Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Article 2 of the Convention. Right of employers to establish and join organizations of their own choosing without previous authorization. The Committee takes note of the Government’s reply to the communications of the International Trade Union Confederation (ITUC) alleging that the registration procedure for trade unions is very complicated and authorization is required from the Ministry of Labour. The Committee also notes that, according to the TUC “Nezavisnost”, the registration of its affiliates takes two to three months. In this regard, the Committee notes the Government’s observations that, in March 2010, amendments were made to the Rulebook on registration of trade unions which provide that the application for registration, updating or deletion of trade unions that are members of a trade union at national level are submitted by the latter, which accelerates the registration process by avoiding incomplete documentation. In this regard, the Committee recalls that a lengthy registration procedure creates a serious obstacle for the establishment of a trade union, and that the obligation for trade unions to obtain the consent of a central trade union organization in order to be registered should be removed. The Committee requests the Government to ensure the respect of the abovementioned principles.

Article 3. Right of trade unions to organize their activities and to formulate their programmes. Penal sanctions for strikes. In its previous comments, the Committee had noted that, according to section 167 of the Criminal Code, whoever organizes or leads a strike in a way which is contrary to the law or regulations and thereby endangers human life and health or property to a considerable extent, or if grave consequences result there from, shall be punished with imprisonment of up to three years unless other criminal offences prevail. The Committee had requested the Government to indicate the measures taken to ensure that any sanctions for strike action under this provision are proportionate to the seriousness of the violation and that, in any case, peaceful strikes are not sanctioned by imprisonment. The Committee notes that, in its report, the Government indicates that all legislative actions have been deferred until the completion of the process of forming a new Government and Parliament. The Committee recalls that no penal sanction should be imposed against a worker for having carried out a peaceful strike and therefore measures of imprisonment should not be imposed on any account; that such sanctions could be envisaged only where, during a strike, violence against persons or property or other serious infringements of rights have been committed, and can be imposed pursuant to legislation punishing such acts. The Committee hopes that all necessary measures will be taken, in full consultation with the social partners, to amend section 167 of the Criminal Code taking into account the abovementioned principles. It requests the Government to provide information on any developments in this regard.

Furthermore, in its previous comments, the Committee had noted that sections 173–176 of the Criminal Code punish with a fine, or imprisonment of up to three months, anyone who publicly ridicules the Republic of Serbia, another nation, national or ethnic group living in the Republic of Serbia, a foreign State, its flag, coat of arms or anthem, or the United Nations, International Red Cross or other international organization of which the Republic of Serbia is a member. The Committee had noted, however, that section 176 exempts from this punishment those who perform journalistic duties or political activities in defence of a right, or of justifiable interests, if it is evident that the statements made were not intended to disparage or if the person concerned proves the veracity of the statement or if he/she had reasonable grounds to believe that the statement was true. The Committee had also noted that statements made in the framework of the performance of trade union activities were not explicitly exempted from the prohibitions of sections 173–176. Noting the Government’s general indication that legislative action has been deferred until the formation of the new Government and Parliament, the Committee once again requests the Government to provide information in its next report on whether sections 173–176 of the Criminal Code have been applied in relation to trade union activities and, if so, to take the necessary measures, possibly with ILO technical assistance, and in full consultation with the social partners, to ensure that legitimate trade union activities may not fall under these provisions.

Minimum services. In its previous comments, the Committee had noted that, according to section 10 of the Act on Strikes, in the case of strikes involving “activities in the general interest”, the employer has the power to determine unilaterally the minimum services after having consulted with the union and that, if such services are not determined within a five-day period prior to a strike, the competent public authority or the local self-government body takes the necessary decisions. The Committee notes that the Government indicates that: (1) the working group established to prepare amendments to the Act on Strikes is currently working on the issue and will take into particular consideration the issue of the minimum services; (2) the activities of common interest include electric power, water management, traffic, information (radio and TV), postal services, public/municipal utility services, essential food production, health care and veterinary care, education, childcare, social welfare/protection, activities essential for the defence and safety of Serbia and the performance of its international obligations and activities, the interruption of which could by the nature of the activity itself endanger life and health of people or inflict large-scale damage (e.g. chemical industry, steel, ferrous and non-ferrous metal industries); and (3) all legislative actions have been deferred until the formation of the new Government and Parliament. The Committee further notes that the ITUC states that the notion of “essential services” is very broad, and that the procedures for determining the minimum service are set out in Government regulations and can even lead to a total ban on strike action; and that, according to the Confederation of Autonomous Trade Unions of Serbia (CATUS), decisions on minimum services are made in practice without taking the trade union’s opinion into account.

