Individual Case (CAS) - Discussion: 2004, Publication: 92nd ILC session (2004)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Serbia (Ratification: 2000)

A Government representative stated that since the constitutional change in his country, there had been a significant decentralization. He indicated that his Government had provided further information to the Committee on Freedom of Association on 2 June 2004 on legal measures to address the situation. He recalled that the Yugoslav Chamber of Commerce and Industry had been dissolved by the Law on the Termination of the Law on the Yugoslav Chamber of Commerce and Industry, and had been replaced by the Chamber of Commerce and Industry of Serbia and the Chamber of Commerce and Industry of Montenegro. He conceded that, while some ambiguities still existed with regard to the functions of these bodies, the current law provided that these bodies did not participate in collective agreements and no longer required compulsory membership. The Labour Law of Serbia provided that employers' associations at all levels participate in collective agreements. He further indicated that no collective agreement had been concluded with the Chamber of Commerce since the Labour Law took effect at the end of 2001. In Montenegro, a tripartite council was examining draft legislation which would bring about similar rectifications to the problem in that part of the country. He noted that his country was undergoing a period of transition and looked forward to cooperation with the ILO to address the matters raised by the Committee of Experts.

The Employer members recalled that this case had been examined in 2003 by the Committee of Experts and the Conference Committee based on information submitted by the International Organization of Employers (IOE). During the previous discussion of the case, the Employer members had criticized the compulsory membership for employers in the Yugoslav Chamber of Commerce and Industry, which also retained the sole power to sign collective agreements. This was a clear violation of the principle of freedom of association for employers. At the 2003 discussion of the case, the Government representative had assured that the Law on the Termination of the Law of the Yugoslav Chamber of Commerce and Industry, adopted shortly before the Conference, had resolved this problem. The Employer members now had to conclude that they had been fully deceived. While the Yugoslav Chamber of Commerce had been dissolved, its successor bodies, the Chamber of Commerce of Serbia and the Chamber of Commerce of Montenegro, had taken over the requirements for compulsory membership and the sole power of collective bargaining. As a result, independent employer organizations could not exist. This was a violation of Conventions Nos. 87 and 98. The statement of the Government representative at the 2003 discussion of this case was an unprecedented intentional deception of this Committee. This was an extremely serious incident. The Employer members noted that the Government representative had again announced that new information regarding the situation was available. This information would have to be examined since they could not rely on the meagre words of the Government. They requested the Government to supply detailed written information to the Committee of Experts for further consideration.

The Worker members stated that the conclusions of last year's discussion had not been implemented by the Government, which made it impossible for workers' organizations to negotiate with legitimate and representative employers' organizations, thereby denying both partners the chance of solving disputes, improving working conditions, and increasing productivity. They fully agreed with the position of the Employer members and criticized the fact that the successor organizations to the Yugoslav Chamber of Commerce and Industry still required compulsory membership of employers and maintained the sole right to sign collective agreements. The Government's non-respect of the Convention not only affected independent employers' organizations, but had a negative impact on trade unions as well. Legislation obliged an employer to certify that a trade unionist worked for his or her particular company for the purposes of trade union registration, yet did not oblige the employer to actually issue such a certification. As a result, trade unions could only operate on the permission of the employer. They recalled that, with respect to the Nezavisnost trade union confederation, over 200 applications for the registration of local branches had been delayed, and that an ILO mission had called for changes in the registration procedures. Furthermore, even though trade union monopoly had been legally removed, it was still difficult for workers to disaffiliate from an old trade union, and the Government still permitted the use of state-owned premises by the old union while new independent trade unions had to pay high rents. They called for an urgent implementation in practice of the recommendations of the Committee of Experts and the end of government interference in trade union and employer organization affairs.

