Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Bosnia and Herzegovina (Ratification: 1993)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

The Committee notes the 2021 amendment to the Labour Act of the Republika Srpska, 2016 (RS Labour Act) and the adoption of the Law on Representativity of Trade Unions and Employers’ Associations in the Federation of Bosnia and Herzegovina (FBiH), 2021. The Committee also notes the 2022 amendments to the Labour Act in the Institutions of Bosnia and Herzegovina, to the FBiH Labour Act and to the Labour Act of the Brčko District (BD Labour Act). The relevant amendments are addressed in the present comment.

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination in practice. In its previous comment, the Committee invited the Government to continue providing information on the effective implementation of the prohibition of anti-union discrimination in practice. The Committee notes that the Government recalls the applicable legal provisions in the various administrative entities of the country and indicates that: (i) in the Federation of Bosnia and Herzegovina, there is no information on any official complaint recorded concerning anti-union discrimination; and (ii) in the Republika Srpska, the arbitration proceeding initiated in 2020 at the Agency for Peaceful Resolution of Labour Disputes due to the cancellation of the employment contract of a union president, previously reported to the Committee, resulted in a decision of the Arbitration Commission stating that the proposal to initiate the procedure was untimely. The Committee requests the Government to continue to provide information on the effective implementation of the prohibition of anti-union discrimination in practice, including on the number of complaints filed with the relevant authorities, their follow-up and the remedies and sanctions imposed (use of reinstatement or financial compensation), as well as on the activities of the labour inspection in this regard. The Committee trusts that the Government will be able to provide detailed information in this respect from all administrative entities of the country.

Article 2. Adequate protection against acts of interference by employers’ and workers’ organizations into each other’s establishment, functioning or administration. In its previous comment, in relation to the Federation of Bosnia and Herzegovina, the Committee requested the Government to take the necessary measures to introduce adequate sanctions for breaches of section 16 of the FBiH Labour Act which prohibits acts of interference. The Committee notes that the Government simply recalls the applicable penalties for violations of sections 14 and 15 of the FBiH Labour Act, which protect the right to organize and provide for protection against anti-union discrimination but does not elaborate on any measures taken to introduce sanctions for breaches of section 16 of the FBiH Labour Act. The Committee therefore reiterates its request to the Government to take the necessary measures to introduce adequate sanctions for breaches of section 16 of the FBiH Labour Act and trusts that, in the meantime, labour inspectors will impose adequate remedy to punish any acts of interference that may occur and to prevent the repetition of such acts.

With regard to the Republika Srpska, the Committee previously welcomed the Government’s indication that, in the upcoming amendments to the RS Labour Act, penal sanctions provided in section 263 would specifically refer to allegations and breaches of section 211, which prohibits acts of interference. Noting with regret the Government’s indication that no amendments were made to the RS Labour Act relating to this matter, the Committee reiterates its request and trusts that, in line with the Government’s prior comments, any amendments made to the provisions regulating sanctions will specifically refer to acts of interference and will be sufficiently dissuasive to ensure the effective application of Article 2 of the Convention.

Concerning the Brčko District, the Committee previously requested the Government to consider revising the amount of the sanctions foreseen for violations of the prohibition of interference so that they are sufficiently dissuasive. In the absence of any updated information from the Government on this matter, the Committee reiterates its request in this regard.

Article 4. Promotion of collective bargaining. In its previous comment, the Committee requested the Government to continue providing detailed information on the number of collective agreements concluded and in force in all administrative entities of the country. The Committee notes the Government’s indication that: (i) at the level of Bosnia and Herzegovina, the procedure for initiating collective bargaining between the employer and representative trade unions is ongoing; (ii) in the Federation of Bosnia and Herzegovina, some collective agreements ceased to be valid, other agreements were concluded or extended; (iii) in the Republika Srpska, collective agreements were concluded in the field of education and culture, higher education, public health institutions, social protection, interior and judicial institutions, and work is ongoing to sign collective agreements in the real sector of the economy; and (iv) there is no data in the Republika Srpska on the number of individual collective agreements concluded with the employer. Taking due note ofthe above information, the Committee requests the Government to provide detailed information on the number of collective agreements concluded and in force in all administrative entities and to disaggregate, where possible, according to the levels at which they are concluded (enterprise, branch and national levels), the sectors concerned and the number of workers covered. The Committee also requests the Government to inform of any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention in all administrative entities of the country.

Bipartite negotiations. In its previous comment, the Committee observed that the applicable legislation in the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District allows for tripartite bargaining, with the participation of the Government, cantonal or municipal entities, in several instances of collective bargaining at the sectoral and national levels. The Committee recalled that the Convention is applicable to all branches of economic activity, including public enterprises and public servants not engaged in the administration of the State, that collective bargaining should essentially be bipartite and that the participation of public authorities should be limited to issues which are broad in scope, such as the formulation of legislation and economic or social policy or the fixing of the minimum wage rate. In light of the above, the Committee requested the Government once again to take the necessary measures to ensure that, as a general rule, negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect and that the content of the agreements is not dependent on the policy choices of successive governments. Noting the absence of any updated information on this matter, the Committee reiterates its previous request.

Procedure to determine the representativity of trade unions and employers’ associations. Federation of Bosnia and Herzegovina and the Republika Srpska. In its previous comment, having noted that the Ministry of Labour (both in the Federation of Bosnia and Herzegovina and in the Republika Srpska) and the employers (in the Federation of Bosnia and Herzegovina) played an important role in determining the representativity of trade unions and employers’ associations, the Committee invited the Government to establish a mechanism to determine the representativity of the most representative workers’ and employers’ organizations, which enjoys the confidence of all social partners. The Committee notes that the Government does not provide any updated information in this regard for the Republika Srpska or the Federation of Bosnia and Herzegovina. The Committee observes, however, that, in the Federation of Bosnia and Herzegovina, the Act on Representativity of Trade Unions and Employers’ Associations, previously referred to by the Government in its draft version, was adopted in 2021 and retains the involvement of the employer or the cantonal and federal Ministry of Labour in the determination and review of representativity of trade unions or employers’ organizations (sections 20–21 and 23–25). Therefore, recalling that the determination of representativity should be carried out in accordance with a procedure that offers every guarantee of impartiality, enjoys the confidence of the parties and without political interference, the Committee requests the Government to review the applicable legislation in the Federation of Bosnia and Herzegovina and in the Republika Srpska with a view to establishing, in consultation with the social partners, a mechanism to determine the representativity of the most representative workers’ and employers’ organizations, in line with the above criteria, and to provide information on any developments in this regard.

Representativity threshold for workers’ and employers’ organizations. Institutions of Bosnia and Herzegovina, Federation of Bosnia and Herzegovina and Republika Srpska. Regarding the Institutions of Bosnia and Herzegovina, the Committee notes that the Labour Act in the Institutions of Bosnia and Herzegovina, 2004 (as amended up to 2022) stipulates that a representative union is a trade union registered at the level of Bosnia and Herzegovina, or two or more trade unions acting jointly, whose membership consists of the majority of employees of one employer at the employer’s headquarters. Observing that the Act does not seem to indicate whether only representative unions can engage in collective bargaining, the Committee requests the Government to indicate whether collective bargaining is the exclusive right of representative unions of the public institutions of Bosnia and Herzegovina or whether any trade union can engage in collective bargaining on behalf of its own members.

In its previous comment, in relation to the Republika Srpska, the Committee noted the high dual requirement for employers’ organizations to be able to bargain collectively (at least 10 per cent of the total number of employers in the domain, area or branch at the level of the Republic and employment of not fewer than 10 per cent of the total number of employees in the domain, area or branch – section 221 of the RS Labour Act) and requested the Government to take the necessary measures, in consultation with the social partners, to amend the relevant legislation. Observing that the Government does not provide any information in this respect, the Committee reiterates its previous request.

With regard to the Federation of Bosnia and Herzegovina, the Committee notes that the newly adopted Act on Representativity of Trade Unions and Employers’ Associations provides different thresholds of representativity for employers’ organizations: (i) for representativity in an area of activity at the cantonal level, employers have to employ at least 15 per cent of the total number of workers at that level (section 14(2)); (ii) for an area of activity at the Federal level, they must employ at least 15 per cent of the total number of workers from at least five cantons (section 14(1)); (iii) to obtain representativity at the cantonal level, they must employ at least 15 per cent of all workers in at least three areas of activity (section 15(1)); and (iv) to obtain representativity for the territory of the Federation, employment of at least 20 per cent of the workers in the economy in the territory of the Federation is required in at least five areas of activity and membership should include employers from at least three cantons (section 16). If no organization meets these requirements, the employers’ organization whose members employ the largest number of workers in the specific unit is considered as representative (section 18).

The Act on Representativity of Trade Unions and Employers’ Associations also provides for thresholds of representativity of trade unions at the enterprise level (20 per cent membership out of the total number of workers at the employer – section 6), in an area or field of activity (15 per cent membership out of the total number of workers in the area or field of activity – section 7), at the cantonal level (15 per cent membership – section 8) and at the level of the territory of the Federation (20 per cent membership in at least five areas or areas of activity – section 9). If no union satisfies the requirements of representativity, then the union with the largest number of members out of the total number of workers is considered as representative (section 10) and if there are more unions with the representative status, all enjoy the privileges of representative unions under the Act (section 12). The Committee requests the Government to provide information on the practical application of the above provisions.

Finally, the Committee observes that despite submitting regular reports, the Government failed to provide updated information on a number of the Committee’s recommendations, leading the Committee to repeat its previous requests. The Committee therefore considers that the Government may wish to benefit from the technical assistance of the Office in this regard.

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 takes note of the Government’s reply to the 2016 observations of the International Trade Union Confederation (ITUC), which referred to large-scale anti-union discrimination practices and employer interference in trade union activities. The Committee notes the Government’s reply that these allegations are untrue and that, according to the reports of the Labour Inspectorate, only a limited number of irregularities were found and these have already been addressed.

