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

Individual Case (CAS) - Discussion: 2007, Publication: 96th ILC session (2007)

A Government representative conveyed her Government's appreciation for allowing it to present its views on the case and indicated that the Confederation of Independent Trade Unions of Bosnia and Herzegovina had been registered at the cantonal level, which permitted it to function both in the whole of Bosnia and Herzegovina as well as outside the country. The existing laws regulating the operation of trade unions and employers' organizations allowed them to operate as such. With regard to the creation of preconditions for the registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina at the state level, she indicated that the process of amending the Law on Associations and Foundations of Bosnia and Herzegovina was reaching its final stage. The amendments were intended to resolve key issues relating to the registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina, as well as of other employers' organizations and trade unions at the state level, and would be submitted to the ILO for comments to determine their compliance with the international labour standards on freedom of association. The authorities of Bosnia and Herzegovina would continue to make significant efforts to discharge the obligations arising out of the ILO Constitution. However, the speaker hoped that the Conference Committee would take into account the specific situation of the country which was reflected in the complexity of its institutional mechanisms and multiple reform processes. In conclusion, she thanked the ILO and the Office for their valuable assistance and cooperation in the past and requested that it continue in the future.

The Worker members regretted that the Government of Bosnia and Herzegovina had, once again this year, furnished only fragmentary information in reply to the observations of the Committee of Experts and had not complied with the request of the Committee of Experts to submit a full report for its November 2006 session. Recalling the chronology of events, the Worker members indicated that the Confederation of Independent Trade Unions of Bosnia and Herzegovina had filed a complaint with the Committee on Freedom of Association in 2002 against the refusal of its registration. The Committee on Freedom of Association had concluded in 2003 that that refusal constituted a clear violation of Article 2 of the Convention and that the reasons put forward by the Government were unfounded, demanding that the Government urgently take all necessary measures. In 2006, the Conference Committee had requested the Government to: (a) take measures to modify the law and practice regarding the registration of employers' and workers' organizations, in particular to eliminate the requirement of previous authorization laid down in section 32 of the Law on Associations and Foundations of Bosnia and Herzegovina; (b) take without delay all the necessary steps to ensure the registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina; (c) submit a full report to the Committee of Experts; and (d) to accept a technical assistance mission. However, nothing had been done since last year. The Confederation of Independent Trade Unions of Bosnia and Herzegovina remained unable to participate in social dialogue at the national level, in particular in the Economic and Social Council; lawyers representing union members affiliated to that Confederation had been systematically rejected by certain judges; and the threat of a ban weighed heavily and constantly on all activities of the Confederation. In the light of the consensus of the ILO supervisory bodies, the Worker members came to the conclusion that there was a lack of political will on the part of the Government. They stressed the Government's obligation to give effect to the recommendations of the Committee on Freedom of Association and the conclusions of the Conference Committee, by immediately authorizing registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina at the national level, since there was no legal obstacle to it. They requested that the Office provide the technical assistance necessary for the Government to put its national legislation and practice into conformity with the Convention.

The Employer members thanked the Government for having been prepared to appear before the Committee early and asked whether the ILO had in fact provided technical assistance to the Government since the Committee's last session. It was the fifth time that the case had come before the Committee since Bosnia and Herzegovina had ratified the Convention in 1993. Noting that the Committee of Experts repeatedly pointed out a number of requirements concerning registration, the Employer members considered that those issues raised by the Committee of Experts appeared to be of a technical nature that should be easily resolved. The Convention was quite clear on that matter: workers' and employers' organizations should be free to establish their organizations without prior authorization. The process for registration under article 32 of the Law on Associations and Foundations of Bosnia and Herzegovina could clearly lead to arbitrary and unexplained results. That provision therefore needed to be repealed. The current legal situation did not, in practice, appear to affect the possibility of employers' organizations organizing themselves at the national level. However, referring to the problems with respect to the registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina they noted that the situation was serious for workers' organizations. The legislation needed to be brought into line with the Convention to provide for more reasonable time limitations so that workers' and employers' organizations did not suffer adverse consequences from delay. Further technical assistance was certainly needed, as the Committee would have liked to have noted progress in law and practice since its last session.

The Worker member of Bosnia and Herzegovina regretted the fact that it was the third time that trade unions had experienced maltreatment because of Government failure to allow them to register. There was a flagrant lack of respect for the Convention in Bosnia and Herzegovina, and although the Government had recently been elected as a member of the United Nations Human Rights Council, it preferred to occupy itself with defending human rights in other countries instead of respecting those of its own workers. There was a violation of fundamental rights of workers' organizations in Bosnia and Herzegovina and the situation was unacceptable. In his view, the Government simply wanted the Confederation of Independent Trade Unions of Bosnia and Herzegovina to be eliminated; if not, it would have explained the reasons why the Confederation could not be registered. The speaker called upon the Conference Committee to take all the necessary measures to defend the union which had existed for 102 years, and which had never faced difficulties until then. He called for an ILO mission to be sent to the country since, for the workers, vital issues were at stake.

The Worker member of Pakistan stated that the case was understandable in the light of the special circumstances that the country faced during the war. However, it was a serious concern that the legislation in force was not in conformity with the Convention which was the lifeblood of the ILO and the main vehicle to promote tripartism and social dialogue. Without respect for the principles of freedom of association, social justice could not be achieved. The speaker agreed with the Committee of Experts that the specific provisions mentioned in the observation needed to be amended in order to ensure that the workers and employers of Bosnia and Herzegovina fully enjoyed their right to organize.

The representative of the Secretary-General indicated that in follow-up to the discussion at the Committee in June 2006, a communication had been sent to the Government in August 2006 concerning the effect given to the conclusions of the Conference Committee. In addition, the International Labour Standards Department, the Subregional Office for Central and Eastern Europe in Budapest and the ILO National Correspondent had organized assistance in the area of international labour standards in the form of two missions, one in September 2006 and one in March 2007. Meetings had also been held with the Permanent Mission of Bosnia and Herzegovina in April 2007, followed up by a communication proposing a technical advisory mission to deal with all ILO standards-related issues, and in particular those relating to the freedom of association Conventions.

Another Government representative explained once again that the Confederation of Independent Trade Unions of Bosnia and Herzegovina was registered at the cantonal level and was thus able to function. However, her Government was committed to continuing to develop legislation and to settling the question of registration at the national level. In order to do so, it had to find a structure for entities to register at the national level. The draft legislation still had some shortcomings and could not yet be adopted. The speaker further informed the Committee that a working group had been established which had prepared amendments to the Law on Associations and Foundations of Bosnia and Herzegovina, a final text of which could be expected in two months. The new Government was aware of the issue of registration and was determined to solve the problem. It would certainly succeed with the assistance of the ILO, but currently, the Government believed that it had met all its obligations under the Convention.

The Worker members recapitulated the four substantial requests that the Committee had already made to the Government in 2006: (a) to take measures to amend the law and practice concerning the registration of employers' and workers' organizations, in particular by eliminating the requirements laid down in section 32 of the Law on Associations and Foundations; (b) to allow for the registration without delay of the Confederation of Independent Trade Unions of Bosnia and Herzegovina at the national level; (c) to submit a full report to the Committee of Experts; and (d) to accept an ILO technical assistance mission. The Worker members expressed the hope that the Government would supply specific information concerning the amendment of the abovementioned law before November 2007. They further requested the Government to indicate clearly whether it accepted an ILO technical assistance mission. The Worker members requested that the social partners be consulted during the ILO technical assistance mission.

The Employer members expressed concern that, even with the assistance already provided by the ILO, progress had not been forthcoming. The current legislation was insufficient. The Employer members agreed with the Worker members that the Government should accept a technical assistance mission. Such a mission should take place well in time in order to ensure that the Committee of Experts could examine the planned legislative amendment at its forthcoming session in November-December 2007. The Employer members requested that the Government indicate to the Committee its readiness to accept such a mission.

Another Government representative reaffirmed his Government's request for technical assistance in the light of the current discussion. The working group had taken into account the recommendations of the Committee of Experts and insisted that amendments be made to the Law on Associations and Foundations of Bosnia and Herzegovina. As soon as the proposed draft legislation was finalized, it would be sent to the ILO and the Committee of Experts to determine whether it was in accordance with the Convention as well as with other ILO instruments.

The Committee took note of the statement made by the Government representative, as well as the discussion that took place thereafter. The Committee observed that the pending questions concerned the requirement of previous authorization for the establishment of employers' and workers' organizations and the long-standing refusal to register the Confederation of Independent Trade Unions of Bosnia and Herzegovina (CITU).

The Committee noted the information provided by the Government according to which a working group was in the process of drafting legislation with the aim of bringing it into conformity with the Convention and eliminating the obstacles to the right to organize of workers' and employers' organizations at the national level.

Observing that no specific progress had occurred since the Committee's examination of the matters last year, the Committee expressed the firm hope that the Government would take the necessary measures without delay so as to ensure that legislation was rapidly adopted to guarantee full conformity with the Convention. In particular, the Committee requested the Government to eliminate all obstacles to the effective registration of workers' and employers' organizations, including ensuring an acceptable time frame for registration, and to take steps for the immediate registration of the CITU at the national level. In the meantime, the Committee requested the Government to ensure that the CITU was able to participate in social dialogue in the country at all levels, including the Economic and Social Council. Noting the Government's request for an ILO technical assistance mission, the Committee trusted that the mission would have full access to the social partners concerned and expressed the preference that the mission would take place in time to report back to the forthcoming session of the Committee of Experts. The Committee urged the Government to provide a detailed report including all relevant draft legislation and proposed amendments to the Committee of Experts for its examination in 2007 and trusted that it would be in a position to note progress in that regard in the very near future.

Individual Case (CAS) - Discussion: 2006, Publication: 95th ILC session (2006)

A Government representative noted that three cases had been examined by the Committee on Freedom of Association, namely Case No. 2053 concerning the registration of the Associated Workers' Trade Union of Bosnia and Herzegovina, Case No. 2140 concerning the registration of the Employers of the Federation of Bosnia and Herzegovina and the Employers' Confederation of Republika Srpska and Case No. 2225 concerning the registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina. His Government had recently provided replies to the observations and direct requests made by the Committee of Experts with respect to several Conventions, including Convention No. 87. Concerning the application of Convention No. 87 and the three above-mentioned cases, the Government had informed the Committee on Freedom of Association that Cases Nos. 2053 and 2140 had been resolved, namely that the Associated Workers' Trade Union of Bosnia and Herzegovina and the Employers of the Federation of Bosnia and Herzegovina and the Employers' Confederation of Republika Srpska had been registered almost two years ago. With regard to Case No. 2225, his Government wished to inform the Committee that the case was before the Appeals Commission of the Council of Ministers of Bosnia and Herzegovina. In conclusion, he indicated that the main finding of the participants of the seminars on reporting held recently with the technical assistance of the ILO was the need to initiate the procedure to amend the Law on Associations and Foundations of Bosnia and Herzegovina so as to ensure that it was in line with Convention No. 87 and with the recommendations and comments made by the Committee of Experts.

The Worker members noted the information provided by the Government representative and welcomed his presence in the Committee. The previous year, the Government had not attended the session of the Committee on this case, referring by mail to a case of force majeure and supplying a brief summary of the measures it had taken to meet its obligations. It had also requested ILO technical assistance. The Government's attitude, vis-à-vis both the Committee and the ILO, had offended the Worker members, who had therefore asked that a special mention be included in the Committee's final report. Since 1999, three complaints had been submitted to the Committee on Freedom of Association from both employers' and workers' organizations, the last of which had been submitted in 2002 by the Confederation of Independent Trade Unions of Bosnia and Herzegovina. Despite repeated requests by the Committee on Freedom of Association, the Government had never supplied detailed information related to that complaint. In 2003, the Committee on Freedom of Association had therefore formulated its conclusions without having received the Government's reply. In its conclusions, the Committee on Freedom of Association had reminded the Government that the objective of the whole ILO procedure for examining allegations of violations of freedom of association was to ensure that freedom of association was respected in both law and practice. While the procedure protected governments from unreasonable accusations, these in turn needed to recognize the importance, for the sake of their own reputation, of supplying detailed replies to the allegations made against them. The Committee on Freedom of Association had also drawn the attention of the Committee of Experts to the legislative aspects of the case.

For a number of years, the Government of Bosnia and Herzegovina had not been fulfilling its obligations in relation to the ILO supervisory bodies. In addition to the repeated requests by the Committee on Freedom of Association, the Committee of Experts had also urged the Government on many occasions to supply reports on the application of Convention No. 87, which it had ratified in 1993. Since then, however, the Committee of Experts had only been able to examine two reports. In its latest comments, the Committee of Experts recalled the following legal points: the Law on Associations and Foundations constituted an obstacle to the registration of trade unions and the recognition of their legal personality; the legislation did not clearly define the reasons for which a registration request could be refused and therefore conferred on the competent authority a discretionary power which was tantamount to a requirement for previous authorization; the registration procedure was long and complicated, raising serious obstacles to the establishment of organizations, thereby giving rise to a situation which amounted to a denial of the right of workers and employers to establish organizations without previous authorization; the time limitations established by the legislation for registration were too restrictive and exposed organizations to disproportionate consequences if an application for registration was late, including the dissolution of the organization or the cancellation of its registration.

The Worker members recalled that, if workers and employers had to obtain previous authorization for the establishment of organizations, their right of association could be denied. Any delay due to the Government in registering a trade union constituted a violation of Article 2 of Convention No. 87, as had occurred in the case of the Confederation of Independent Trade Unions of Bosnia and Herzegovina. According to the information provided by the Government, significant progress had been made. Nevertheless, the Confederation of Independent Trade Unions of Bosnia and Herzegovina was still not registered, which prevented the most representative organization from defending the interests of the workers of Bosnia and Herzegovina and significantly weakened tripartite dialogue in the country. In its conclusions, the Committee on Freedom of Association had considered that the rejection of a request for the re-registration of a former good faith organization, which had been functioning for a long time, constituted a violation of Article 2 of Convention No. 87, and that the reasons invoked by the Government for rejecting this registration were not justified. The Committee on Freedom of Association had already requested the Government in 2003 to take all the necessary steps on an urgent basis for the rapid registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina.

The previous year the Confederation had initiated action with the Ministry of Justice so that it could finally be registered. In December 2005, the Minister had refused the application. At the end of January 2006, the Confederation of Independent Trade Unions had appealed against that decision, which constituted the final procedure at the national level. The Worker members stated that, in their view, this refusal was clearly unjustified and constituted a further attempt by the Government to delay the registration of the union. According to the Government, the Confederation could be registered at the level of the constituent entities, but not at the national level. However a choice of that nature should be made by the trade union concerned, and not imposed by the Government. Moreover, according to the Government, the problem would be resolved if the Confederation of Independent Trade Unions of Bosnia and Herzegovina established an umbrella organization with a union that was already registered. This argument was misleading as an umbrella organization could not be registered unless its founding organizations were also registered. The Worker members expressed the view that the time was right for the Government to demonstrate its good faith and that it should not confine itself, as it had done in the past, to unfulfilled promises. They therefore called on the Government to: register without delay the Confederation of Independent Trade Unions of Bosnia and Herzegovina in accordance with the provisions of Convention No. 87 and at the level chosen by the latter; supply a detailed report to the Committee of Experts for examination at the Conference of 2007; and fulfil its obligations in relation to the ILO, in particular with regard to supplying reports on the application of ratified Conventions and replies to the comments of the Committee of Experts and the other supervisory bodies.

The Employer members also recalled the difficulties that this Committee had faced the previous year due to the Government's absence. This was the fourth time that this Committee had discussed the case and the observation of the Committee of Experts pointed to several problems relating to registration requirements. Convention No. 87 was very clear on this point; employers' and workers' organizations were free to organize and establish themselves without the need for previous authorization. This was a basic and fundamental requirement and, if organizations could not even register, there was no basis for exercising their right to freedom of association. Article 32 of the Law on Associations and Foundations of Bosnia and Herzegovina authorized the Minister of Civil Affairs and Communication to accept or refuse requests for registration within 30 days. If the Minister did not take any action, the petition for registration was considered to be rejected, without further explanations. Clearly, this process would lead to arbitrary and unexplained results. Therefore, article 32 needed to be repealed and the legislation brought into line with Convention No. 87. According to the Government, the problem had been resolved. However, the Committee would need more concrete information than the Government's oral confirmation in order to assure itself that the problems of registration were indeed resolved. It had to be concluded that there were still restrictions on the establishment of organizations, including employers' confederations, at the level of the State and its entities. They also noted that the registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina remained a problem. Finally, there was a separate problem related to the registration procedure. This needed to be amended to provide for more reasonable time limitations for organizations to register so that they would not suffer from adverse consequences resulting from delays in registration. The Employer members concluded that there continued to be a need for ILO technical assistance to bring the law and practice into line with Convention No. 87.

The Worker member of Bosnia and Herzegovina emphasized that the Confederation of Independent Trade Unions, of which he was president, represented 95 per cent of the organized workers in Bosnia and Herzegovina. He regretted that, for the past five years, the authorities had remained inactive with respect to his Confederation's application for registration, despite the absence of any legal obstacles. He hoped that the Government would finally accept the recommendations of the Committee of Experts and the ILO so that the case could be resolved.

The Worker member of Hungary noted that, according to the Committee of Experts, the law and practice of Bosnia and Herzegovina concerning the registration of newly established trade unions and employers' organizations was not in line with Convention No. 87. The registration period was unreasonably long and the registration process was too complicated. Moreover, the legislation conferred on the authorities' discretionary power, which was tantamount to a requirement for previous authorization. In addition, it did not clearly define the reasons for granting or refusing a registration request. She stated that the Worker members could not accept the explanations provided by the Government. The wording of Article 2 of Convention No. 87 was clear. In its General Survey on freedom of association, the Committee of Experts had emphasized that a genuinely discretionary power to grant or reject a registration request was tantamount to a requirement for previous authorization, which was not in compliance with Article 2 of Convention No. 87. It also emphasized that problems of compliance with the Convention arose when the registration period was too long and the procedure was too complicated. The Committee of Experts' comments and the General Survey were simple and easy to understand. The non-compliance with these standards implied serious violations of the right to freedom of association and could lead to violations of other important ILO standards. While ILO technical assistance could be useful and acceptable, the Government should also show that it had the political will to bring its law and practice into line with the Convention. There could only be one solution, which was the immediate registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina.

The Government representative recalled that his Government had provided nine replies to the comments made by the Committee of Experts and the Committee on Freedom of Association. Those replies had also contained detailed information provided by the Ministry of Justice of Bosnia and Herzegovina. This information was included in the documentation that was before the Conference Committee and should be taken into account in its discussions. He emphasized once again that the authorities of Bosnia and Herzegovina did not challenge the right of trade unions to organize, or the right of workers to organize and to establish trade unions. However, the Government could set conditions for the registration of trade unions so that they could acquire the necessary legal status in order to participate in legal transactions. He recalled that, under the terms of the Law on Associations and Foundations of Bosnia and Herzegovina, the period established for a decision on the registration of an organization was 30 days. If the documents submitted needed to be modified, this should be done before the registration procedure could be completed. The issue with regard to the Confederation of Independent Trade Unions of Bosnia and Herzegovina was related to its re-registration. When the Law on Associations and Foundations of Bosnia and Herzegovina was adopted in 2002, it allowed a period of six months for re-registration from lower levels at the state level. The Confederation of Independent Trade Unions of Bosnia and Herzegovina had not fulfilled this requirement within the period of six months. He further recalled that there were two trade union confederations seeking registration at the state level, namely the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBIH) and the Confederation of Trade Unions of Bosnia and Herzegovina (KSBIH).

However, regardless of the problems that had arisen, the fact that the Confederation of Independent Trade Unions of Bosnia and Herzegovina was not registered at the state level was not an obstacle to the establishment of the Economic and Social Council of the Federation of Bosnia and Herzegovina, nor to the continuation of dialogue between the Government and the social partners. Finally, it should be recalled that the Confederation of Independent Trade Unions of Bosnia and Herzegovina represented workers in one of the entities of Bosnia and Herzegovina, namely the Federation of Bosnia and Herzegovina, while the Confederation of Independent Trade Unions of Bosnia and Herzegovina was seeking registration also at the state level, that is to say at the national level. The Confederation of Independent Trade Unions of Bosnia and Herzegovina had sought registration as an umbrella organization. Given the fact that the Law on Associations and Foundations of Bosnia and Herzegovina set the terms for all associations at the state, i.e. national, level, it followed that none of the associations or confederations of any type should act as an exclusive umbrella organization. He did not therefore agree with the claims made concerning the refusal to register the Confederation of Independent Trade Unions of Bosnia and Herzegovina. An application for registration had been received from the Confederation of Trade Unions of Bosnia and Herzegovina, the founders of which were the Confederation of Independent Trade Unions of Bosnia and Herzegovina, the Confederation of Trade Unions of the Republika Srpska and the Trade Union of the Brcko District, but it had not been possible to approve its registration because of the unresolved legal issues relating to the registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina. However, he reaffirmed that, despite these difficulties, the Confederation of Trade Unions of Bosnia and Herzegovina was accepted as one of the social partners at the state level, as representing workers' trade unions. In this context, its participation as the social partner in the Economic and Social Council of Bosnia and Herzegovina was currently under consideration. This had all been facilitated by the ratification of Convention No. 144 in February 2006. The national authorities were aware that the registration of trade unions could not be completed under the existing provisions of the Law on Associations and Foundations of Bosnia and Herzegovina and it was planned to initiate the procedure of harmonization of the provisions of the Law with Convention No. 87 and the comments of the Committee of Experts, or to adopt new legislation to resolve these problems.

The Worker members noted the additional information provided by the Government representative. They nevertheless recalled that the case had been examined for many years and that no concrete results had yet been achieved. In addition, the conditions imposed by the Government for the registration of a trade union were excessive. They therefore requested the Government to proceed without delay to the registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina in accordance with the provisions of Convention No. 87 at the level that it wished, to provide a detailed report to the Committee of Experts and to comply with obligations towards the ILO.

