Labour Relations (Public Service) Convention, 1978 (No. 151) - Bosnia and Herzegovina (Ratification: 2015)

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee notes the 2018 amendment of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and of the Labour Act of the Republika Srpska, 2016 (the RS Labour Act), as well as the adoption of the Act on Civil Service in Administrative Bodies of the Brčko District, 2018 (BD Act on Civil Service), the Labour Act of the Brčko District, 2019 (BD Labour Act) and the Act on Inspections of the Republika Srpska, 2020.

Article 4 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comment, having noted the general protection against anti-union discrimination provided in the legislation, the Committee requested the Government to indicate which protection mechanisms were contemplated, at the level of the Institutions of Bosnia and Herzegovina (BiH), as well as the Federation of Bosnia and Herzegovina and the Republika Srpska, in order to ensure adequate protection for all public employees covered by the Convention against anti-union dismissal, including, inter alia, the requirement to obtain prior authorization from an independent authority, as well as compensation and sufficiently dissuasive sanctions. The Committee notes the Government’s indication in its supplementary report that section 45 of the Act on Civil Service in the Institutions of Bosnia and Herzegovina stipulates that the Labour Act in the Institutions of Bosnia and Herzegovina and other laws regulating employee rights and obligations are applicable to civil servants unless otherwise provided. The Government reiterates the general measures of protection provided by section 3(3) of the Labour Act in the Institutions of Bosnia and Herzegovina (prohibition to put into less favourable position because of trade union membership or non-membership) and indicates that section 102 of the Labour Act stipulates fines from Bosnia and Herzegovina Convertible Mark (KM) 800 to 3,000 (US$485–1,817) for an employer who puts a person looking for employment with the company into a less favourable position then its employees (section 6 of the Labour Act). While taking note of the general measures of protection against anti-union discrimination applicable to the recruitment of public employees, the Committee requests the Government to indicate any concrete protection mechanisms contemplated at the level of the Institutions of Bosnia and Herzegovina to ensure adequate protection for all active public employees covered by the Convention, in particular against anti-union dismissal, including, inter alia, the requirement to obtain prior opinion or authorization from an independent authority, adequate compensation for any damage suffered and sufficiently dissuasive sanctions.

Regarding the Federation of Bosnia and Herzegovina, the Government indicates that the Collective Agreement for Officers in Administrative and Judicial Authorities, 2020 contains a number of protective provisions, including in section 62 (prohibition of imposing a less favourable position on grounds of performance of trade union activity). The Government adds that: (i) under section 63 of the agreement, employment of a trade union representative may not be terminated during the performance of trade union activity without prior consent from the Ministry of Labour and Social Policy and the representative may not be put in a less favourable position in respect of the post prior to appointment as trade union representative; and (ii) under section 64, prior to adopting any decision on resolution of the employment of a civil servant or employee, the head of the civil service authority must obtain and review the opinion of the trade union or the trade union representative. The Government also indicates that section 171(1)(1)–(2) of the FBiH Labour Act, which is of general application, provides for fines against the employer (legal person) for putting a worker in an unfavourable position by reason of trade union membership or non-membership. The fines for a legal person vary from KM1,000 to 3,000 (US$602–1,807) and in the event of recurring infringements from KM5,000 to 10,000 (US$3,012-6,024), whereas for a natural person they vary from KM2,000 to 5,000 (US$1,204–3,012). The Government further informs that, according to the Independent Trade Union of Civil Servants and Employees in Civil Service Authorities, Judicial Bodies and Public Institutions in the Federation of Bosnia and Herzegovina, signatories of the collective agreement fully comply with the provisions concerning anti-union discrimination and cases of such discrimination occur only occasionally.

