Individual Case (CAS) - Discussion: 2011, Publication: 100th ILC session (2011)

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

A Government representative began by responding to the point raised in the 2011 observation of the Committee of Experts concerning the need to amend section 216 of the Labour Code, which provided that employers’ associations might be established by employers that employ no less than 5 per cent of the total number of employees in a certain branch, group, subgroup, line of business or territory of a certain territorial unit, in order to establish a reasonable minimum membership requirement. She indicated that in cooperation with the social partners, the draft amendment to the Labour Law was currently in preparation, which had been planned for adoption by the end of 2010. The adoption of the revised Labour Code, however, was now expected to take place after the parliamentary elections envisaged in 2012. The new Labour Code would define requirements for the establishment and official recognition of employers’ and workers’ organizations, which would be in line with the relevant comments of the Committee of Experts. As regards the comments made by the International Trade Union Confederation (ITUC) and the Confederation of Autonomous Trade Unions of Serbia (CATUS) alleging physical assaults against trade union officials and members, especially in the education and health sectors, she indicated that the Government was not aware of these attacks. It had tried to obtain additional information from the CATUS, but had not received any replies on this matter. The labour inspectorate had not received any complaints regarding this issue either, while it had taken appropriate steps as regards other reported cases.

With respect to the Serbian Chamber of Commerce, she clarified that in accordance with the Labour Code, chambers of commerce were not parties to social dialogue. The Law on Chambers of Commerce had been amended and it provided that membership to the Chamber of Commerce was no longer compulsory. Concerning the new employers’ organization, she stated that the Ministry of Trade and Services had indicated that the Ministry only intended to support the process of organization of interested actors in the trade sector, and had no intention to favour any particular employers’ organization whatsoever, or to exert any influence on the manner in which parties to social dialogue organized themselves, or to violate any national or international legislation. She also stated that the new employers’ organization had moved out of the premises of the Chamber of Commerce and now had its own premises and administrative structure. She emphasized that the Government would continue to ensure social dialogue took place on the basis of the freely expressed will of all parties without any pressure or influence from the State.

The Employer members recalled that this Committee had already discussed this case twice. For many years, the Committee of Experts had urged the Government to amend section 216 of the Labour Law to bring it into compliance with Article 2 of the Convention. The arbitrary threshold in the Labour Law concerned unacceptable State intervention, which was further aggravated by two other legal requirements: (i) in the event a request for representativeness was rejected because the conditions were not met, the organization in question could only renew the request after three years; and (ii) an employer organization was only recognized as a representative organization with the right to bargain collectively if the organization comprised at least ten per cent of all employers that employed at least 15 per cent of the total number of employees. These conditions were not in compliance with either Convention No. 87, or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). In addition, the prominent role attributed to the Chamber of Commerce in social dialogue was not in compliance with the Convention. This problem had been raised since 2004 and was still not solved. The obligatory membership of employers in the Chamber of Commerce was objectionable. This situation was aggravated by the fact that the Chamber of Commerce was responsible for collective bargaining, thus effectively taking over the function of the employer organizations. As a result the right not to associate was not guaranteed and the establishment of employer organizations was obstructed due to this double membership. The information provided by the Government that obligatory membership would be abolished by 2013 did not change the current situation. Neither could the problem be solved by the newly established employers’ organization, which was using resources of the Chamber of Commerce to raise membership among Serbian enterprises. On the contrary, these measures seemed to indicate that the Government was trying to give the impression of applying the Convention, while continuing to suppress free employers’ organizations. This form of State intervention in the establishment of employers’ organizations was unacceptable. In this context, the Employer members did not trust the Government’s renewed announcement that the legislation would be amended and serious action had to be undertaken to prove that this was not, yet again, an empty promise.

The Worker members recalled that the case essentially concerned failure to respect Article 2 of the Convention. The system for registering a trade union did not guarantee freedom of association because registration procedures were very complicated and authorization was required from the Ministry of Labour. Furthermore, in order for a trade union to be recognized as a negotiating agent, it must represent at least 15 per cent of workers. Section 233 of the Labour Law imposed a time limit of three years before an organization that had already applied for registration unsuccessfully could request a new decision on its representativeness. The Worker members also reminded the Government of its obligations under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) with regard to involving the social partners fully in drafting any new legislation, which obviously implied that workers should not be subject to pressure from employers based on their trade union membership or activities. The Worker members asked the Government to provide explanations concerning the alleged physical aggressions against the trade unionists mentioned in the report of the Committee of Experts.

