Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

The Committee notes the observations of the Confederation of Autonomous Trade Unions of Serbia (CATUS) and the Serbian Association of Employers, transmitted with the Government’s report, on the application of the Convention in practice. The Committee notes that in addition, the CATUS alleges that certain collective agreements, in particular those concluded with the State as an employer, reduce the legal rights of workers. The Committee requests the Government to provide its comments in this regard.

The Committee notes the Government’s comments in reply to the observations of the International Trade Union Confederation (ITUC), the Trade Union Confederation “Nezavisnost”, and the CATUS, received in 2018 and alleging in particular anti-union discrimination and violations of good faith collective bargaining in practice. The Committee notes the Government replies concerning the applicable legislation, but observes that it does not provide information with regard to the specific allegations raised in the respective observations. The Committee requests the Government to provide its comments in this regard.

Furthermore, the Committee notes with regret that the Government did not provide a reply to previous observations from the following workers’ and employers’ organizations: (i) CATUS and the Trade Union of Judiciary Employees of Serbia (TUJES) (2013); (ii) the International Organisation of Employers (IOE) and the Serbian Association of Employers (SAE) (2013); (iii) the Union of Employers of Serbia (UES) (2012 and 2014); (iv) the ITUC (2015); (v) Nezavisnost (2012); and the Confederation of Free Trade Unions (2012). The Committee urges the Government to provide its comments to the mentioned outstanding social partners’ observations and trusts that it will show greater cooperation in the future.

Article 1 of the Convention. Protection against anti-union discrimination in practice. In its previous comments, the Committee had requested the Government to provide further details on the anti-union discrimination cases handled by the Commissioner for the Protection of Equality, as well as information on the labour inspection and judicial proceedings related to anti-union discrimination cases, their average duration and outcomes. The Committee notes that the Government indicates the Commissioner’s records related to anti-union discrimination cases: (i) from June 2021 to June 2022, trade union membership or activity was invoked as grounds for discrimination in four cases of which one case is still ongoing while the proceedings of the other three cases were suspended in accordance with the conditions set by the law; (ii) since the establishment of the Office of the Commissioner in May 2010, discrimination based on trade union membership or membership of other organizations is the third most frequent allegation of discrimination in employment and occupation, after discrimination based on gender and on marital and family status; (iii) in those cases where anti-union discrimination has been established, the Commissioner has recommended the employer to take all the necessary measures in order to eliminate the consequences of the discriminatory behaviour; and (iv) the Commissioner has also initiated 22 strategic lawsuits on behalf of discriminated persons but none of these cases involved trade union membership as grounds for discrimination. The Government adds that the Commissioner’s obligation to keep the records on discrimination cases pursuant to the 2021 amendments to the Law on the Prohibition of Discrimination will also include in the near future the relevant court decisions. The Committee takes note of this detailed information. It observes, however, that, despite the frequency of the allegations of anti-union discrimination reported by the Government, it has not been informed of any cases where specific sanctions have been imposed in this respect. The Committee recalls in this regard the need, in order to ensure an effective protection against anti-union discrimination, to provide for dissuasive sanctions through effective and rapid procedures. In order to be able to evaluate the effectiveness of the different mechanisms available in case of anti-union discrimination, the Committees therefore urges once again the Government to: (i) provide specific information on labour inspection and judicial proceedings related to anti-union discrimination cases, their average duration and outcomes; and (ii) tocontinue providing informationon anti-union discrimination cases handled by the Commissioner including details on the final outcomes of the referred cases.

Article 4. Promotion of collective bargaining. Representativeness of workers’ and employers’ organizations. The Committee had previously requested the Government to indicate whether the amended section 229 of the Labour Act had improved the operation and efficiency of the Representativeness Board when dealing with requests to grant representativeness and whether the Government was developing any further amendments to the Labour Act in this regard. The Committee notes that according to the Government, the criteria for determining the representativeness of trade unions and employers' associations are clearly defined in sections 218–237 of the Labour Act, and the amended section 229 of the Act improves the work of the Board as the decision-making is no longer made by consensus of all Board members but by a majority of votes. The Committee further recalls that the amendments to section 229 provide for the Minister of Labour to decide on a request for representativeness without the Board’s approval if the latter fails to submit a proposal to the Minister within 30 days from the date of the request. It recalls in this respect that the determination of the representative status of organizations for the purposes of bargaining should be carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties, and without political interference. Reiterating that methods for the determination of the most representative organizations should be based on objective, pre-established and precise criteria, the Committee requests once again the Government to indicate whether the amendments to section 229 of the Labour Act have improved the Representativeness Board’s operation and efficiency when dealing with requests to grant representativeness, and to provide in particular specific information about: (i) how section 229, as amended, is applied in practice; (ii) the number of cases and more details on the cases in which the Minister has decided on the requests for representativeness without the Board’s approval; (iii) whether any further amendments to the Labour Act are being developed in this regard.

Percentage required for collective bargaining. The Committee had previously referred to the need to amend section 222 of the Labour Act, with a view to lifting the 10 per cent requirement for employers’ organizations to be entitled to engage in collective bargaining. The Committee notes with regret that the Government in its report merely recalls the content of section 222 and provides no further information in this regard. Recalling that for a number of years it has been commenting on the discrepancies between section 222 of the Labour Act and the Convention, the Committee urges the Government to take all necessary steps to expedite the process for amendment of this Act, in consultation with social partners, so as to bring the legislation into conformity with the requirements of the Convention by lowering the above-mentioned percentage. It requests the Government to provide information on all progress made in this regard.

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