The Employer members thanked the Government representative for the additional information provided, which they believed to be transparent. The reply by the Government representative demonstrated the importance of discussing cases of this nature in the Conference Committee, as the statement by the Government representative suggested that the problems might be more complex than the examination by the Committee of Experts seemed to show. The observation of the Committee of Experts was confined to Article 2 of Convention No. 87, which covered the question of previous authorization for the establishment of organizations. However, the Government appeared to be saying that the issue concerned the right to establish and join confederations, which was covered by Article 5 of Convention No. 87. There was still a lot of confusion regarding the case, which needed to be clarified. The Government should therefore be requested to provide a comprehensive report to the Office on the precise legal situation concerning employers' associations and workers' organizations. What was needed was to help the Government arrive at a clear understanding of the requirements of the Convention. Moreover, it was clear that the issue of employers' associations had not yet been resolved and that there was a need for more information to be supplied to the Committee of Experts, which should then provide a clear and comprehensive assessment of the situation in the country.

The Committee took note of the information provided by the Government representative and the debate that followed. The Committee observed that the pending questions concerned the legal requirement for previous authorization at the discretion of the administration for the establishment of employers' and workers' organizations and confederations, the lack of registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina, the need for legal provisions to ensure that employers' confederations were registered both at the level of the Republic of Bosnia and Herzegovina and that of its two entities, and the lifting of legal obstacles and delays in the registration procedure.

The Committee took note of the Government's statements according to which efforts were being made to resolve the registration problems of the Confederation of Independent Trade Unions of Bosnia and Herzegovina and that a process to reform the legislation had been initiated so as to give full effect to the Convention. The Committee also took note of the Government's statement that an employers' association of Bosnia and Herzegovina had been established, but that there were still registration problems for confederations at the national level. Furthermore, the Committee took note of the fact that the absence of registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina did not prevent them from participating in social dialogue.

The Committee expressed its concern at the situation and emphasized that the problems mentioned represented serious violations of the Convention and requested the Government to take measures to modify the law and practice without delay in order to ensure the effective observance of the provisions of the Convention. In particular, the Committee urged the Government to take all the necessary steps, including those aimed at the amendment of the legislation, in order to ensure without any new delay the registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina at the national level and to eliminate the requirement of previous authorization and other obstacles to the registration of organizations, as well as to ensure that employers' organizations could obtain registration under a status conducive to the full and free development of their activities as employers' organizations.

The Committee expressed the firm hope that it would be in a position to note progress in the very near future and requested the Government to accept further ILO technical assistance and to send a complete report for the next session of the Committee of Experts explaining the legal situation in the country regarding registration, and to report on any progress achieved in relation to improvements in the application of the Convention.

Individual Case (CAS) - Discussion: 2005, Publication: 93rd ILC session (2005)

The Permanent Mission of Bosnia and Herzegovina to the United Nations Office in Geneva, in a letter dated 10 June 2005 and signed by the Ambassador Jadranka Kalmeta, communicated the following information:

Because of force-majeure, the delegation of Bosnia and Herzegovina regrets to be unable to assist at the meeting of the Committee on the Application of Standards on 11 June.

Due to this, we attach the NON PAPER prepared by the delegation of the Government of Bosnia and Herzegovina.

We take this opportunity to express our renewed gratitude to the ILO, in particular, to the Regional Office in Budapest and the Office in Sarajevo. We hope that the ILO will maintain its support and valuable assistance to enable Bosnia and Herzegovina to fulfil its obligations towards this Organization.

Non paper

Suffering from the heavy consequences of the recent military conflict and going through the process of reforms in nearly every sphere, Bosnia and Herzegovina is facing at present numerous challenges.

The new Law of 15 March 2003 concerning the Ministries and other administrative bodies of Bosnia and Herzegovina designated the Ministry of Civil Affairs as the body ensuring coordination between the entities of the country (which together with the cantons of the Federation of Bosnia and Herzegovina have full authority in this area), taking the responsibility particularly for the areas of work, employment, social protection, health and pension system. With regard to the ILO, the Ministry has the following priorities:

(1) provision of reports on the ratified Conventions;

(2) provision of reports on the non-ratified Conventions;

(3) complaints and observations submitted to the ILO concerning on observance by Bosnia and Herzegovina of ratified Conventions, including:

(a) the case of Aluminium-Mostar;

(b) the case of Ljubija;

(c) the case of the Confederation of Independent Trade Unions of Bosnia and Herzegovina;

(d) the case of the employers of the Serb Republic of Bosnia and ofthe Confederation of Employers of the Federation of Bosnia and Herzegovina;

(e) the case of the Associated Workers' Trade Union;

(4) payment of contribution.

To fulfil its obligations towards the ILO, the Government has taken the following measures:

The case of the Confederation of Independent Trade Unions of Bosnia and Herzegovina

In May 2005, the Government, by way of the Ministry of Civil Affairs and the Ministry of Justice, requested special assistance from the ILO with a view to resolving this issue (modification of the legislation to allow the registration of the Confederation at the state level) and expertise on the part of the ILO. Last month, an agreement between the Confederation of Independent Trade Unions of Bosnia and Herzegovina and the Trade Union of the Serb Republic of Bosnia has created the Trade Union Confederation at the national level. Progress has been made in the elaboration of the legislation concerning social dialogue and social partners at the national level.

The case of the employers of the Serb Republic of Bosnia and of the Confederation of Employers of the Federation of Bosnia and Herzegovina

With regard to the complaint made by the employers' organizations of the two entities, the Government stated that these organizations have the right to obtain state registration. Pursuant to this, an Association of the Employers of Bosnia and Herzegovina was established. The Government considers this case to be resolved. The ILO and the Committee on the Application of Standards will be informed of the latest developments in writing.

Conclusion

- The authorities of Bosnia and Herzegovina in liaison with the ILO office in Sarajevo undertake considerable efforts to prepare reports on ratified Conventions. It is a great pleasure to inform you that with the help of the ILO office in Sarajevo 13 reports have been prepared and will be sent to the ILO in the near future. Preparation of other reports is under way.

- Aware of its obligations, Bosnia and Herzegovina prepares the necessary documents and translations for the responsible state bodies. We hope that the report of the next session of the Conference would mention Bosnia and Herzegovina among States fully complying with their obligations.

- With regard to the complaints concerning violation of the Conventions by Bosnia and Herzegovina, it will request replies from the constituent entities on what has been accomplished in the cases of Aluminium and Ljubija and inform the ILO in writing.

- The case of the employers' organizations being resolved, Bosnia and Herzegovina with the help of the ILO will try to resolve the problem of registration of the Confederation of Independent Trade Unions by modifying the legislation. It will provide all the necessary assistance in order that the Confederation applies, together with the Association of the Trade Unions of the Serb Republic of Bosnia, the decision to establish the Trade Union Confederation at the national level.

- We take this opportunity to once again express our gratitude to the ILO and in particular the Regional Office for Europe in Budapest and the office in Sarajevo. We hope that the ILO will continue to provide valuable assistance enabling Bosnia and Herzegovina to fulfil its obligations to the ILO.

The Chairperson noted that the Permanent Mission of Bosnia and Herzegovina to the United Nations Office in Geneva had indicated in a letter dated 10 June 2005 that, for reasons of force majeur, the delegation of Bosnia and Herzegovina regretted that it would be unable to attend the meeting of the Conference Committee on the Application of Standards on 11 June 2005. Information was appended to the letter summarizing briefly the action taken by the Government of Bosnia and Herzegovina in order to comply with its constitutional and standards-related reporting obligations and the assistance requested from the Office.

The Worker members expressed their indignation at the attitude of the Government of Bosnia and Herzegovina in relation to both the Committee and the ILO. It should be recalled that this was the third year that this case had been examined by the ILO supervisory bodies. Three complaints had been submitted to the Committee on Freedom of Association since 2002. These complaints were from both employers' and workers' organizations, the last of which had been submitted by the Confederation of Free Trade Unions of Bosnia and Herzegovina. The first complaint had been made to the Committee on Freedom of Association in 2002, which had adopted conclusions in 2003 requesting the Committee of Experts to examine the case, taking into account its legal implications. Nevertheless, despite the observations made by the Committee of Experts in 2003, 2004 and 2005, the Government had not replied. Once again today, the Government had not appeared. However, it had provided some information, which was contained in a written document submitted to the Conference Committee but this information did not provide any new elements. The Government said that it was ready to accept ILO technical assistance, but it was difficult to see the value of such assistance when the Government showed no willingness to cooperate. This situation was unacceptable and the Government needed to be aware of this. As the Government had not shown up, there appeared to be a problem of procedure. However, taking into account the deceitful attitude of the Government and its absence, despite its registration at the Conference, the Worker members proposed that the Committee should note that it had received written information from the Government, but that they had brought no new elements to the case. Furthermore, as this was a case of repeated failure to cooperate with the ILO supervisory system, they called for it to be included in a special paragraph of the Committee's report as a case of continued failure to comply with standards-related obligations.

The Employer members considered that there was little the Committee could do in relation to this case in view of the absence of the Government representative. In its report, the Committee would have to confine itself to expressing regret at the failure of the Government to appear before the Committee to discuss the problems relating to its application of the Convention and to note that by this absence it was undermining the ILO's supervisory system.

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). In its previous comment, the Committee requested clarification from the Government as to any judicial proceedings pending in relation to the registration of the SSSBiH. The Committee notes that, on the one hand, the Government indicates that the SSSBiH has been registered in line with the 2012 judgment of the Court of Bosnia and Herzegovina and that there are no court proceedings regarding its registration. On the other hand, it states that the last activities in this case refer to the adoption of conclusions on the termination of the proceedings in April 2020, which relate to court proceedings initiated in 2018 by the Union of Independent Trade Unions of the Police of the Federation of Bosnia and Herzegovina before the municipal court of Sarajevo that are still ongoing. Observing that the information provided by the Government is unclear, the Committee requests the Government to provide further information on the pending court proceedings relating to the SSSBiH, including on the content and outcome of the court proceedings.

Legislative reform. The Committee notes the 2021 amendment to the Labour Act of the Republika Srpska, 2016 (RS Labour Act) and the adoption of the Act on Representativity of Trade Unions and Employers’ Associations in the Federation of Bosnia and Herzegovina (FBiH), 2021. The Committee also notes the 2022 amendments to the Labour Act in the Institutions of Bosnia and Herzegovina, to the FBiH Labour Act and to the Labour Act of the Brčko District (BD Labour Act).

Article 2 of the Convention. Right to establish organizations without previous authorization. Act on Associations and Foundations. Failure to register. Brčko District. The Committee previously requested the Government to amend sections 25(1) and 45(1)(a) of the BD Act on Associations and Foundations, to the extent that they are applicable to workers’ and employers’ organizations, to ensure that the exercise of legitimate trade union and employer organization activities is not dependent upon registration, and failure to register is not subject to sanctions. While the Government does not elaborate on the provisions of the BD Act on Associations and Foundations, it indicates that section 135 of the BD Labour Act, which provides for the registration of trade unions and employers’ associations in a register maintained by the competent authority, is not applied, because no such authority has yet been formed. The Committee understands that registration under the BD Labour Act has not yet been put into practice but recalls that its request relates to provisions regulating registration under the BD Act on Associations and Foundations, to the extent applicable to workers’ and employers’ organizations. Therefore, the Committee requests the Government once again to indicate whether sections 25(1) and 45(1)(a) of the BD Act on Associations and Foundations are applicable to workers’ and employers’ organizations and if so, to amend these provisions to ensure that the exercise of legitimate trade union and employer organization activities is not dependent upon registration, and failure to register is not subject to sanctions.

Delays in registration. Federation of Bosnia and Herzegovina. The Committee notes the Government’s indication that during registration or entry of changes in the register at all levels, the prescribed deadlines for registration were not followed. The Committee requests the Government to provide further details on this issue and to take the necessary measures, including provision of sufficient human and financial resources, as well as training to the relevant authorities, to avoid any undue delays in the registration process.

Right of workers and employers to establish organizations of their own choosing. Relationship with workers’ and employee councils. Brčko District. In its previous comment, the Committee requested the Government to clarify the relationship between workers’ councils and trade unions in section 134 of the BD Labour Act. Not having received any reply from the Government on this point, the Committee reiterates its request. Should trade unions be in a subsidiary position vis-à-vis workers’ councils, the Committee once again requests the Government to take the necessary measures, including amendments of the above provision, to ensure that the existence of workers’ councils does not undermine trade unions and their activities.

Article 3. Right of workers’ and employers’ organizations to elect their representatives in full freedom. Republika Srpska. In its previous comments, the Committee encouraged the Government to revise the applicable rules of the RS Rulebook on registration, 2016 so as to remove the requirement that the application for registration at the level of the enterprise must confirm that the person authorized to act on behalf of the trade union is employed by that employer. The Committee recalled that this requirement could prevent individuals such as full-time union officers or pensioners from carrying out union duties and becoming candidates for trade union office. In the absence of any further information on this point, the Committee reiterates its previous request.

Right of workers’ and employers’ organizations to organize their administration and activities. Act on Strikes. Institutions of Bosnia and Herzegovina. The Committee previously noted the adoption of the Act on Strikes in the Institutions of Bosnia and Herzegovina and requested the Government to provide information on the practical application of the law. The Committee notes the Government’s indication that so far, there have been no strikes. The Government also reiterates that, under section 15 of the Act, minimum services in case of a strike are determined by a decision of the Council of Ministers of Bosnia and Herzegovina, made on the basis of a proposal from the employer with consent of the trade union. Observing that the decision on minimum services must be made within 90 days from the entry into force of the law, the Committee requests the Government to indicate whether such a decision was adopted and, if so, to share a copy thereof. The Committee also requests the Government to clarify whether the requirement to ensure minimum services during a strike applies to all employees in the Institutions of Bosnia and Herzegovina or only to a specific category of public servants or services. Finally, recalling that any disagreement among the parties on the scope of the minimum service should be resolved by a joint or independent body, the Committee requests the Government once again to provide information in this regard.

The Committee further notes that the Labour Act in the Institutions of Bosnia and Herzegovina, 2004 (as amended up to 2022) stipulates that a strike in the Institutions of Bosnia and Herzegovina can be initiated by a representative union, defined as a trade union registered at the level of Bosnia and Herzegovina, or two or more trade unions acting jointly, whose membership consists of the majority of employees of one employer at the employer’s headquarters (sections 92 and 95). Observing that the Act on Strikes in the Institutions of Bosnia and Herzegovina does not seem to set a similar requirement, the Committee requests the Government to provide clarification on the relationship between these laws with regard to the regulation of the right to strike. The Committee also requests the Government to indicate whether trade unions which do not represent the majority of employees of an employer and are thus not representative within the definition of the law, benefit from all the rights granted by the Convention.

Right to strike in the civil service. Federation of Bosnia and Herzegovina. In its previous comments, having noted the Government’s indication that a specific law governing the issue of strikes in administration bodies and services would be adopted in the Federation of Bosnia and Herzegovina, the Committee requested the Government to provide information on any legislative provisions adopted in this respect. The Committee notes the Government’s indication that no legislation was adopted to regulate strikes, that until the final proposals on a new law are adopted, the Act on Strikes, 2000 remains in force and that there is no information on the numbers of initiated strikes and their categories. The Committee requests the Government to continue to provide information on any new legislation adopted in this respect in the Federation of Bosnia and Herzegovina.

Act on strikes. Determination of minimum services. Republika Srpska. In its previous comment, the Committee requested the Government to amend section 12 of the RS Act on Strikes so as to allow trade unions to participate in defining minimum services. The Committee notes the Government’s indication that no amendments were made to section 12 of the Act on Strikes concerning the determination of minimum services. The Committee therefore reiterates its request to amend this provision so as to allow trade unions, along with the employers and the public authorities, to participate in defining minimum services and, in case of disagreement among the parties, to provide for a joint or independent body to determine them. The Committee also requests the Government to indicate instances in which the determination of minimum services was the subject of collective bargaining.

Act on strikes. Strike vote. Republika Srpska. The Committee previously requested the Government to revise the voting requirements for taking a decision to begin a strike action or a warning strike under section 4(1) and (2) of the RS Act on Strikes, referring in particular to the requirement that a decision should be taken by an absolute majority of all workers of the employer (the provision also provides that a strike can be declared by the authorized body of a representative union). The Committee recalled that if a country deems it appropriate to require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast (in other words, workers participating in the respective meeting as opposed to all workers of the employer) and that the required quorum and majority are fixed at a reasonable level, since the requirement of an absolute majority of all workers of an employer, as stated in the law, may be excessive. In the absence of a reply on this point, the Committee reiterates its previous request.

Compulsory arbitration. Republika Srpska. The Committee previously requested the Government to provide information on activities or industrial sectors in which compulsory arbitration could be imposed under sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes. The Committee notes that the Government refers to section 11 of the RS Act on Strikes, 2008, which contains a list of activities of general interest, and activities in which the interruption of work due to the nature of the work could endanger human life and health or cause large-scale damage. The Government also mentions activities of importance for the functioning of public administration and security systems, as well as activities necessary for fulfilling obligations determined by international agreements in the cited activities. The Committee notes that while many of these activities correspond to essential services in the strict sense of the term, in which compulsory arbitration can be accepted, others do not fall within this category. Recalling that compulsory arbitration as a means to restrict the exercise of the right to strike should only be imposed in specific circumstances, such as in conflicts in essential services in the strict sense of the term, conflicts concerning public servants exercising authority in the name of the State or situations of acute national or local crisis (see the 2012 General Survey on the fundamental Conventions, paragraph 153), the Committee requests the Government to review and amend the applicable legal provisions to this effect, in consultation with the social partners. The Committee also once again requests the Government to provide clarification on the possible use of arbitration commissions under sections 34–36 of the RS Act on Strikes in case of interest disputes and whether this mechanism can lead to a binding arbitration at the request of one party.

Article 4. Act on Associations and Foundations. Suspension of activities and dissolution of trade unions. Brčko District. In its previous comment, the Committee requested clarification on whether workers’ and employers’ organizations in the Brčko District could be suspended or dissolved under section 37 of the BD Act on Associations and Foundations. While noting the Government’s indication that section 14 of the BD Labour Act prohibits temporary or permanent suspension of the activities of trade unions and employers’ associations, the Committee observes that the Government does not elaborate on the relationship between this provision and section 37 of the BD Act on Associations and Foundations, on which the Committee previously requested information. The Committee therefore once again requests the Government to clarify whether section 37 of the BD Act on Associations and Foundations is applicable to workers’ and employers’ organizations, and requests the Government to confirm that these organizations may not be suspended or dissolved through administrative measures.

Article 5. The right of workers’ and employers’ organizations to form federations and confederations. Brčko District. In its previous comments, the Committee requested the Government to indicate whether, even in the absence of specific legislative provisions to this effect, workers’ and employers’ organizations could, in practice, create and join higher-level organizations and affiliate to international organizations. The Committee notes the Government’s indication that there is no legal provision regulating this matter since Brčko District is a separate administrative unit within Bosnia and Herzegovina. While taking due note of the Government’s indication, the Committee recalls that it is the responsibility of the Government to ensure the application of the Convention which it freely ratified and which must be respected on its territory irrespective of the administrative divisions of the country. Accordingly, the Committee requests the Government to take the necessary measures to recognize the right of workers’ and employers’ organizations to form and join federations and confederations and affiliate to international organizations both in law and in practice.

Finally, the Committee observes that despite submitting regular reports, the Government failed to provide updated information on a number of the Committee’s recommendations, leading the Committee to repeat its previous requests. The Committee therefore considers that the Government may wish to benefit from the technical assistance of the Office in this regard.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Article 2 of the Convention. Scope of application. In its previous comment, the Committee noted that both in the Federation of Bosnia and Herzegovina (FBiH) and in the Republika Srpska (RS), there were two main laws regulating the right to associate: on the one hand, the FBiH Labour Act and the RS Labour Act and, on the other hand, the FBiH Act on Associations and Foundations and the RS Act on Associations and Foundations. As the scope of these laws differs, the Committee noted that specific categories of workers were not covered by all the guarantees of the Convention. It therefore requested the Government to revise the relevant legislation to ensure that all workers, including workers without an employment contract, domestic workers, agricultural workers, workers in the information economy and self-employed workers enjoy, in law and in practice, all the rights guaranteed by the Convention. In the absence of any further information on this matter provided by the Government, the Committee reiterates its previous request in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2020, published 109th ILC session (2021)

Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). In its previous comment, the Committee requested the Government to provide information on the outcome of the proceedings relating to a request for judicial review against the decision of the Court of Bosnia and Herzegovina for violation of the Act on Associations and Foundations of Bosnia and Herzegovina, 2001 linked to the previously examined issue of registration of the SSSBiH. The Committee notes that while the Government reiterates information provided previously on the successful registration of the SSSBiH in 2012, indicating that the Ministry of Justice had fully executed the judgement of the Court of Bosnia and Herzegovina, it does not elaborate on the outcome of the previously mentioned proceedings relating to a request for judicial review against the decision of the Court of Bosnia and Herzegovina for violation of the Act on Associations and Foundations. The Committee therefore requests the Government once again to indicate whether any judicial proceedings are pending in relation to the registration of the SSSBiH and the decision of the Court of Bosnia and Herzegovina and if so, to provide information on the outcome thereof.

Legislative reform. The Committee notes the 2018 amendments of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and of the Labour Act of the Republika Srpska, 2016 (RS Labour Act), and observes the Government’s indication that the changes do not affect sections relevant to the application of the Convention. The Committee also notes the 2020 amendments to the Act on Strikes in the Republika Srpska (RS Act on Strikes) and the adoption of the Labour Act of the Brčko District, 2019 (BD Labour Act).

