Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Bosnie-Herzégovine

Convention (n° 81) sur l'inspection du travail, 1947 (Ratification: 1993)
Convention (n° 129) sur l'inspection du travail (agriculture), 1969 (Ratification: 1993)

In order to provide a comprehensive view of the issues relating to the application of the ratified governance Conventions on labour inspection, the Committee considers it appropriate to examine Convention No. 81 and Convention No. 129 in a single comment.

Article 3(1)(a), (b) and (2) of Convention No. 81 and Article 6(1)(a), (b) and (3) of Convention No. 129. Labour inspection activities in the area of undeclared work, including in relation to migrant workers. The Committee notes that the Government, in reply to its previous request concerning the activities undertaken in the informal economy and their outcome, refers to the statistical information provided in the annual labour inspection reports for 2012–14 of the Federation of Bosnia and Herzegovina (the Federation) and indicates that the activities of the labour inspectorate in the Republica Sprska have generated positive results, including a considerable increase in the number of workers registered with the social security scheme.

The Committee also notes that the Government, in reply to its previous request concerning the control of the employment of migrant workers, emphasizes that the labour inspection services in both the Federation and the Republica Sprska monitor the application of the legal provisions concerning the protection of all workers (including migrant workers), but that they are not responsible for the application of immigration laws. The Committee requests that the Government describe the applicable procedure where labour inspectors detect migrant workers in an irregular situation, including whether they are obliged to report migrant workers without the required work or residence permit to the immigration authorities, the police or other bodies for further action.

Noting that the role of labour inspectors is to ensure the enforcement of the rights of all workers, including migrant workers, the Committee requests that the Government provide information on cases in which workers found in an irregular situation concerning their employment status have been granted their entitlements for the period of their effective employment relationship (such as the payment of wages and social security benefits). The Committee also requests the Government to provide relevant information in relation to the Federation, the Republica Sprska and the Brčko District.

Articles 4 and 5(a) of Convention No. 81 and Articles 7 and 12 of Convention No. 129. Supervision and control over the labour inspection system by a central authority or the central authority of a federated unit, and cooperation between inspection services. In its previous comment, the Committee noted that one of the main recommendations in the 2012 labour inspection needs assessment established by the ILO at the request of the Government (the 2012 audit) was to enhance coordination and coherence between the labour inspection systems in the Federation, the Republica Sprska and the Brčko District. In this regard, the Committee notes that the Government recalls the national particularities, that is, the constitutional division of the country with jurisdiction concerning labour and employment in the three territories. It further indicates that these particularities complicate harmonization, such as with regard to the establishment of a central authority for the whole country and the formulation of a common labour inspection policy. The Committee further notes from the Government’s indication that no specific efforts have been undertaken to harmonize the legislation in the three territories, but that when labour legislation is adopted in the Republica Sprska, the existing laws in the Federation and the Brčko District are taken into consideration. The Committee notes that the Government has not provided a reply in relation to the other specific recommendations concerning enhanced coordination and coherence between the labour inspection systems of the Federation, the Republica Sprska and the Brčko District. The Committee requests that the Government once again provide information on the measures taken or envisaged, in light of the recommendations in the 2012 audit, to enhance coordination and coherence of the labour inspection systems between the territories (including the establishment of a national coordination/supervision mechanism respecting the exclusive jurisdiction of the entities and cantons, and the improved identification of national priorities and the standardization of practices).

Concerning the labour inspection system in the Federation, the 2012 audit emphasized the need to provide for coordination within this system in view of the duality of responsibilities for labour inspection of the Federal Administration for Inspection Issues (FAII) and each of the ten cantonal inspectorates of the Federation, which leads to some overlapping competencies. In this regard, the Government indicates that the 2014 Law on Inspections in the Federation provides for relevant provisions on coordination, including the delineation of competences between the federal and canton level. While noting the provisions in the 2014 Law on Inspection concerning the delineation of competencies, the Committee requests that the Government provide information on the measures taken in practice to provide for enhanced cooperation and coordination between the FAII and the cantons in the Federation (including the harmonization of labour law legislation between the cantons and the formulation of a common labour inspection policy, etc.).

Articles 5(a), 17 and 18 of Convention No. 81 and Articles 12, 22, 23 and 24 of Convention No. 129. Dissuasive penalties and effective enforcement of labour law violations. Cooperation with the judicial system. In its previous comment, the Committee noted the detailed information in the 2012 audit concerning the reasons for the insufficiency of penalties for labour law violations and their ineffective enforcement in the Federation and the Republica Sprska.