The Committee notes the 2018 amendments to the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and to the Labour Act of the Republika Srpska, 2016 (RS Labour Act), as well as the adoption of the Labour Act of the Brčko District, 2019 (BD Labour Act) and the Act on Inspections of the Republika Srpska, 2020.

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination in practice. In its previous comment, having taken due note of the detailed information provided, the Committee requested the Government to continue to provide information on the effective implementation of the prohibition of anti-union discrimination in practice, including on the number of complaints filed with the relevant authorities, their follow-up and the remedies and sanctions imposed, as well as on the activities of the labour inspection in this regard. The Committee notes the Government’s indication that: (i) between 2016 and 2018, inspection of working conditions of trade unions and workers’ councils in Republika Srpska did not detect any irregularities; (ii) one arbitration proceeding has been brought to the Agency for Amicable Settlement of Labour Disputes in the Republika Srpska in 2020 concerning the issue of termination of employment of a trade union president but the procedure has not yet been completed (under section 191 of the RS Labour Act, a workers’ representative may be dismissed during her/his office or six months after only with the approval of the trade union or workers’ council and, if such approval is not given, the employer may request arbitration); and (iii) no reports of violations of protection against anti-union discrimination were recorded by the Administration for Inspections in the Federation of Bosnia and Herzegovina, but the Ministry of Labour and Social Policy received 16 requests to give consent for the dismissal of trade union representatives, of which 12 were granted but 11 of these referred to dismissal with an offer to modify the worker’s employment contract, resulting in practice in an amendment of the labour contract with more favourable conditions for the worker. Taking due note of the information provided, the Committee invites the Government to continue providing information on the effective implementation of the prohibition of anti-union discrimination in practice, including on the number of complaints filed with the relevant authorities, their follow-up and the remedies and sanctions imposed, as well as on the activities of the labour inspection in this regard. The Committee requests the Government to provide, in particular, information on the use of reinstatement as the primary remedy for anti-union dismissals, as well as on the type and amount of financial compensation granted where reinstatement is not ordered.

Article 2. Protection against acts of interference by employers’ and workers’ organizations into each other’s establishment, functioning or administration. In its previous comment, the Committee noted the detailed information provided by the Government concerning sanctions against acts of interference by employers against workers and workers’ organizations in the Federation of Bosnia and Herzegovina. The Government indicated that: section 171(1)(1)–(2) of the FBiH Labour Act provides for fines against the employer (legal person) for preventing the organization of a trade union, putting a worker in an unfavourable position by reason of trade union membership or non-membership, preventing trade union representatives from approaching the employer or failing to provide the conditions for trade union activity (sections 14(1) and 15(2) of the FBiH Labour Act). The fines foreseen for a legal person vary from Bosnia and Herzegovina Convertible Mark (KM) 1,000 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), and for a natural person from KM2,000 to 5,000 (US$1,204–3,012). While having taken due note of this information, the Committee observed that most of the prohibited actions constituted a breach of the right to organize or anti-union discrimination under sections 14 and 15 of the FBiH Labour Act and not acts of interference in trade union affaires, which are comprehensively prohibited by section 16 of the FBiH Act. In this regard, the Committee notes the Government’s supplementary indication that the penal provisions of the FBiH Labour Act do not prescribe a fine for the breach of section 16 but that inspection authorities may impose certain administrative measures on the perpetrators. The Government also informs that it will consider introducing appropriate monetary sanctions to address this issue during the next amendments to the FBiH Labour Act. The Committee therefore requests the Government to take the necessary measures to introduce adequate sanctions for breaches of section 16 of the FBiH Labour Act which prohibits acts of interference and trusts that, in the meantime, labour inspectors will impose adequate remedy to punish any violations that may occur and prevent the repetition of such acts.

With regard to the Republika Srpska, the Committee notes that the Government reiterates that section 264(1)(2) of the RS Labour Act provides for penalties for employers who prevent or disrupt the organization of trade unions and adds that section 163 of the Criminal Code of the Republika Srpska provides for a fine or imprisonment for a term not exceeding one year for any person who denies or prevents political, trade union or any other form of citizens’ organization, or who prevents the activity of their political, trade union or other organizations or citizens’ associations in breach of the law or in any other unlawful manner. The Committee welcomes the Government’s indication that, even though it considers the prescribed sanctions for any attempt of interference by the employer in the activity of a trade union and vice versa to be adequate, the penal provisions referred to in section 263 will, in the forthcoming amendments to the RS Labour Act, specifically refer to allegations and breaches of section 211, which prohibits acts of interference. The Committee requests the Government to provide information on any amendments made to the provisions regulating the sanctions for acts of anti-union interference (breach of section 211 of the RS Labour Act) and trusts that, in line with its comments, these sanctions will be sufficiently dissuasive to ensure the effective application of Article 2 of the Convention.

With reference to the Brčko District, the Committee welcomed the Government’s indication that the lack of penalties for acts of interference would be revised in the new Labour Act of the Brčko District of Bosnia and Herzegovina (BD Labour Act), which was adopted at the first reading in March 2019 and was undergoing expert public hearing. In its supplementary report, the Government indicates that the BD Labour Act was adopted and that section 15 prohibits employers and employers’ association to interfere in the establishment, activities and management of trade unions, as well as advocacy or providing help to trade unions with the goal to manage them. The Committee also observes that pursuant to section 173 of the BD Labour Act, a fine of KM1,000 to 3,000 (US$602–1,807) can be imposed on an employer, legal person, for violation of section 15, and in the event of recurring infringements a fine from KM5,000 to 10,000 (US$3,012–6,024); whereas the responsible natural person can be fined from KM500 to 1,000 (US$301–602) and in case of recurring infringements from KM1,500 to 3,000 (US$903–1,807). While taking due note of the above, the Committee considers that the sanctions foreseen for violations of the prohibition of interference may not be adequate to deter and prevent the repetition of such acts, in particular in large enterprises. It therefore requests the Government to consider revising the amount of the sanctions so that they are sufficiently dissuasive to ensure the practical application of Article 2 of the Convention.

Article 4. Promotion of collective bargaining at the level of the Republic as a whole. In its previous comment, the Committee requested the Government to continue providing information on the concrete measures taken or contemplated, including at the level of the Republic as a whole, in order to encourage and promote collective bargaining, as well as on the previously announced legislative action in this regard in the Brčko District. The Committee also requested the Government to continue providing detailed information on the number of collective agreements concluded in the Federation of Bosnia and Herzegovina, in the Republika Srpska and in the Brčko District at all levels (enterprise, branch and national levels), the sectors to which they apply and the number of workers covered. The Committee welcomes the detailed statistics provided by the Government on the number of sectoral collective agreements concluded and presently valid, and the sectors to which they apply in the Federation of Bosnia and Herzegovina (officers in the administrative and judicial authorities, electric power industry and postal traffic and the mining sector), as well as in the Republika Srpska (employees in the administrative authorities, internal affairs, public services, education and culture, health care, local self-government, judicial institutions, welfare institutions, the utilities and service sector and in the State-owned forest enterprise “Šume Republike Srpske”). It notes the Government’s supplementary indication that due to the current situation relating to the COVID-19 crisis and the declaration of a state of emergency in the Republika Srpska, agreements were concluded until September 2020 providing for the extension or amendments of collective agreements, with the goal of extending their duration and preserving the rights that had been gained. The Government also indicates that no information is available on the number of enterprise-level collective agreements concluded. The Committee further notes the Government’s indication that, following the adoption of the new BD Labour Act, measures will be undertaken to adopt collective agreements. Noting with interest the above efforts to maintain the existing coverage by collective agreements in the context of the current COVID-19 pandemic, the Committee requests the Government to continue providing detailed information on the number of collective agreements concluded and in force in the Federation of Bosnia and Herzegovina, in the Republika Srpska and in the Brčko District at all levels (enterprise, branch and national levels), the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

Bipartite negotiations. Federation of Bosnia and Herzegovina. In its previous comment, the Committee noted the detailed allegations of State intervention in collective bargaining presented by the Association of Employers of the Federation of Bosnia and Herzegovina (AEFBiH) and requested the Government to take the necessary measures to ensure that all members of the AEFBiH could freely participate in collective bargaining and that negotiations of collective bargaining agreements were conducted in a bipartite context, including at the national and sectoral levels. The Committee notes the Government’s indication that, following the 2018 amendment to the FBiH Labour Act, sections 138 and 138a regulate the parties involved in collective bargaining: (i) the general collective agreement shall be entered into by the FBiH Government, the representative association of employers and the representative trade union; (ii) an individual collective agreement shall be entered into by the representative trade union with the employer and, if the owner is the Federation, canton, city or municipality, it is necessary to obtain their prior consent; (iii) a branch collective agreement for the fields of activity financed from the budget or extra-budgetary funds shall be entered into by the Government or the relevant cantonal ministries or governments and the representative trade unions; (iv) branch collective agreements for public enterprises and public institutions founded by the Federation, canton, city or municipality shall be entered into by the founders and the representative trade unions; (v) branch collective agreements for companies in which the Federation, canton, city or municipality participates with more than 50 per cent of the total capital, shall be entered into by representatives of the state capital holder with the participation of the representative association of employers and the representative trade union, unless regulated otherwise by an agreement between the public entity and the representative association of employers; and (vi) the representative trade union is required to cooperate with other smaller trade unions to express the interests of the employees they represent. In its supplementary report, the Government asserts that pursuant to the existing legislation, the general rule of collective bargaining is bilateral negotiation and that public authorities participate only where a share of national capital is concerned, where activities are funded from the State budget or extra-budgetary funds and in enterprises whose founder is the Federation, canton, city or municipality. The Committee observes from the above that the applicable legislation regulates in detail the parties to collective bargaining at the different levels and allows for tripartite bargaining, with the participation of the FBiH Government, cantonal or municipal entities, in several instances of collective bargaining at the sectoral and national levels. The Committee recalls in this regard that the Convention is applicable to all branches of economic activity, including public enterprises, that collective bargaining should essentially be bipartite and that the participation of public authorities should be limited to issues which are broad in scope, such as the formulation of legislation and economic or social policy or the fixing of the minimum wage rate. In light of the above, the Committee requests the Government once again to take the necessary measures to ensure that, as a general rule, negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect. The Committee requests the Government to report any progress in this regard.

