Cas individuel (CAS) - Discussion : 2003, Publication : 91ème session CIT (2003)

Convention (n° 87) sur la liberté syndicale et la protection du droit syndical, 1948 - Serbie (Ratification: 2000)

A Government representative stated that according to section 5, paragraph 2, of the Labour Law, in force since 21 December 2001, the term "association of employers" meant an organization that the employers joined voluntarily for the purpose of promoting their interests. Therefore, this provision indicated that the membership in employers' associations was voluntary. According to section 136, paragraph 1, of the Law, a collective agreement must be concluded between the employer or the representative association of employers and the representative trade union. Therefore, the Chamber of Commerce and Industry did not participate in collective bargaining, this being the role of the voluntary association of employers.

The speaker added that the Social-Economic Council had been established with the agreement of the social partners. The agreement had been concluded on 1 August 2001 between the Government of the Republic of Serbia, three trade unions (ASNS, United Branch Trade Unions "Nezavisnost" and the Independent Trade Unions of Serbia - SSSS) and the Union of the Employers of Serbia. The Chamber of Commerce and Industry was not a member of the Social-Economic Council nor did it participate in collective bargaining. At the invitation of the Minister of Labour and Employment and as agreed by the social partners, the Chamber of Commerce and Industry was present at council sessions as an observer. The presence of the Chamber of Commerce and Industry had been positive since the process of privatization had not yet been completed and a number of companies were still publicly owned. With regard to Chapter 6 of the Law on the Chamber of Commerce and Industry of Yugoslavia, he wished to inform the Committee that the Law repealing the Law on the Chamber of Commerce and Industry of Yugoslavia had entered into force on 4 June 2003. By this, the Law on the Chamber of Commerce and Industry of Yugoslavia had been repealed.

The Worker members stated that it was important to take into consideration the outstanding role of the social partners and the enhancement of the social dialogue in the development of the new legislative framework and the social and economic development of the country, especially in light of the plan for privatization of all publicly owned enterprises. As mentioned in the conclusions of the Committee on Freedom of Association, the Federal Republic's Law on the Yugoslav Chamber of Commerce and Industry set restrictions that should be removed in order to grant freedom of association in accordance with Convention No. 87, which was a key instrument promoting social dialogue and ensure the participation of the social partners in the reconstruction of a democratic State. The Worker members supported the comments of the Committee of Experts which requested the repeal of all the provisions that limited the right to organize. Freedom of association should be granted fully by eliminating all obstacles that hindered trade union registration and undermined such a right. Workers had the right to organize in most sectors but the procedures to implement such rights in many cases prevented the exercise of this right. The Worker members made reference to specific cases where the trade unions encountered obstacles towards the implementation of such rights. Therefore, all forms of government administrative interference in trade union matters should be stopped. They understood that the Government had asked for assistance to prepare the draft trade union law and that one of the conclusions of the recent ILO mission was that the registration procedures should be simple and short and not used to undermine the right to organize. It seemed that the Government wished to use the same criteria for registration and representation, which were totally different issues. Another still pending problem was the allocation of trade unions assets.

In conclusion, it was stressed that the process of legislative revision needed to be accelerated in full consultation with the social partners and that all potential restrictions or administrative obstacles to the right to organize should be removed by the new law, thus creating the condition for the full implementation of this right. The ILO was requested to continue to support this process.

The Employer members recalled that this case was particular for several reasons. It was a pure case involving employers' rights emanating from Convention No. 87. For a number of years, the Committee considered it to be a violation of the Convention where a national law indicated a specific trade union in the text itself. This was a clear violation of the right to freedom of association, as the establishment of another trade union or association would be a breach of the national law in question which only recognized one trade union. The Employer members recalled that the Yugoslav Chamber of Commerce and Industry exercised by law the powers of employers' organizations within the meaning of the Convention. In addition, the Federal Republic's law on the Yugoslav Chamber of Commerce and Industry established compulsory membership in the Chamber of Commerce. Although it was customary in many countries to establish a compulsory membership in the respective chambers of commerce, it was not acceptable that the chambers of commerce exercised the functions of employers' organizations. If the ability of collective bargaining belonged exclusively to the chamber of commerce, this would violate the core functions of employers' associations. They considered that the new laws referred to by the Government representative seemed to go in the right direction. However, it was not possible to determine the extent to which the new laws would solve the problem, since the Committee had not examined the laws the Government representative referred to. Therefore it was necessary that the new laws be transmitted to the Office for examination by the Committee of Experts. With reference to the intervention of the Worker members, the Employer members stated that while it was clear that this Convention concerned both the freedom of association of workers and employers, the basis for discussions of this case were the comments of the Committee of Experts, which referred exclusively to the problem of freedom of association of employers.

The Government representative thanked the Worker and Employer members for their comments. Serbia and Montenegro would provide the text of the new legislation to the Office and appreciated the assistance from the ILO on the matter discussed.

The Worker members stated that they had found it important to raise some of the key points that the workers had highlighted during the ILO mission. It was important that Convention No. 87 was not only enshrined in the new legislation but was also applied in practice. Moreover, in the context of social dialogue, workers and employers should be treated on an equal footing.

The Employer members did not wish to add anything to their initial statement except to emphasize that the voluntary exercise of collective bargaining was of importance and should be reflected in the conclusions.

The Committee took note of the statement made by the Government representative and of the subsequent discussion. The Committee of Experts had pointed out that the Federal Republic's Law on the Chamber of Commerce and Industry is contrary to Article 2 of the Convention, as it limited the employers' right to establish and join organizations of their own choosing by imposing on them compulsory membership of the Chamber. The Committee noted the Government's statement that the Chamber of Commerce and Industry had been dissolved. The Committee expressed a strong hope that at its next session the Committee of Experts would be able to observe real progress towards the full application of the Convention in law and in practice. It also hoped that in this case there would be no restrictions on the employers' right to free and voluntary collective bargaining and that, in general, employers and workers would be fully covered by the rights enshrined in the Convention. The Committee asked the Government to supply in its next report detailed and precise information, including the text of the new law on the Chamber of Commerce and Industry, to allow a comprehensive assessment of the situation and its evolution by the Committee of Experts.