As to Republika Srpska, the Government reiterates information provided previously that all relevant provisions of the RS Labour Act also apply to public service and adds that, in terms of special protection against dismissal of trade union representatives, section 191 provides that dismissal during office or six months after can only be taken with the approval of the trade union or workers’ council and, if such agreement is not given, the employer may request an arbitration. Concerning the Brčko District, the Government indicates that trade union membership does not constitute a ground of discrimination for employment of public servants. Given the Government’s indication above, that both the FBiH Labour Act and the RS Labour Act are of general application and thus also apply to public employees, the Committee recalls, from its previous comments regarding the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), that it had noted with interest that the applicable legislation explicitly provided for reinstatement coupled with compensation either as a remedy to anti-union dismissal (section 124 of the FBiH Labour Act) or as a remedy to unlawful dismissal in general (section 106 of the FBiH Labour Act, section 189 of the RS Labour Act and section 81 of the BD Labour Act). Taking due note of the above, the Committee understands that reinstatement coupled with compensation would also apply to anti-union dismissal of public employees. The Committee requests the Government to provide information on the practical application of the sanctions foreseen for breach of provisions prohibiting acts of anti-union discrimination against public employees, in particular anti-union dismissal, with respect to all administrative divisions.

Article 5. Independence from public authorities and adequate protection against acts of interference by a public authority. In its previous comment, the Committee noted that under section 43 of the Act on Associations and Federations in the Federation of Bosnia and Herzegovina, section 40 of the Act on Associations and Federations in the Republika Srpska and section 26 of the Act on Associations and Federations in the Brčko District, an association could be dissolved or its operation suspended for a number of reasons, which, under the Convention, could amount to interference by public authorities in their role as employers. The Committee requested the Government to ensure that public employees’ organizations could be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure. The Committee takes note of the information provided by the Government and refers to its comments on this issue under the Freedom of Association and the Right to Organize Convention, 1948 (No. 87).

Article 6. Facilities to be afforded to public employees’ organizations. Federation of Bosnia and Herzegovina. In its previous request, the Committee noted the provisions providing facilities to public employees’ organizations and observed that under section 59 of the Collective Agreement for Officials in Public Administration and Judicial Authorities in the Federation of Bosnia and Herzegovina, an agreement concluded between the head of the civil service institution and the trade union commissioner may regulate in more detail the conditions related to the performance of trade union duties. The Committee thus requested the Government to indicate whether in practice, in the Federation of Bosnia and Herzegovina, organizations of civil servants have entered into collective agreements defining the necessary conditions and facilities to be granted under Article 6 of the Convention. The Committee welcomes the Government’s indication that the Independent Trade Union of Civil Servants and Employees in Civil Service Authorities, Judicial Bodies and Public Institutions in the Federation of Bosnia and Herzegovina has 155 trade union organizations and 96 branches and that the majority of them concluded agreements regulating conditions and tasks of trade unions, pursuant to section 61 of the Collective Agreement for Officers in Administrative and Judicial Authorities, 2020. The Government also states that, according to the above mentioned trade union, provisions of the FBiH Labour Act and the 2020 Collective Agreement are completely adhered to, also where there is no signed agreement between the director of the body of administration and the trade union commissioner. The Committee takes due note of the above.

Application of the Convention. Brčko District. In its previous comment, the Committee requested the Government to provide information concerning the application of the Convention in the Brčko District for each of the Articles of the Convention mentioned above. The Committee notes the Government’s indication that a new Act on Civil Service was adopted in 2018 and that its provisions apply to civil servants and employees of administrative bodies, the Office for Audit of Public Administration and Institutions of the Brčko District and other bodies and institutions funded from the budget of the District unless regulated differently by another law. The Committee notes, however, the Government’s indication that the law does not regulate the scope of guarantees and observes that most of the information provided by the Government remains vague as to the actual provisions of the law, or any other legislation, which give effect to the Convention and that the implementation of the BD Act on Civil Service is not supervised by the labour inspection. The Committee therefore requests the Government to provide concrete information concerning the application of the Convention in the Brčko District for each of the Articles of the Convention mentioned above, to provide a copy of the Act on Civil Service and to indicate what entity is in charge of supervising the implementation of the Act.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee notes the 2018 amendment of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and of the Labour Act of the Republika Srpska, 2016 (the RS Labour Act). The Committee notes that a new labour law is in the process of being adopted in the Brčko District.