Bipartite negotiations. Republika Srpska and the Brčko District. For a number of years, the Committee requested the Government to ensure that the Government of the Republika Srpska was not a party to collective agreements concluded between the trade union and the employers’ association at the level of the Republika Srpska. In its last comment, the Committee once again requested the Government to take the necessary measures to ensure that negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect and that the content of the agreements is not dependent on the policy choices of successive governments. The Committee notes that the Government reiterates that, apart from the representative organizations of workers and employers, the RS Labour Act also provides for the possibility for the Government to enter into the General Collective Agreement due to specificities of the economy, in which privatization and transition have not yet been completed, and as the Government still has majority ownership or co-ownership in around one third of enterprises. It further clarifies that the Government only participates in collective bargaining as a direct or indirect employer. The Committee also observes that, under section 148(3) of the BD Labour Act, the Government of the Brčko District may also be a party to branch collective agreements concluded for employees in civil service bodies, judicial authorities, public institutions and other budget users. While taking due note of the above explanation, the Committee recalls that the Convention, applicable to both the private sector and public servants not engaged in the administration of the State, tends essentially to promote bipartite negotiation and to limit the participation of public authorities to issues which are broad in scope, such as the formulation of legislation and economic or social policy, or the fixing of the minimum wage rate. The Committee therefore requests the Government to take the necessary measures to progressively ensure that, as a general rule, negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect and that the content of the agreements is not dependent on the policy choices of successive governments.

Procedure to determine the representativity of trade unions and employers’ associations. Federation of Bosnia and Herzegovina and the Republika Srpska. In its previous comment, having noted that, at the level of the Federation or canton (Federation of Bosnia and Herzegovina) or at the branch and national levels (Republika Srpska), representativity of trade unions and employers’ organizations, as well as its review, were determined by the Ministry, the Committee invited the Government, in consultation with the social partners, to consider establishing an independent and impartial mechanism to determine the representativity of trade unions and employers’ associations. The Committee notes the Government’s indication, with regard to the Republika Srpska, that the Minister determines representativity at the industry and national levels on the proposal submitted by an independent tripartite committee. Pursuant to section 231(1) of the RS Labour Act, the Minister can ask the committee to further review the proposal if not all facts important for determining representativity have been established and is then obliged to act upon the proposal. Trade unions can also address the independent tripartite committee as the second-instance entity which will examine the request and propose an appropriate decision. While no appeal may be filed against the final decision of the Minister, an administrative dispute may be initiated before the competent courts within 30 days. While taking due note of the above information, the Committee understands that the Ministry plays a major role in determining the representativity of trade unions at the branch and national levels in the Republika Srpska.

With regard to the Federation of Bosnia and Herzegovina, the Committee notes the Government’s supplementary indication that: (i) the Draft Act on Representativity of Trade Unions and Employers’ Associations is currently in the legislative process and in June 2020, a public discussion was held with representatives of social partners and other interested parties; (ii) sections 20-22 of the draft law regulate the procedure for determining representativity of trade unions and employers’ associations for all levels; (iii) at company level, the provisions prescribe the authorization of employers to determine the representativity of trade unions; (iv) at the level of the cantons and the Federation, the cantonal and the Federal Ministry of Labour conduct procedures to determine the representativity of trade unions and employers’ associations; and (v) during the discussion, the AEFBiH proposed to introduce a tripartite committee as a collective body in the procedure of determining the representativity of trade unions and employers’ associations, but this suggestion was not accepted as a result of the Government’s decision not to create any new bodies requiring allocation of additional funds from the budget of the Federation due restrictive budgetary policy. The Committee observes that despite a proposal to establish a tripartite committee to guide the decisions on the determination of representativity of trade unions and employers’ associations, such suggestion was not adopted in the new draft Act on Representativity of Trade Unions and Employers’ Associations, and observes with regret that the employers and the Ministry of Labour thus retain a major role in determining the representativity of trade unions and employers’ associations.

In light of the above, the Committee recalls that the determination of representativity should be carried out in accordance with a procedure that offers every guarantee of impartiality, enjoys the confidence of the parties, and without political interference. The determination of the most representative organizations must be based on objective, pre-established and precise criteria, so as to avoid any possibility of bias or abuse (see the 2012 General Survey on the fundamental Conventions, paragraph 96). The Committee therefore invites the Government to establish, in consultation with the social partners, a mechanism to determine the representativity of the most representative workers’ and employers’ organizations in the Federation of Bosnia and Herzegovina and the Republika Srpska, which enjoys the confidence of all social partners, and to provide information on any developments in this regard.

Representativity threshold for workers’ and employers’ organizations. Republika Srpska. In its previous comment, the Committee noted the required threshold of representativity: (i) 20 per cent at the level of the enterprise (section 218 of the RS Labour Act); (ii) 10 per cent at the level of the branch; (iii) 5 per cent at the level of the State (section 219 of the RS Labour Act); and (iv) for employers’ organizations, a dual requirement of at least 10 per cent of the total number of employers in the domain, area or branch at the level of the Republic and employment of not fewer than 10 per cent of the total number of employees in the domain, area or branch (section 221 of the RS Labour Act). The Committee observed that, when no trade union or employers’ association met the required threshold, workers’ and employers’ organizations could conclude a written agreement for the purpose of meeting jointly the stipulated threshold (section 241 of the RS Labour Act). The Committee requested the Government to indicate whether the 20 per cent threshold imposed at the level of the enterprise did not, in practice, hinder collective bargaining in certain enterprises. Observing the high requirement of 10 per cent for employers’ organizations to be able to negotiate and the restrictions on collective bargaining as a result of the dual requirement, it requested the Government to take the necessary measures, in consultation with the social partners, to amend the legislation in this regard. The Committee notes that, in its supplementary report, the Government states that pursuant to section 217(3) of the RS Labour Act, if there is only one trade union at the appropriate level of organisation, it shall be representative regardless of the number of its members. The Committee trusts that by virtue of this provision, as well as section 241 which provides for agreements among unions to jointly reach the required threshold, the 20 per cent requirement at the level of the enterprise does not hinder collective bargaining in practice. Regretting the lack of any information on the high requirement for employers’ organizations to be able to negotiate, the Committee requests the Government once again to take the necessary measures, in consultation with the social partners, to amend the legislation in this regard.

Compulsory arbitration. Federation of Bosnia and Herzegovina. In its previous comment, the Committee requested the Government to clarify the nature of the arbitration referred to in sections 139 and 154 of the FBiH Labour Act, indicating whether arbitration could be requested by one party to a labour dispute, and to provide information on its application in practice. The Committee notes the Government’s indication that arbitration referred to in the above provisions is a fully voluntary procedure. Even though a request for arbitration may be submitted by either party to the collective labour dispute, consent of the other party is necessary for the resolution of the dispute through arbitration. The Government adds that since all issues related to arbitration are resolved by provisions of collective agreements or agreements of the parties, labour administration has no data about the number of collective labour disputes resolved through arbitration. In light of the above, the Committee trusts that arbitration referred to in sections 139 and 154 of the FBiH Labour Act is voluntary, based on the agreement of both parties to the dispute and will not, in practice, lead to a binding decision imposed at the request of only one party.

Compulsory arbitration. Republika Srpska. In its previous comment, the Committee requested the Government to clarify whether the arbitration procedure provided for in the Act on Peaceful Settlement of Labour Disputes of the Republika Srpska, 2016, is voluntary, based on the agreement of both parties, or whether it could be imposed by the authorities, or at the request of one of the parties. The Committee noted the Government’s general clarification, provided under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that arbitration was voluntary but observed that it appeared from sections 10(2) and 27–31 of the Act that individual and collective labour disputes (including disputes with the purpose of the conclusion, amendment and addition or cancelation of the collective agreement, realization of trade union rights, strike and other collective rights) could be referred to the Agency for Amicable Settlement of Labour Disputes established under the Act by either of the parties and could in some instances lead to compulsory decisions. The Committee notes the Government’s clarification that, in line with sections 27–31 of the Act, the procedure for peaceful resolution of interest disputes is voluntary. The Government explains that when a dispute is submitted to the Agency for Amicable Settlement of Labour Disputes by one party, the Agency delivers the proposal and documents to the other party to the dispute. If the other party does not reply within the anticipated deadline or if the proposal is not accepted, the procedure is stopped. If the other party accepts the proposal for peaceful resolution of a labour dispute, a peace council is appointed, where either an agreement is reached and becomes binding or the parties do not reach an agreement and the procedure is closed. The Government further states that exceptions are possible only in cases of collective disputes arising in activities of general interest regulated by the law or activities where suspension of work could endanger life and health of people or cause major damage. In these instances, the parties are obliged to submit a proposal for peaceful resolution of the dispute to the Agency and if they do not, the director of the Agency will initiate the procedure of dispute resolution ex officio and pursuant to the law (sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes). Taking due note of the above and recalling that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), or in essential services in the strict sense of the term or in cases of acute national crisis, the Committee requests the Government to provide further information on activities or industrial sectors that fall within sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes. Further observing that sections 34-36 of the Act refer to the possibility to establish an arbitration commission, the Committee requests the Government to provide further information in this regard, in particular whether this mechanism can be used in case of collective interest disputes and can lead to a binding decision imposed at the request of the authorities or one of the parties.

Compulsory arbitration. Brčko District. The Committee notes, from the Government’s supplementary report, that sections 147-156 of the new BD Labour Act regulate the matter of collective bargaining in the Brčko District but that no collective agreements have yet been concluded. The Committee observes that, according to section 149(4), parties to collective bargaining may initiate an arbitration process if no agreement is reached on the conclusion of a collective agreement after a period of 45 days of negotiation. The Committee requests the Government to clarify whether the arbitration referred to in section 149(4) of the BD Labour Act is voluntary in nature (agreed to by both parties) or whether it can be established at the request of one party and lead to a compulsory decision.

