in order to be able to be party in collective bargaining; nevertheless, this is not possible for trade unions and employers associations at higher levels. The Committee considers that the abovementioned percentages are very high and thus difficult to reach. The Committee had taken note of the fact that the amendments to the Labour Law that were under way also addressed the representativeness of trade unions and employers’ organizations. The Committee requests the Government once again to take the necessary measures so as to lower the abovementioned percentages.

The Committee notes the fact that, according to the Government’s report dated 31 August 2012, elections were held in May 2012 and that all the legislative activities were deferred until the formation of the new Government and Parliament. The Committee expresses its hope that the Government will take the necessary measures without delay in order to bring the legislation into conformity with the requirements of the Convention and requests the Government to indicate the progress made in this respect in its next report.