Article 4 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comment, having noted the general protection against anti-union discrimination provided in the legislation, the Committee requested the Government to indicate which protection mechanisms were contemplated, at the level of the Institutions of Bosnia and Herzegovina (BiH), as well as the Federation of Bosnia and Herzegovina and the Republika Srpska, in order to ensure adequate protection for all public employees covered by the Convention against anti-union dismissal, including, inter alia, the requirement to obtain prior authorization from an independent authority, as well as compensation and sufficiently dissuasive sanctions. The Committee notes that the Government reiterates the general measures of protection provided by section 3(3) of the Act on Labour in the Institutions of BiH, without specifying any further protection mechanisms or sanctions for acts of anti-union discrimination. Regarding the Federation of Bosnia and Herzegovina, the Government reiterates that the protection is granted by section 62 of the Collective Agreement for Officers in Administrative and Judicial Authorities, 2018 (prohibition of imposing a less favourable position on grounds of performance of trade union activity). The Government adds that: (i) under section 63 of the agreement, employment of a trade union representative may not be terminated during the performance of trade union activity without prior consent from the Ministry of Labour and Social Policy and the representative may not be put in a less favourable position in respect of the post prior to appointment as trade union representative; and (ii) under section 64, prior to adopting any decision on resolution of the employment of a civil servant or employee, the head of the civil service authority must obtain and review the opinion of the trade union or the trade union representative. As to Republika Srpska, the Government reiterates information provided previously that all relevant provisions of the Labour Act in the Repulika Srpska also apply to public service and adds that, in terms of special protection against dismissal of trade union representatives, section 191 provides that dismissal during office or six months after can only be taken with the approval of the trade union or workers’ council and, if such agreement is not given, the employer may request an arbitration (no arbitration proceedings have been brought to the Agency for Amicable Settlement of Labour Disputes on this issue since the adoption of the law in 2016). Taking due note of this information, the Committee requests the Government to provide further specifics as to the protection against anti-union discrimination guaranteed at the level of the Institutions of Bosnia and Herzegovina, and to indicate, with respect to all administrative divisions, the sanctions foreseen for breach of provisions prohibiting acts of anti-union discrimination against public employees.

Article 5. Independence from public authorities and adequate protection against acts of interference by a public authority. In its previous comment, the Committee noted that under section 43 of the Act on Associations and Federations in the Federation of Bosnia and Herzegovina, section 40 of the Act on Associations and Federations in the Republika Srpska and section 26 of the Act on Associations and Federations in the Brčko District, an association could be dissolved or its operation suspended for a number of reasons, which, under the Convention, could amount to interference by public authorities in their role as employers. The Committee requested the Government to ensure that public employees’ organizations could be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure. The Committee takes note of the information provided by the Government and refers to its comments on this issue under the Freedom of Association and the Right to Organize Convention, 1948 (No. 87).

Article 6. Facilities to be afforded to public employees’ organizations. Federation of Bosnia and Herzegovina. In its previous request, the Committee noted the provisions providing facilities to public employees’ organizations and observed that under section 59 of the Collective Agreement for Officials in Public Administration and Judicial Authorities in the Federation of Bosnia and Herzegovina, an agreement concluded between the head of the civil service institution and the trade union commissioner may regulate in more detail the conditions related to the performance of trade union duties. The Committee thus requested the Government to indicate whether in practice, in the Federation of Bosnia and Herzegovina, organizations of civil servants have entered into collective agreements defining the necessary conditions and facilities to be granted under Article 6 of the Convention. While taking due note of the information reiterated by the Government on the facilities offered to public employees’ organizations, the Committee requests the Government once again to indicate whether in practice, in the Federation of Bosnia and Herzegovina, organizations of civil servants have entered into agreements provided for under section 61 (previously section 59) of the Collective Agreement for the Officers in the Administrative and Judicial Authorities in the Federation of Bosnia and Herzegovina, 2018, so as to define the necessary conditions and facilities to be granted under Article 6 of the Convention.

Application of the Convention. Brčko District. In its previous comment, the Committee requested the Government to provide information concerning the application of the Convention in the Brčko District for each of the Articles of the Convention mentioned above. In the absence of any information in this regard, the Committee reiterates its request.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

The Committee takes note of the Government’s first report.