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

The Committee takes note of the Government’s reply to the 2016 observations of the International Trade Union Confederation (ITUC), which referred to large-scale anti-union discrimination practices and employer interference in trade union activities. The Committee notes the Government’s reply that these allegations are untrue and that, according to the reports of the Labour Inspectorate, only a limited number of irregularities were found and these have already been addressed.

The Committee notes the 2018 amendments to the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and the Labour Act of the Republika Srpska, 2016 (RS Labour Act). Observing that a new labour law is in the process of being adopted in the Brčko District, the Committee requests the Government to provide a copy of this legislation once adopted.

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination in practice. In its previous comment, having taken due note of the detailed information provided, the Committee requested the Government to continue to provide information on the effective implementation of the prohibition of anti-union discrimination in practice, including on the number of complaints filed with the relevant authorities, their follow-up and the remedies and sanctions imposed, as well as on the activities of the labour inspection in this regard. The Committee notes the Government’s indication that: (i) between 2016 and 2018, inspection of working conditions of trade unions and workers’ councils in Republika Srpska did not detect any irregularities; (ii) no arbitration proceedings have been brought to the Agency for Amicable Settlement of Labour Disputes on the issue of termination of employment of workers’ representatives (under section 191 of the RS Labour Act, a workers’ representative may be dismissed during her/his office or six months after only with the approval of the trade union or workers’ council and, if such approval is not given, the employer may request arbitration); and (iii) no reports of violations of protection against anti-union discrimination were recorded by the Administration for Inspections in the Federation of Bosnia and Herzegovina, but the Ministry of Labour and Social Policy received 17 requests to give consent for the dismissal of trade union representatives, of which eight were granted and three referred to dismissal with an offer to modify the worker’s employment contract. Taking due note of the information provided, the Committee invites the Government to continue providing information on the effective implementation of the prohibition of anti-union discrimination in practice, including on the number of complaints filed with the relevant authorities, their follow-up and the remedies and sanctions imposed, as well as on the activities of the labour inspection in this regard. The Committee requests the Government to provide, in particular, information on the use of reinstatement as the primary remedy for anti-union dismissals, as well as on the type and amount of financial compensation granted where reinstatement is not ordered.

Article 2. Protection against acts of interference by employers’ and workers’ organizations into each other’s establishment, functioning or administration. In its previous comment, the Committee requested the Government to take the necessary measures to ensure that the national legislation establishes sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations. The Committee notes the Government’s indication concerning the Federation of Bosnia and Herzegovina that: section 171(1)(1)–(2) of the FBiH Labour Act provides for fines against the employer (legal person) for preventing the organization of a trade union, putting a worker in an unfavourable position by reason of trade union membership or non-membership, preventing trade union representatives from approaching the employer or failing to provide the conditions for trade union activity (sections 14(1) and 15(2) of the FBiH Labour Act). The fines foreseen for a legal person vary from Bosnia and Herzegovina Convertible Mark (KM) 1,000 to 3,000 (US$564–1,692) and in the event of recurring infringements from KM5,000 to 10,000 (US$2,820-5,640), and for a natural person from KM2,000 to 5,000 (US$1,128–2,820). While taking due note of this information, the Committee observes that most of the prohibited actions constitute a breach of the right to organize or anti-union discrimination under sections 14 and 15 of the FBiH Labour Act and not acts of interference in trade union affaires, which are comprehensively prohibited by section 16 of the FBiH Act. The Committee therefore requests the Government to indicate the sanctions foreseen for breaches of section 16 of the FBiH which prohibits acts of interference.

With regard to the Republika Srpska, the Committee notes that the Government reiterates that section 264(1)(2) of the RS Labour Act provides for penalties for employers who prevent or disrupt the organization of trade unions and adds that section 163 of the Criminal Code of the Republika Srpska provides for a fine or imprisonment for a term not exceeding one year for any person who denies or prevents political, trade union or any other form of citizens’ organization, or who prevents the activity of their political, trade union or other organizations or citizens’ associations in breach of the law or in any other unlawful manner. The Committee welcomes the Government’s indication that, even though it considers the prescribed sanctions for any attempt of interference by the employer in the activity of a trade union and vice versa to be adequate, the penal provisions referred to in section 263 will, in the forthcoming amendments to the RS Labour Act, specifically refer to allegations and breaches of section 211, which prohibits acts of interference.

With reference to the Brčko District, the Committee welcomes the Government’s indication that the lack of penalties for acts of interference will be corrected in the new Labour Act of the Brčko District of Bosnia and Herzegovina (BD Labour Act), which was adopted at the first reading in March 2019 and is currently undergoing expert public hearing.

Taking due note of the above information, the Committee requests the Government to indicate the sanctions foreseen for acts of anti-union interference (breach of section 211 of the RS Labour Act and section 7 of the BD Labour Act) once the necessary amendments have been made and it trusts that, in line with its comments, these sanctions will be sufficiently dissuasive to ensure the practical application of Article 2 of the Convention.

Article 4. Promotion of collective bargaining at the level of the Republic as a whole. In its previous comment, the Committee requested the Government to continue providing information on the concrete measures taken or contemplated, including at the level of the Republic as a whole, in order to encourage and promote collective bargaining, as well as on the previously announced legislative action in this regard in the Brčko District. The Committee also requested the Government to continue providing detailed information on the number of collective agreements concluded in the Federation of Bosnia and Herzegovina, in the Republika Srpska and in the Brčko District at all levels (enterprise, branch and national levels), the sectors to which they apply and the number of workers covered. The Committee welcomes the detailed statistics provided by the Government on the number of sectoral collective agreements concluded since 2016 and the sectors to which they apply in the Federation of Bosnia and Herzegovina (wood and paper industry, officers in the administrative and judicial authorities, electric power industry, trade, postal traffic, rail workers, metal production and processing, telecommunications and the textile, leather, rubber and footwear industries), as well as in the Republika Srpska (employees in the administrative authorities, internal affairs, public services, education and culture, health care, local self-government, judicial institutions, the utilities and service sector and in the field of social protection). The Committee notes the Government’s indication that, following the adoption of the new BD Labour Act, activities will be undertaken to adopt collective agreements. The Committee requests the Government to continue providing detailed information on the number of collective agreements concluded in the Federation of Bosnia and Herzegovina, in the Republika Srpska and in the Brčko District at all levels (enterprise, branch and national levels), the sectors to which they apply and the number of workers covered.

Bipartite negotiations. Federation of Bosnia and Herzegovina. In its previous comment, the Committee noted the detailed allegations of State intervention in collective bargaining presented by the Association of Employers of the Federation of Bosnia and Herzegovina (AEFBiH) and requested the Government to take the necessary measures to ensure that all members of the AEFBiH could freely participate in collective bargaining and that negotiations of collective bargaining agreements were conducted in a bipartite context, including at the national and sectoral levels. The Committee notes the Government’s indication that, following the 2018 amendment to the FBiH Labour Act, sections 138 and 138a regulate the parties involved in collective bargaining: (i) the general collective agreement shall be entered into by the FBiH Government, the representative association of employers and the representative trade union; (ii) an individual collective agreement shall be entered into by the representative trade union with the employer and, if the owner is the Federation, canton, city or municipality, it is necessary to obtain their prior consent; (iii) a branch collective agreement for the fields of activity financed from the budget or extra-budgetary funds shall be entered into by the Government or the relevant cantonal ministries or governments and the representative trade unions; (iv) branch collective agreements for public enterprises and public institutions founded by the Federation, canton, city or municipality shall be entered into by the founders and the representative trade unions; (v) branch collective agreements for companies in which the Federation, canton, city or municipality participates with more than 50 per cent of the total capital, shall be entered into by representatives of the state capital holder with the participation of the representative association of employers and the representative trade union, unless regulated otherwise by an agreement between the public entity and the representative association of employers; and (vi) the representative trade union is required to cooperate with other smaller trade unions to express the interests of the employees they represent. The Committee observes from the information provided that the applicable legislation regulates in detail the parties to collective bargaining at the different levels and allows for tripartite bargaining, with the participation of the FBiH Government, cantonal or municipal entities, in several instances of collective bargaining at the sectoral and national levels. The Committee recalls in this regard that the Convention is applicable to all branches of economic activity, including public enterprises, that collective bargaining should essentially be bipartite and that the participation of public authorities should be limited to issues which are broad in scope, such as the formulation of legislation and economic or social policy or the fixing of the minimum wage rate. In light of the above, the Committee requests the Government once again to take the necessary measures to ensure that, as a general rule, negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect. The Committee requests the Government to report any progress in this regard.

Bipartite negotiations. Republika Srpska and the Brčko District. For a number of years, the Committee requested the Government to ensure that the Government of the Republika Srpska was not a party to collective agreements concluded between the trade union and the employers’ association at the level of the Republika Srpska. In its last comment, the Committee once again requested the Government to take the necessary measures to ensure that negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect and that the content of the agreements is not dependent on the policy choices of successive governments. The Committee notes that the Government reiterates that, apart from the representative organizations of workers and employers, the RS Labour Act also provides for the possibility for the Government to enter into the General Collective Agreement due to specificities of the economy, in which privatization and transition have not yet been completed, and as the Government still has majority ownership or co-ownership in around one third of enterprises. It further clarifies that the Government only participates in collective bargaining as a direct or indirect employer. The Committee also observes that, under section 96 of the BD Labour Act, the Government of the Brčko District may also be a party to collective agreements concluded at the level of the Brčko District. While taking due note of the above explanation, the Committee recalls that the Convention tends essentially to promote bipartite negotiation and to limit the participation of public authorities to issues which are broad in scope, such as the formulation of legislation and economic or social policy, or the fixing of the minimum wage rate. The Committee therefore requests the Government to take the necessary measures to progressively ensure that, as a general rule, negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect and that the content of the agreements is not dependent on the policy choices of successive governments.