The Committee considers that in order to ensure that users basic needs are met or that facilities operate safely or without interruption, the introduction of a negotiated minimum service could be appropriate in the event of strikes but should only be possible in certain situations, namely: (1) in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (or essential services “in the strict sense of the term”); (2) in services which are not essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population; and (3) in public services of fundamental importance. However, in the view of the Committee, such a service should meet at least two requirements: (1) it must genuinely and exclusively be a minimum service, that is, one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear; and (2) since this system restricts one of the essential means of pressure available to workers to defend their interests, their organizations should be able, if they so wish, to participate in defining such a service, along with employers and the public authorities. Moreover, any disagreement on minimum services should be resolved, not by the government authorities, but by a joint or independent body which has the confidence of the parties, responsible for examining rapidly and without formalities the difficulties raised and empowered to issue enforceable decisions (see General Survey of 2012 on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008, paragraphs 136–138). The Committee therefore trusts that, in the process of revising the Act on Strikes, which should be conducted in full consultation with the most representative workers’ and employers’ organizations, due account will be taken, possibly with the technical assistance of the ILO, of the abovementioned principles. The Committee requests the Government to provide information of any developments in this respect, and to supply a copy of the amendments to the Act on Strikes once adopted as well as of any Government regulations relating to the exercise of the right to strike.

Compulsory arbitration. In its previous comments, the Committee had noted that the Government indicated that the Act on the Peaceful Settlement of Labour Disputes establishes a National Mediation Agency before which disputes pertaining to the exercise of the right to strike are settled. It also noted that, while the Labour Act of 2005 provides that the parties to a dispute can make an independent decision on whether to bring their dispute to arbitration, in the activities of general interest (i.e. power-generating industry, water supply, transportation, radio–television media founded by the State, the autonomous provinces or local self-administration units, the postal, telegraph and telecommunication services, utilities, production of basic food products, medical and veterinary protection, education, social care of children and social protection and activities of special importance for the defence and security of the State), there is an obligation for the parties to bring the dispute to this agency for conciliation. The Committee had noted the Government’s indication that the decisions issued by the National Mediation Agency are not binding on the parties and had requested a copy of the Act on the Peaceful Settlement of Labour Disputes as amended. The Committee notes that the Government indicates in its report that: (1) there is no compulsory arbitration in the sense that there is no prohibition from going on strike prior to the completion of arbitration; (2) according to the amendments made to the Act on Peaceful Settlement of Labour Disputes dated 24 December 2009, in case of disputes in activities of general interest, the parties are bound to initiate conciliation proceedings before the Conciliation Committee; (3) the Conciliation Committee is composed of the parties to the dispute and of a conciliator selected by the parties from the list kept by the National Mediation Agency; (4) it may only issue a non-binding recommendation on how to resolve the dispute; (5) the conciliation proceedings may not take place during the strike; and (6) the proceedings neither prevent a strike to be commenced nor to be continued afterwards. The Committee requests the Government to provide a copy of the Act on Peaceful Settlement of Labour Disputes as amended on 24 December 2009.

Article 4. Dissolution of organizations. The Committee notes that, under section 49 of the Act on Associations, an association is erased from the register if a competent authority makes a decision on the termination of its work. It further notes that, according to the CATUS, the Act on Associations is in practice applied to unions; and that the TUC “Nezavisnost” alleges that, one of its affiliates, the Branch Trade Union of the Federation of Musical Artists of Serbia, has been deleted from the register by the Minister of Labour and Social Policy. The Committee recalls that the cancellation of registration of an organization is tantamount to the dissolution of that organization by administrative authority, and that the administrative dissolution of trade union organizations constitutes a clear violation of Article 4. The Committee requests the Government to take steps to ensure that section 49 of the Act on Associations does not apply to trade unions and employers’ organizations, so as to ensure that the cancellation of their registration shall only be possible through judicial channels.

Lastly, the Committee notes the allegations of the ITUC and the CATUS concerning numerous dismissals, threats of dismissal, suspensions and wage reductions imposed on trade union members for organizing or participating in strike action, as well as concerning repressive measures during or after strikes such as police surveillance against trade union officials (interrogation, following, telephone tapping) and measures to physically coerce and prevent the freedom of movement of striking workers. In this regard, the Committee notes the Government’s observations with respect to the actions taken by police, in particular that law enforcement officers acted in compliance with the relevant laws and within their authorizations and intervened only in one case to unblock a vital road. As regards measures taken following strike action, the Committee notes the information provided by the Government concerning the inspection visits carried out by labour inspection in the relevant companies and the measures of redress taken as a result.