Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Article 1(1) of the Convention. Legislative developments. Grounds of discrimination. The Committee notes with interest that section 8(1) of the new Labour Law of the Federation of Bosnia and Herzegovina (FBiH), which entered into force on 14 April 2016 covers all the grounds enumerated in Article 1(1)(a) of the Convention, as well as multiple grounds including age, sexual orientation, and disability. It also notes a new Labour Law of Republika Srpska entered into force on 20 January 2016, and that sections 19 and 20 of the Law define and prohibit direct and indirect discrimination based on all the grounds of discrimination enumerated in Article 1(1)(a) of the Convention, including “national extraction”. It further notes the Government’s indication in its report that section 4(4) of the Law on Civil Service in the Bodies of Public Administration of the Brčko District of Bosnia and Herzegovina, also prohibits discrimination based on all the grounds of discrimination set out in Article 1(1)(a) of the Convention. The Committee requests the Government to clarify how the new legislation interrelates with the Prohibition of Discrimination Act of Bosnia and Herzegovina, in order to ensure that the protection against discrimination is fully covered, and to provide information on their practical application.

Article 1(1)(a). Discriminatory job advertisements. The Committee recalls its previous comments relating to discriminatory job advertisements based on national extraction and religious belief. The Committee notes the Government’s reply that the labour administration in FBiH has no information as to which competent authority the above case was reported to and therefore was not able to obtain information on the progress made in this regard. The Government also indicates that there is little official data on discriminatory practices in recruitment and job advertisements, as persons affected rarely opt to use existing mechanisms of protection for fear of further victimization. The Committee requests the Government to ensure that the existing laws against discrimination in employment and occupation provides effective protection against discriminatory job advertisements, including on the grounds of national extraction and religion.

Article 1(2). Inherent requirements of the job. The Committee previously requested the Government to provide information on the interpretation and application of section 5 of the Act on Prohibition of Discrimination of BiH considering that the breadth of exceptions permitted under section 5 appeared to be broader than what is permitted under Article 1(2) of the Convention. In particular, the Committee had noted that section 5 referred to distinctions, exclusions or advancement “in compliance with doctrines, basic presumptions, dogmas, beliefs or learning of an actual confession or religion”. A further paragraph referred to taking into account, when establishing an employment relationship or taking action, what is demanded by religious doctrines, beliefs and goals. The Committee notes that the Government indicates in general terms that it has not encountered any type of distinction, exclusion or preference related to Article 1(2) of the Convention. Recalling once again 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 requests the Government to provide additional information on any interpretation given to section 5 of the Prohibition of Discrimination Act of Bosnia and Herzegovina, and how these provisions are applied in practice.

Articles 1 and 2. Equality and non-discrimination on the grounds of race, colour or national extraction. Roma. The Committee recalls its previous comments concerning the widespread discrimination of the Roma in employment and education, and that a revision of the Action Plan for Employment of the Roma was under way. The Committee also noted that the Action Plan on Education Needs of Roma was revised in 2010, and that the Decade Action Plans in FBiH included two activities that are specifically related to Roma women and employment. The Committee notes that the Government does not provide information on the status and implementation of any of these Plans nor on any social inclusion strategies developed to address discrimination against the Roma population. The Committee notes from the Government’s report to the Committee on the Elimination of Racial Discrimination that two measures were implemented under the Action Plan for Employment of the Roma, namely the co-funding of employers and the funding for the self-employment of Roma (CERD/C/BIH/9-11, 18 November 2013, paragraph 230). The Committee asks the Government to provide detailed information on the status and implementation of current action plans and programmes aimed at promoting equality of opportunity and treatment of the Roma in employment and occupation, and in vocational training and education, as well as information, including statistical data, disaggregated by sex on the results achieved.