Procedure to determine the representativity of trade unions and employers’ associations. Federation of Bosnia and Herzegovina and the Republika Srpska. In its previous comment, having noted that, at the level of the Federation or canton (Federation of Bosnia and Herzegovina) or at the branch and national levels (Republika Srpska), representativity of trade unions and employers’ organizations, as well as its review, were determined by the Ministry, the Committee invited the Government, in consultation with the social partners, to consider establishing an independent and impartial mechanism to determine the representativity of trade unions and employers’ associations. The Committee notes the Government’s indication, with regard to the Republika Srpska, that the Minister determines representativity at the industry and national levels on the proposal submitted by an independent tripartite committee. Pursuant to section 231(1) of the RS Labour Act, the Minister can ask the committee to further review the proposal if not all facts important for determining representativity have been established and is then obliged to act upon the proposal. Trade unions can also address the independent tripartite committee as the second-instance entity which will examine the request and propose an appropriate decision. While no appeal may be filed against the final decision of the Minister, an administrative dispute may be initiated before the competent courts within 30 days. While taking due note of the above information and observing that no information was provided with respect to the Federation of Bosnia and Herzegovina, the Committee understands that the Ministry plays a major role in determining the representativity of trade unions at the branch and national levels in the Republika Srpska and recalls in this regard that determination of representativity 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. The Committee invites the Government, in consultation with the social partners, to consider establishing an independent and impartial mechanism to determine the representativity of trade unions and employers’ associations in the Federation of Bosnia and Herzegovina and the Republika Srpska and to provide information on any developments in this regard.

Representativity threshold for workers’ and employers’ organizations. Republika Srpska. In its previous comment, the Committee noted the required threshold of representativity: (i) 20 per cent at the level of the enterprise (section 218 of the RS Labour Act); (ii) 10 per cent at the level of the branch; (iii) 5 per cent at the level of the State (section 219 of the RS Labour Act); and (iv) for employers’ organizations, a dual requirement of at least 10 per cent of the total number of employers in the domain, area or branch at the level of the Republic and employment of not fewer than 10 per cent of the total number of employees in the domain, area or branch (section 221 of the RS Labour Act). The Committee observed that, when no trade union or employers’ association met the required threshold, workers’ and employers’ organizations could conclude a written agreement for the purpose of meeting jointly the stipulated threshold (section 241 of the RS Labour Act). The Committee requested the Government to indicate whether the 20 per cent threshold imposed at the level of the enterprise did not, in practice, hinder collective bargaining in certain enterprises. Observing the high requirement of 10 per cent for employers’ organizations to be able to negotiate and the restrictions on collective bargaining as a result of the dual requirement, it requested the Government to take the necessary measures, in consultation with the social partners, to amend the legislation in this regard. Regretting the lack of any information in this regard, the Committee reiterates its previous request on this point.

Compulsory arbitration. Federation of Bosnia and Herzegovina. Republika Srpska. In its previous comment, the Committee requested the Government to clarify the nature of the arbitration referred to in sections 139 and 154 of the FBiH Labour Act, indicating whether arbitration could be requested by one party to a labour dispute, and to provide information on its application in practice. Observing that no information has been provided in this regard, the Committee requests the Government once again to clarify the nature of the arbitration referred to in sections 139 and 154 of the FBiH Labour Act, indicating whether arbitration can be requested by one party to a labour dispute, and to provide information on the application of these provisions in practice.

Republika Srpska. In its previous comment, the Committee requested the Government to clarify whether the arbitration procedure provided for in the Act on Peaceful Settlement of Labour Disputes of the Republika Srpska, 2016, is voluntary, based on the agreement of both parties, or whether it could be imposed by the authorities, or at the request of one of the parties. The Committee notes the Government’s general clarification, provided under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that arbitration is voluntary. However, the Committee observes that it appears from sections 10(2) and 27–31 of the Act that individual and collective labour disputes (including disputes with the purpose of the conclusion, amendment and addition or cancelation of the collective agreement, realization of trade union rights, strike and other collective rights) may be referred to the Agency for Amicable Settlement of Labour Disputes established under the Act by either of the parties and can in some instances lead to compulsory decisions. The Committee requests the Government to clarify whether the arbitration procedure provided for in the Act on Peaceful Settlement of Labour Disputes of the Republika Srpska is truly voluntary, based on the agreement of both parties, or whether a binding decision can be imposed at the request of the authorities or one of the parties.

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

Article 2. Protection against acts of interference from employers’ and workers’ organizations into each other’s establishment, functioning or administration. In its previous comment, the Committee expressed its expectation that the new FBiH Labour Act would prescribe sufficiently dissuasive sanctions for acts of anti-union interference prohibited under the Act. The Committee notes the Government’s indication that section 171(2) of the FBiH Labour Act provides for penalties for cases where employers disable the access of union representatives to the company premises or fail to comply with the collective agreement, and that section 264(1)(2) of the RS Labour Act provides for penalties for employers who prevent or disrupt the organization of trade unions. The Committee observes, however, that while interference in trade union affairs is explicitly and comprehensively prohibited by all three Labour Acts (section 16 of the FBiH Labour Act, section 211 of the RS Labour Act and section 7 of the BD Labour Act), none of these laws establish sanctions for violation of these provisions. Recalling that legislation must establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations to ensure the practical application of Article 2 of the Convention, the Committee requests the Government to take the necessary measures to ensure that national legislation establishes such sanctions and to provide information on any developments in this regard.

Article 4. Promotion of collective bargaining at the level of the Republic as a whole. In its previous comments, the Committee requested the Government to provide information on measures taken or contemplated in order to encourage and promote collective bargaining and to provide statistics on the number and coverage of collective agreements concluded in the two entities and in the Brčko District. It also requested the Government to provide information on the previously announced legislative action aimed at promoting the development and the use of procedures for voluntary negotiation in the Brčko District. The Committee notes the detailed information provided by the Government on the provisions of the FBiH Labour Act and the RS Labour Act, which govern the issue of collective bargaining, as well as on its practical application (one branch collective agreement on finances was concluded in the Federation of Bosnia and Herzegovina, active negotiations to conclude collective agreements at all levels are under way in the Republika Srpska, and no collective agreement has been concluded in the Brčko District). The Committee requests the Government to continue to provide information on concrete measures taken or contemplated, including at the level of the Republic as a whole, in order to encourage and promote collective bargaining, as well as on the previously announced legislative action in this regard in the Brčko District. The Committee also requests the Government to continue to provide detailed information on the number of collective agreements concluded in the Federation of Bosnia and Herzegovina, in the Republika Srpska and in the Brčko District at all levels (enterprise, branch and national levels), the sectors to which they apply and the number of workers covered.

Bipartite negotiations. Federation of Bosnia and Herzegovina. The Committee notes that the Association of Employers of the Federation of Bosnia and Herzegovina (AEFBiH) alleges that: (i) its representative status was revoked in January 2016 in order to avoid the signing of the General Collective Agreement agreed between the AEFBiH and the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH); (ii) a new decision on its representativity was taken only once the FBiH Government’s comments on the General Collective Agreement were taken into account, and paragraph 2 of the decision removes the possibility of the AEFBiH to participate in collective bargaining for members whose ownership structure includes State capital; (iii) the representativity status of many sectoral trade unions and confederations of trade unions was revoked in a similar manner; (iv) the FBiH Government adopted a decision on appointing a working group to draft amendments to the General Collective Agreement and all sectoral collective agreements for the territory of the Federation of Bosnia and Herzegovina, in which the Government is the negotiator; and (v) the FBiH Government, while insisting on tripartite negotiations, requested the AEFBiH to provide a list of all sectoral agreements in which it acted as the negotiator for the employers and informed the AEFBiH that if it refused to reply it would be considered as preventing collective bargaining. In response to these observations, the Government indicates that when deciding upon the representative status of the AEFBiH, the intention was not to limit or disable its participation in collective bargaining but rather to identify the parties to collective bargaining in public enterprises founded by the FBiH Government, canton, city or municipality or fully or in majority owned by these entities, and that the General Collective Agreement, which was negotiated in a bipartite manner between the AEFBiH and the SSSBiH, also contains provisions to this effect. The Government further states that it is in constant contact with the AEFBiH in relation to the need to change decisions on its representativity and that it encourages social dialogue and collective bargaining. Noting with concern the AEFBiH indication that its members whose ownership structure includes State capital are prevented from collective bargaining and that the FBiH Government intends to participate in collective bargaining at the sectoral and national levels, the Committee recalls that the Convention is applicable to all branches of economic activity, including public enterprises, that collective bargaining should essentially be bipartite and that the participation of public authorities should be limited to issues which are broad in scope, such as the formulation of legislation and economic or social policy or the fixing of the minimum wage rate. In this regard, the Committee observes that the Committee on Freedom of Association also recently examined allegations of Government interference in collective bargaining, which were contested by the Government, and recalled that State bodies should refrain from intervening in free collective bargaining between workers’ and employers’ organizations (see Case No. 3155, 378th Report, paragraph 105). The Committee requests the Government to take the necessary measures to ensure that all members of the AEFBiH may freely participate in collective bargaining and that negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect.

Bipartite negotiations. Republika Srpska and the Brčko District. For a number of years, the Committee had requested the Government to ensure that the Government of Republika Srpska was not a party to collective agreements concluded between the trade union and the employers’ association, at the level of the Republika Srpska. In its last comment, the Committee expressed its expectation that the new Labour Act would fully recognize the bipartite nature of collective bargaining, including at the national and sectoral levels, and would ensure that mediation of the labour authorities was only possible at the request of the parties. The Committee observes, however, that section 240 of the RS Labour Act provides for the possibility of concluding a general collective agreement in which the Government of Republika Srpska is a signatory party and notes the Government’s indication that this provision is motivated by the particular situation in the Republika Srpska, where the procedure of privatization and transition has not yet been completed and where the Government continues to have the majority ownership or co-ownership share in a significant number of companies and corporations. The Committee further observes that under section 96 of the BD Labour Act, the Government of the Brčko District may also be a party to collective agreements concluded at the level of the Brčko District. Recalling that the Convention tends essentially to promote bipartite negotiation and to limit the participation of public authorities to issues which are broad in scope, such as the formulation of legislation and economic or social policy or the fixing of the minimum wage rate, the Committee requests the Government once again to take the necessary measures to ensure that negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect and that the content of the agreements is not dependent on the policy choices of successive governments.