Relationship with workers’ and employee councils. Federation of Bosnia and Herzegovina. In its previous comments, having noted that section 119 of the FBiH Labour Act seemed to place trade unions in a subsidiary position vis-à-vis work councils, the Committee requested the Government to take the necessary measures, including any legislative amendments, to prevent any risk of weakening the institutional position of trade unions. The Committee welcomes the Government’s clarification that section 119 should not be interpreted in a manner that would make trade unions dependent on work councils since this was not the objective of the provision. In comparison to work councils, trade unions have broader authority and the provision aims to assure that, apart from its existing obligations and competencies, the union would also assume additional competencies of work councils, should these not be formed in an establishment. The Committee takes due note of this information.

Relationship with workers’ and employee councils. Republika Srpska and the Brčko District. In its previous comment, the Committee requested the Government to clarify the relationship between a trade union and a workers’ council under the RS Labour Act and to take the necessary measures, including amendments of sections 83 and 93 of the BD Labour Act, to ensure that the existence of workers’ councils does not undermine trade unions and their activities. The Committee welcomes the Government’s clarification that the legislation in Republika Srpska clearly and unambiguously distinguishes between trade unions and workers’ councils in that workers’ councils are subordinate to trade unions – only a trade union is allowed to enter into collective agreements and if there is an obligation prescribed to consult workers, workers’ councils will only be consulted if no trade union has been organized at the employer (section 16(8) of the RS Labour Act). With regard to the Brčko District, the Committee notes the Government’s indication that section 134 of the new BD Labour Act regulates the right of employees of a company with at least 15 employees to form workers’ councils that will represent them before the employer with regard to protection of their rights and interests. It observes, however, that no additional information was provided to clarify the relationship between trade unions and workers’ councils. The Committee therefore requests the Government once again to clarify the relationship between workers’ councils and trade unions as a matter of law and practice, in section 134 of the BD Labour Act and should trade unions be in a subsidiary position vis-à-vis workers’ councils, to take the necessary measures, including amendments of the above provision, to ensure that the existence of workers’ councils does not undermine trade unions and their activities.

Act on Associations and Foundations. Failure to register. Brčko District. In its previous comment, the Committee requested the Government to indicate whether sections 25(1) (voluntary registration) and 45(1)(a) (penalization of the failure to register) of the Act on Associations and Foundations in Brčko District (the BD Act on Associations and Foundations) were applicable to workers’ and employers’ organizations and if so, to amend these provisions to ensure that the exercise of legitimate trade union and employer organization activities is not dependent upon registration. In its supplementary report, the Government indicates in general terms that the BD Act on Associations and Foundations regulates material requirements which associations and trade unions have to meet in order to be registered and obtain legal personality. The Committee understands from the above that sections 25(1) and 45(1)(a) of the BD Act on Associations and Foundations would be applicable to workers’ and employers’ organizations and therefore requests the Government to amend these provisions to ensure that the exercise of legitimate trade union and employer organization activities is not dependent upon registration, and failure to register is not subject to sanctions.

Act on Associations and Foundations. Suspension of activities and dissolution of trade unions. In its previous comment, the Committee requested the Government to indicate whether sections 43 and 44 of the Act on Associations and Foundations in the Federation of Bosnia and Herzegovina (the FBiH Act on Associations and Foundations), sections 40 and 41 of the Act on Associations and Foundations in the Republika Srpska (the RS Act on Associations and Foundations) and sections 26 and 37 of the BD Act on Associations and Foundations were applicable to workers’ and employers’ organizations, and if so, to take the necessary measures to amend these provisions to ensure that trade unions and employers’ organizations can be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure.

The Committee welcomes the Government’s indication with regard to Republika Srpska, that the RS Labour Act, which prohibits the temporary or permanent suspension of lawful activities of trade unions and employers’ organizations (section 212(1)), is lex specialis in relation to provisions of the RS Act on Associations and Foundations, the provisions of which would thus not apply to trade unions.

Concerning the Federation of Bosnia and Herzegovina, the Committee welcomes the Government’s supplementary indication that section 17 of the FBiH Labour Act, which prohibits the temporary or permanent suspension of lawful trade union activities, may be interpreted as lex specialis with regard to the FBiH Act on Associations and Foundations, as it regulates exclusively the activities of trade unions and employers’ associations.

In relation to the Brčko District, the Committee observes, on the one hand, the Government’s general indication that the BD Act on Associations and Foundations regulates material requirements which associations and trade unions have to meet in order to be registered. The Committee recalls in this regard that section 37, read in conjunction with section 45, provides for the possibility of suspension of trade union activity for reasons that do not appear to justify the severity of such sanctions, including for repeated failure to: use the registered name of the association in legal transactions, use profits in a way prescribed by the laws and the statute and notify the relevant authority about a change of data to be entered into the registry. On the other hand, the Committee notes the Government’s statement that by virtue of section 14 of the BD Labour Act, legal activities of trade unions and employers’ associations may not be permanently or temporary prohibited. In light of the foregoing, the Committee requests the Government: (i) to clarify whether workers’ and employers’ organizations in the Brčko District can be suspended or dissolved under section 37 of the BD Act on Associations and Foundations, or whether provisions of the Labour Act effectively preclude such suspension or dissolution, and (ii) if necessary, to take the pertinent measures to amend the relevant provisions, in consultation with the social partners, in order to ensure that trade unions and employers’ organizations can be suspended or dissolved only in cases of serious breaches of the Act and following a normal judicial procedure.

Article 3. Right of employers’ and workers’ organizations to elect their representatives in full freedom and to organize their administration and activities. Act on Strikes. Institutions of Bosnia and Herzegovina. In its previous comment, having noted the adoption of the Act on Strikes in the Institutions of Bosnia and Herzegovina, the Committee requested the Government to provide information on the exact scope of its application and the nature of the public servants concerned. The Committee notes the Government’s indication that: (i) section 45 of the Act on Civil Service in the Institutions of Bosnia and Herzegovina stipulates that the Labour Act in the Institutions of Bosnia and Herzegovina and other laws regulating employee rights and obligations are applicable to civil servants unless otherwise provided; (ii) pursuant to section 2 of the Act on Strikes, employees are private persons employed in the institutions of Bosnia and Herzegovina; and (iii) the provisions of the Act on Strikes therefore apply to all employees in the institutions of Bosnia and Herzegovina, including civil servants. Taking due note of the above, the Committee requests the Government to provide information on the application in practice of the Act on Strikes in the Institutions of Bosnia and Herzegovina, in particular on the number of strikes undertaken and the categories of public servants concerned.

Determination of minimum services. Institutions of Bosnia and Herzegovina. In its previous comment, the Committee also requested the Government to provide information on the application of sections 15 and 26 of the Act on Strikes in the Institutions of Bosnia and Herzegovina in practice, in particular, on the manner in which trade unions can participate in the determination of the minimum services and on the manner of resolution of any disputes. The Committee notes the Government’s indication that section 15 prescribes that the Council of Ministers of Bosnia and Herzegovina issues a decision concerning the minimum service on the basis of a proposal submitted by the employer to which the trade union gave its consent. Therefore, according to the Government, trade unions participate in defining the minimum service with the employer and the decision on establishing the minimum work process is then published and made available to everyone. While taking due note of the above information, the Committee observes that the Government did not indicate what are the applicable mechanisms for the resolution of disputes arising among the parties during the determination of minimum services under the Act on Strikes in the Institutions of Bosnia and Herzegovina. Recalling that any disagreement among the parties on the scope of the minimum service should be resolved by a joint or independent body, the Committee requests the Government once again to provide information in this respect.

Trade union representatives. Republika Srpska. The Committee had previously noted that as a result of the 2012 amendment of the Regulations on registration, the word “permanent” had been deleted from its section 4(3) but observed that the text of the provision had not been otherwise altered – the application for registration must include a certificate indicating that the person authorized to act on behalf of the trade union is employed by that employer. The Committee noted the adoption of the 2016 RS Labour Act and the Rulebook on registration and requested the Government to clarify whether the 2012 Regulations on registration continued to be in force. The Committee notes the Government’s indication that section 6 of the Rulebook on registration provides that the application for registration must be accompanied by a certificate issued by the employer confirming that the person authorized to represent the union is employed with the employer, or, if the employer refuses to provide such a certificate, the person can provide the employment contract or a statement to prove that he or she is employed with the employer. The Government clarifies that: (i) this requirement is only applicable at the lowest level of organization, that is, at the level of the employer and not at the level of branches, industry or Republika Srpska, in which cases, the unions are generally managed by professionals; (ii) allowing a third party to represent the union at the level of the enterprise may be counterproductive since it requires daily contact with the employer; (iii) trade unions can hire lawyers or other professionals to represent the union before all competent bodies and courts; and (iv) section 215(7) of the RS Labour Act allows external trade union representatives to have access to trade unions with prior announcement to the employer. The Committee observes from this information that the requirements under section 6 of the 2016 Rulebook on registration are essentially the same as those previously examined by the Committee in section 4(3) of the 2012 Regulations on registration, in that the application for registration at the level of the enterprise must, in the form of a certificate, employment contract or personal statement, confirm that the person authorized to act on behalf of the trade union is employed by that employer. While noting the Government’s detailed explanation on the rationale behind this rule and on the participation of workers’ representatives in its elaboration, the Committee recalls that such a requirement could prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office. The Committee therefore encourages the Government to revise the applicable rules so as to remove this requirement and allow trade unions to freely determine the eligibility of trade union representatives.

Right to strike in the civil service. Federation of Bosnia and Herzegovina. In its previous comments, the Committee noted the adoption of the Act on Civil Service in the Federation of Bosnia and Herzegovina, 2003 which allows civil servants to go on strike in accordance with law, but does not govern issues of organizing and leading strikes, and observed the Government’s indication that separate laws governing the issue of strikes in administration bodies and services would be adopted. The Committee has therefore been requesting the Government to provide information on the regulation of the right to strike (in collective agreement or legislation) in the civil service in the Federation of Bosnia and Herzegovina. The Government indicates that a special law regulating the issue of strikes in the civil service has not yet been adopted but that the matter of strike and the conditions of work in trade unions of officers in the administrative and judicial authorities are regulated by the 2020 collective agreement in force. Taking due note of this information, the Committee requests the Government to continue to provide information on any legislative provisions adopted in this respect.

Act on Strikes. Republika Srpska. Determination of minimum services. In its previous comment, having noted that under the RS Act on Strikes the determination of minimum services continued to be a prerogative of the employer, the Committee requested the Government once again to take the necessary measures to amend section 12, so as to allow trade unions along with the employers and the public authorities, to participate in defining the minimum services and, in case of disagreement among the parties, to provide for a joint or independent body to define the minimum services. The Committee requested the Government to provide information on the instances in which the determination of the minimum services was the subject of collective bargaining. The Committee welcomed the Government’s indication that the draft Act on Amendments to the RS Act on Strikes was being developed, in consultation with the social partners, that the Committee’s proposals would be reviewed and that the Government would define the optimum legal solution in cooperation with the social partners. The Committee notes, however, from the supplementary information provided by the Government, that the July 2020 Act on Amendments to the RS Act on Strikes did not amend section 12 and understands that the determination of minimum services thus continues to be a prerogative of the employer. The Committee therefore requests the Government once again to take the necessary measures to amend section 12 of the RS Act on Strikes, so as to allow trade unions, along with the employers and the public authorities, to participate in defining minimum services and, in case of disagreement among the parties, to provide for a joint or independent body to determine them. The Committee requests the Government to provide information on any progress made in this regard, as well as on the instances in which the determination of the minimum services was the subject of collective bargaining.

Strike vote. The Committee further requested the Government to provide information on the application in practice of section 4(1) and (2) of the RS Act on Strikes, which sets the requirements for taking a decision to begin a strike action or a warning strike (the decision must be taken by the authorized body of the relevant majority representative trade union or by more than 50 per cent of the workers of that employer or by another trade union which has the support of more than 50 per cent of the workers of the employer). The Government indicated that the term “majority” refers to 50 per cent plus 1 employee, whereby workers freely decide on whether they participate or not in a strike irrespective of their vote. In its supplementary report, the Government further informs that during the July 2020 amendments to the RS Act on Strikes, technical changes were introduced to section 4(1) to harmonize it with the terminology used in the Labour Act, which does not use the term “majority representative”, so that the decision to go on company-level strike or warning strike is issued either by the competent authority of a representative trade union, or by more than half of the employees at the company. While taking note of this terminological amendment, the Committee recalls that if a country deems it appropriate to require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast (in other words, workers participating in the respective meeting as opposed to all workers of the employer) and that the required quorum and majority are fixed at a reasonable level. While observing that a strike can also be declared by the authorized body of a representative union, the Committee considers that for a strike to be declared by workers, the requirement of an absolute majority of all workers of the employer, as currently stated in the law, may be excessive (see the 2012 General Survey on the fundamental Conventions, paragraph 147). Therefore, the Committee requests the Government to provide information on the application in practice of this provision and requests it to take the necessary measures to revise the voting requirements in line with the above, for example by setting a reasonable quorum, so as not to unduly hinder the workers’ exercise of the right to strike.

Compulsory arbitration. The Committee also requested the Government to clarify whether arbitration under the RS Act on Peaceful Settlement of Labour Disputes, 2016 was voluntary, based on the agreement of both parties, or whether it could be imposed by the authorities or at the request of one of the parties. The Committee notes the Government’s clarification that, in line with sections 27-31, the procedure for peaceful resolution of interest disputes is voluntary. The Government explains that when a dispute is submitted to the Agency for Amicable Settlement of Labour Disputes by one party, the Agency delivers the proposal and documents to the other party to the dispute. If the other party does not reply within the anticipated deadline or if the proposal is not accepted, the procedure is stopped. If the other party accepts the proposal for peaceful resolution of a labour dispute, a peace council is appointed, where either an agreement is reached and becomes binding or the parties do not reach an agreement and the procedure is closed. The Government further states that exceptions are possible only in cases of collective disputes arising in activities of general interest regulated by the law or activities where suspension of work could endanger life and health of people or cause major damage, where the parties are obliged to submit a proposal for peaceful resolution of the dispute to the Agency (sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes). If parties to the dispute do not submit the proposal, the director of the Agency will initiate the procedure of dispute resolution ex officio and pursuant to the law. Taking due note of the above, the Committee requests the Government to provide further information on activities or industrial sectors that fall within sections 32 and 33 of the RS Act on Peaceful Settlement of Labour Disputes. It also requests the Government to provide more details on the possibility to establish an arbitration commission referred to in sections 34-36 of the Act, in particular whether this mechanism can be used in case of interest disputes and can lead to a binding arbitration at the request of one party.

Right to assembly in the context of a strike. Republika Srpska and the Brčko District. In its previous comment, the Committee requested the Government to take the necessary measures to amend section 5(2) of the RS Act on Strikes and section 4(1)(d) of the Act on Strikes in the Brčko District (the BD Act on Strikes), which did not seem to allow the gathering of workers in case of a strike outside the company in which the strike takes place, so as not to restrict freedom of assembly or impede the lawful exercise thereof. The Committee notes the Government’s indication, with regard to Republika Srpska, that any assembly of workers outside of the workplace is considered as a public gathering, assembly or protest, regulated by the Act on Public Assembly. In accordance with this law, there is no limitation for the organizer of a strike to organize a public gathering outside the work area of the employer. In its supplementary report, the Government adds that section 5(2) of the RS Act on Strikes prescribes that if a strike is manifested by the gathering of employees, the place of gathering may not be outside of the “work environment” of the employer. It clarifies, however, that under section 8 of the RS Labour Act “work environment” is defined as a space where work is performed including workplaces, working conditions, operational procedures and relations in the work process and that “workplace” is defined as a place intended for doing jobs at company level where an employee carries out work tasks or to which they have access while performing work and which is under direct or indirect management of the employer. The Committee observes that, according to the Government, the definitions of “work environment” and “workplace” in the RS Labour Act suggest that employees may gather freely in front of the employer’s workplace in order to strike, as this would be within the definition of “work environment”. The Government also states in general terms that the BD Labour Act provides that any lawful trade union activity may not be prohibited and assures that section 4(1)(d) of the BD Act on Strikes will be amended in line with the Committee’s comments to allow the full exercise of the right to strike (information contained in the Government’s 2019 report on the Collective Bargaining Convention, 1981 (No. 154)). The Committee therefore trusts that, as indicated by the Government, workers during a strike in the Republika Srpska may gather outside the company where the strike takes place and that section 4(1)(d) of the BD Act on Strikes will be amended so as not to restrict freedom of assembly as part of the lawful exercise of the right to strike.

Article 5. The right of workers’ and employers’ organizations to form federations and confederations. Brčko District. In its previous comment, having noted that the BD Labour Act does not contain any provisions on the possibility for workers’ organizations to form federations and confederations, the Committee requested the Government to clarify whether workers’ and employers’ organizations can, in law and practice, form federations and confederations of workers and to indicate the relevant legal provisions. Noting the Government’s indication that the BD Labour Act does not regulate the right of organizations of workers and employers to establish and join federations and confederations or to affiliate with international organizations, the Committee requests the Government to provide information on whether, even in the absence of legislation in this respect, workers’ and employers’ organizations can, in practice create and join higher-level organizations and affiliate to international organizations, and requests the Government to endeavour to take the necessary measures to recognize these rights in the legislation.

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee takes note of the supplementary information provided by the Government in light of the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded with the examination of the application of the Convention on the basis of the supplementary information received from the Government this year, as well as on the basis of the information at its disposal in 2019.

The Committee takes note of the Government’s reply to the 2016 observations from the International Trade Union Confederation (ITUC).

Article 2 of the Convention. Scope of application. In its previous comment, on the basis of section 6 of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (the FBiH Labour Act), section 5 of the Labour Act of the Republika Srpska, 2016 (the RS Labour Act) and section 2(5) of the Labour Act of the Brčko District of Bosnia and Herzegovina, 2006 (the BD Labour Act), the Committee requested the Government to indicate whether specific categories of workers – workers without an employment contract, domestic workers, workers in the informal economy and self-employed workers – enjoy, in law and practice, the rights guaranteed by the Convention, and if not, to take the necessary measures to amend the relevant labour legislation in this regard. The Committee notes the Government’s indication that: (i) in the Federation of Bosnia and Herzegovina, the right to associate is primarily enjoyed through the Act on Associations and Foundations in the Federation of Bosnia and Herzegovina (the FBiH Act on Associations and Foundations) which gives all persons without discrimination the right to form associations in order to proclaim or protect their rights and interests, irrespective of whether they are employees or not; (ii) while the specific protection of employees to organize in trade unions is separately provided by the provisions of the FBiH Labour Act, this does not prevent persons who are not employees to associate and protect their interests in accordance with the FBiH Act on Associations and Foundations; (iii) it is not necessary to review the existing labour legislation and no measures have been taken in order to expand the right to organize to persons outside the definition of worker (natural person employed on the basis of an employment contract – section 6 of the FBiH Labour Act); and (iv) in Republika Srpska, the legislation makes a distinction between trade unions and all other types of formal or informal associations of workers or citizens: all persons having the status of workers under section 5 of the RS Labour Act can form trade unions, whereas the persons who do not have the status of a worker formally or legally can establish organizations, by virtue of the Act on Associations and Foundations of the Republika Srpska, 2001 (the RS Act on Associations and Foundations) with a view to improving their position and protecting their interests, thus exercising the rights guaranteed by the Convention. The Committee observes, however, that the FBiH Act on Associations and Foundations and RS Act on Associations and Foundations do not provide the same guarantees to workers in terms of the right to organize and associated rights, and that both in the Federation of Bosnia and Herzegovina and in the Republika Srpska, specific categories of workers are thus not covered by all the guarantees of the Convention. The Committee notes that no information has been provided in respect of this issue in the Brčko District. The Committee further understands from the information provided by the Government under this Convention and the Right of Association (Agriculture) Convention, 1921 (No. 11), that the distinction between employees, who benefit from the rights granted by the Convention, and other workers is also applicable to the agricultural sector. Recalling that the right to organize should be guaranteed to all workers without distinction or discrimination of any kind, including to workers without an employment contract, domestic workers, agricultural workers, workers in the informal economy and self-employed workers, the Committee once again encourages the Government to revise the relevant legislation in the three entities to ensure that the above categories of workers enjoy, in law and in practice, all the rights guaranteed by the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2019, published 109th ILC session (2021)

Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). In its previous comment, the Committee requested the Government to provide information on the outcome of the proceedings relating to a request for judicial review against the decision of the Court of Bosnia and Herzegovina for violation of the Act on Associations and Foundations of the Federation of Bosnia and Herzegovina, 2001 linked to the previously examined issue of registration of the SSSBiH. Observing that no information has been provided in this regard, the Committee requests the Government once again to provide information on the outcome of the judicial proceedings.

Legislative reform. The Committee notes the 2018 amendments of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act) and of the Labour Act of the Republika Srpska, 2016 (RS Labour Act), and observes the Government’s indication that the changes do not affect sections relevant to the application of the Convention. Noting that a new labour law is in the process of being adopted in the Brčko District, the Committee requests the Government to provide a copy of this legislation once adopted.

Relationship with workers’ and employee councils. Federation of Bosnia and Herzegovina. In its previous comments, having noted that section 119 of the FBiH Labour Act seemed to place trade unions in a subsidiary position vis-à-vis work councils, the Committee requested the Government to take the necessary measures, including any legislative amendments, to prevent any risk of weakening the institutional position of trade unions. The Committee welcomes the Government’s clarification that section 119 should not be interpreted in a manner that would make trade unions dependent on work councils since this was not the objective of the provision. In comparison to work councils, trade unions have broader authority and the provision aims to assure that, apart from its existing obligations and competencies, the union would also assume additional competencies of work councils, should these not be formed in an establishment. The Committee takes due note of this information.

