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

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

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

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

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

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

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

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

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

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