Concerning the Federation, the Committee notes the Government’s reference to the penalties provided for in the 2014 Law on Inspections in the Federation and its indication that the draft labour law and the draft OSH law are still in the process of adoption. It also notes the Government’s reference to the statistical information concerning penalties in the annual labour inspection reports of the Federation. Concerning the Republica Srpska, the Committee notes the statistics provided by the Government, according to which, in 2014, 520 cases were considered by the judicial authorities, but that due to suspension or acquittal only 177 cases (that is, about one third) resulted in employers being punished in the first instance. The Committee also notes the Government’s indication that 837 infringement reports were issued by labour inspectors, but that the Law on Minor Offences still requires them to only pronounce the minimum penalty. Moreover, the Government indicates that employers may feel encouraged to appeal the infringement reports of labour inspectors, as the courts have never pronounced a penalty beyond the minimum one, but have often rendered suspensions or acquittals. Referring to the recommendations made in the 2012 audit, the Committee once again requests that the Government provide information on the measures taken to increase the effectiveness of penalties and remove any obstacles to the their effective enforcement. The Committee also requests that the Government provide detailed information on the enforcement activities undertaken in both entities and the Brčko District (including on the number of violations detected, the infringement reports issued, the cases reported to the courts, the penalties imposed, the fines collected, etc.) demonstrating the progress made in this regard.

The Committee also requests that the Government take measures to ensure that the legislation in the Federation is amended as soon as possible so as to provide for dissuasive fines (including through the adoption of the draft OSH law and the amendment to the Labour Law).

Article 5(b) of Convention No. 81 and Article 13 of Convention No. 129. Collaboration between officials of the labour inspectorate and employers and workers or their organizations (including in relation to agricultural undertakings). The Committee previously noted the recommendations of the 2012 audit to intensify collaboration and promote joint discussions between the social partners and the labour inspectorates, including in relation to agricultural undertakings, which according to the audit was weak in most cantons of the Federation. With regard to the Federation, the Government refers to the discussion of labour inspection issues in the tripartite Economic and Social Council, and the example of a joint workshop in Sarajevo in March 2015 and indicates that the labour inspectorate has achieved a certain degree of cooperation with employers’ and workers’ organizations (especially through the joint organization of seminars, conferences, workshops, round tables, etc.). With regard to the Republica Sprska, the Government indicates that the tripartite Economic and Social Council reviews the annual labour inspection report, which covers labour inspection in all sectors, including agriculture, but that no specific activities to promote collaboration between officials of the labour inspectorate and employers and workers in agriculture have been undertaken. The Committee requests that the Government provide information on the arrangements made to further enhance the collaboration between the labour inspection services and employers’ and workers’ organizations, in particular with regard to agricultural enterprises. Please provide concrete examples of any activities undertaken in this regard.

Articles 6 and 7 of Convention No. 81 and Articles 8 and 9 of Convention No. 129. Conditions of service and training of labour inspectors. In its previous comment, the Committee noted the findings in the 2012 audit, according to which the career prospects, incentives to improve performance and the training of labour inspectors were insufficient, especially in the cantons of the Federation. Moreover, the Committee noted from this audit that the training on subjects specific to agriculture had still not been provided in both entities, even though agriculture in the Republica Sprska represents one third of all economic activity in the country.

Concerning training of labour inspectors in the Federation, the Committee notes the Government’s reference to relevant statistical information in the annual labour inspection reports of the Federation (in Bosnian language), which the Committee is unable to locate. Concerning the Republica Sprska, the Committee notes the Government’s reference to a training programme for junior labour inspectors, and its indication that, due to scarce funds, no specific training on issues related to agriculture has been provided. The Committee requests that the Government include in its report details on the training activities for labour inspectors (content, duration, frequency, and number of participants, etc.) including on subjects relating specifically to agriculture, such as the handling of chemicals. It also requests that the Government provide information on the conditions of service of labour inspectors, including their remuneration and career prospects, and measures taken to improve them, as recommended in the 2012 audit.

Articles 10 and 11 of Convention No. 81 and Articles 14 and 15 of Convention No. 129. Human and material resources available to the labour inspection services, including transportation facilities available to the labour inspection services. In its previous comment, the Committee noted the findings in the 2012 audit, according to which there were shortcomings with regard to the number of labour inspectors and the material resources available to them, especially in the cantons of the Federation.

In reply to its request to implement the recommendations in that audit to strengthen the human resources and material means of the labour inspectorate, including the purchase of adequate transport facilities and appropriate protective equipment, the Government refers, with regard to the Federation, to information on human and material resources, including equipment in the annual labour inspection reports of the Federation (in Bosnian language), which the Committee is unable to locate. The Committee further refers, with regard to the Republica Sprska, to the current number of labour inspectors (35 labour inspectors and eight additional labour inspectors in some municipalities) and the fact that no special equipment could be purchased in view of budget constraints. The Committee requests that the Government include in its report detailed information on the number of labour inspectors (and to indicate whether the eight additional inspectors referred to by the Government also enjoy the status of public servants), the material means, including protective equipment and the number of transport facilities in both entities and the Brčko District, as well as measures taken for their improvement as recommended in the 2012 audit.

If applicable, the Committee requests that the Government also provide information on the monthly travel allowances paid to offset the costs incidental to the performance of the duties of labour inspectors (amount, procedure for reimbursement, etc.).

