Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Bosnia and Herzegovina (Ratification: 1993)

The Committee takes note of the Government’s report. It also takes note of the comments of the Confederation of Independent Trade Unions of Bosnia and Herzegovina and of the Confederation of Trade Unions of the Republika Srpska, transmitted with the Government’s report, and of a communication by the International Confederation of Free Trade Unions (ICFTU) dated 1 September 2005. The Committee also takes note of the discussion concerning the application of this Convention at the Conference Committee on the Application of Standards at its June 2005 session.

Article 2 of the Convention. 1. Requirement of previous authorization for the establishment of employers’ and workers’ organizations. The Committee recalls that in its previous comments it had noted that article 32 of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Civil Affairs and Communication to accept or refuse a request for registration and provides that the request shall be considered as rejected if the Minister does not adopt a decision within 30 days. The Committee observes that the Government’s report does not contain any information on this issue. The Committee further notes from the comments made by the Confederation of Trade Unions of the Republika Srpska, that the Law on Associations and Foundations constitutes an obstacle to the registration of trade unions and the recognition of their legal personality, because the law in question contains overly restrictive provisions and the registration process involves considerable expense due to the payment of court fees.

The Committee considers that legislation which makes the registration and acquisition of legal personality a prerequisite for the existence and functioning of organizations and, at the same time, does not clearly define the reasons for refusal to grant a registration request, confers on the competent authority a genuinely discretionary power which is tantamount to a requirement for previous authorization. Problems of compatibility with the Convention may also arise where the registration procedure is long and complicated, raising serious obstacles to the establishment of organizations which amount to a denial of the right of workers and employers to establish organizations without previous authorization (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 73-74 and 76). The Committee requests that the Government take all necessary measures to repeal article 32 of the Law on the Associations and Foundations of Bosnia and Herzegovina so that workers and employers can freely establish organizations of their own choosing without previous authorization and to provide information in this respect in its next report.

2. Registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina. The Committee further recalls that in its previous observation it had noted the unreasonable period which had elapsed since the filing of a registration request by the Confederation of Independent Trade Unions of Bosnia and Herzegovina and had requested information on the measures taken or contemplated in order to grant registration to this organization as soon as possible. The Committee notes that, according to the information provided by the Government to the Conference Committee on the Application of Standards in June 2005, special assistance had been requested from the ILO with a view to resolving the issue of the modification of the legislation so as to allow the registration of the Confederation at the state level, and progress had been made in the elaboration of the legislation concerning social dialogue and social partners at the national level. Moreover, an agreement had been reached between the Confederation of Independent Trade Unions of Bosnia and Herzegovina and the Trade Union of the Serb Republic of Bosnia in order to create the Trade Union Confederation at the national level. The Committee notes that in its comments the Confederation of Independent Trade Unions of Bosnia and Herzegovina states that its registration has not been completed yet. Noting the information provided by the Government concerning the issue of the modification of the legislation, the Committee once again requests the Government to take all necessary measures so as to register the Confederation of Independent Trade Unions of Bosnia and Herzegovina promptly and to indicate in its next report progress made in this respect.

The Committee recalls that in its previous comments the Confederation of Independent Trade Unions of Bosnia and Herzegovina had stated that the absence of registration created a risk of confiscating the organization’s belongings and preventing it from participating in the Economic and Social Council, regardless of the fact that it was the most representative workers’ organization. The Committee requests the Government to provide its observations in this respect.

3. Registration of employers’ confederations. In its previous comments, the Committee had requested the Government to take all necessary legislative measures so as to ensure that employers’ confederations can obtain registration under a status conducive to the full and free development of their activities as employers’ organizations both at the level of the Republic of Bosnia and Herzegovina and its two entities, and to provide information on the measures taken for the effective registration of the Employers’ Confederation of the Republic of Bosnia and Herzegovina. The Committee notes with interest from the information submitted by the Government to the Conference Committee on the Application of Standards, that the Government had stated that the two employers’ federations at the level of the two entities of the Republic had the right to obtain state registration and pursuant to this, an Association of the Employers of Bosnia and Herzegovina was established, thus resolving the case, according to the Government. The Committee requests the Government to provide in its next report information on the legislative measures taken so as to enable other employers’ confederations to obtain registration in the future under a status conducive to the full and free development of their activities as employers’ organizations both at the level of the Republic of Bosnia and Herzegovina and its two entities.

4. Registration procedure. The Committee recalls that in its previous comments it had noted the need to amend the legislation so as to provide more reasonable time limitations (sections 30(2), 34 and 35 of the Law on the Associations and Foundations of Bosnia and Herzegovina) with respect to the registration of employers’ and workers’ organizations and to ensure that they shall not suffer disproportionate consequences as a result of a delayed request (dissolution of the organization in question or cancellation of its registration). The Committee notes that the Government’s report contains no information in this respect. Recalling once again that the registration procedure should not be so complicated as to raise obstacles to the establishment of workers’ and employers’ organizations, the Committee requests the Government to take all necessary measures so as to amend sections 30(2), 34 and 35 of the Law on the Associations and Foundations of Bosnia and Herzegovina and to provide information in this respect in its next report.