Procedure to determine the representativity of trade unions and employers’ associations. Federation of Bosnia and Herzegovina and the Republika Srpska.  The Committee observes that: (i) in the Federation of Bosnia and Herzegovina, the representativity of a trade union at the company level and its review are determined by the employer and are subject to appeal only to the Federal or Cantonal Ministry in charge of labour (sections 129 and 133 of the FBiH Labour Act), and representativity of trade unions and employers’ organizations, as well as its review, at the level of the Federation or canton are determined by the Ministry (section 130 of the FBiH Labour Act); (ii) in the Republika Srpska, representativity at the level of the enterprise is generally determined by the employer and in some cases by a tripartite Board or by the Minister (section 222 of the RS Labour Act), and representativity at the branch or national level, as well as representativity of employers’ associations are determined by the Minister upon proposal of the tripartite Board (sections 223 and 230 of the RS Labour Act). Noting that the issue of determining representativity at the level of the enterprise in the Federation of Bosnia and Herzegovina has been previously examined by the Committee on Freedom of Association in Case No. 3155 (see 378th Report, paragraph 111), the Committee recalls that determination of representativity 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. The Committee invites the Government, in consultation with the social partners, to consider establishing an independent and impartial mechanism for determining the representativity of trade unions and employers’ associations and to provide information on any developments in this regard.

Representativity threshold for workers’ and employers’ organizations. Republika Srpska. The Committee notes that the stipulated threshold of representativity for workers’ organizations is set at 20 per cent at the level of the enterprise (section 218 of the RS Labour Act), 10 per cent at the level of the branch and 5 per cent at the level of the State (section 219 of the RS Labour Act). The Committee further observes that an association of employers will only be considered as representative if its members represent at least 10 per cent of the total number of employers in the domain, area or branch at the level of the Republic and if those employers employ not fewer than 10 per cent of the total number of employees in the domain, area or branch (section 221 of the RS Labour Act). However, the Committee also observes that when no trade union or employers’ association meets the required threshold of representativity, workers’ and employers’ organizations may conclude a written agreement for the purpose of meeting together the stipulated threshold (section 241 of the RS Labour Act). While taking due note of this possibility, the Committee requests the Government to indicate whether the 20 per cent threshold imposed at the level of the enterprise does not, in practice, hinder collective bargaining in certain enterprises. Further observing that the requirement for an employers’ association to represent at least 10 per cent of employers to be able to negotiate collective agreements is particularly high, especially for negotiations at the sectoral and national level, and that the dual requirement imposed by section 221 may unduly restrict collective bargaining rights of employers’ organizations, the Committee requests the Government to take, in consultation with the social partners, the necessary measures to amend the legislation in this regard.

Compulsory arbitration. Federation of Bosnia and Herzegovina. The Committee observes that if in the course of negotiations, within 45 days, there is no agreement to conclude a collective agreement, the parties can request arbitration (section 139 of the FBiH Labour Act), and that in case of disputes related to a collective bargaining agreement, which has not been solved through mediation, parties can submit the dispute to an arbitration body (section 154 of the FBiH Labour Act). Recalling that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises, the Committee requests the Government to clarify the nature of arbitration referred to in sections 139 and 154 of the FBiH Labour Act, indicating whether arbitration can be requested by one party to a labour dispute, and provide information on its application in practice.

Republika Srpska. The Committee requests the Government to clarify whether the arbitration procedure provided for in the Act on Peaceful Settlement of Labour Disputes of the Republika Srpska is voluntary, based on the agreement of both parties, or whether it can be imposed by the authorities or at the request of one of the parties. Observing that a new RS Act on the Peaceful Settlement of Labour Disputes is currently before Parliament, the Committee trusts that the use of compulsory arbitration will only be allowed in line with the abovementioned principles and requests the Government to provide a copy of the text once adopted.

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

The Committee notes the observations received from the International Trade Union Confederation (ITUC) under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), on 1 September 2016, alleging large-scale anti-union discrimination practices, as well as employer interference in trade union activities. The Committee requests the Government to provide its comments thereon. The Committee also notes the observations from the Association of Employers of Bosnia and Herzegovina received under the Collective Bargaining Convention, 1981 (No. 154), and the Government’s comments thereon.

The Committee notes from the Government’s report the adoption of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act), the Act on Inspections in the Federation of Bosnia and Herzegovina, 2014 (FBiH Act on Inspections) and the Labour Act of the Republika Srpska, 2016 (RS Labour Act).

Articles 1 and 3 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comment, the Committee requested the Government to provide information on the measures taken or envisaged to guarantee the effective protection in practice against acts of anti-union discrimination. The Committee notes the Government’s indication that the FBiH Labour Act, the RS Labour Act and the Labour Act of the Brčko District (BD Labour Act) provide for a comprehensive prohibition against anti-union discrimination and observes the detailed information provided by the Government on the relevant provisions applicable in this regard. In particular, the Committee notes with interest that the applicable legislation explicitly provides 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). The Committee further notes the information provided by the Government on the practical implementation of the prohibition of anti-union discrimination during the reporting period: (i) in the Federation of Bosnia and Herzegovina, out of nine requests for approval to dismiss union representatives received by the Ministry, three were approved; (ii) in the Republika Srpska, nine extraordinary labour inspections were conducted in the area of trade unions’ working conditions from 2013 to 2015; out of two requests for approval to dismiss a union representative, one was approved; and no arbitration procedure has been initiated on disputes concerning dismissal of trade union representatives; and (iii) in the Brčko District, the labour inspectors have not yet dealt with any cases alleging violations of anti-union practices. Taking due note of the information provided, the Committee requests the Government to continue to provide information on the effective implementation of the prohibition of anti-union discrimination in practice, including on the number of complaints filed before the relevant authorities, their follow-up and remedies and sanctions imposed, as well as on the activities of the labour inspection in this regard. The Committee requests the Government to provide, in particular, information on the use of reinstatement as the primary remedy for anti-union dismissals, as well as on the type and amount of pecuniary compensation applied where reinstatement is not ordered.

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

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

The Committee notes the comments of the Confederation of Trade Unions of the Republika Srpska (SSRS) dated 19 August 2013. It requests the Government to provide its observations thereon. The Committee further notes the comments submitted by the International Trade Union Confederation (ITUC) on 30 August 2013 concerning issues already raised by the Committee. It also notes the Government’s reply to the previous comments of the ITUC.

Article 1 of the Convention. Protection against anti-union discrimination. In its previous comments, the Committee had requested the Government to provide, in respect of the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District, the maximum practical information available on the application of Article 1. The Committee notes that: (i) the Government of the Federation of Bosnia and Herzegovina indicates that it has received no information of recorded formal complaints relating to anti-union discrimination; and states that there have been 16 requests for dismissal of the union representative (which require the consent of the Ministry of Labour) without indicating how many have been granted; and (ii) the Government of the Republika Srpska indicates that there have been seven such requests of which only three have been granted for serious breach of duty, according to the transmitted labour inspection reports (2010–12), two to three emergency controls per year are conducted in this field. The Committee further notes that, according to the SSRS, there are problems of enforcement in the area of anti-union discrimination in the Republika Srpska (non-negligible number of dismissals of union representatives without the consent of the Ministry; non-enforcement of reinstatement orders; absence of labour courts; and need for strengthening labour inspection). While noting the existence of preventive and remedy measures in cases of anti-union discrimination, the Committee highlights the importance it attaches to the effective enforcement of such measures in practice. The Committee requests the Government to provide information on the measures taken or envisaged to guarantee the effective protection in practice against acts of anti-union discrimination. The Committee also requests the Government to continue to provide, in respect of the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District, the maximum practical information available on the application of Article 1.

Article 2. Protection against acts of interference from employers’ and workers’ organizations into each other’s establishment, functioning or administration. In its previous comments, the Committee had expressed the firm hope that, in the course of the current revision of the Labour Act of the Federation of Bosnia and Herzegovina, sufficiently dissuasive sanctions would be prescribed for acts of interference on the part of employers or employers’ organizations prohibited under section 10a of the Labour Act. The Committee notes that the Government indicates that the preliminary draft of the new Labour Act is still in legal proceedings and reiterates that the draft prescribes fines in cases where employers disable the access of union representatives to the company premises or fail to comply with the collective agreement. Recalling that legislation must establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations to ensure the practical application of Article 2, the Committee expects that the new Labour Act will prescribe sufficiently dissuasive sanctions for acts of anti-union interference prohibited under section 10a of the Labour Act. The Committee requests the Government to supply a copy of the new Labour Act once adopted.

Article 4. Promotion of collective bargaining at the level of the Republic as a whole. The Committee notes the information supplied by the Government and requests the Government to provide information in its next report on measures taken or contemplated, including at the level of the Republic as a whole, in order to encourage and promote collective bargaining, and in particular information concerning developments in respect of the previously announced legislative action in this regard in the Brčko District. The Committee also requests the Government to continue to provide statistics on the number and coverage of collective agreements that have been concluded in the Federation of Bosnia and Herzegovina, in the Republika Srpska and in the Brčko District.

Promotion of collective bargaining in the Republika Srpska. In its previous comments, the Committee had observed that section 161 of the Labour Act of the Republika Srpska provides that if a collective agreement is negotiated at the level of the whole Republic, the Government will be a party to it along with the trade union and the employers’ association. The Committee notes the statistics concerning collective agreements as well as the information supplied by the Government about the participation of the Government of the Republika Srpska in the collective bargaining process, which varies according to the bargaining level. In the absence of any information provided by the Government concerning the announced labour law revision process, the Committee expects that the future Labour Act of the Republika Srpska will fully recognize the bipartite nature of collective bargaining, including at the national and sectoral levels, and will ensure that mediation of the labour authorities will only be possible at the request of the parties. It requests the Government to supply a copy of the new Labour Act once adopted.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 4 August 2011 concerning issues being examined by the Committee and some specific cases of anti-union discrimination. It requests the Government to provide its observations thereon.