Republika Srpska and the Brčko District. In its previous comment, the Committee requested the Government to clarify the relationship between a trade union and a workers’ council under the RS Labour Act and to take the necessary measures, including amendments of sections 83 and 93 of the BD Labour Act, to ensure that the existence of workers’ councils does not undermine trade unions and their activities. The Committee welcomes the Government’s clarification that the legislation in Republika Srpska clearly and unambiguously distinguishes between trade unions and workers’ councils in that workers’ councils are subordinate to trade unions – only a trade union is allowed to enter into collective agreements and if there is an obligation prescribed to consult workers, workers’ councils will only be consulted if no trade union has been organized at the employer (section 16(8) of the RS Labour Act). The Committee notes that no additional information was provided on this issue with regard to the Brčko District. The Committee therefore requests the Government to clarify the relationship between workers’ councils and trade unions in sections 83 and 93 of the BD Labour Act and, should trade unions be in a subsidiary position vis-à-vis workers’ councils, to take the necessary measures, including amendments of the above provisions, to ensure that the existence of workers’ councils does not undermine trade unions and their activities.

Act on Associations and Foundations. Failure to register. Brčko District. In its previous comment, the Committee requested the Government to indicate whether sections 25(1) (voluntary registration) and 45(1)(a) (penalization of the failure to register) of the Act on Associations and Foundations in Brčko District (the BD Act on Associations and Foundations) are applicable to workers’ and employers’ organizations and if so, to amend these provisions to ensure that the exercise of legitimate trade union and employer organization activities is not dependent upon registration. In the absence of any reply from the Government on this point, the Committee requests the Government once again to clarify whether the above provisions of the BD Act on Associations and Foundations are applicable to workers’ and employers’ organizations and if so, to amend these provisions to ensure that the exercise of legitimate trade union and employer organization activities is not dependent upon registration, and failure to register is not subject to sanctions.

Act on Associations and Foundations. Suspension of activities and dissolution of trade unions. In its previous comment, the Committee requested the Government to indicate whether sections 43 and 44 of the Act on Associations and Foundations in the Federation of Bosnia and Herzegovina (the FBiH Act on Associations and Foundations), sections 40 and 41 of the Act on Associations and Foundations in the Republika Srpska (the RS Act on Associations and Foundations) and sections 26 and 37 of the BD Act on Associations and Foundations are applicable to workers’ and employers’ organizations, and if so, to take the necessary measures to amend these provisions to ensure that trade unions and employers’ organizations can be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure. The Committee welcomes the Government’s indication with regard to Republika Srpska, that the RS Labour Act, which prohibits the temporary or permanent suspension of lawful activities of trade unions and employers’ organizations (section 212(1)), is lex specialis in relation to provisions of the RS Act on Associations and Foundations, the provisions of which would thus not apply to trade unions. Concerning the Federation of Bosnia and Herzegovina, the Government indicates in general terms that associations of workers and employers are also subject to the FBiH Act on Associations and Foundations and that the process of registration of trade unions does not involve any interference by public authorities that could impede the independence of such organizations. Observing that the Government’s reply with regard to the Federation of Bosnia and Herzegovina does not address the Committee’s previous concerns, it requests the Government to clarify which provisions have primacy in relation to dissolution of trade unions and employers’ organizations – section 17 of the FBiH Labour Act, which prohibits the temporary or permanent suspension of lawful activities, or section 43 of the FBiH Act on Associations and Foundations, which allows an association to be dissolved or its operation suspended for a number of reasons which do not appear to justify the severity of such sanctions, and which do not follow a normal judicial procedure. In the absence of any information on this issue in relation to the Brčko District, the Committee requests the Government to clarify whether sections 26 and 37 of the BD Act on Associations and Foundations are applicable to workers’ and employers’ organizations, and if so, to take the necessary measures to amend these provisions, in consultation with the social partners, in order to ensure that trade unions and employers’ organizations can be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure.

Article 3. Right of employers’ and workers’ organizations to elect their representatives in full freedom and to organize their administration and activities. Act on Strikes. Institutions of Bosnia and Herzegovina. In its previous comment, having noted the adoption of the Act on Strikes in the Institutions of Bosnia and Herzegovina, the Committee requested the Government to provide information on the exact scope of its application and the nature of the public servants concerned. Observing that the Government does not provide any information in this regard and that it remains unclear as to which categories of workers the Act on Strikes applies, the Committee requests the Government once again to provide information on the exact scope of application of the Act on Strikes in the Institutions of Bosnia and Herzegovina and the categories of public servants concerned.

Determination of minimum services. Institutions of Bosnia and Herzegovina. In its previous comment, the Committee also requested the Government to provide information on the application of sections 15 and 26 of the Act on Strikes in the Institutions of Bosnia and Herzegovina in practice, in particular, on the manner in which trade unions can participate in the determination of the minimum services and on the manner of resolution of any disputes. In the absence of any new information in this regard and recalling that trade unions should be able to participate in defining the minimum services along with the employers and the public authorities and that any disagreement among the parties should be resolved by a joint or independent body, the Committee requests the Government once again to provide clarification in this respect.

Trade union representatives. Republika Srpska. The Committee had previously noted that as a result of the 2012 amendment of the Regulations on registration, the word “permanent” had been deleted from its section 4(3) but observed that the text of the provision had not been otherwise altered – the application for registration must include a certificate indicating that the person authorized to act on behalf of the trade union is employed by that employer. The Committee noted the adoption of the 2016 RS Labour Act and the Rulebook on registration and requested the Government to clarify whether the 2012 Regulations on registration continue to be in force. The Committee notes the Government’s indication that section 6 of the Rulebook on registration provides that the application for registration must be accompanied by a certificate issued by the employer confirming that the person authorized to represent the union is employed with the employer, or, if the employer refuses to provide such a certificate, the person can provide the employment contract or a statement to prove that he or she is employed with the employer. The Government clarifies that: (i) this requirement is only applicable at the lowest level of organization, that is, at the level of the employer and not at the level of branches, industry or Republika Srpska, in which cases, the unions are generally managed by professionals; (ii) allowing a third party to represent the union at the level of the enterprise may be counterproductive since it requires daily contact with the employer; (iii) trade unions can hire lawyers or other professionals to represent the union before all competent bodies and courts; and (iv) section 215(7) of the RS Labour Act allows external trade union representatives to have access to trade unions with prior announcement to the employer. The Committee observes from this information that the requirements under section 6 of the 2016 Rulebook on registration are essentially the same as those previously examined by the Committee in section 4(3) of the 2012 Regulations on registration, in that the application for registration at the level of the enterprise must, in the form of a certificate, employment contract or personal statement, confirm that the person authorized to act on behalf of the trade union is employed by that employer. While noting the Government’s detailed explanation on the rationale behind this rule and on the participation of workers’ representatives in its elaboration, the Committee recalls that such a requirement could prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office. The Committee therefore encourages the Government to revise the applicable rules so as to remove this requirement and allow trade unions to freely determine the eligibility of trade union representatives.

Right to strike in the civil service. Federation of Bosnia and Herzegovina. In its previous comments, the Committee noted the adoption of the Act on Civil Service in the Federation of Bosnia and Herzegovina, 2003 which allows civil servants to go on strike in accordance with law, but does not govern issues of organizing and leading strikes, and observed the Government’s indication that separate laws governing the issue of strikes in administration bodies and services would be adopted. The Committee has therefore been requesting the Government to provide information on the regulation of the right to strike (in collective agreement or legislation) in the civil service in the Federation of Bosnia and Herzegovina. The Government indicates that a special law regulating the issue of strikes in the civil service has not yet been adopted but that the matter of strike and the conditions of work in trade unions of officers in the administrative and judicial authorities are regulated by the 2018 collective agreement in force. Taking due note of this information, the Committee requests the Government to continue to provide information on any legislative provisions adopted in this respect and to transmit a copy of the 2018 collective agreement.

Act on Strikes. Republika Srpska. Determination of minimum services. In its previous comment, having noted that under the Act on Strikes in the Republika Srpska (the RS Act on Strikes) the determination of minimum services continued to be a prerogative of the employer, the Committee requested the Government once again to take the necessary measures to amend section 12, so as to allow trade unions along with the employers and the public authorities, to participate in defining the minimum services and, in case of disagreement among the parties, to provide for a joint or independent body to define the minimum services. The Committee requested the Government to provide information on the instances in which the determination of the minimum services was the subject of collective bargaining. The Committee welcomes the Government’s indication that the draft Act on Amendments to the RS Act on Strikes is currently being developed, in consultation with the social partners, that the Committee’s proposals will be reviewed and that the Government will define the optimum legal solution in cooperation with the social partners. The Committee trusts that its previous comments in this regard will be taken into account in the development of the Act amending the RS Act on Strikes and requests the Government to provide information on any progress made in this regard and a copy of the Act, once amended.

Strike vote. The Committee further requested the Government to provide information on the application in practice of section 4(1) and (2) of the RS Act on Strikes, which sets the requirements for taking a decision to begin a strike action or a warning strike (the decision must be taken by the authorized body of the relevant majority trade union or by more than 50 per cent of the workers of that employer or by another trade union which has the support of more than 50 per cent of the workers of the employer). The Government indicates that the term “majority” refers to 50 per cent plus 1 employee, whereby workers freely decide on whether they participate or not in a strike irrespective of their vote. While taking due note of this indication, the Committee recalls that if a country deems it appropriate to require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast (in other words, workers participating in the respective meeting as opposed to all workers of the employer) and that the required quorum and majority are fixed at a reasonable level. While observing that a strike can also be declared by the authorized body of the majority union, the Committee considers that for a strike to be declared by workers, the requirement of an absolute majority of all workers of the employer, as currently stated in the law, may be excessive (see 2012 General Survey on the fundamental Conventions, paragraph 147). Therefore, the Committee requests the Government to provide information on the application in practice of this provision and requests it to take the necessary measures, in the context of the current revision of the RS Act on Strikes, to revise the voting requirements in line with the above, for example by setting a reasonable quorum, so as not to unduly hinder the workers’ exercise of the right to strike.

Compulsory arbitration. The Committee also requested the Government to clarify whether arbitration under the RS Act on Peaceful Settlement of Labour Disputes, 2016 is voluntary, based on the agreement of both parties, or whether it can be imposed by the authorities or at the request of one of the parties. The Committee notes the Government’s clarification that arbitration is voluntary but observes that it appears from sections 10(2) and 27–31 that disputes may be referred to the Agency for Amicable Settlement of Labour Disputes established under the Act by either of the parties and can in some instances lead to compulsory decisions. The Committee requests the Government to clarify once again whether the RS Act on Peaceful Settlement of Labour Disputes allows for binding arbitration at the request of one party.

Right to assembly in the context of a strike. Republika Srpska and the Brčko District. In its previous comment, the Committee requested the Government to take the necessary measures to amend section 5(2) of the RS Act on Strikes and section 4(1)(d) of the Act on Strikes in the Brčko District (the BD Act on Strikes), which do not allow the gathering of workers in case of a strike outside the company in which the strike takes place, so as not to restrict freedom of assembly or impede the lawful exercise thereof. The Committee notes the Government’s indication, with regard to Republika Srpska, that any assembly of workers outside of the workplace is considered as a public gathering, assembly or protest, regulated by the Act on Public Assembly. In accordance with this law, there is no limitation for the organizer of a strike to organize a public gathering outside the work area of the employer. The Government also states in general terms that the BD Labour Act provides that any lawful trade union activity may not be prohibited and assures that in the revision of the BD Labour Act section 4(1)(d) will be amended in line with the Committee’s comments to allow the full exercise of the right to strike (information contained in the Government’s report on the Collective Bargaining Convention, 1981 (No. 154)). The Committee therefore requests the Government to clarify the rationale behind section 5(2) of the RS Act on Strikes and to provide information on its application in practice, in particular to whether workers can freely gather outside the workplace of the employer in the context of a strike. The Committee trusts that, as indicated by the Government, section 4(1)(d) of the BD Act on Strikes will be amended not to unduly hinder the exercise of the right to strike.

Article 5. The right of workers’ and employers’ organizations to form federations and confederations. Brčko District. In its previous comment, having noted that the BD Labour Act does not contain any provisions on the possibility for workers’ organizations to form federations and confederations, the Committee requested the Government to clarify whether workers’ and employers’ organizations can, in law and practice, form federations and confederations of workers and to indicate the relevant legal provisions. Noting the Government’s indication that the BD Labour Act does not regulate the right of organizations of workers and employers to establish and join federations and confederations or to affiliate with international organizations, the Committee requests the Government to provide information on whether, even in the absence of legislation in this respect, workers’ and employers’ organizations can, in practice create and join higher-level organizations and affiliate to international organizations, and requests the Government to endeavour to take the necessary measures to recognize these rights in the legislation.

Observation (CEACR) - adopted 2019, published 109th ILC session (2021)

The Committee takes note of the Government’s reply to the 2016 ITUC observations.

Article 2 of the Convention. Scope of the Convention. In its previous comment, on the basis of section 6 of the Labour Act of the Federation of Bosnia and Herzegovina, 2016 (the FBiH Labour Act), section 5 of the Labour Act of the Republika Srpska, 2016 (the RS Labour Act) and section 2(5) of the Labour Act of the Brčko District of Bosnia and Herzegovina, 2006 (the BD Labour Act), the Committee requested the Government to indicate whether specific categories of workers – workers without an employment contract, domestic workers, workers in the informal economy and self-employed workers – enjoy, in law and practice, the rights guaranteed by the Convention, and if not, to take the necessary measures to amend the relevant labour legislation in this regard. The Committee notes the Government’s indication that: (i) in the Federation of Bosnia and Herzegovina, no measures have been taken in order to expand the right to organize to persons outside the definition of worker (natural person employed on the basis of an employment contract – section 6 of the FBiH Labour Act); and (ii) in Republika Srpska, the legislation makes a distinction between trade unions and all other types of formal or informal associations of workers or citizens: all persons having the status of workers under section 5 of the RS Labour Act can form trade unions, whereas the persons who do not have the status of a worker formally or legally can establish organizations, by virtue of the Act on Associations and Foundations of the Republika Srpska, 2001 (the RS Act on Associations and Foundations) with a view to improving their position and protecting their interests, thus exercising the rights guaranteed by the Convention. The Committee observes, however, that the RS Act on Associations and Foundations does not provide the same guarantees to workers in terms of the right to organize and associated rights, and that both in the Federation of Bosnia and Herzegovina and in the Republika Srpska, specific categories of workers are thus not covered by all the guarantees of the Convention. The Committee notes that no information has been provided in respect of this issue in the Brčko District. The Committee further understands from the information provided by the Government under this Convention and the Right of Association (Agriculture) Convention, 1921 (No. 11), that the distinction between employees, who benefit from the rights granted by the Convention, and other workers is also applicable to the agricultural sector. Recalling that the right to organize should be guaranteed to all workers without distinction or discrimination of any kind, including to workers without an employment contract, domestic workers, agricultural workers, workers in the informal economy and self-employed workers, the Committee encourages the Government to revise the relevant legislation in the three entities to ensure that the above categories of workers enjoy, in law and in practice, all the rights guaranteed by the Convention.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee takes note of the observations of the International Organisation of Employers (IOE) received on 1 September 2016, which are of a general nature. The Committee also notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2016 alleging a number of legislative shortcomings, as well as intimidation of workers during a protest. The Committee requests the Government to provide information in respect of the latest ITUC observations, as well as the ITUC observations received on 30 August 2013.

Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). In its previous comment, the Committee noted with satisfaction that the SSSBiH was registered on 8 May 2012. The Committee notes, however, the Government’s indication that in early 2014, it received observations from the SSSBiH alleging that the Ministry of Justice has not fully complied with the judgment of the Court of Bosnia and Herzegovina dated 20 April 2012 in that it did not conduct all the necessary activities in order to complete its registration. The Government enumerates the measures taken and states that the Ministry of Justice acted pursuant to the judgment of the Court of Bosnia and Herzegovina and informed the SSSBiH of its implementation by letter dated 8 May 2012. The Government also states that a request for judicial review against the decision of the Court of Bosnia and Herzegovina has been filed for violation of the Act on Association and Foundations of the Federation of Bosnia and Herzegovina and that the proceedings concerning this request are ongoing. The Committee trusts that the SSSBiH will be able to continue to conduct its activities and represent its members and requests the Government to provide information on the outcome of the ongoing proceedings.

Legislative reform. The Committee notes the Government’s indication that the following Acts were adopted: (i) Labour Act of the Federation of Bosnia and Herzegovina, 2016 (FBiH Labour Act); (ii) Act on Inspections in the Federation of Bosnia and Herzegovina, 2014 (FBiH Act on Inspections); (iii) Labour Act of the Republika Srpska, 2016 (RS Labour Act); and (iv) Rulebook on registration of trade union organizations and employers’ associations in the Register of the Republika Srpska, 2016 (RS Rulebook). The Committee will conduct a full examination of the FBiH Act on Inspections and the RS Rulebook once the translations are available. The Committee requests the Government to provide a copy of the Act on Work in the Institutions of Bosnia and Herzegovina, 2004.

Article 2 of the Convention. Scope of the Convention. The Committee observes that under section 6 of the FBiH Labour Act and section 2(5) of the Labour Act of the Brčko District of Bosnia and Herzegovina, 2006 (the BD Labour Act – provided with the Government’s report), a worker is defined as a natural person employed on the basis of a contract of employment. The Committee further observes that section 5 of the RS Labour Act defines a worker as a natural person working with the employer and having the rights and obligations resulting from labour relations referred to in the Act – conclusion of a labour contract, a decision on hiring, selection or appointment – or another legal basis stipulated under a special law and who is registered in the Single System for Registration, Control and Collection of Contributions. Recalling that the right to organize should be guaranteed to all workers without distinction or discrimination of any kind, including to workers without an employment contract, domestic workers, workers in the informal economy and self-employed workers, the Committee requests the Government to indicate whether the abovementioned categories of workers enjoy, in law and practice, the rights guaranteed by the Convention, and if not, to take the necessary measures to amend the relevant labour legislation in this regard. The Committee requests the Government to provide information on any measures taken in this respect.

Relationship with workers’ and employee councils. Federation of Bosnia and Herzegovina. In its previous comments, the Committee expressed the expectation that in the revision process of the FBiH Labour Act, sections 98 and 108(2), which place trade unions in a secondary and subsidiary position vis-à-vis work councils, would be amended. The Committee notes the Government’s indication that: (i) section 109 of the new FBiH Labour Act places work councils and trade unions on an equal footing – it requires an employer who employs more than 30 workers and intends to dismiss at least five workers in the period of the next three months, to consult both the work council and the trade union; and (ii) section 119 stipulates that if a work council has not been formed, the trade union will have the duties and powers related to the powers of the work council. Observing in this regard that section 119 of the FBiH Labour Act continues to place trade unions in a subsidiary position vis-à-vis work councils, the Committee recalls that the existence of works councils should not be used in order to undermine trade unions and their activities. The Committee requests the Government, in consultation with the most representative organizations, to take the necessary measures, including any legislative amendments, in order to prevent any risk of weakening the institutional position of trade unions and to provide information on any developments in this regard.

Republika Srpska and the Brčko District. The Committee observes that section 208 of the RS Labour Act provides for the establishment of “workers’ councils” to issue opinions and participate in decision-making on economic and social rights, as well as on the interests of workers, but does not specify the relationship of such workers’ councils with trade unions. The Committee further observes that section 93 of the BD Labour Act provides for the establishment of workers’ councils to represent employees, protect their rights and interests and engage in collective bargaining with the employer and states that if a workers’ council is not established, the trade union will assume its powers and duties, and that section 83 of the BD Labour Act sets out, in relation to large-scale dismissals, an obligation to consult the workers’ council and if such a council has not been formed, the trade union. The Committee requests the Government to clarify the relationship between a trade union and a workers’ council under the RS Labour Act. Noting that sections 83 and 93 of the BD Labour Act place trade unions in a subsidiary position vis-à-vis workers’ councils, the Committee requests the Government, in consultation with the most representative organizations, to take the necessary measures, including amendments of these provisions, to ensure that the existence of workers’ councils does not undermine trade unions and their activities.

Trade union diversity. Higher-level trade unions. Republika Srpska. The Committee had previously noted that section 2(2) of the Regulations on the registration of trade unions, 2006 (Regulations on registration) identified a single central organization – the Union of Trade Unions – as the broadest form of trade union organization in the Republika Srpska and made no provision concerning the registration of additional organizations at that level. However, in its previous comment, the Committee noted with interest that the Regulations on registration, as amended in 2012, provided that associations of trade unions organized at the level of the Republika Srpska were also considered as trade unions (at the broadest level). The Committee requested the Government to provide a copy of the Regulations on registration and further information concerning the relevant provisions ensuring trade union diversity in the Republika Srpska. The Committee notes the Government’s statement that the 2016 RS Rulebook guarantees absolute freedom in the formation of trade unions and their activities at all levels (employer, region, area or sector and Republika Srpska levels): section 3(1) defines a trade union organization as any form of trade union organization of workers established in accordance with the RS Labour Act, the statute and the rules of the trade union, and section 3(3) provides for the establishment of higher-level organizations of workers and employers at the levels of regions, sectors or the Republika Srpska. The Committee notes with satisfaction that the applicable labour legislation allows workers to organize at all levels.

Articles 2 and 4. Act on Associations and Foundations. The Committee notes the Government’s indication with regard to the Federation of Bosnia and Herzegovina that the general provisions governing the right of association, conditions and procedure for establishment, internal organization, registration and termination of associations are included in the FBiH Act on Associations and Foundations and that the associations of workers are specifically regulated by the provisions of the FBiH Labour Act. The Committee understands that the same approach is applicable to the Republika Srpska and the Brčko District.

Failure to register. Brčko District. The Committee notes that while section 25(1) of the BD Act on Associations and Foundations states that registration is voluntary, its section 45(1)(a) penalizes failure to fulfil the entry in the Register. In this regard, the Committee recalls that although the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, as it is the first measure to be taken so that organizations can fulfil their role effectively, the exercise of legitimate trade union and employer organization activities should not be dependent upon registration, and failure to register should not be subject to sanctions. The Committee requests the Government to indicate whether the above provisions are applicable to workers’ and employers’ organizations, and if so, to amend section 45(1)(a) of the BD Act on Associations and Foundations in line with the mentioned principle.

