Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

Labour Inspection Convention, 1947 (No. 81) - Bosnia and Herzegovina (Ratification: 1993)

Follow-up to the recommendations of the tripartite committee (representation made under article 24 of the Constitution of the ILO)

Articles 12(1)(a)–(b) and 15 of the Convention. Right of entry of labour inspectors. Confidentiality of the source of any complaint. The Committee recalls that a representation submitted to the ILO on 9 October 1998 pursuant to article 24 of the ILO Constitution by the Union of Autonomous Trade Unions (USIBH) and the Union of Metalworkers (SM) alleging violation of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), stated that the federal labour inspectorate and the cantonal labour inspectorate had never been able to obtain authorization from the cantonal minister responsible for labour to conduct an inspection visit in the factories concerned (Aluminij dd Mostar and Soko dd Mostar) in order to verify the allegations of the abovementioned trade unions. The tripartite committee of the ILO Governing Body responsible for examining the representation noted, in particular, that the fact that the cantonal labour inspector was obliged to request authorization from the cantonal Minister before conducting an inspection visit was not in conformity with Article 12(1) of the Convention and requested that the follow-up to the case be entrusted to the Committee of Experts. In the framework of the follow-up, the Committee had addressed an observation to the Government from 2000 to 2005 requesting that all appropriate steps be taken as soon as possible to remove the requirement in the legislation whereby labour inspectors must seek authorization from the supervisory authority to exercise their right of entry to workplaces and premises liable to inspection.

Following up on its previous comments in this regard, the Committee notes the Government’s reiterated indications that the 2005 law on inspections in the Federation of Bosnia and Herzegovina (the Federation) does not contain any provisions obliging labour inspectors to obtain authorization for entry to an enterprise. However, the Committee notes that the Government has still not provided any information on whether, in practice, labour inspectors are required to seek authorization from the supervisory authority in order to be able to exercise their right of entry to workplaces and premises liable to inspection. It appears from the information contained in the 2012 labour inspection audit conducted at the request of the Government (the 2012 audit), some restrictions on the right of free access in practice persist, at least in the canton of Central Bosnia.

According to the 2012 audit, the right of free entrance is also limited by the requirement to give previous notice of inspection visits to workplaces in both entities. However, the Committee understands from the information in this audit, that in the Federation, previous notice of visits is not given if they are reactive and if there are indications that the employer might hide the true state of affairs. The balance of the different types of visits in the Federation (routine/reactive) depends on available resources, whereas in the canton of Central Bosnia, most inspection visits are reactive.

The Committee would like to emphasize that a sufficient number of regular inspections is necessary to ensure that labour inspectors comply with the obligation to treat complaints as confidential with a view to preventing the employer or his representative from detecting any link whatsoever between the inspection and the likelihood of a complaint, identifying the person responsible for the complaint and taking reprisals against that person (Article 15(c)). In this regard, the Committee also notes the Government’s reply to the request made under Article 15(c). The Government partly reiterates its previous indications with regard to the provision of the 2005 law on inspections in the Federation preventing labour inspectors from revealing any manufacturing or commercial secret which came to their knowledge in the course of their duties, without mentioning the provisions which require labour inspectors to treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions.

The Committee once again requests the Government to indicate whether labour inspectors are still required in practice to seek authorization from the supervisory authority to be able to exercise their right of entry to workplaces and premises liable to inspection in the Federation of Bosnia and Herzegovina and if so, the steps taken or envisaged to abandon this practice.

The Government is also requested to: (i) indicate the legal provisions which guarantee the right of labour inspectors, provided with proper credentials, to enter any workplace under their supervision without having to previously notify the responsible person for the workplace concerned of the inspection visits; and (ii) to provide any relevant administrative decision or circular containing instructions ensuring the exercise of inspectors’ free right of entry to workplaces under their supervision. The Committee also requests the Government to specify the state of law and practice in this regard in the Republika Sprska and the Brcko District.

In addition, the Committee once again asks the Government to specify the provisions which require labour inspectors to treat as absolutely confidential the source of any complaint bringing to their notice a defect or breach of legal provisions (Article 15(c)).

The Committee is raising other points in a request addressed directly to the Government.