Article 4 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee notes that by virtue of the general measure of protection provided by article 3(3) of the Law on Labour in the Institutions of BiH, employees may not be put in an unfavourable position due to their membership or non-membership in a trade union, and observes that the above cited Law is applicable to employees in the institutions of Bosnia and Herzegovina who are expressly excluded from the Law on Civil Service in the Institutions of Bosnia and Herzegovina, employees working in public enterprises, as well as civil servants if this does not contravene the Law on Civil Service in the Institutions of Bosnia and Herzegovina. Regarding the Federation of BiH, the Government indicates that the protection is granted by article 60 of the Collective Agreement for Officials in Public Administration and Judicial Authorities which prescribes that trade union officials may not be held liable or put in an unfavourable position in relation to other civil servants or employees. The Committee further notes, with regard to Republika Srpska, that article 19 of the Labour Act, which subsidiarily applies to labour relations in public services, prescribes that the worker, as well as a person seeking employment, may not be put in an unfavourable position when exercising their rights related to labour and employment due to their membership or non-membership of a trade union or a political organization. While taking due note of this information, the Committee requests the Government to indicate which protection mechanisms are contemplated, at the level of the Institutions of BiH as well as the Federation of BiH and the Republika Srpska, in order to ensure adequate protection for all public employees covered by the Convention against anti-union dismissal, including, inter alia, the requirement to obtain prior authorization from an independent authority, as well as compensation and sufficiently dissuasive sanctions. The Committee requests the Government to provide information in this respect.

Article 5. Independence from public authorities and adequate protection against acts of interference by a public authority. The Committee notes the Government’s indication that article 4 of the Law on Labour in the Institutions of BiH provides that the employers which act in their name or through any other person, member or representative shall be prohibited from: (a) interfering in the establishment, functioning or management of the trade union; and (b) advocating or providing assistance to the trade union for the purpose of exerting control over it. According to Article 5, any lawful activity of the trade union may not be prohibited, either on a permanent or on a temporary basis. The Committee notes that the Government indicates that similar protection applies under the FBiH legislation (article 56 of the Collective Agreement for Officials in Public Administration and Judicial Authorities in the Federation of BiH) and the Labour Act of the Republika Srpska (article 209 sq. of the RS Labour Act).

The Committee recalls, however, its previous comments under the Freedom of Association and Protection of the Right to organize Convention, 1948, (No. 87), where it noted that under section 43 of the FBiH Act on Associations and Federations, section 40 of the RS Act on Associations and Federations and section 26 of the Brčko District Act on Associations and Federations, an association can be dissolved or its operation suspended for a number of reasons (including for repeated failure to: convene regular assembly meetings for a certain period, use the registered name of the association in legal transactions, use the surplus generated from economic activities in a way prescribed by the laws and the statute, and notify the relevant authority about the change of data to be entered into the registry). The Committee had considered that the abovementioned sections provide for dissolution and suspension of associations on grounds which do not appear to justify the severity of such sanctions, and that, in some cases, the decision to dissolve a union is entrusted to an administrative body. Considering that under the Convention such provisions may amount to interference by public authorities, in their role as employers, the Committee requests the Government to ensure that public employees’ organizations can be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure, and to provide information in this regard.

Article 6. Facilities to be afforded to public employees’ organizations. The Committee notes the Government’s statement that this issue is not governed at the level of the Institutions of BiH, and that in Republika Srpska the corresponding facilities are detailed under articles 213 to 216 of the RS Labour Act. As for the Federation of BiH, the Committee notes that article 58 of the Collective Agreement for Officials in Public Administration and Judicial Authorities prescribes that the head of the civil service institution shall enable paid absence from work, of up to three working days a month, to the trade Union commissioner and the other trade union representatives for the purpose of performing trade union duties. Moreover, article 59 of the abovementioned Agreement foresees that an agreement concluded between the head of the civil service institution and the trade union commissioner may regulate in more detail the conditions related to the performance of trade union duties. The Committee requests the Government to indicate whether in practice, in the Federation of BiH, organizations of civil servants have entered into collective agreements defining the necessary conditions and facilities to be granted under Article 6 of the Convention.

Article 7. Procedures for determining terms and conditions of employment. As Bosnia and Herzegovina ratified the Collective Bargaining Convention, 1981 (No. 154), in 2014, the determination of the conditions of employment in the public sector can no longer be confined to the method of consultation but should now be achieved through collective bargaining. The Committee therefore refers to its comments made under Convention No. 154.

Application of the Convention. Brčko District. The Committee requests the Government to provide information concerning the application of the Convention in the Brčko District for each of the articles of the Convention mentioned above.