Suspension of activities and dissolution of trade unions. While noting the Government’s indication that section 17 of the FBiH Labour Act, section 212(1) of the RS Labour Act and section 8 of the BD Labour Act prohibit the temporary or permanent suspension of lawful activities of trade unions and employers’ organizations, the Committee observes that under section 43 of the FBiH Act on Associations and Federations, section 40 of the RS Act on Associations and Federations and section 26 of the BD Act on Associations and Federations, an association can be dissolved or its operation suspended for a number of reasons, including for repeated failure to: convene regular assembly meetings for a certain period, use the registered name of the association in legal transactions, use the surplus generated from economic activities in a way prescribed by the laws and the statute, and notify the relevant authority about the change of data to be entered into the registry (section 44 of the FBiH Act on Associations and Federations, section 41 of the RS Act on Associations and Federations and section 37 of the BD Act on Associations and Federations). The Committee considers that the abovementioned sections provide for dissolution and suspension of associations on grounds which do not appear to justify the severity of such sanctions, and that, in some cases, the decision to dissolve a union is entrusted to an administrative body. Recalling that dissolution and suspension of trade union and employer organizations constitute an extreme form of interference by the authorities, the Committee requests the Government to indicate whether the mentioned provisions are applicable to workers’ and employers’ organizations, and if so, to take the necessary measures to amend these provisions, in consultation with the social partners, in order to ensure that trade unions and employer organizations can be suspended or dissolved only in cases of serious breaches of the Acts and following a normal judicial procedure.

Article 3. Right of employers’ and workers’ organizations to elect their representatives in full freedom and to organize their administration and activities. Bosnia and Herzegovina. Noting the adoption of the Act on Strikes in the Institutions of Bosnia and Herzegovina, the Committee requests the Government to provide information on the exact scope of its application and the nature of the public servants concerned.

Determination of minimum services. Bosnia and Herzegovina. The Committee observes that under section 15 of the new Act on Strikes in the Institutions of Bosnia and Herzegovina, the minimum services are determined by a decision of the Council of Ministers of Bosnia and Herzegovina on the basis of a previously submitted proposal of the employer who has obtained consent of the trade union, and that under section 26 of the Act, the determination of the minimum services is to be done within 90 days from the date of entry into force of the Act. Recalling that trade unions should be able to participate in defining the minimum services along with the employers and the public authorities and that any disagreement among the parties should be resolved by a joint or independent body, the Committee requests the Government to provide information on the application of these provisions in practice, in particular, on the manner in which trade unions can participate in the determination of the minimum services and on the manner of resolution of any disputes in this regard.

Right to strike in the civil service. Federation of Bosnia and Herzegovina. In its previous comments, while noting that collective agreements in force regulated the right to strike for employees of administrative bodies and judicial authorities, the Committee trusted that the Government would continue to provide information if and when legislative provisions were adopted on this matter. The Committee notes the Government’s indication that a special law regulating the issue of strikes in the civil service has not been adopted but that the previously mentioned collective agreements regulate the right to strike and the conditions of work of trade unions. The Committee requests the Government to continue to provide information in this regard.

Trade union representatives. Republika Srpska. The Committee had previously noted that section 4(3) of the Regulations on registration included among the documents necessary for the registration of a trade union a certificate of the employer stating that the trade union representative authorized to submit the registration form was permanently employed in the specific enterprise. The Government had previously indicated in relation to this requirement in the 1998 version of the Regulations that registration with the Ministry of Labour was made for the purposes of labour administration and had no connection to the registration to be made in courts for the purpose of acquiring legal personality under the RS Act on Associations and Foundations. The Committee had, however, recalled that such a requirement could prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office. In its previous comment, the Committee noted that the 2006 Regulations on registration would be amended so as to allow for trade union representatives not permanently employed by the employer. The Committee observes that as a result of the 2012 amendment of the Regulations on registration, the word “permanent” had been deleted from section 4(3) but the text of the provision has not been otherwise altered; the application for registration must include a certificate indicating that the person authorized to act on behalf of the trade union is employed by that employer. Noting the adoption of the 2016 RS Labour Act and the Rulebook on registration, the Committee requests the Government to clarify whether the 2012 Regulations on registration continue to be in force and if so, to take the necessary measures to amend the text so as to ensure that persons not employed by the employer may, in accordance with trade union by-laws, be candidates for trade union office.

Act on Strikes. Republika Srpska. In its previous comment, the Committee also requested the Government to indicate the steps taken or envisaged to amend section 12 of the Act on Strikes of Republika Srpska, 2008 (the RS Act on Strikes – translation was made available) so as to ensure that trade unions could participate in defining the minimum services and that in case of disagreement between the parties, the minimum service was determined by a joint or independent body, and to supply further information on the provisions of the 2009 RS Act on the Peaceful Settlement of Labour Disputes and a copy of the text. The Committee notes the Government’s indication that: (i) in line with section 25(2) of the RS Act on Strikes, employers are obliged to adopt documents defining minimum services within 60 days from the date of entry into force of the Act, and all employers in essential services thus adopted such documents in 2008; (ii) even though employers adopt the documents establishing minimum services before a strike actually takes place, this issue may also be a subject of collective bargaining; (iii) the RS Act on Strikes provides for conciliation, mediation and voluntary arbitration in case of collective labour disputes (sections 7 and 14); (iv) the RS Act on Peaceful Settlement of Labour Disputes has also been applied in settling labour disputes, as it regulates the procedure for resolving individual and collective labour disputes, including disputes in determining the minimum work process, through mediation or arbitration; and (v) a new Act on Peaceful Resolution of Labour Disputes, which will give special attention to resolving disputes regarding strikes, is in the parliamentary procedure. Noting that under the RS Act on Strikes, the determination of minimum services continues to be a prerogative of the employer, the Committee requests the Government once again to take the necessary measures to amend section 12, so as to allow trade unions along with the employers and the public authorities, to participate in defining the minimum services and, in case of disagreement among the parties, to provide for a joint or independent body to define the minimum services. The Committee requests the Government to provide information on any measures taken or envisaged in this regard and on the instances in which the determination of the minimum services was the subject of collective bargaining. The Committee further requests the Government to clarify whether arbitration under the RS Act on Peaceful Settlement of Labour Disputes is voluntary, based on the agreement of both parties, or whether it can be imposed by the authorities or at the request of one of the parties. The Committee also requests the Government to provide a copy of the new RS Act on Peaceful Resolution of Labour Disputes once adopted.

The Committee further notes that under section 4(1) and (2) of the RS Act on Strikes, the decision to begin a strike action or a warning strike may be taken by the authorized body of the relevant majority trade union or by more than 50 per cent of the workers of that employer or by another trade union which has the support of more than 50 per cent of the workers of the employer. Recalling that, if legislation establishes provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast, and that the required quorum and majority are fixed at a reasonable level, the Committee requests the Government to provide information on the application of this provision in practice.

Right to assembly in the context of a strike. Republika Srpska and the Brčko District. The Committee further observes that section 5(2) of the RS Act on Strikes and section 4(d) of the Act on Strikes of the Brčko District, 2005 (the BD Act on Strikes – translation was made available) state that if a strike action involves the gathering of workers, such action may not be outside the premises of the company in which the strike is taking place. The Committee recalls that the authorities should refrain from any interference which would restrict freedom of assembly or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order. The Committee therefore requests the Government to take the necessary measures to amend section 5(2) of the RS Act on Strikes and section 4(d) of the BD Act on Strikes accordingly.

Article 5. The right of workers’ and employers’ organizations to form federations and confederations. Brčko District. The Committee notes the Government’s indication that the BD Labour Act does not contain any provisions on the possibility for workers’ organizations to form federations and confederations. The Committee requests the Government to clarify whether workers’ and employers’ organizations can, in law and practice, form federations and confederations of workers and to indicate the relevant legal provisions.

Application of the Convention. Brčko District. In its previous comment, the Committee requested the Government to supply a copy of the Law on Associations and Foundations of the Brčko District, and provide detailed information on the specific legislative provisions giving effect to each Article of the Convention. The Committee takes note of the information provided by the Government in this regard.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

Article 2 of the Convention. Right to organize. Federation of Bosnia and Herzegovina. In its previous comments, the Committee had requested the Government to take all the necessary steps to amend sections 98 and 108(2) of the Labour Law, which privilege work councils relative to trade unions and place the latter in a secondary and subsidiary position vis-à-vis works councils, thus involving the risk of weakening the institutional position of trade unions. The Committee once again notes the Government’s indication that the draft Act on Amendments to the Labour Law of the Federation of Bosnia and Herzegovina is still in the legislative process, and that the Government will bear in mind the Committee’s comments in relation to section 98 of the Labour Law and be mindful not to make the position of trade unions subordinate in relation to councils of employees. In this respect, the Committee expects that, in the process of review of the Labour Law, its comments with respect to sections 98 and 108(2) will be fully taken into account, and requests the Government to transmit a copy of the text once adopted.

Republika Srpska. In its previous comments, the Committee, noting that section 2(2) of the regulation on the registration of trade union organizations identifies a single central organization – the Union of Trade Unions – as the broadest form of trade union organization in the Republika Srpska and makes no provision concerning the registration of additional organizations at that level, had requested the Government to amend this provision so as to ensure trade union diversity. The Committee notes with interest that the Government indicates that: (i) section 2(2) of the “Book of Rules on the registration of trade union organizations in the register”, which was adopted in 2006 and amended in 2012, provides that associations of trade unions organized at the level of the Republika Srpska are also considered trade union organizations as the broadest form of unionization in the Republika; and (ii) the Confederation of Trade Unions of the Republika Srpska, active since 2005 as the second union operating at the level of the Republika, has more than 30,000 employees and two active branch unions (Miners’ and Metalworkers’ Union and Union of United Workers in Energy). The Committee requests the Government to supply a copy of the above Rules as amended in 2012 and to provide further information concerning the relevant provisions ensuring trade union diversity.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. Federation of Bosnia and Herzegovina. In its previous comments, the Committee had noted that the law on civil service in the Federation of Bosnia and Herzegovina did not govern strikes, that the Government indicated that separate laws governing the issue would be prepared and that the collective agreement for employees of administrative bodies and judicial authorities in the Federation of Bosnia and Herzegovina contains provisions on the matter. The Committee notes with interest that, in response to its previous request, the Government quotes in its report the relevant provisions of the abovementioned collective agreement. The Committee trusts that the Government will continue to provide information if and when legislative provisions are adopted in this respect.

Republika Srpska. In its previous comments, the Committee had noted that the regulation on the registration of trade union organizations would be amended in line with the Committee’s comments so as to allow for trade union representatives not permanently employed by the employer. The Committee notes that the Government refers, in its report, to the 2012 Regulation on Amending the Regulation on the Registration of Trade Unions. The Committee will proceed with the examination of the relevant provisions as soon as the translation is available.

Furthermore, the Committee previously noted that the 2008 Act on Strikes of the Republika Srpska authorizes the employer, after having requested the views of the trade union, to determine the extent and the modalities of the minimum service taking into account the nature of the activity, the risk for the life and health of persons, and other important circumstances affecting the needs of citizens, enterprises, etc. (section 12(2) and (3)). The Committee notes that the Government indicates that: (i) the new law provides for the participation of trade unions in the process of determining the minimum service in a limited number of activities; and (ii) dispute resolution is provided for in section 14 of the Act on Strikes and in the 2009 Act on the Peaceful Settlement of Labour Disputes. The Committee observes that, while section 12(4) provides that the strike committee and the employer jointly assign to their posts the workers who have to work during the strike to ensure the minimum service, the extent and the modalities of the minimum services are determined prior to that stage by the employer who only has to request the union’s views. The Committee recalls that: (i) organizations of workers should be able, if they so wish, to participate along with the employers and the public authorities in defining the minimum service; (ii) in case of disagreement among the interested parties, the minimum service should be defined by a joint or independent body; and (iii) the minimum service 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 (see General Survey on the fundamental Conventions, 2012, paragraphs 137–139). The Committee requests the Government to provide information on the steps taken or envisaged to amend section 12 of the Act on Strikes so as to ensure respect of the above principles. It also requests the Government to supply further information concerning the provisions of the 2009 Act on the Peaceful Settlement of Labour Disputes and a copy of the text.

Application of the Convention. Brcko District. In the absence of information provided by the Government, the Committee requests the Government to supply a copy of the Law on Associations and Foundations of the Brcko District, and to provide detailed information concerning the specific legislative provisions giving effect to each Article of the Convention.

Finally, as regards the comments submitted by the International Trade Union Confederation on 30 August 2013, the Committee requests the Government to provide its observations on the issues concerning the right of organizations to freely organize their activities and formulate their programmes.

Observation (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) on 30 August 2013 mainly concerning issues raised by the Committee. It further notes the Government’s reply to comments previously made by the ITUC.

Article 2 of the Convention. Right to establish employers’ and workers’ organizations without previous authorization. The Committee recalls that it had previously noted that a draft act was before Parliament, proposing amendments in line with the Committee’s comments concerning section 32 of the Act on the Associations and Foundations of Bosnia and Herzegovina. The Act’s section 32 authorizes the Minister of Justice to accept or refuse the request for registration of a trade union (paragraph 1), and provides that the request for registration shall be considered as rejected if the Minister does not adopt a decision within 30 days (paragraph 2). The Committee notes with interest that the Act on Amendments to the Act on Associations and Foundations of Bosnia and Herzegovina was adopted on 14 September 2011 and abrogates section 32(2).

Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). The Committee takes note of the comments of the SSSBiH dated 7 December 2012 and notes with satisfaction that the SSSBiH was registered on 8 May 2012.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

Federation of Bosnia and Herzegovina

Article 2 of the Convention. Right of employers and workers to establish and join organizations of their own choosing. Relationship with works councils. In its previous comments, the Committee had requested the Government to take all the necessary steps to amend the following provisions which privilege work councils relative to trade unions and place the latter in a secondary and subsidiary position vis-à-vis works councils, thus involving the risk of weakening the institutional position of trade unions: (i) section 98 of the Labour Law, as amended by section 41 of the Decree of 15 August 2000, which enables the employer to organize collective dismissals in consultation with all trade unions representing 10 per cent of workers, only if there is no works council in the enterprise; and (ii) section 108(2) of the Labour Law, which provides that if no works council has been created in the establishment, the trade union shall have the same powers and obligations as the works council in accordance with the law. The Committee once again notes the Government’s indication that the draft Act on Amendments to the Labour Law of the Federation of Bosnia and Herzegovina is still in the legislative process, and that the Government will bear in mind the Committee’s comments. In this respect, the Committee expresses the firm hope that in the process of review of the Labour Law, its comments with respect to sections 98 and 108(2) will be taken into account, and requests the Government to transmit a copy of the text as soon as adopted.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. In its previous comments, the Committee had noted that the Law on civil service in the Federation of Bosnia and Herzegovina did not govern the organizing and leading of strikes, and that the Government indicated that separate laws governing the issue of strikes in, inter alia, administration bodies and administration services in the Federation of Bosnia and Herzegovina would be prepared. The Committee notes from the Government’s report that the issue of organizing and leading strikes in the civil service of the Federation of Bosnia and Herzegovina is still not regulated by special law but that the collective agreement for employees of administrative bodies and judicial authorities in the Federation of Bosnia and Herzegovina contains provisions governing strikes. The Committee requests the Government to provide information concerning the relevant provisions of the abovementioned collective agreement and to supply a copy of the text.

Republika Srpska

Article 2. Right of employers and workers to establish and join organizations of their own choosing. In its previous comments, the Committee, noting that section 2(2) of the Regulation on the registration of trade union organizations in the registry of the Republika Srpska identifies a single central organization – the Union of Trade Unions – as the broadest form of trade union organization in the Republika Srpska and makes no provision concerning the registration of additional organizations at that level, had requested the Government to amend this provision so as to ensure trade union diversity. The Committee notes that the Government indicates that negotiations between the Government and the trade unions are still ongoing regarding the adoption of the new Regulations. The Committee recalls that trade union diversity should remain possible in all cases and freedom of choice must be safeguarded even where employers’ and workers’ organizations have chosen a single central organization – a situation which should not be institutionalized by legislation (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 96 and 194). The Committee trusts that the principles enounced above will be duly taken into account in the process of adoption of the new Regulations.

Article 3 of the Convention. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. The Committee had previously requested the Government to ensure that sections 10 and 11 of the 1998 Act on Strikes, which authorized the employer to determine the minimum service and to assign workers to posts at least three days before the beginning of the strike taking into consideration the opinion, suggestions and comments of the trade union, are amended so that workers may participate in the definition of the minimum service and so that an independent body may make the determination when the parties concerned cannot agree. The Committee notes the Government’s indication that a new Act on Strikes was adopted in Republika Srpska in 2008, and that, according to its section 12(4), the strike committee and the employer jointly assign workers to their posts at least five days before the beginning of the strike. The Committee understands, however, that, prior to that stage, the employer still appears to be authorized, after having requested the views of the trade union, to determine the extent and the modalities of the minimum service taking into account the nature of the activity, the risk for the life and health of persons, and other important circumstances affecting the needs of citizens, enterprises etc. (section 12(2) and (3)). Recalling that organizations of workers should be able, if they so wish, to participate along with the employers and the public authorities in defining the minimum service, which must be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, the only possible exception being the case of essential services in the strict sense of the term, i.e. those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; and that, in case of disagreement among the interested parties, the minimum service should be defined by a joint or independent body (see the 1994 General Survey, paragraph 161), the Committee will proceed with the examination of the provisions of the 2008 Act on Strikes of Republika Srpska as soon as its translation is available.

Brcko District

Application of the Convention. The Committee notes the general information provided by the Government concerning the application of the Convention in the Brcko District. The Committee requests the Government to supply copies of the Labour Law, the Law on Associations and Foundations and other relevant legislation applicable in the Brcko District, and to indicate the specific provisions giving effect to each Article of the Convention.

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the comments of the International Trade Union Confederation (ITUC) dated 4 August 2011 concerning issues already raised by the Committee as well as matters related to the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), which will be examined in the framework of that Convention.

Article 2 of the Convention. Requirement of previous authorization for the establishment of employers’ and workers’ organizations. The Committee recalls that it had previously requested the Government to amend section 32 of the Act on the Associations and Foundations of Bosnia and Herzegovina which authorizes the Minister of Justice to accept or refuse request for registration of a trade union (paragraph 1) and provides that the request for registration shall be considered as rejected if the Minister does not adopt a decision within 30 days (paragraph 2). The Committee notes that the Government indicates in its report that more detailed instructions on how to complete the documentation required for registration of associations were issued in 2010 under the Regulations on Keeping of Registry of Associations and Foundations of Bosnia and Herzegovina, which will simplify the process and facilitate the understanding and application of the Act on Associations and Foundations of Bosnia and Herzegovina. Furthermore, the Committee notes with interest that the Government indicates that the draft Act on Amendments to the Act on Associations and Foundations of Bosnia and Herzegovina, which is currently before Parliament, proposes amendments in line with the suggestions and instructions of the Committee and that, in this regard, paragraph 2 of section 32 will be deleted. The Committee recalls that a provision whereby a minister may, at his or her discretion, approve or reject an application for the creation of a general confederation is not in conformity with the principles of freedom of association. More generally, a law providing that the right to association is subject to authorization granted by a government department purely in its discretion is incompatible with the principle of freedom of association. The Committee hopes that the draft Act will be adopted in the near future and ensure that section 32(1) and (2) are amended so as to take into account these principles and ensure that any undue delays in registration can be rapidly appealed to the courts. It requests the Government to supply information in its next report on any developments in this respect.

Registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). In its previous comments, the Committee had noted the unreasonable period which had elapsed since the filing of a registration request by the SSSBiH and had requested the Government to indicate the outcome of the appeal lodged by the SSSBiH before the Court of Bosnia and Herzegovina against the refusal of its registration. The Committee notes the Government’s indication that: (i) on 18 May 2011, the Court of Bosnia and Herzegovina decided to return the case to the first instance (the Ministry of Justice); (ii) the Ministry of Justice called on the SSSBiH to rearrange its 2002 registration request and attached documents in compliance with the relevant legislation and to submit them within 30 days of receipt of notice so as to enable the Ministry to implement the above ruling; and (iii) accordingly, the registration process of SSSBiH is under way. Recalling that almost ten years have elapsed since the filing of a registration request by this organization, the Committee expresses the firm hope that the SSSBiH will finally be registered without any further delay.

Republika Srpska. Article 3 of the Convention. Right of employers’ and workers’ organizations to elect their representatives in full freedom. In its previous comments, the Committee had noted that the Regulation on the registration of trade union organizations would be amended so as to allow trade union representatives not permanently employed by the employer to submit an application for inclusion in the register. The Committee notes from the Government’s report that negotiations between the Government and the trade unions are still ongoing regarding the adoption of the new Regulations and that in its view it is unacceptable that persons who are not employed by the employer are presidents of unions at the enterprise level considering that the right to organize is guaranteed to workers and not to third parties without worker status and that unions are free to hire lawyers if need be. The Committee recalls that provisions which require all candidates for trade union office to belong to the respective occupation, enterprise or production unit infringe the organization’s right to elect representatives in full freedom by preventing qualified persons, such as full-time union officers or pensioners, from carrying out union duties or by depriving unions of the benefit of the experience of certain officers when they are unable to provide enough qualified persons from among their own ranks. In order to bring such legislation into conformity with the Convention, it would be desirable to make it more flexible, either by admitting as candidates persons who have previously been employed in the occupation concerned, or by exempting from the occupational requirement a reasonable proportion of the officers of an organization (see 1994 General Survey on freedom of association and collective bargaining, paragraph 117). The Committee hopes that the abovementioned principles will be duly taken into account in the process of adoption of the new Regulations and requests the Government to transmit a copy of the text as soon as adopted.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Article 3 of the Convention. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. Republika Srpska. In its previous comments, the Committee noted with interest that the Regulation on the registration of trade union organizations has now been amended so as to allow trade union representatives not permanently employed by the employer to submit an application for inclusion in the register. The Committee once again requests the Government to transmit a copy of the new regulation.