The Worker member of Serbia indicated that this case on tripartism was rather typical in countries in transition. It had resulted from the Government abusing the law and conferring on itself too much freedom in interpreting the legislation. The Government’s fundamental abuses commenced from the registration of new organizations, continuing with the decision regarding representativeness of organizations. This morning, the Ministry of Labour had convened a meeting where the social partners had been informed of a draft law addressing these matters. This draft was based on long standing and numerous complaints of the social partners. The Committee should send a clear message to the Government in order to prevent similar cases from arising in the future.

The Government representative reiterated that the provision under section 233 of the Labour Law concerned the request for revision of an established official recognition of representativeness of trade unions or employers’ organizations, but that with respect to those workers’ and employers’ organizations to which official recognition of representativeness had not been previously granted, requests for such recognition might be submitted at any moment. She indicated that the Government would continue to support all forms of employers’ associations and trade unions and strengthen social dialogue in compliance with ILO Conventions and other international instruments. The battle for growth, jobs and effective reform processes was not possible without social agreement at all levels.

The Worker members took note of the fact that the Government had acknowledged that a problem existed with registration and certification procedures and that it was prepared to amend the legislation in that regard. However, the Government had not been clear on the subject of the full participation of the social partners in the process. The Government should therefore engage in consultations with representative employers’ and workers’ organizations and accept technical assistance from the Office in reviewing registration and certification procedures.

The Employer members urged the Government to change the provisions of the Labour Law concerning the establishment of employer organizations as had repeatedly been requested by the Committee of Experts. Under the current laws, social dialogue was an empty shell. The practice that the Chamber of Commerce had effectively taken over the role of authoritative employer organizations had to be ended as soon as possible. Law and practice had to be brought into compliance with Conventions Nos 87 and 98. Employer organizations had to be formed and established free from State intervention. Considering the repeated empty promises by the Government, the Employer members had almost lost their patience. The Government had therefore to act quickly, otherwise the Employers’ group would file a complaint of violation of freedom of association with the ILO.

Conclusions

The Committee took note of the statement made by the Government representative and the discussion that followed.

The Committee recalled that the Committee of Experts had been making comments for a number of years concerning the restrictions placed on the right of employers to establish and join organizations of their own choosing. The Committee of Expert’s comments also referred to serious allegations of physical assaults of union officials and members, especially in the educational and health-care sectors. The Committee requested the Government to undertake, without delay, independent investigations into the allegations and report accordingly.

The Committee took note of the Government representative’s statement that the Government was in the process of reviewing its Labour Law, in cooperation with the social partners. As regards the allegations of physical assaults against trade union leaders and members, she indicated that the Government was not aware of such attacks nor had they been reported to the labour inspectorate. Once provided with the relevant information, the Government would take the necessary steps to resolve the issue in accordance with the Convention. The Government asserted that a law had been adopted to eliminate the compulsory membership of the Serbian Chamber of Commerce, which would enter into force on 1 January 2013.

The Committee expressed its serious concern at the lack of progress made towards ensuring that the Chamber of Commerce did not, through its legislatively imposed compulsory membership, effectively interfere with the rights of employers to join the organization of their own choosing and carry out their activities freely. The Committee further observed with concern the serious allegations of difficulties encountered in the registration procedures and the lengthy period (three years) required before a determination of representativeness could be challenged. The Committee stressed that the Government must refrain from interference with the formation and the functioning of workers’ and employers’ organizations. The Committee expressed its serious concern at the favouritism by the Government of an employers’ organization which is closely connected to the Chamber of Commerce and which is using the financial and human resources of the Chamber.

The Committee took note of the indication that a new law on trade union registration and activity had been drafted. It urged the Government to take meaningful steps to strengthen social dialogue in the country and to submit any draft texts to the workers’ and employers’ organizations for full consultation. It considered that the Government should accelerate the long-awaited action on the outstanding matters raised under the Convention and the amendment of section 216 of the Labour Law, especially the repeal of the 5 per cent threshold. The Committee urged the Government to ask for the technical assistance of the ILO with a view to bringing the legislation and practice into full conformity with the Convention without any delay. It urged the Government to provide detailed information on the concrete and tangible progress made in this regard to the Committee of Experts with its next report.