National policies on gender equality. The Committee notes the adoption in 2013 of the Gender Action Plan of Bosnia and Herzegovina for the period 2013–17 which has work, employment and access to economic resources and preventing and combating gender-based violence among the priority areas (Strategic Goal I). The Plan includes cross-cutting areas such as addressing stereotypes and prejudices on the role of women leading to inequalities, paying attention to specific groups of women, and harmonizing work and private life. The Committee notes that the Plan provides for measures aimed at collecting and publishing data on men and women in the labour market, eliminating gender discrimination in work, access to employment and economic resources, undertaking research, balancing work and family life, and implementing awareness raising campaigns. The Government indicates that through the Financial Mechanism for the Implementation of the Gender Action Plan of Bosnia and Herzegovina (FIGAP) for the period 2009–14, over 60 projects supported the capacity building of governmental institutions to implement the UNSCR 1325 Action Plan and the Action Plan for Rural Women in Republika Srpska. FIGAP also funded 60 programmes run by government institutions in Bosnia and Herzegovina, resulting in capacity building of relevant institutions and the introduction of the principles and standards of gender equality in departmental jurisdictions. The Government also indicates that a “Guide for effective measures to prevent gender-based and sexual harassment in the workplace in the institutions of Bosnia and Herzegovina” has been submitted for adoption by the Council of Ministers of Bosnia and Herzegovina. The Committee notes from the statistics provided by the Agency for Statistics of Bosnia and Herzegovina that, while more women graduated than men in 2014, women’s employment rate remained at 22.7 per cent compared to 41.2 per cent for men. Women continued to be under represented as managers in the business sector, in higher education and in the non-profit sector. The Committee asks the Government to provide information on specific measures taken and the results achieved in implementing the National Plan 2013–17, including those aimed at addressing gender stereotypes and prejudices regarding the role of women in the labour market and the family, and at increasing the participation of women in the labour market at all levels, and to promote their employment in management and decision-making posts. The Committee also requests the Government to indicate the findings of any surveys or research undertaken on gender equality in the labour market, as provided for in the Action Plan.

Article 3(a) of the Convention. Cooperation with workers’ and employers’ organizations, and collective agreements. The Committee notes the Government’s indication that no information is available on initiatives taken by trade unions to promote the principles of the Convention, nor were there new rulebooks or collective agreements adopted during this reporting period. The Committee asks the Government to provide up-to-date information on the activities of the Economic and Social Councils of both the FBiH and Republika Srpska, including those related to discrimination and equality in employment and occupation. It also asks the Government to continue to provide information regarding initiatives taken by workers’ and employers’ organizations to promote the principles of the Convention. Finally, the Committee repeats its request to the Government to provide examples of collective agreements addressing non-discrimination on the grounds set out in the Convention.

Enforcement. The Committee notes the Government’s indication that under section 26(1)(j) of the Law on Gender Equality in Bosnia and Herzegovina, the “Uniform Rules for receiving and processing applications for examination of violations of the Law on Gender Equality in Bosnia and Herzegovina” was issued in 2011, and that 25 cases of violations of the Law were examined under these Rules between 2011 and 2014. The Government also indicates that there have been no cases received by the Union of Autonomous Trade Unions of Bosnia and Herzegovina relating to discrimination based on sex, and that legal aid has been provided for a total of 40 cases. The Committee further notes from the 2015 Annual Report on the Results of the Activities of the Institution of the Human Rights Ombudsman of Bosnia and Herzegovina that although more than six years has passed since the adoption of the anti-discrimination law, some provisions have yet to become part of case law, particularly the rules on urgent court proceedings for the protection from discrimination (page 93). In this regard the Committee notes the Government’s indication that persons affected by discrimination rarely opt to use existing mechanisms of protection for fear of further victimization. The Committee asks the Government to provide information on measures taken to raise awareness among women and judicial and legal professionals about available legal protection mechanisms. It also requests the Government to continue to provide the number and nature of complaints received under the Law on Gender Equality, as well as 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 by workers, in bringing complaints of discrimination.

Statistics. The Committee notes from the 2014 Ombudsman’s Annual Report on the Occurrences of Discrimination in Bosnia and Herzegovina that the Rulebook on the Method of Data Collection in Discrimination has been published. Discussions are also ongoing between the Ombudsman and the Ministry for Human Rights and Refugees to establish a database on cases of discrimination within the Ministry. The Committee asks the Government to provide more information on the implementation of the Rulebook on the Method of Data Collection in Discrimination within relevant government institutions, including the Ministry for Human Rights and Refugees, as well as any information on the progress made in collecting and publishing cases of discrimination in employment and occupation in BiH.