Interference in the activities of employers’ and workers’ organizations. In several of its previous comments, the Committee noted that section 20 of the Law on the associations and foundations of Bosnia and Herzegovina restricts the right to vote of officers in the internal bodies of the associations, including employers’ and workers’ organizations, where a conflict of interest may exist and indicated that this is an internal matter of such organizations and should be dealt with in their by-laws rather than in the Law. The Committee notes that article 11 of the Law on amendments to the Law on associations deletes section 20.

Federation of Bosnia and Herzegovina. Relationship with works councils. In its previous comments, the Committee asked the Government to take all the necessary steps to amend provisions which privilege works councils relative to trade unions, in particular as regards section 98 of the Law on labour, as amended by section 41 of the Decree of 15 August 2000, which enables the employer to organize collective dismissals in consultation with all trade unions representing 10 per cent of workers only if there is no works council in the enterprise. The Committee once again notes the Government’s indication that this issue will be resolved by the forthcoming changes and amendments to the Labour Law of the Federation of Bosnia and Herzegovina and again requests the Government to provide information in this regard.

The right to strike. Federation of Bosnia and Herzegovina. The Committee recalls that the Law on civil service in the Federation of Bosnia and Herzegovina does not govern the organizing and leading of strikes. Separate laws governing the issue of strikes in, inter alia, administration bodies and administration services in the Federation of Bosnia and Herzegovina will be prepared. The Committee notes that the Government indicates that the armed forces are entitled to organize in order to protect their own interests, and the only specific restriction concerns the right to strike, because this is an activity of vital importance. They are therefore not subject to the application of the Law on strikes. Recalling that the coverage of the provisions of the Convention relating to the armed forces is wholly a matter to be determined by national laws or regulations, the Committee once again requests the Government to indicate any measures taken with respect to strike action in administration bodies and services and to inform it as to the competent body specifically responsible in this regard.

Republika Srpska. In several of its previous comments, the Committee noted that sections 10 and 11 of the Law on strikes, 1998, authorize the employer to determine the minimum services and to assign workers to posts at least three days before the beginning of the strike, taking into consideration the opinion, suggestions and comments of the trade union, and that section 12(2) authorizes the competent public authority to secure the conditions for the provision of minimum service if the management fails to do so and to engage workers who are not employed by the enterprise if the minimum working service cannot be secured otherwise. The Committee notes the Government’s indication that there have been no changes in the Republika Srpska and requests the Government to inform it of any measures taken or contemplated in this regard.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. Republika Srpska. The Committee previously noted that the Government indicated that the Regulation on the registration of trade union organizations had been amended to ensure trade union diversity. The Committee notes that the Government indicates that there have been no changes in Republika Srpska. The Committee once again requests the Government to transmit a copy of the amended regulation.

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the comments of both the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) dated 24 December 2007 and 28 November 2008, the Confederation of Trade Unions of Bosnia and Herzegovina (CTUBH) dated 20 August 2009, and the International Trade Union Confederation (ITUC) dated 26 August 2009 on the application of the Convention, as well as the Government’s observation thereon. The Committee notes the adoption of the Law on amendments to the Law on associations.

Articles 2 and 4 of the Convention. Requirement of previous authorization for the establishment of employers’ and workers’ organizations and dissolution or cancellation of registration. The Committee recalls that in its previous comments it had requested the Government to amend section 32 of the Law on the associations and foundations of Bosnia and Herzegovina which authorizes the Minister of Justice 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 also expressed the hope that the necessary amendments would be made to sections 30(2), 34 and 35 as regards dissolution or cancellation of registration along the lines of its previous requests. The Committee notes that the Government indicates that in case the Ministry does not resolve the application, for any reason within 30 days from the date of its submission, the request is not considered tacitly rejected, but the process continues until a decision is made. In this instance, the applicant may, however, immediately after the deadline expiration for making the first instance decision, appeal to the second instance authority in accordance with the provisions of the Administrative Procedure Law. The second instance authority shall, within three days upon receipt of appeal, request from the first instance authority all the case files and a written statement on the reason why the party’s application was not resolved within the prescribed period. If the second instance authority determines that the decision is not made within the prescribed period due to a justifiable reason, or due to the party’s guilt, it shall specify the term for the first instance authority to make the decision. The Committee further notes with interest that sections 30(2), 34 and 35 have been amended. The Committee requests the Government to indicate the impact in practice of these amendments.

Registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina. The Committee further recalls that in several of its previous observations it had noted the unreasonable period which had elapsed since the filing of a registration request by the SSSBiH 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 the Government indicates that the Appeal Commission, as an autonomous and independent second instance authority has now made decision No. 01-02-4/08, dated 11 May 2009, rejecting the appeal of the SSSBiH. The SSSBiH appealed this decision before the Court of Bosnia and Herzegovina on 17 July 2009.

The Committee observes with regret that the SSSBiH has not yet been registered despite the fact that the Committee has been raising this issue for several years now. The Committee requests the Government to indicate in its next report the basis of the Appeal Commission’s denial of the SSSBiH’s request for registration and to transmit a copy of that decision. In addition, the Committee requests the Government to indicate the outcome of the litigation commenced by the SSSBiH in the Court of Bosnia and Herzegovina.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report.

Article 3 of the Convention. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. Republika Srpska. With reference to its previous comments concerning section 4(3) of the Regulation on the registration of trade union organizations in the registry of the Republika Srpska, 1998, which included among the documents necessary for the registration of a trade union a certificate of the employer stating that the trade union representative authorized to submit the registration form was employed by the specific enterprise, the Committee notes with interest that this Regulation has now been amended so as to allow trade union representatives not permanently employed by the employer to submit an application for inclusion in the register and requests the Government to transmit a copy of the new regulation.

Interference in the activities of employers’ and workers’ organizations. In its previous comments, the Committee noted that section 20 of the Law on the Associations and Foundations of Bosnia and Herzegovina restricts the right to vote of officers in the internal bodies of associations, including employers’ and workers’ organizations, where a conflict of interest may exist and indicated that this is an internal matter of such organizations and should be dealt with in their by-laws rather than in the Law. The Committee trusts that the pre-draft of amendments to this Law presented to the Council of Ministers will have eliminated this section and requests the Government to keep it informed of developments in this respect.

Federation of Bosnia and Herzegovina. Relationship with works councils. In its previous comments, the Committee asked the Government to take all necessary steps to amend provisions which privilege works councils relative to trade unions, in particular as regards section 98 of the Law on Labour, as amended by section 41 of the Decree of 15 August 2000, which enables the employer to organize collective dismissals in consultation with all trade unions representing 10 per cent of workers only if there is no works council in the enterprise. The Committee notes the Government’s indication that this issue will be resolved by the forthcoming changes and amendments to the Labour Law of the Federation of Bosnia and Herzegovina and requests the Government to keep it informed in this regard.

The right to strike. Federation of Bosnia and Herzegovina. The Committee recalls that the Law on Labour Relations and Wages of Employees of Federal Administrative Bodies, 1998, was repealed with the adoption of the Law on Civil Service in the Federation of Bosnia and Herzegovina, which does not govern issues of organizing and leading strikes. Separate laws governing the issue of strikes in, inter alia, administration bodies and administration services in the Federation of Bosnia and Herzegovina will be prepared. The Committee notes that the Government indicates in its report that the question of strikes in the military forces has been transferred to the competence of the Council of Ministers. Bearing in mind that the provisions of the Convention do not cover matters relating to the armed forces, the Committee requests the Government to indicate any measures taken with respect to strike action in administration bodies and services and to inform it as to the competent body specifically responsible in this regard.

Republika Srpska. In its previous comments, the Committee noted that sections 10 and 11 of the Law on Strikes, 1998, authorize the employer to determine the minimum service and to assign workers to posts at least three days before the beginning of the strike, taking into consideration the opinion, suggestions and comments of the trade union and that section 12(2) authorizes the competent public authority to secure the conditions for the provision of minimum service if the management fails to do so and to engage workers who are not employed by the enterprise if the minimum working service cannot be secured otherwise. The Committee notes the Government’s indication that these issues are being undertaken within the framework of the activities related to the adoption of a new law on strikes and requests the Government to keep it informed of the progress made in this regard.

Article 4. Dissolution and suspension of organizations by administrative authority. In its previous comments, the Committee noted that section 51(1) of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Internal Affairs and Communication to order the dissolution of an association that abstains from its main activity for the realization of its objectives for at least two years without valid reason. Noting that the Government has prepared a pre-draft of amendments to the Law on Associations and Foundations for the Council of Ministers, the Committee requests the Government to keep it informed of the progress made in amending this provision.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. Republika Srpska. In its previous comments the Committee noted that section 2(2) of the Regulation on the registration of trade union organizations in the registry of the Republika Srpska identifies a single central organization, the Union of Trade Unions, as the broadest form of trade union organization in the Republika Srpska and makes no provision concerning the registration of additional organizations at that level. The Committee had noted furthermore that sections 1 to 4 of the instructions on the implementation of the Regulation authorize this single organization to carry out all the administrative tasks necessary for the registration of trade union federations at the branch, city or communal levels and to countersign and certify the relevant documents before their submission to the authorities. The Committee also noted that a corresponding authority is accorded to trade union federations at the city or communal levels for the registration of trade unions which operate at the enterprise level or in the public sector. Noting that the Government indicates that the Regulation on the registration of trade union organizations has been amended, the Committee trusts that trade union diversity is now assured and requests the Government to transmit a copy of the new Regulation.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the Government’s report, as well as the discussion concerning the application of the Convention which took place at the Conference Committee on the Application of Standards in June 2007. Furthermore, the Committee notes the comments made by the International Trade Union Confederation (ITUC) dated 28 August 2007 and those made by the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH) dated 13 October 2007. The Committee requests the Government to provide information in respect of the matters raised in these two communications in its next report.

The Committee also takes note of the report of the mission to Bosnia and Herzegovina following the request made by the Conference Committee on the Application of Standards in June 2007. It notes with interest the cooperation extended by the Government to the mission. It observes from the mission report the multifaceted elements involved in resolving the outstanding registration matters, which arise within a highly complex political system. It expresses the firm hope that concrete steps will be taken in the very near future, through the full commitment of all the parties concerned, so as to ensure full respect for the right to organize throughout the territory.

Articles 2 and 4 of the Convention. 1. Requirement of previous authorization for the establishment of employers’ and workers’ organizations and dissolution or cancellation of registration. The Committee recalls that in its previous comments it had noted that section 32 of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Justice 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 notes with interest from the Government’s report the concrete steps taken by the Ministry of Justice to amend this Law taking into account the Committee’s previous comments and so as to provide for a simpler and faster registration procedure with more reasonable deadlines. It notes that the pre-draft Law on this matter has now been forwarded to the Council of Ministers for consideration and the adoption of the draft Law. Due to the current stoppage of the functioning of the Council of Ministers, the Government was not in a position to indicate when consideration of the pre-draft would be completed.

The Committee recalls 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. The Committee expresses the firm hope that the Council of Ministers will be able to conclude their review of the pre-draft to amend the Law on Associations and Foundations in the very near future so that the necessary amendments to ensure that workers and employers can freely establish organizations of their own choosing without previous authorization may be adopted shortly in the Parliament. It further hopes that the necessary amendments will be made to sections 30(2), 34 and 35 as regards dissolution or cancellation of registration along the lines of its previous requests. In the meantime, it requests the Government to send a copy of the proposed amendments transmitted to the Council of Ministers so that it may examine their conformity with the Convention.

2. Registration of the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH). 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 the information provided in the Government’s report that resolution of this matter has been stalled because the current legislation requires that any refusal to register an organization must be first reviewed by a second instance internal body called the Appeals Commission. This Commission, appointed by the Council of Ministers, has not been convened due to a lack of internal capacity. The Committee notes with interest, however, that the Ministry of Justice has undertaken concrete measures to inform the Council of Ministers of this difficulty and has emphasized the need to establish the Appeals Commission, as, in its absence, the appellants are denied a right to an effective legal remedy. In response to a request from the Council of Ministers once apprised of this situation, the Ministry of Justice drafted a proposal for the decision on the appointment of the Appeals Commission, which has been forwarded to the competent bodies for their views prior to submitting a pre-draft decision to the Council of Ministers for consideration and adoption.

The Committee must nevertheless observe with regret that the question of the registration of the SSSBiH has still not been resolved, nor has the SSSBiH been assured of an appeal process to resolve the issue. The Committee notes from the mission report that the SSSBiH’s appeal to the ordinary courts had been rejected on procedural grounds, as the law required a second instance administrative appeal prior to having access to the judicial system. The Committee considers that such a situation, which has lasted for five years now, is unacceptable in that it provides no recourse for the defence of workers’ basic right to organize. The Committee further notes from the mission report that the practical obstacles to registration appear to emanate from a number of different sources and for a variety of non-legal reasons. The Committee emphasizes that the right to organize is a fundamental right which must be ensured for the good of the nation as a whole and that any other considerations can be addressed within the framework of respect for this right. The Committee recalls that Article 2 of Convention No. 87 guarantees workers the right to establish and join organizations of their own choosing. While duly noting the current stoppage of the functioning of the Appeals Commission established by the Council of Ministers, the Committee expresses the firm hope that the necessary measures will be taken in the very near future to register the Confederation of Independent Trade Unions of Bosnia and Herzegovina. It requests the Government to indicate in its next report the progress made in this respect. Further noting with deep concern the absence of judicial recourse due to the non-functioning of the Appeals Commission for several years now, the Committee requests the Government to give serious consideration to amending the Law on Foundations and Associations so as to eliminate the requirement of a second administrative appeal step and to permit appeals directly to the judicial system.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report.

Article 2. Right of employers and workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Foreign workers. In its previous comments, the Committee noted that, while section 9 of the Law on Labour of the Federation of Bosnia and Herzegovina, 1999, and section 6 of the Law on Labour of the Republika Srpska, 2000, seem to guarantee to all workers, including foreigners, the right to join trade unions, sections 3(1) and 9 of the Law on the Associations and Foundations of Bosnia and Herzegovina which is applicable throughout the Republic, appear to limit the right to establish a trade union to those foreign workers residing in Bosnia and Herzegovina. The Committee is of the view that the rights provided for in the Convention should be recognized to all workers without distinction based on nationality including anyone working in the territory of the State. The Committee asked the Government to clarify whether authorization of residence is a precondition for foreign worker membership in trade unions. The Government indicates in its report that there are no limitations to trade union organization rights for foreign workers working and residing in the Bosnia and Herzegovina territory. However, work permits are a precondition for residing legally in the country. Noting that this issue concerns fundamental rights of workers, the Committee requests the Government to take all necessary measures to ensure that all workers working on its territory have the right to form and join associations, regardless of their work permit or residence status.

Registration requirements. In its previous comments, the Committee noted that section 37 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides for the establishment of a complaints committee which is a permanent body consisting of three members appointed by the Council of Ministers and is authorized to hear complaints against, inter alia, a refusal to grant registration. Furthermore, the Committee noted that section 38 authorizes the Minister of Internal Affairs and Communication to examine the receivability of complaints and to decide whether to transmit them to the Committee and that section 42 provides that, although the Committee’s rulings cannot be the object of a complaint, recourse can be had to the Administrative Court of Bosnia and Herzegovina. The Committee considers that employers’ and workers’ organizations should have the right to appeal to independent courts against any administrative decision regarding their registration. However, the Committee also considers that the existence of the right to appeal to a court is not in itself an adequate safeguard; the competent judges should be able, on the basis of the record, to review the grounds for refusal given by the administrative authorities, which grounds should not be contrary to the principles of freedom of association, and should be empowered to give a ruling rapidly and, where necessary, order appropriate remedies (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 77). The Committee notes the Government’s indication that sections 32, 37 and 42 will be reviewed, taking into account the comments of the Committee. The Committee requests the Government to keep it informed in its next report of any legislative amendment in this respect.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. Right to elect representatives freely. Republika Srpska. In its previous comments, the Committee noted that section 28 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that this recent and generally applicable law does not automatically replace the previous laws and regulations except in the case of an insurmountable contradiction. The Committee also took note of section 4(3) of the Regulation on the registration of trade union organizations in the registry of the Republika Srpska, 1998, which includes among the documents necessary for the registration of a trade union a certificate of the employer stating that the trade union representative authorized to submit the registration form is employed by the specific enterprise. In that occasion, the Committee indicated that such a requirement may prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office (see General Survey, op. cit., paragraph 117). The Committee takes note of the Government’s indication that this registration with the Ministry of Labour is made for the needs of labour administration and has nothing to do with the registration to be made with the courts pursuant to the Law on the Associations and Foundations of Republika Srpska for acquisition of legal subjectivity and activity of the trade union organization and that activities are under way to harmonize the provisions of the Labour Law with the Law on the Associations and Foundations of Bosnia and Herzegovina and Republika Srpska, so that the Ministry would not have to maintain the record, or registry, in addition to the registry maintained by the competent court. The Committee hopes that this harmonization will take place in the very near future and requests that the Government keep it informed in this regard.

Political activities. The Committee noted that section 3(3) of the Law on the Associations and Foundations of Bosnia and Herzegovina prohibits associations, including trade unions, from engaging in electoral campaigns, fund-raising or the financing of candidates or political parties. The Committee requested that the Government indicate whether this prohibition includes union statements of support for electoral candidates. In its report, the Government indicates that the ban of engagement in election campaigns, fund-raising or funding of candidates or political parties as well as trade union statements of support to election candidates is provided in section 3(3) of the Law on the Associations and Foundations of Bosnia and Herzegovina, the Law on the Associations and Foundations of the Federation of Bosnia and Herzegovina and the Law on the Associations and Foundations of Republika Srpska, as well as section 3 of the Law on the Associations and Foundations of the Brcko District of Bosnia and Herzegovina. The Committee considers that although the promotion of working conditions by collective bargaining remains a major feature of trade union action, it believes that the development of the trade union movement and the increasing recognition of its role as a social partner in its own right mean that workers’ organizations must be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy. The Committee is of the view that both legislative provisions which establish a close relationship between trade union organizations and political parties and those which prohibit all political activities for trade unions give rise to serious difficulties with regard to the principles of the Convention. Some degree of flexibility in legislation is therefore desirable, so that a reasonable balance can be achieved between the legitimate interest of organizations in expressing their point of view on matters of economic or social policy affecting their members and workers in general, on the one hand, and the separation of political activities in the strict sense of the term and trade union activities, on the other (see General Survey, op. cit., paragraphs 131 and 133). Taking into account the above considerations, the Committee requests the Government to take the necessary measures to amend the legislation and to keep it informed in its next report.

Interference in the activities of employers’ and workers’ organizations. In its previous comments, the Committee noted that section 20 of the Law on the Associations and Foundations of Bosnia and Herzegovina restricts the right to vote of officers in the internal bodies of associations, including employers’ and workers’ organizations, where a conflict of interest may exist. The Committee indicated that it was of the view that this is an internal matter of such organizations and should be dealt with in their by-laws rather than in the law. The Committee notes the Government’s indication that article 20 will be the subject of review under the activities carried out in relation to the amendments of the Law on the Associations and Foundations of Bosnia and Herzegovina. The Committee trusts that the announced review to section 20 will be done in the near future and requests the Government to keep it informed of any development in this respect.

Relationship with works councils. Federation of Bosnia and Herzegovina. In its previous comments, the Committee noted that section 108(2) of the Law on Labour provides that if no works council has been created in the establishment, the trade union shall have the same powers and obligations as the works council in accordance with the law. The Committee also noted that section 98 of the Law on Labour, as amended by section 41 of the Decree of 15 August 2000, enables the employer to organize collective dismissals in consultation with all trade unions representing 10 per cent of workers only if there is no works council in the enterprise. In this respect, the Committee requested the Government to provide information on the means of setting up works councils and the exact scope of their obligations and powers. The Committee also asked the Government to take all necessary steps to amend provisions which privilege works councils relative to trade unions. The Committee notes the Government’s report in which it indicates: (1) that the creation of works councils does not preclude or prevent the formation and activity of trade unions, but ensures that a higher degree of protection is established for the workers through joint and coordinated action; (2) the significance of works councils comes to expression in cases where there is no trade union; and (3) article 98 of the Labour Law will be reviewed. The Committee requests the Government to ensure that these provisions do not place trade unions in a secondary and subsidiary position in relation to works councils, thus involving the risk of weakening the institutional position of trade unions and to keep it informed of the announced review of article 98 of the Labour Law concerning prerogatives given to works councils.

The right to strike. Federation of Bosnia and Herzegovina. The Committee notes from the Government’s report that the Law on Labour Relations and Wages of Employees of Federal Administrative Bodies, 1998, has been repealed with the adoption of the Law on Civil Service in the Federation of Bosnia and Herzegovina, which is not governing issues of organizing and leading strikes. Article 1 of the Law on Strikes of the Federation of Bosnia and Herzegovina provides for passing a separate law governing the issue of strikes in the army of the Federation of Bosnia and Herzegovina, members of law enforcement ministries, administration bodies and administration services in the Federation of Bosnia and Herzegovina. The separate law has not yet been passed. The Committee requests the Government to keep it informed of any new legislation adopted.

Republika Srpska. In its previous comments, the Committee noted that sections 10 and 11 of the Law on Strikes, 1998, authorize the employer to determine the minimum service and to assign workers to posts at least three days before the beginning of the strike, taking into consideration the opinion, suggestions and comments of the trade union. The Committee also noted that section 12(2) of the Law on Strikes authorizes the competent public authority to secure the conditions for the provision of minimum service if the management fails to do so and to engage workers who are not employed by the enterprise if the minimum working process cannot be secured otherwise. The Committee takes note of the Government’s indication that activities have been undertaken in relation to amendments to the Law on Strikes in order to: (1) enable workers to define minimal services in the activities pertaining to the mentioned provisions; and (2) have an independent body that would decide in cases where the interested parties cannot agree. The Committee hopes that amendments will take place in the very near future and requests that the Government keep it informed in this regard.