The Worker member of Serbia and Montenegro noted that his country had emerged from 45 years of one-party, one trade union and one employers' organization rule and a subsequent ten year brutal dictatorship. While his country had come a long way since then, there continued to be problems in the implementation of the Convention, especially with regard to registration of trade union members, obstacles to the establishment of independent workers' and employers' organizations, and difficulties in establishing full social dialogue. He noted that, despite the Government's claims to the contrary, the successor bodies to the Yugoslav Chamber of Commerce and Industry still participated in around 80 per cent of all collective agreements. Visiting delegations from other countries were steered exclusively to the Chamber of Commerce and not to independent organizations. The Chamber of Commerce used state property and appeared to be funded from the state budget, and it also played a predominant role in state enterprises. As a result, collective bargaining between trade unions and independent employers' organizations was rare, even at the branch level. Finally, he pointed to continuing difficulties in trade union member registration with regard to requirements to prove trade union membership before that very membership was registered.

The Government representative stated that he had followed the discussion with great interest and that he would duly report the comments made to his Government. With regard to the suggestion by the Employer members that his Government had intentionally deceived the Committee, he reassured the members that his country's dealing with this matter was transparent and that there was no intention to mislead. He recalled that his country was undergoing an important transition, although this did not excuse continuing problems. He concluded that his Government would supply full information to the Committee of Experts as requested.

The Employer members, referring to the Government representative's declaration to the effect that the Government never had the intention to deceive the Conference Committee, stated that intentions were difficult to prove, and that the Committee could only refer to facts. According to the facts at the disposal of this Committee, the Government had not taken the measures it had indicated. They noted the Government representative's declaration with regard to further measures on which information had been submitted recently, and which applied only to Serbia, but not yet to Montenegro. The Government was urgently required to take the necessary measures in order to extend the coverage of the Convention to Montenegro. They hoped that the Government would provide full information in writing on the issue in the near future. Turning to the statement of the Worker members which mentioned points which had not been raised by the Committee of Experts in its report, they emphasized that this case was the only one which dealt with the violation of the right of employers to establish organizations of their own choosing. The case should not be watered down by introducing other information of concern to the workers. In this respect they recalled that employers' associations also had the right to comment on the application of Conventions. Moreover, they recalled that the Committee of Experts had not referred in substance to the comments provided by the International Confederation of Free Trade Unions (ICFTU). This information was contained in a direct request not available to this Committee. Therefore, since the Conference Committee was not informed of the content of the ICFTU comments, it was not admissible for this Committee to discuss them.

The Worker members stated that they would carefully examine the new measures reported by the Government. They also hoped that, in addition to resolving problems with regard to the establishment of independent employers' organizations, the Government would address other matters related to the Convention, such as restrictive registration procedures, obstacles to disaffiliation, threats to inspectors, and continued state support to certain unions. They wished to have these concerns addressed in the conclusions.

The Committee took note of the information provided by the Government representative and of the discussion which ensued. The Committee noted that the Committee of Experts' comments again referred to compulsory membership in, and financing of, chambers of commerce, which had been vested with the powers of employers' organizations. The Committee observed in particular that, though the old Law on the Yugoslav Chamber of Commerce and Industry was modified in 2003, thus having dissolved the said Chamber, in fact all the rights, obligations and activities of the Yugoslav Chamber were taken over by the Chambers of Commerce and Industry of Serbia and of Montenegro. The Committee noted with concern that legislative measures announced by the Government last year and adopted in June 2003 had not resolved any of the problems raised. The Committee took note of the Government's statement concerning measures contemplated to ensure that the employers' organizations could fully benefit from the guarantees provided for in the Convention. The Committee firmly urged the Government to take, in the near future, the necessary measures to ensure that membership in and financing of the Chambers of Commerce and Industry of Serbia and of Montenegro were not compulsory and that employers' organizations were free to choose the organization to represent their interests. More generally, the Committee trusted that in the near future the employers' and workers' organizations would enjoy the rights laid down in the Convention. The Committee noted a request by the Worker members that the Government provide without delay a detailed reply in relation to the issues raised by the ICFTU. The Committee requested the Government to communicate detailed information on the concrete measures taken in this regard, in law and in practice, in its next report to be sent this year for examination by the Committee of Experts.