Article 1 of the Convention. Protection against anti-union discrimination. In its previous comments, in view of observations made by the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) and the Confederation of Trade Unions of the Republika Srpska (SSRS) on various forms of pressure and intimidation in private companies to prevent workers from establishing trade unions, the Committee had requested the Government to provide any statistics available regarding the complaints or findings of the labour inspectorates in the entities relating to anti-union discrimination in the workplace and any steps taken to ensure adequate protection for workers in this regard. The Committee notes from the Government’s report that: (i) the Government of the Republika Srpska has no information available on the number of complaints filed in connection with anti-union discrimination (to its knowledge there were none) but expects to receive such information from the unions denouncing anti-union discrimination; (ii) the Government of the Federation of Bosnia and Herzegovina has no statistics available as regards complaints relating to anti-union discrimination in the workplace but will make efforts to obtain the requested information; and (iii) concerning the Brčko District, the Government merely indicates that sections 6 to 9 of the Labour Act of the Brčko District protect workers against anti-union discrimination. The Committee further notes with concern that the ITUC indicates that: (i) dismissals of trade union officials are not infrequent, which in a country with an unemployment rate of almost 50 per cent discourages many workers from joining a union; (ii) according to the Confederation of Trade Unions of Bosnia and Herzegovina (KSBiH), multinational companies especially in the commerce sector strongly oppose trade unions and workers are threatened with dismissal if they join a union; and (iii) certain acts of anti-union discrimination and interference recently occurred in the tobacco sector. Recalling that the Government is under the obligation to ensure that all workers are effectively protected in practice against acts of anti union discrimination on the grounds of their trade union membership or activities, the Committee once again requests the Government to provide, in respect of the Federation of Bosnia and Herzegovina, the Republika Srpska and the Brčko District, the maximum practical information available on the application of Article 1, in particular the number of complaints of anti-union discrimination filed, the forms of anti-union discrimination complained of, the sanctions imposed and remedy measures taken, the length of court procedures, etc.

Article 2. Protection against acts of interference from employers’ and workers’ organizations into each other’s establishment, functioning or administration. In its previous comments, the Committee noted the Government’s indication that the sanctions for acts of interference in the Federation of Bosnia and Herzegovina were inadequate and that during the legislative process of amending the Labour Act it was being considered to supplement the punitive provisions with regard to fines. The Committee had requested the Government to inform it of any progress concerning the amendments of the Labour Act. The Committee notes from the Government’s report that: (i) section 10a of the Labour Act of the Federation of Bosnia and Herzegovina prohibits mutual interference of employers’ and workers’ organizations in the establishment, operation or management of their organizations, including advocating or assisting a union in order to control it; and (ii) the draft of the new Labour Act prescribes fines in the case that employers disable the access of union representatives to the company premises or fail to comply with the collective agreement. Recalling that the Government is under the obligation to take specific action in particular through legislative means, coupled with effective and sufficiently dissuasive sanctions, to ensure respect for the guarantees laid down in Article 2, the Committee expresses the firm hope that the new Labour Act of the Federation of Bosnia and Herzegovina will also prescribe sufficiently dissuasive sanctions for the acts of interference on the part of employers or employers’ organizations prohibited under section 10a of the Labour Act. The Committee requests the Government to supply a copy of the Labour Act once adopted.

Article 4 of the Convention. Promotion of collective bargaining at the level of the Republic as a whole. In several of its previous comments, the Committee requested the Government to indicate any measures taken or contemplated in order to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers’ and workers’ organizations, including at the level of the Republic as a whole. The Committee notes from the Government’s report that in the Brčko District, action has been taken to promote the development and use of procedures for voluntary negotiation between employers’ and workers’ organizations, and working groups are determined to lead the process of implementing the Convention through the laws of the Brčko District. The Committee also notes the Government’s indication that, in the Federation of Bosnia and Herzegovina, in addition to the general collective agreement, there are 24 collective agreements in various business sectors including collective agreements in certain public companies. The Committee requests the Government to provide information in its next report concerning developments in respect of the announced legislative action in the Brčko District to promote collective bargaining in the spirit of the Convention. It requests the Government to provide statistics on the number and coverage of collective agreements that have been concluded in Republika Srpska and in the Brčko District.

Promotion of collective bargaining in Republika Srpska. In its previous comments, the Committee observed that section 131 of the Labour Act of the Republika Srpska provides that if a collective agreement is negotiated at the level of the whole Republika, the Government will be a party to it along with the trade union and the employers’ association. It had noted the Government’s indication that it plans to pass a new Labour Act which does not envisage the participation of the Government in the signing of industry-wide collective agreements and expressed the hope that the necessary amendments will be made to sections 131 and 132. The Committee notes from the Government’s report that the Government of the Republika Srpska is involved in the process of collective bargaining and conclusion of sectoral collective agreements as one of the parties, only where the Government is employer (areas: public administration and judiciary, internal affairs, public health and social protection, and public education and culture). The Committee also notes the Government’s indication that, according to sections 161 and 162 (formerly sections 131 and 132), participants in the collective agreement at the group or industry levels may decide, if deemed necessary for achieving common goals for economic and social policy, that the collective agreement involves also the Ministry of Labour. The Committee notes that the Government emphasizes that: (i) in these cases provided for by law the Government of the Republika Srpska does not conclude a collective agreement as a party but is involved in collective bargaining as a neutral party that exclusively provides mediation services; and (ii) in the reporting period, there were no requests for the inclusion of Government representatives in the collective bargaining process; and (iii) the Government of the Republika Srpska will nonetheless take into account the Committee’s comments when drafting the new Labour Act. The Committee takes note of this information and requests the Government to provide information on the practical application of sections 161 and 162 of the Labour Act of the Republika Srpska. The Committee hopes that the new Labour Act will underline the bipartite nature of collective bargaining and ensure that the mediation of the labour authorities of the Republika Srpska will only be possible at the request of the parties. It requests the Government to supply a copy of the new Labour Act once adopted.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments submitted by the Confederation of Trade Unions of Bosnia and Herzegovina (CTUBH) dated 20 August 2009 and the International Trade Union Confederation (ITUC) dated 26 August 2009 on the application of the Convention.

Article 1 of the Convention. Protection against anti-union discrimination. In its previous comments, the Committee noted observations from the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) and the Confederation of Trade Unions of the Republika Srpska (SSRS) of various forms of pressure and intimidation in recently established private companies to prevent workers from establishing trade unions and requested the Government to provide information on the practical application of this provision, in particular, the number of complaints of anti-union discrimination filed, forms of anti-union discrimination complained of, action taken by the authorities, decisions of the courts, length of procedures, etc. The Committee notes that the Government indicates in its report that it has no information available on the number of submissions presented relating to anti-union discrimination, but expects that such data would be submitted by trade unions which have objected to forms of anti-union discrimination. The Committee also notes that the Government indicates that the legislation of the Brcko District does not sanction employers in terms of anti-union discrimination, related to employment, and more information on any occurrences of this form of discrimination is available with the competent inspection authorities. The Committee once again wishes to recall however that it is the Government’s responsibility to ensure that all workers are protected against acts of anti-union discrimination in respect of their trade union activities or membership. It once again requests the Government to provide any statistics available regarding the complaints or findings of the labour inspectorates in the entities and the Brcko District relating to anti-union discrimination in the workplace and any steps taken to ensure adequate protection for workers in this regard.

Article 2. Protection against acts of interference from employers’ and workers’ organizations into each other’s establishment, functioning or administration. The Committee notes the information provided in reply to its previous direct request in respect of sanctions available against employers for interference with workers’ organizations in the Republika Srpska. It further notes the Government’s indication that the sanctions available in the Federation of Bosnia and Herzegovina are inadequate and that they are considering appropriate amendments. The Committee notes that the Government indicates in its report that the law amending the Labour Law is in the legislative process and the Government envisages supplementing the punitive provisions with regard to the prescribing of fines. The Committee once again requests the Government to inform it of the steps taken, including progress concerning the law amending the Labour Law, to ensure adequate protection with sufficiently dissuasive sanctions for interference by employers in the activities of workers’ organizations.

Article 4. Measures to encourage and promote the development of voluntary negotiation between employers’ and workers’ organizations. Republika Srpska. The Committee previously observed that section 131 of the Labour Law of the Republika Srpska provides that if a collective agreement is negotiated at the level of the whole Republika, the Government will be a party to it along with the trade union and the employers’ association. Sections 131 and 132 also enable the parties to collective bargaining to invite the Government to become a party to a collective agreement if the latter is negotiated at the branch or industry levels. The Committee notes that the Government indicates that Articles 161 and 162 of the Labour Law, among other provisions, stipulate the possibility that upon the invitation of the parties signing the industry collective agreement the Government of the Republika Srpska involves itself in the negotiations and signing of the collective agreements for specific industries. The Government also refers to its role in signing these collective agreements as an additional guarantor for implementation of the provisions from the signed collective agreements and indicates that the Government of the Republika Srpska was the majority owner of the largest number of enterprises and institutions in the territory of the Republika Srpska which at the time employed more than 90 per cent of the workforce in the Republika. Additionally, the Government indicates that the Law on Amicable Resolution of Disputes has begun the legislative process, which shall adequately regulate the issue of mediation by highly educated and expert mediators in negotiations and signing of collective agreements, and also, it plans to pass a new Labour Law which does not envisage the participation of the Government in the signing of industry-wide collective agreements. Noting that the Labour Law will be amended, the Committee expresses the hope that the necessary amendments will be made to sections 131 and 132 and requests the Government to indicate any progress in this regard.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments submitted by the Confederation of Trade Unions of Bosnia and Herzegovina (CTUBH) dated 20 August 2009 and the International Trade Union Confederation (ITUC) dated 26 August 2009 on the application of the Convention.