Public order limitations. Republika Srpska. In its previous comments, noting that article 30 of the Constitution of the Republika Srpska allows legal restrictions on freedom of gathering for the purpose of protecting the safety of persons and property, the Committee requested the Government to provide information on the exact nature of restrictions on freedom of association envisaged in this article and the conditions under which they are applied. Noting that the Government did not provide the information, the Committee requests the Government to communicate it in its next report.

Article 4. Dissolution and suspension of organizations by administrative authority. In its previous comments, the Committee noted that section 51(1) of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Internal Affairs and Communication to order the dissolution of an association that abstains from its main activity for the realization of its objectives for at least two years without valid reason. The Committee noted furthermore that subsections 1 to 3 of section 51 of the Law on the Associations and Foundations of Bosnia and Herzegovina authorize the Minister of Internal Affairs and Communication to order the cessation of the activities of an association in cases of recurrent and serious irregularities in its functioning, and that sections 35 and 37 allow the filing of a complaint before the complaints committee against such a decision. The Committee considered that measures of dissolution or suspension of organizations by the administrative authority involve a serious risk of interference by the authorities in the very existence of organizations and that it is preferable for legislation not to allow this possibility. If it does, such measures should be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee noted that the organization affected must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure. Moreover, the Committee recalled that the administrative decision should not take effect until a final decision is handed down (see General Survey, op. cit., paragraph 185). The Committee notes the Government’s indication that it will take into consideration the comments of the Committee regarding section 51 under the activities related to review the Law on the Associations and Foundations of Bosnia and Herzegovina. The Committee requests the Government to indicate in its next report the measures taken or envisaged to amend this provision.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. In its last comments, the Committee noted that there is no provision in the Law on the Associations and Foundations of Bosnia and Herzegovina on the right of employers’ and workers’ organizations to affiliate with international organizations. The Committee asks the Government to specify whether employers’ and workers’ organizations have full freedom to affiliate with international organizations of their own choosing.

Republika Srpska. In its previous comments the Committee noted that section 2(2) of the regulation on the registration of trade union organizations in the registry of the Republika Srpska identifies a single central organization, the Union of Trade Unions, as the broadest form of trade union organization in the Republika Srpska and makes no provision concerning the registration of additional organizations at that level. The Committee noted furthermore that sections 1 to 4 of the instructions on the implementation of the regulation authorize this single organization to carry out all the administrative tasks necessary for the registration of trade union federations at the branch, city or communal levels and to countersign and certify the relevant documents before their submission to the authorities. The Committee also noted that a corresponding authority is accorded to trade union federations at the city or communal levels for the registration of trade unions which operate at the enterprise level or in the public sector. The Committee pointed out that trade union diversity should remain possible in all cases and freedom of choice must be safeguarded even where employers’ and workers’ organizations have chosen a single central organization – a situation which should not be institutionalized by legislation (see General Survey, op. cit., paragraphs 96 and 194). Furthermore, the Committee noted that section 28 of the recent Law on the Associations and Foundations of Bosnia and Herzegovina provides that this law does not automatically replace the previous laws and regulations except in the case of an insurmountable contradiction, and requested the Government to indicate whether these provisions continue to apply in the Republika Srpska after the adoption of the new Law on the Associations and Foundations of Bosnia and Herzegovina. The Committee takes note that the Government indicates that activities are under way to harmonize the provisions of the Labour Law with the Law on the Associations and Foundations of Bosnia and Herzegovina and Republika Srpska. The Committee hopes that this harmonization will take place in the very near future and requests that the Government keep it informed in this regard.

The Committee requests that the Government transmit in its next report the information requested on the above points including the measures taken to amend its legislation so as to bring it into full conformity with the Convention.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the Government’s report dated 31 May 2006. The Committee takes note of the discussion concerning the application of this Convention which took place at the Conference Committee in June 2006, and observes that it requested the Government to send a complete report for the next session of the Committee of Experts explaining the legal situation in the country regarding registration and to report any progress achieved in relation to improvements in the application of the Convention. The Committee regrets that the Government did not send this report. Furthermore, the Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) dated 12 July and 10 August 2006 mainly concerning issues already raised.

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 Justice 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 takes note of the Government’s indication that activities and preparations are under way to change this law, specifically section 32. The Committee recalls that it 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 1994 General Survey on freedom of association and collective bargaining, paragraphs 73-74 and 76). The Committee hopes that the activities and preparations that are under way to change the Law on the Associations and Foundations of Bosnia and Herzegovina will be finalized in the very near future and that the amendments will ensure that workers and employers can freely establish organizations of their own choosing without previous authorization. The Committee requests that the Government keep it informed in this regard.

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 takes note of the Government’s statement made at the Conference Committee in June 2006 that efforts were being made to resolve the registration problem of the Confederation of Independent Trade Unions of Bosnia and Herzegovina and that a process to reform the legislation had been initiated to facilitate such registration. 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 takes note of the Government’s statement made at the Conference Committee in June 2006 that the absence of registration did not prevent organizations from participating in social dialogue. The Committee asks the Government to confirm that the Confederation of Independent Trade Unions of Bosnia and Herzegovina can participate in the Economic and Social Council.

3. Registration of employers’ confederations. In its previous comments, the Committee had requested the Government to provide in its next report information on the legislative measures taken so as to enable 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. The Committee once again requests the Government to provide this information in its next report.

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, in its report, the Government indicates that under the activities of reviewing the Law on the Associations and Foundations of Bosnia and Herzegovina, the provisions shall also be reviewed in order to ensure some more reasonable timeframes for registration of employer and worker organizations. The Committee takes note of this information and hopes that the review of sections 30(2), 34 and 35 of the Law on the Associations and Foundations of Bosnia and Herzegovina will be finalized in the very near future. The Committee requests to be kept informed on this matter.

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

The Committee takes note of the Government’s report. It notes with regret that the report does not contain specific information on the comments previously made by the Committee. The Committee must therefore repeat its previous comments which read as follows:

Article 2. Right of employers and workers without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization. Foreign workers. The Committee notes that, while section 9 of the Law on Labour of the Federation of Bosnia and Herzegovina, 1999, and section 6 of the Law on Labour of the Republika Srpska, 2000, seem to guarantee to all workers, including foreigners, the right to join trade unions, sections 3(1) and 9 of the Law on the Associations and Foundations of Bosnia and Herzegovina which is applicable throughout the Republic, appear to limit the right to establish a trade union to those foreign workers who have authorization of residence. The Committee is of the view that the rights provided for in the Convention should be recognized to all workers without distinction based on nationality including anyone working in the territory of the State. The Committee asks the Government to clarify whether authorization of residence is a precondition for foreign worker membership in trade unions.

Registration requirements. The Committee notes that section 37 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides for the establishment of a Complaints Committee which is a permanent body consisting of three members appointed by the Council of Ministers and is authorized to hear complaints against, inter alia, a refusal to grant registration. The Committee notes that section 38 authorizes the Minister of Internal Affairs and Communication to examine the receivability of complaints and to decide whether to transmit them to the Committee and that section 42 provides that, although the Committee’s rulings cannot be the object of a complaint, recourse can be had to the Administrative Court of Bosnia and Herzegovina. The Committee considers that employers’ and workers’ organizations should have the right to appeal to independent courts against any administrative decision regarding their registration. However, the Committee also considers that the existence of the right to appeal to a court is not in itself an adequate safeguard; the competent judges should be able, on the basis of the record, to review the grounds for refusal given by the administrative authorities, which grounds should not be contrary to the principles of freedom of association, and should be empowered to give a ruling rapidly and, where necessary, order appropriate remedies (see General Survey, paragraph 77). The Committee requests the Government to send a copy of the rules of procedure of the Complaints Committee and provide details on the substance and outcome of complaints examined by the Committee concerning the registration of employers’ and workers’ organizations. It further requests the Government to indicate whether the administrative ruling which may be issued by virtue of section 42 may be appealed, and whether the appeals court may review the grounds for refusal and order appropriate remedies.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and to organize their administration and activities. Right to elect representatives freely. Republika Srpska. The Committee notes that section 28 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that this recent and generally applicable law does not automatically replace the previous laws and regulations except in the case of an insurmountable contradiction. The Committee also takes note of section 4(3) of the Regulation on the registration of trade union organizations in the registry of the Republika Srpska, 1998, which includes among the documents necessary for the registration of a trade union a certificate of the employer stating that the trade union representative authorized to submit the registration form is employed by the specific enterprise. The Committee is of the view that such a requirement may prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office (see General Survey, paragraph 117). The Committee requests that the Government indicate in its next report whether this provision is still applicable in the Republika Srpska after the adoption of the Law on the Associations and Foundations of Bosnia and Herzegovina and, if this is the case, to take all necessary measures to amend the law in accordance with Article 3 of the Convention.

Political activities. The Committee notes that section 3(3) of the Law on the Associations and Foundations of Bosnia and Herzegovina prohibits associations, including trade unions, from engaging in electoral campaigns, fund-raising or the financing of candidates or political parties. The Committee requests that the Government indicate whether this prohibition includes union statements of support for electoral candidates.

Interference in the activities of employers’ and workers’ organizations. The Committee notes that section 20 of the Law on the Associations and Foundations of Bosnia and Herzegovina restricts the right to vote of officers in the internal bodies of associations, including employers’ and workers’ organizations, where a conflict of interest may exist. The Committee is of the view that this is an internal matter of such organizations and should be dealt with in their by-laws rather than in the law. The Committee requests the Government to take all necessary measures to repeal this provision.

Public order limitations. Republika Srpska. The Committee notes that article 30 of the Constitution of the Republika Srpska allows legal restrictions on freedom of association for the purpose of protecting the safety of persons and property. The Committee is of the view that provisions restricting freedom of association should be subject to a predictable and restrictive interpretation and apply in conditions of transparency and due process. The Committee requests that the Government provide information on the exact nature of restrictions on freedom of association envisaged in article 30 of the Constitution of the Republika Srpska and the conditions under which they apply.

Relationship with works councils. Federation of Bosnia and Herzegovina. The Committee notes that section 108(2) of the Law on Labour provides that if no works council has been created in the establishment, the trade union shall have the same powers and obligations as the works council in accordance with the law. The Committee also notes that section 98 of the Law on Labour as amended by section 41 of the Decree of 15 August 2000 enables the employer to organize collective dismissals in consultation with all trade unions representing 10 per cent of workers only if there is no works council in the enterprise. The Committee considers that these provisions seem to place trade unions in a secondary and subsidiary position in relation to works councils, thus involving the risk of weakening the institutional position of trade unions. Noting that the existence of works councils should not be used in order to undermine trade unions and their activities, the Committee requests that the Government provide information on the means of setting up works councils and the exact scope of their obligations and powers. The Committee also asks the Government to take all necessary steps to amend provisions which privilege works councils relative to trade unions.

The right to strike. Federation of Bosnia and Herzegovina. The Committee notes that section 134 of the Law on Labour Relations and Wages of Employees of Federal Administrative Bodies, 1998, establishes that workers shall be ordered to interrupt a strike if the authorities consider that there is a serious threat to the provision of essential services which could give rise to an immediate danger or very serious repercussions for the life and safety of persons and the security of property, or other irreversible consequences. Section 134 further provides that such interruption will be decided by common agreement between the strike committee and the chief of the administrative organ or service where the strike takes place. The Committee asks the Government to provide information on the manner in which disagreements on interrupting a strike are resolved and to specify in particular whether there is a possibility of recourse to an independent body having the confidence of the parties concerned for a final determination.

Republika Srpska. The Committee notes that sections 10 and 11 of the Law on Strike, 1998, authorize the employer to determine the minimum service and to assign workers to posts at least three days before the beginning of the strike, taking into consideration the opinion, suggestions and comments of the trade union. The Committee also notes that section 12(2) of the Law on Strike authorizes the competent public authority to secure the conditions for the provision of minimum service if the management fails to do so and to engage workers who are not employed by the enterprise if the minimum working process cannot be secured otherwise. The Committee is of the view that organizations of workers should be able, if they so wish, to participate along with the employers and the public authorities in defining the minimum service, which must be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, the only possible exception being the case of essential services in the strict sense of the term, i.e. those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee also notes that, in case of disagreement, the minimum service should be defined by an independent body (see General Survey, paragraph 161). The Committee requests that the Government take all necessary measures to amend the legislation so that workers may participate in the definition of the minimum service and so that an independent body may make the determination when the parties concerned cannot agree.

Article 4. Dissolution and suspension of organizations by administrative authority. The Committee notes that section 51(1) of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Internal Affairs and Communication to order the dissolution of an association that abstains from its main activity for the realization of its objectives for at least two years without valid reason. The Committee notes that it is normally a matter for the employers’ and workers’ organizations themselves to decide on their dissolution and that the matters set out in this section are not an issue for the Government to evaluate. The Committee requests the Government to indicate in its next report the measures taken or envisaged to repeal this provision.

The Committee notes furthermore that subsections 1 to 3 of section 51 of the Law on the Associations and Foundations of Bosnia and Herzegovina authorize the Minister of Internal Affairs and Communication to order the cessation of the activities of an association in case of recurrent and serious irregularities in its functioning, and that sections 35 and 37 allow the filing of a complaint before the Complaints Committee against such a decision. The Committee considers that measures of dissolution or suspension of organizations by administrative authority involve a serious risk of interference by the authorities in the very existence of organizations and that it is preferable for legislation not to allow this possibility. If it does, such measures should be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee notes that the organization affected must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure. Moreover, the Committee recalls that the administrative decision should not take effect until a final decision is handed down (see General Survey, paragraph 185). The Committee requests the Government to provide details on any decisions of the Minister of Internal Affairs and Communication ordering the dissolution of employers’ and workers’ organizations and on any complaints brought by these organizations before the Complaints Committee. The Committee also requests the Government to indicate whether appeals may be lodged to the courts against the decisions of the Complaints Committee and whether such appeals have the effect of suspending the execution of the Minister’s order.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee notes that there is no provision in the Law on the Associations and Foundations of Bosnia and Herzegovina on the right of employers’ and workers’ organizations to affiliate with international organizations. The Committee asks the Government to specify whether employers’ and workers’ organizations have full freedom to affiliate with international organizations of their own choosing.

Republika Srpska. The Committee notes that section 2(2) of the regulation on the registration of trade union organizations in the registry of the Republika Srpska identifies a single central organization, the Union of Trade Unions, as the broadest form of trade union organization in the Republika Srpska and makes no provision concerning the registration of additional organizations at that level. The Committee notes furthermore that sections 1 to 4 of the instructions on the implementation of the regulation authorize this single organization to carry out all the administrative tasks necessary for the registration of trade union federations at the branch, city or communal levels and to countersign and certify the relevant documents before their submission to the authorities. The Committee also notes that a corresponding authority is accorded to trade union federations at the city or communal levels for the registration of trade unions which operate at the enterprise level or in the public sector. The Committee points out that trade union diversity should remain possible in all cases and freedom of choice must be safeguarded even where employers’ and workers’ organizations have chosen a single central organization - a situation which should not be institutionalized by legislation (see General Survey, paragraphs 96 and 194). Noting that section 28 of the recent Law on the Associations and Foundations of Bosnia and Herzegovina provides that this law does not automatically replace the previous laws and regulations except in case of an insurmountable contradiction, the Committee asks the Government to indicate whether these provisions continue to apply in the Republika Srpska after the adoption of the new Law on the Associations and Foundations of Bosnia and Herzegovina.

The Committee requests that the Government transmit in its next report the information requested on the above points including the measures taken to amend its legislation so as to bring it into full conformity with the Convention.

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

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.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes with regret that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2 of the Convention. Right of employers and workers, without distinction whatsoever, to establish and join organizations of their own choosing without previous authorization

Foreign workers. The Committee notes that, while section 9 of the law on labour of the Federation of Bosnia and Herzegovina, 1999, and section 6 of the law on labour of the Republika Srpska, 2000, seem to guarantee to all workers, including foreigners, the right to join trade unions, sections 3(1) and 9 of the Law on the Associations and Foundations of Bosnia and Herzegovina, which is applicable throughout the Republic, appear to limit the right to establish a trade union to those foreign workers who have authorization of residence. The Committee is of the view that the rights provided for in the Convention should be recognized to all workers without distinction based on nationality including anyone working in the territory of the State. The Committee asks the Government to clarify whether authorization of residence is a precondition for foreign worker membership in trade unions.

Registration requirements. The Committee notes that section 32 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that, when the Minister of Internal Affairs and Communication takes no decision to accept or refuse a request for registration within 30 days from its submission, the request for registration shall be considered as rejected. 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 (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 73-74 and 76). The Committee notes that this provision lays down a presumption against the registration of associations including employers’ and workers’ organizations, as such registration is refused if the authorities take no action within 30 days. The Committee requests that the Government take all necessary measures to repeal this provision.

The Committee further notes that section 37 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides for the establishment of a Complaints Committee which is a permanent body consisting of three members appointed by the Council of Ministers and is authorized to hear complaints against, inter alia, a refusal to grant registration. The Committee notes that section 38 authorizes the Minister of Internal Affairs and Communication to examine the receivability of complaints and to decide whether to transmit them to the Committee, and that section 42 provides that, "although the Committee’s rulings cannot be the object of a complaint, recourse can be had to the Administrative Court of Bosnia and Herzegovina". The Committee considers that employers’ and workers’ organizations should have the right to appeal to independent courts against any administrative decision regarding their registration. However, the Committee also considers that the existence of the right to appeal to a court is not in itself an adequate safeguard; the competent judges should be able, on the basis of the record, to review the grounds for refusal given by the administrative authorities, which grounds should not be contrary to the principles of freedom of association, and should be empowered to give a ruling rapidly and, where necessary, order appropriate remedies (see General Survey, paragraph 77). The Committee requests the Government to send a copy of the rules of procedure of the Complaints Committee and provide details on the substance and outcome of complaints examined by the Committee concerning the registration of employers’ and workers’ organizations. It further requests the Government to indicate whether the administrative ruling which may be issued by virtue of section 42 may be appealed, and whether the appeals court may review the grounds for refusal and order appropriate remedies.

Article 3. Right of employers’ and workers’ organizations to draw up their constitutions and rules, to elect their representatives in full freedom and
to organize their administration and activities

Right to elect representatives freely

Republika Srpska. The Committee notes that section 28 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that this recent and generally applicable law does not automatically replace the previous laws and regulations except in case of an insurmountable contradiction. The Committee also takes note of section 4(3) of the regulation on the registration of trade union organizations in the registry of the Republika Srpska, 1998, which includes among the documents necessary for the registration of a trade union, a certificate of the employer stating that the trade union representative authorized to submit the registration form is employed by the specific enterprise. The Committee is of the view that such a requirement may prevent individuals, for instance, full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office (see General Survey, paragraph 117). The Committee requests that the Government indicates in its next report whether this provision is still applicable in the Republika Srpska after the adoption of the Law on the Associations and Foundations of Bosnia and Herzegovina and, if this is the case, to take all necessary measures to amend the law in accordance with Article 3 of the Convention.

Political activities. The Committee notes that section 3(3) of the Law on the Associations and Foundations of Bosnia and Herzegovina prohibits associations, including trade unions, from engaging in electoral campaigns, fund-raising or the financing of candidates or political parties. The Committee requests that the Government indicate whether this prohibition includes union statements of support for electoral candidates.

Interference in the activities of employers’ and workers’ organizations. The Committee notes that section 20 of the Law on the Associations and Foundations of Bosnia and Herzegovina restricts the right to vote of officers in the internal bodies of associations, including employers’ and workers’ organizations, where a conflict of interest may exist. The Committee is of the view that this is an internal matter of such organizations and should be dealt with in their by-laws rather than in the law. The Committee requests the Government to take all necessary measures to repeal this provision.

Public order limitations

Republika Srpska. The Committee notes that article 30 of the Constitution of the Republika Srpska allows legal restrictions on freedom of association for the purpose of protecting the safety of persons and property. The Committee is of the view that provisions restricting freedom of association should be subject to a predictable and restrictive interpretation and apply in conditions of transparency and due process. The Committee requests that the Government provide information on the exact nature of restrictions on freedom of association envisaged in article 30 of the Constitution of the Republika Srpska and the conditions under which they apply.

Relationship with works’ councils

Federation of Bosnia and Herzegovina. The Committee notes that section 108(2) of the Law on Labour provides that if no works council has been created in the establishment, the trade union shall have the same powers and obligations as the works council in accordance with the law. The Committee also notes that section 98 of the Law on Labour, as amended by section 41 of the Decree of 15 August 2000, enables the employer to organize collective dismissals in consultation with all trade unions representing 10 per cent of workers only if there is no works council in the enterprise. The Committee considers that these provisions seem to place trade unions in a secondary and subsidiary position in relation to works councils, thus involving the risk of weakening the institutional position of trade unions. Noting that the existence of works’ councils should not be used in order to undermine trade unions and their activities, the Committee requests that the Government provide information on the means of setting up works councils and the exact scope of their obligations and powers. The Committee also asks the Government to take all necessary steps to amend provisions which privilege works’ councils relative to trade unions.

The right to strike

Federation of Bosnia and Herzegovina. The Committee notes that section 134 of the Law on Labour Relations and Wages of Employees of Federal Administrative Bodies, 1998, establishes that workers shall be ordered to interrupt a strike if the authorities consider that there is a serious threat to the provision of essential services which could give rise to an immediate danger or very serious repercussions for the life and safety of persons and the security of property, or other irreversible consequences. Section 134 further provides that such interruption will be decided by common agreement between the strike committee and the chief of the administrative organ or service where the strike takes place. The Committee asks the Government to provide information on the manner in which disagreements on interrupting a strike are resolved and to specify in particular whether there is a possibility of recourse to an independent body having the confidence of the parties concerned for a final determination.