Article 12(1)(a) and (b) of Convention No. 81 and Article 16(1)(a) and (b) of Convention No. 129. Right of free entry of labour inspectors. In its previous comments, the Committee recalled the conclusions of the tripartite committee set up in 1998 to examine the article 24 representation submitted by the Union of Autonomous Trade Unions of Bosnia and Herzegovina (USIBH) and the Union of Metalworkers (SM) alleging violation of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), concerning the right of free entry of labour inspectors. The Committee noted that the tripartite committee considered that the obligation of labour inspectors in a canton of the Federation to request authorization from the cantonal minister before conducting an inspection visit was not in conformity with Article 12(1) of the Convention. The Committee also noted that it appeared from the information contained in the 2012 audit that some restrictions on the right of free access in practice persisted, at least in the canton of Central Bosnia. In this regard, the Committee notes that the Government indicates, with reference to sections 94, 96 and 98 of the 2014 Law on Inspections in the Federation, that labour inspectors are not required by law or in practice to seek authorization from the supervisory authority to be able to exercise their right of entry to workplaces and premises liable to inspection. The Committee also notes the information provided by the Government on the situation in law and practice concerning the right of free entry of labour inspectors in the Republica Sprska. The Committee requests that the Government specify the state of law and practice with regard to the right of free entry of labour inspectors in the Brčko District.

Articles 13, 17 and 18 of Convention No. 81 and Articles 18, 22, 23 and 24 of Convention No. 129. Powers of labour inspectors in the Canton of Central Bosnia of the Federation. In its previous comment, the Committee noted the information in the 2012 audit according to which, although inspectors in the Federation had the power to issue compliance orders, prohibition notices and fines and to initiate legal proceedings, labour inspectors in the Canton of Central Bosnia did not have the same powers and could almost only recommend remedial actions to be taken by employers in the event of non-compliance with the legal provisions. In this regard, the Committee notes that the Government refers to the 2014 Law on Inspections in relation to labour inspectors’ powers, but does not comment on the situation concerning the Canton of Central Bosnia specifically. The Committee requests that the Government specify the powers of labour inspectors in the canton of Central Bosnia in the event of a danger to the health or safety of workers or the detection of a violation, and to take the necessary measures to ensure that labour inspectors in this canton are granted the same powers as labour inspectors in other cantons of the Federation.

Articles 15(c) and 16 of Convention No. 81 and Articles 20(c) and 21 of Convention No. 129. Confidentiality concerning the fact that an inspection visit was made in response to the receipt of a complaint. In its previous comment, the Committee noted the Government’s indication that the balance of the different types of inspection visits in the Federation (routine/reactive) depended on available resources, whereas in the Canton of Central Bosnia most inspection visits were reactive, that is, in response to a complaint. In this context, the Committee emphasized that a sufficient number of regular inspections is necessary to ensure that labour inspectors comply with the obligation to treat complaints as confidential with a view to preventing the employer or his representative from detecting any link whatsoever between the inspection and the likelihood of a complaint, identifying the person responsible for the complaint and taking reprisals against that person (Article 15(c)). The Committee notes that according to the statistical information provided in the Government’s report in relation to the Republica Sprska, in 2014, about two-thirds of all labour inspections were regular inspections, whereas about one third was made in relation to a complaint. The Committee is unable to locate relevant statistics in the annual inspection reports of the Federation. The Committee requests that the Government provide statistical information on the number of labour inspection visits in the Federation and the Brčko District, by indicating the number of labour inspection visits that were routine visits and those that were made in reaction to a complaint.

Articles 20 and 21 of Convention No. 81 and Articles 26 and 27 of Convention No. 129. Annual report on the work of the inspection services (in agriculture). The Committee notes the annual reports on the work of the labour inspection services of the Federation and the Republica Sprska for 2012, 2013 and 2014 in Bosnian and Serbian language, respectively. As regards labour inspection activities in agriculture, while the Committee notes that the labour inspection reports for the Republica Sprska contain some information on labour inspections in agricultural workplaces and their outcome, it has once again not been able to locate such information in the annual reports of the Federation. It also notes that once again no annual labour inspection report for the Brčko District has been received. The Committee requests that the Government ensure that the central inspection authority of the Federation and the Brčko District discharge their obligations to publish and communicate to the Office an annual report on the work in industry, commerce and agriculture of the services under their control, either in a general report encompassing these sectors, or in two reports (one for agriculture and the other for the other sectors). In this respect, the Committee also once again requests that the Government report on the progress made with the establishment and operation of the “E-inspector” software in the cantons of the Federation, as well as with the collection of information on existing workplaces in cooperation with other institutions, to make this information available and fed into the systems in use by the different cantons.

The Committee requests that the Government in any event provide statistical information in relation to the Federation, the Republica Sprska (as the Government has already done) and the Brčko District on the subjects listed in Article 21(a)–(g) of Convention No. 21 and Article 27 (a)–(g) of Convention No. 129 that is as detailed as possible (including on industrial, commercial and agricultural undertakings liable to inspection and the persons employed therein; statistics of inspection visits; violations reported and penalties imposed; and occupational accidents and cases of occupational disease, including their causes).