Article 4 of the Convention. Measures to encourage and promote the development of voluntary negotiation between employers’ and workers’ organizations. In several of its previous comments, the Committee requested the Government to indicate any measures taken or contemplated in order to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers’ and workers’ organizations, including at the level of the Republic as a whole. The Committee notes that the Government indicates in its report that public authorities cannot influence or ensure the organization of trade unions in the private sector. Nevertheless, the Committee also observes from the Government’s report that in the Brcko District, no collective agreement has been signed between the trade unions and employers of that district. The Committee once again requests the Government to provide it with statistics on the number and coverage of collective agreements that have been concluded throughout the territory.

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

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s first report. It also takes note of the comments made by the International Confederation of Trade Unions (ITUC).

Article 1 of the Convention. Protection against anti-union discrimination. In its previous comments, the Committee noted observations from the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) and the Confederation of Trade Unions of the Republika Srpska (SSRS) of various forms of pressure and intimidation in recently established private companies to prevent workers from establishing trade unions and requested the Government to provide information on the practical application of this provision, in particular, the number of complaints of anti-union discrimination filed, forms of anti-union discrimination complained of, action taken by the authorities, decisions of the courts, length of procedures, etc. The Committee notes the Government’s statement that it does not have this information and that it is for the organizations concerned to submit such data. The Government adds that it cannot influence or ensure organizing in the private sector. The Committee wishes to recall however that it is the Government’s responsibility to ensure that all workers are protected against acts of anti-union discrimination in respect of their trade union activities or membership. It requests the Government to provide any statistics available through the labour inspectorates in the entities and the Brcko district relating to anti-union discrimination in the workplace and any steps taken to ensure adequate protection for workers in this regard.

Article 2. Protection against acts of interference from employers’ and workers’ organizations into each other’s establishment, functioning or administration. The Committee notes the information provided in reply to its previous direct request in respect of sanctions available against employers for interference with workers’ organizations in the Republika Srpska. It further notes the Government’s indication that the sanctions available in the Federation of Bosnia and Herzegovina are inadequate and that they are considering appropriate amendments. The Committee requests the Government to continue to keep it informed of the steps taken to ensure adequate protection with sufficiently dissuasive sanctions for interference by employers in the activities of workers’ organizations.

Article 4. Measures to encourage and promote the development of voluntary negotiation between employers’ and workers’ organizations. Federation of Bosnia and Herzegovina. The Committee notes the information provided by the Government in reply to its previous request that section 118 of the Labour Law of the Federation of Bosnia and Herzegovina provides that collective agreements and their amendments be submitted to the Federal Ministry in charge of labour or the competent authority of the canton for archiving only and not for approval.

Republika Srpska. The Committee observes that section 131 of the Labour Law of the Republika Srpska provides that if a collective agreement is negotiated at the level of the whole Republika, the Government will be a party to it along with the trade union and the employers’ association. Sections 131 and 132 also enable the parties to collective bargaining to invite the Government to become a party to a collective agreement if the latter is negotiated at the branch or industry levels.

The Committee stresses that Article 4 of the Convention refers to the promotion of bilateral negotiations between employers or their organizations and workers’ organizations without any intervention whatsoever by the public authorities which would be contrary to the free and voluntary nature of collective bargaining. The Committee requested the Government to amend sections 131 and 132 of the Labour Law so as to eliminate the possibility for the Government to be involved as a party in the negotiation of collective agreements at the branch or industry levels, in addition to the employer or employers’ organization and workers’ organization concerned. Noting that the Labour Law has recently been amended, the Committee trusts that the necessary amendments have been made to sections 131 and 132 and will review this question as soon as the translation of the text is available.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report. The Committee further notes the comments made by the International Trade Union Confederation (ITUC) in a communication dated 28 August 2007.

Article 4 of the Convention. Measures to encourage and promote the development of voluntary negotiation between employers’ and workers’ organizations. In its previous comments, the Committee requested the Government to indicate any measures taken or contemplated in order to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers’ and workers’ organizations, including at the level of the Republic as a whole. The Committee notes the information provided in the Government’s report that it has made efforts in promotion and improvement of voluntary bargaining by the establishment of the economic and social councils at the entity level, while the mid-term development strategy 2004–07 provides for the passage of a Law on the Economic and Social Council at the state level. The Government further indicates that labour, employment and social policy is under the exclusive jurisdiction of the entities and the Brcko district and collective bargaining at state level can only be carried out in respect of employees in state institutions. While no collective agreements exist currently at the state level, a trade union of local administration, police and judicial organs has been established and will submit a recommendation to the Council of Ministers to initiate a bargaining process. The Committee requests the Government to provide it with any available statistics on the number and coverage of collective agreements that have been concluded throughout the territory.

The Committee is addressing a request on certain other points directly to the Government.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report. The Committee also takes note of the comments by the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006 concerning issues already raised, as well as comments on new violations of the Convention (anti-union discrimination, acts of interference and restrictions to collective bargaining in practice). The Committee will analyse them with the Government’s next report on the Convention due for the regular reporting cycle in 2007.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the Government’s first report. It also takes note of the comments made by the Confederation of Independent Trade Unions of Bosnia and Herzegovina (CITU BiH) and the Confederation of Trade Unions of the Republika Srpska (CTURS), which were transmitted with the Government’s report.

Article 1 of the Convention. Protection against anti-union discrimination. The Committee notes that, the CITU BiH and the CTURS refer to various forms of pressure and intimidation in recently established private companies to prevent workers from establishing trade unions as well as dismissals of trade union representatives without the mandatory approval from the Federal Ministry of Labour; although the Labour Law contains provisions on the prohibition of discrimination, it is impossible to prove the breaches of these provisions at court because discrimination often takes place in a hidden manner.

The Committee recalls that the existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice and in particular, to prevent or effectively redress anti-union discrimination (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 214). The Committee therefore requests the Government to provide its observations with regard to the comments made by the CITU BiH and the CTURS and in particular, to provide information on the practical application of the provisions in question (number of complaints of anti-union discrimination filed, forms of anti-union discrimination complained of, action taken by the authorities, decisions of the courts, length of procedures, etc.).

Article 2. Protection against acts of interference from employers’ and workers’ organizations into each other’s establishment, functioning or administration. The Committee notes that although both the Labour Law of the Federation of Bosnia and Herzegovina and the Labour Law of the Republika Srpska contain an explicit prohibition of acts of interference from employers’ and workers’ organizations into each other’s establishment, functioning or administration, there is no provision in either law on a specific mechanism to address allegations of interference or any sanctions specified in this respect. The Committee requests the Government to indicate the provisions which establish a rapid appeals procedure against acts of interference and introduce sufficiently dissuasive sanctions in this respect.

Article 4. Measures to encourage and promote the development of voluntary negotiation between employers’ and workers’ organizations. The Committee takes note of the comments made by the CTURS according to which the governments of both Entities of the Republic do not undertake the necessary measures to promote collective bargaining; in particular, the Labour Law requires the compulsory issuing of rule books on work by the employer on which trade unions can only provide their opinion, while the law should distinguish more clearly between the area covered by rule books and the area left for free and voluntary negotiations between trade unions and employers (e.g. salaries and allowances). The Committee requests the Government to provide its observations on the comments made by the CTURS with regard to the effect of the compulsory issuing of rule books on the scope of collective bargaining. It further requests the Government to indicate any measures taken or contemplated to promote free and voluntary collective bargaining at the level of the two entities and the Republic as a whole.

Federation of Bosnia and Herzegovina. The Committee observes that section 118 of the Labour Law of the Federation of Bosnia and Herzegovina provides that collective agreements and their amendments shall be submitted to the Federal Ministry in charge of labour or the competent authority of the canton. The procedure of submission shall be regulated by the federal minister or the competent cantonal minister. The Committee recalls that the intervention of the administrative authority should be limited to cases in which the collective agreement has a procedural flaw or does not conform to the minimum standards laid down by general labour legislation. The Committee requests the Government to provide information on the practical application of this provision, for instance, on the number of cases of refusal to approve a collective agreement in the last years and the concrete grounds invoked for such refusal.

Republika Srpska. The Committee observes that section 131 of the Labour Law of the Republika Srpska provides that if a collective agreement is negotiated at the level of the whole Republika, the Government will be a party to it along with the trade union and the employers’ association. Sections 131 and 132 also enable the parties to collective bargaining to invite the Government to become a party to a collective agreement if the latter is negotiated at the branch or industry levels.

The Committee stresses that Article 4 of the Convention refers to the promotion of bilateral negotiations between employers or their organizations and workers’ organizations without any intervention whatsoever by the public authorities which would be contrary to the free and voluntary nature of collective bargaining. The Committee therefore requests the Government to amend sections 131 and 132 of the Labour Law so as to eliminate the possibility for the Government to be involved as a party in the negotiation of collective agreements at the branch or industry levels, in addition to the employer or employers’ organization and workers’ organization concerned.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

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

Article 4 of the Convention. Measures to encourage and promote the development of voluntary negotiation between employers’ and workers’ organizations. In its previous comments, the Committee had taken note of the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos. 2140 and 2225 and had noted in particular that the current legislative framework prevented the registration of employers’ and workers’ organizations at the level of the Republic as a whole, thus preventing them from engaging in collective bargaining at that level. The Committee had requested the Government to indicate measures taken or contemplated in order to encourage and promote collective bargaining. The Committee regrets that the Government’s report does not contain any information in this respect. The Committee once again requests the Government to indicate in its next report any measures taken or contemplated in order to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers’ and workers’ organizations, including at the level of the Republic as a whole.

The Committee is addressing a request on certain other points directly to the Government.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the comments of the Confederation of Independent Trade Unions of Bosnia and Herzegovina dated 29 July 2004. The comments which concern both Conventions Nos. 87 and 98 are treated under Convention No. 87.

The Committee also notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos. 2140 and 2225 (see 298th Report, paragraphs 290-298, and 332nd Report, paragraphs 363-381). The Committee notes in particular that the current legislative framework prevents the registration of employers’ and workers’ organizations and that in the absence of such registration, these organizations are not able to engage in collective bargaining at the level of the Republic as a whole, and are not invited to any consultations. The Committee requests the Government to indicate in its next report any measures taken or contemplated in order to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers’ and workers’ organizations in accordance with Article 4 of the Convention.