Republika Srpska. The Committee notes that sections 10 and 11 of the Law on Strike, 1998, authorizes the employer to determine the minimum service and to assign workers to posts at least three days before the beginning of the strike, taking into consideration the opinion, suggestions and comments of the trade union. The Committee also notes that section 12(2) of the Law on Strike authorizes the competent public authority to secure the conditions for the provision of minimum service if the management fails to do so and to engage workers who are not employed by the enterprise if the minimum working process cannot be secured otherwise. The Committee is of the view that organizations of workers should be able, if they so wish, to participate along with the employers and the public authorities in defining the minimum service, which must be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, the only possible exception being the case of essential services in the strict sense of the term, i.e. those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee also notes that, in case of disagreement, the minimum service should be defined by an independent body (see General Survey, paragraph 161). The Committee requests that the Government take all necessary measures to amend the legislation so that workers may participate in the definition of the minimum service and so that an independent body may make the determination when the parties concerned cannot agree.

Article 4. Dissolution and suspension of organizations by administrative authority

The Committee notes that section 51(1) of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Internal Affairs and Communication to order the dissolution of an association that abstains from its main activity for the realization of its objectives for at least two years without valid reason. The Committee notes that it is normally a matter for the employers’ and workers’ organizations themselves to decide on their dissolution and that the matters set out in this section are not an issue for the Government to evaluate. The Committee requests the Government to indicate in its next report the measures taken or envisaged to repeal this provision.

The Committee notes furthermore that subsections 1-3 of section 51 of the Law on the Associations and Foundations of Bosnia and Herzegovina authorize the Minister of Internal Affairs and Communication to order the cessation of the activities of an association in case of recurrent and serious irregularities in its functioning, and that sections 35 and 37 allow the filing of a complaint before the Complaints Committee against such a decision. The Committee considers that measures of dissolution or suspension of organizations by an administrative authority involve a serious risk of interference by the authorities in the very existence of organizations and that it is preferable for legislation not to allow this possibility. If it does, such measures should be accompanied by all of the necessary guarantees, in particular, due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee notes that the organization affected must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure. Moreover, the Committee recalls that the administrative decision should not take effect until a final decision is handed down (see General Survey, paragraph 185). The Committee requests the Government to provide details on any decisions of the Minister of Internal Affairs and Communication ordering the dissolution of employers’ and workers’ organizations and on any complaints brought by these organizations before the Complaints Committee. The Committee also requests the Government to indicate whether appeals may be lodged to the courts against the decisions of the Complaints Committee and whether such appeals have the effect of suspending the execution of the Minister’s order.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations

The Committee notes that there is no provision in the Law on the Associations and Foundations of Bosnia and Herzegovina on the right of employers’ and workers’ organizations to affiliate with international organizations. The Committee asks the Government to specify whether employers’ and workers’ organizations have full freedom to affiliate with international organizations of their own choosing.

Republika Srpska. The Committee notes that section 2(2) of the regulation on the registration of trade union organizations in the registry of the Republika Srpska identifies a single central organization, the Union of Trade Unions, as the broadest form of trade union organization in the Republika Srpska and makes no provision concerning the registration of additional organizations at that level. The Committee notes furthermore that sections 1-4 of the instructions on the implementation of the regulation to authorize this single organization to carry out all the administrative tasks necessary for the registration of trade union federations at the branch, city or communal levels and to countersign and certify the relevant documents before their submission to the authorities. The Committee also notes that a corresponding authority is accorded to trade union federations at the city or communal levels for the registration of trade unions which operate at the enterprise level or in the public sector. The Committee points out that trade union diversity should remain possible in all cases and freedom of choice must be safeguarded even where employers’ and workers’ organizations have chosen a single central organization - a situation which should not be institutionalized by legislation (see General Survey, paragraphs 96 and 194). Noting that section 28 of the recent Law on the Associations and Foundations of Bosnia and Herzegovina provides that this law does not automatically replace the previous laws and regulations except in the case of an insurmountable contradiction, the Committee asks the Government to indicate whether these provisions continue to apply in the Republika Srpska after the adoption of the new Law on the Associations and Foundations of Bosnia and Herzegovina.

The Committee requests that the Government transmit in its next report the information requested on the above points, including the measures taken to amend its legislation so as to bring it into full conformity with the Convention.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes that the Government’s report has not been received. It also takes note of the comments of the Confederation of Independent Trade Unions of Bosnia and Herzegovina (CITU of BiH), dated 29 July 2004, concerning the follow-up to the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2225.

Article 2 of the Convention. The right of workers and employers to form organizations of their own choosing. 1. The Committee notes that in its conclusions and recommendations in Case No. 2225, the Committee on Freedom of Association deplored the unreasonable period which has elapsed since the filing of a registration request by the CITU of BiH, and noted that the refusal to register this longstanding organization on clearly unjustified grounds was a violation of Article 2 of the Convention, strongly requesting the Government to take all necessary measures urgently with a view to rapidly finalizing the registration of this Confederation. The Committee notes that, according to the CITU of BiH, the Government still refuses to grant registration and has impeded the initiation of court proceedings on this issue by indicating in June 2004 that a government commission in charge of examining complaints prior to their submission to Court has no seal and therefore cannot operate. The CITU of BiH adds that this refusal, which is aimed at confiscating the organization’s belongings and disqualifying it from operating at the level of the whole country, takes place in the context of ongoing preparations for the establishment of the Economic and Social Council, to which it will be unable to participate regardless of the fact that it is the most representative workers’ organization with the largest number of members. It will also be prevented from engaging in collective bargaining.

The Committee recalls that according to Article 7 of the Convention, when legislation makes the acquisition of legal personality a prerequisite for the existence and functioning of organizations, the conditions for acquiring legal personality must not be such that they amount to a de facto requirement for previous authorization to establish an organization, which would be tantamount to calling into question the application of Article 2 of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 76). The Committee requests the Government to indicate in its next report the measures taken or contemplated in order to grant registration to the CITU of BiH as soon as possible.

The Committee notes that this is the third reported case of serious delay in registering a national employers’ or workers’ organization. It notes however, with interest that one of these organizations, the Associated Workers’ Trade Union of Bosnia and Herzegovina (URS/FbiH), has now been registered at federal level (see 334th Report of the Committee on Freedom of Association, Case No. 2053, paragraphs 12-14).

As regards employers’ organizations, the Committee must once again request the Government to take all necessary measures in the very near future to amend its legislation 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 indicate the progress made in this regard in its next report. The Committee further requests the Government once again to provide information on the measures taken for the effective registration of the Employers’ Confederation of the Republic of Bosnia and Herzegovina.

2. The Committee also notes that the Committee on Freedom of Association has drawn its attention to the legislative aspects of Case No. 2225, in particular, article 32 of the Law on the Associations and Foundations of Bosnia and Herzegovina which 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 notes that according to the CITU of BiH, there has been no initiative so far to bring the legislation into conformity with the Convention. The Committee notes that it has already raised this point with the Government in a direct request and requests the Government to provide its response to all of the Committee’s comments contained therein.

3. The Committee finally recalls that in its previous comments it had raised the issue of the time limitations prescribed in sections 30(2), 34 and 35 of the Law on the Associations and Foundations of Bosnia and Herzegovina in relation to the registration of an association, including employers’ and workers’ organizations, and had noted that these limits are very short and entail in case of non-implementation, disproportionate penalties such as the dissolution of the organization in question or the cancellation of its registration. The Committee once again requests the Government to amend the legislation so as to provide more reasonable limitations 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.

The Committee trusts that the Government will make every effort to submit its report and to take the necessary action in the very near future with a view to addressing the pending comments of the Committee.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2. Right of employers and workers without distinction
whatsoever, to establish and join organizations of their own
choosing without previous authorization

Foreign workers. The Committee notes that while section 9 of the Law on Labour of the Federation of Bosnia and Herzegovina, 1999, and section 6 of the Law on Labour of the Republika Srpska, 2000, seem to guarantee to all workers, including foreigners, the right to join trade unions, sections 3(1) and 9 of the Law on the Associations and Foundations of Bosnia and Herzegovina which is applicable throughout the Republic, appear to limit the right to establish a trade union to those foreign workers who have authorization of residence. The Committee is of the view that the rights provided for in the Convention should be recognized to all workers without distinction based on nationality including anyone working in the territory of the State. The Committee asks the Government to clarify whether authorization of residence is a precondition for foreign worker membership in trade unions.

Registration requirements. The Committee notes that section 32 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that when the Minister of Internal Affairs and Communication takes no decision to accept or refuse a request for registration within 30 days from its submission, the request for registration shall be considered as rejected. 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 (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 73-74 and 76). The Committee notes that this provision lays down a presumption against the registration of associations including employers’ and workers’ organizations, as such registration is refused if the authorities take no action within 30 days. The Committee requests that the Government take all necessary measures to repeal this provision.

The Committee further notes that section 37 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides for the establishment of a Complaints Committee which is a permanent body consisting of three members appointed by the Council of Ministers and is authorized to hear complaints against, inter alia, a refusal to grant registration. The Committee notes that section 38 authorizes the Minister of Internal Affairs and Communication to examine the receivability of complaints and to decide whether to transmit them to the Committee and that section 42 provides that, although the Committee’s rulings cannot be the object of a complaint, recourse can be had to the Administrative Court of Bosnia and Herzegovina. The Committee considers that employers’ and workers’ organizations should have the right to appeal to independent courts against any administrative decision regarding their registration. However, the Committee also considers that the existence of the right to appeal to a court is not in itself an adequate safeguard; the competent judges should be able, on the basis of the record, to review the grounds for refusal given by the administrative authorities, which grounds should not be contrary to the principles of freedom of association, and should be empowered to give a ruling rapidly and, where necessary, order appropriate remedies (see General Survey, paragraph 77). The Committee requests the Government to send a copy of the rules of procedure of the Complaints Committee and provide details on the substance and outcome of complaints examined by the Committee concerning the registration of employers’ and workers’ organizations. It further requests the Government to indicate whether the administrative ruling which may be issued by virtue of section 42 may be appealed, and whether the appeals court may review the grounds for refusal and order appropriate remedies.

Article 3. Right of employers’ and workers’ organizations to draw
up their constitutions and rules, to elect their representatives
in full freedom and to organize their administration and activities

Right to elect representatives freely

Republika Srpska. The Committee notes that section 28 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that this recent and generally applicable law does not automatically replace the previous laws and regulations except in case of an insurmountable contradiction. The Committee also takes note of section 4(3) of the Regulation on the registration of trade union organizations in the registry of the Republika Srpska, 1998, which includes among the documents necessary for the registration of a trade union a certificate of the employer stating that the trade union representative authorized to submit the registration form is employed by the specific enterprise. The Committee is of the view that such a requirement may prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office (see General Survey, paragraph 117). The Committee requests that the Government indicate in its next report whether this provision is still applicable in the Republika Srpska after the adoption of the Law on the Associations and Foundations of Bosnia and Herzegovina and, if this is the case, to take all necessary measures to amend the law in accordance with Article 3 of the Convention.

Political activities. The Committee notes that section 3(3) of the Law on the Associations and Foundations of Bosnia and Herzegovina prohibits associations, including trade unions, from engaging in electoral campaigns, fund-raising or the financing of candidates or political parties. The Committee requests that the Government indicate whether this prohibition includes union statements of support for electoral candidates.

Interference in the activities of employers’ and workers’ organizations. The Committee notes that section 20 of the Law on the Associations and Foundations of Bosnia and Herzegovina restricts the right to vote of officers in the internal bodies of associations, including employers’ and workers’ organizations, where a conflict of interest may exist. The Committee is of the view that this is an internal matter of such organizations and should be dealt with in their by-laws rather than in the law. The Committee requests the Government to take all necessary measures to repeal this provision.

Public order limitations

Republika Srpska. The Committee notes that article 30 of the Constitution of the Republika Srpska allows legal restrictions on freedom of association for the purpose of protecting the safety of persons and property. The Committee is of the view that provisions restricting freedom of association should be subject to a predictable and restrictive interpretation and apply in conditions of transparency and due process. The Committee requests that the Government provide information on the exact nature of restrictions on freedom of association envisaged in article 30 of the Constitution of the Republika Srpska and the conditions under which they apply.

Relationship with works councils

Federation of Bosnia and Herzegovina. The Committee notes that section 108(2) of the Law on Labour provides that if no works council has been created in the establishment, the trade union shall have the same powers and obligations as the works council in accordance with the law. The Committee also notes that section 98 of the Law on Labour as amended by section 41 of the Decree of 15 August 2000 enables the employer to organize collective dismissals in consultation with all trade unions representing 10 per cent of workers only if there is no works council in the enterprise. The Committee considers that these provisions seem to place trade unions in a secondary and subsidiary position in relation to works councils, thus involving the risk of weakening the institutional position of trade unions. Noting that the existence of works councils should not be used in order to undermine trade unions and their activities, the Committee requests that the Government provide information on the means of setting up works councils and the exact scope of their obligations and powers. The Committee also asks the Government to take all necessary steps to amend provisions which privilege works councils relative to trade unions.

The right to strike

Federation of Bosnia and Herzegovina. The Committee notes that section 134 of the Law on Labour Relations and Wages of Employees of Federal Administrative Bodies, 1998, establishes that workers shall be ordered to interrupt a strike if the authorities consider that there is a serious threat to the provision of essential services which could give rise to an immediate danger or very serious repercussions for the life and safety of persons and the security of property, or other irreversible consequences. Section 134 further provides that such interruption will be decided by common agreement between the strike committee and the chief of the administrative organ or service where the strike takes place. The Committee asks the Government to provide information on the manner in which disagreements on interrupting a strike are resolved and to specify in particular whether there is a possibility of recourse to an independent body having the confidence of the parties concerned for a final determination.

Republika Srpska. The Committee notes that sections 10 and 11 of the Law on Strike, 1998, authorize the employer to determine the minimum service and to assign workers to posts at least three days before the beginning of the strike, taking into consideration the opinion, suggestions and comments of the trade union. The Committee also notes that section 12(2) of the Law on Strike authorizes the competent public authority to secure the conditions for the provision of minimum service if the management fails to do so and to engage workers who are not employed by the enterprise if the minimum working process cannot be secured otherwise. The Committee is of the view that organizations of workers should be able, if they so wish, to participate along with the employers and the public authorities in defining the minimum service, which must be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, the only possible exception being the case of essential services in the strict sense of the term, i.e. those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee also notes that, in case of disagreement, the minimum service should be defined by an independent body (see General Survey, paragraph 161). The Committee requests that the Government take all necessary measures to amend the legislation so that workers may participate in the definition of the minimum service and so that an independent body may make the determination when the parties concerned cannot agree.

Article 4. Dissolution and suspension of organizations by
administrative authority

The Committee notes that section 51(1) of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Internal Affairs and Communication to order the dissolution of an association that abstains from its main activity for the realization of its objectives for at least two years without valid reason. The Committee notes that it is normally a matter for the employers’ and workers’ organizations themselves to decide on their dissolution and that the matters set out in this section are not an issue for the Government to evaluate. The Committee requests the Government to indicate in its next report the measures taken or envisaged to repeal this provision.

The Committee notes furthermore that subsections 1 to 3 of section 51 of the Law on the Associations and Foundations of Bosnia and Herzegovina authorize the Minister of Internal Affairs and Communication to order the cessation of the activities of an association in case of recurrent and serious irregularities in its functioning, and that sections 35 and 37 allow the filing of a complaint before the Complaints Committee against such a decision. The Committee considers that measures of dissolution or suspension of organizations by administrative authority involve a serious risk of interference by the authorities in the very existence of organizations and that it is preferable for legislation not to allow this possibility. If it does, such measures should be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee notes that the organization affected must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure. Moreover, the Committee recalls that the administrative decision should not take effect until a final decision is handed down (see General Survey, paragraph 185). The Committee requests the Government to provide details on any decisions of the Minister of Internal Affairs and Communication ordering the dissolution of employers’ and workers’ organizations and on any complaints brought by these organizations before the Complaints Committee. The Committee also requests the Government to indicate whether appeals may be lodged to the courts against the decisions of the Complaints Committee and whether such appeals have the effect of suspending the execution of the Minister’s order.

Article 5. Right of organizations to establish federations and
confederations and to affiliate with international organizations

The Committee notes that there is no provision in the Law on the Associations and Foundations of Bosnia and Herzegovina on the right of employers’ and workers’ organizations to affiliate with international organizations. The Committee asks the Government to specify whether employers’ and workers’ organizations have full freedom to affiliate with international organizations of their own choosing.

Republika Srpska. The Committee notes that section 2(2) of the regulation on the registration of trade union organizations in the registry of the Republika Srpska identifies a single central organization, the Union of Trade Unions, as the broadest form of trade union organization in the Republika Srpska and makes no provision concerning the registration of additional organizations at that level. The Committee notes furthermore that sections 1-4 of the instructions on the implementation of the regulation authorize this single organization to carry out all the administrative tasks necessary for the registration of trade union federations at the branch, city or communal levels and to countersign and certify the relevant documents before their submission to the authorities. The Committee also notes that a corresponding authority is accorded to trade union federations at the city or communal levels for the registration of trade unions which operate at the enterprise level or in the public sector. The Committee points out that trade union diversity should remain possible in all cases and freedom of choice must be safeguarded even where employers’ and workers’ organizations have chosen a single central organization - a situation which should not be institutionalized by legislation (see General Survey, paragraphs 96 and 194). Noting that section 28 of the recent Law on the Associations and Foundations of Bosnia and Herzegovina provides that this law does not automatically replace the previous laws and regulations except in case of an insurmountable contradiction, the Committee asks the Government to indicate whether these provisions continue to apply in the Republika Srpska after the adoption of the new Law on the Associations and Foundations of Bosnia and Herzegovina.

The Committee requests that the Government transmit in its next report the information requested on the above points including the measures taken to amend its legislation so as to bring it into full conformity with the Convention.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Article 2. Right of employers and workers, without distinction
whatsoever, to establish and join organizations of their own
choosing without previous authorization

Time limits. The Committee recalls that in its previous comments it had noted, pursuant to the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2053, that the time limitations prescribed in the legislation for the registration of associations, including trade unions, were very short and were equivalent in practice to a system of previous authorization. In this respect, the Committee observes that although the recent Law on the Associations and Foundations of Bosnia and Herzegovina lifted the requirement that a registration request be filed within 15 days from an organization’s constituent assembly, sections 30(2), 34 and 35 of the new Law continue to lay down brief time limits in the context of changing the name or emblem of an association, making corrections to the statute of an association, completing a registration request or lodging a complaint against a decision to deny registration. The Committee further notes with concern that the consequences of exceeding such time limitations include the dissolution of the organization in question, or cancellation of its registration. It considers such a severe penalty totally disproportionate to a delay in meeting formal registration requirements. The Committee therefore requests that the Government take all necessary measures in the very near future in order to amend its legislation so as to provide more reasonable time limitations 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. It also requests that the Government transmit information in its next report concerning the measures taken in this respect and to indicate the current status of the Associated Workers’ Trade Union of Bosnia and Herzegovina (URS/FBiH), the complainant in Case No. 2053.

Articles 2 and 5. Right of employers and workers to establish and
join organizations of their own choosing; right of employers’ and
workers’ organizations to establish federations and confederations

Employers’ organizations. The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2140 concerning registration requirements which constitute obstacles to the establishment of employers’ confederations and the commencement of their activities at the level of the Republic of Bosnia and Herzegovina and its two Entities (329th Report, November 2002, paragraphs 290-298). The Committee notes in particular that it is impossible to obtain the registration and legal recognition of an employers’ confederation at the level of the Republic of Bosnia and Herzegovina as a whole. The Committee notes moreover that, at the level of the Federation of Bosnia and Herzegovina and the Republika Srpska, employers’ confederations can only obtain registration under the status of "citizens’ associations" which seriously impedes the commencement of their activities. The Committee recalls that the Convention covers both employers and workers and that, in accordance with Article 2, employers shall have the right to establish and, subject only to the rules of the organization concerned, join organizations of their own choosing without previous authorization (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 63). The Committee requests the Government to take all necessary measures in the very near future to amend its legislation 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. The Committee requests that the Government transmit information in its next report on measures taken in this respect and on the effective registration of the Employers’ Confederation of the Republic of Bosnia and Herzegovina at the level of the Republic as a whole. The Committee also requests that the Government indicate the current status of the complainants in the abovementioned Case No. 2140, namely, the Employers of the Federation of Bosnia and Herzegovina and the Employers’ Confederation of Republika Srpska (SAVEZ POSLODAVACA).

The Committee trusts that the Government will fully take into account the abovementioned comments and draws the Government’s attention to the availability of ILO technical assistance in this respect.

The Committee is addressing a request on other points directly to the Government.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note with interest of the information contained in the first report of the Government and, in particular, the adoption of the new Law on the Associations and Foundations of Bosnia and Herzegovina of 30 November 2001.

Article 2. Right of employers and workers without distinction
whatsoever, to establish and join organizations of their own
choosing without previous authorization

Foreign workers. The Committee notes that while section 9 of the Law on Labour of the Federation of Bosnia and Herzegovina, 1999, and section 6 of the Law on Labour of the Republika Srpska, 2000, seem to guarantee to all workers, including foreigners, the right to join trade unions, sections 3(1) and 9 of the Law on the Associations and Foundations of Bosnia and Herzegovina which is applicable throughout the Republic, appear to limit the right to establish a trade union to those foreign workers who have authorization of residence. The Committee is of the view that the rights provided for in the Convention should be recognized to all workers without distinction based on nationality including anyone working in the territory of the State. The Committee asks the Government to clarify whether authorization of residence is a precondition for foreign worker membership in trade unions.

Registration requirements. The Committee notes that section 32 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that when the Minister of Internal Affairs and Communication takes no decision to accept or refuse a request for registration within 30 days from its submission, the request for registration shall be considered as rejected. 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 (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 73-74 and 76). The Committee notes that this provision lays down a presumption against the registration of associations including employers’ and workers’ organizations, as such registration is refused if the authorities take no action within 30 days. The Committee requests that the Government take all necessary measures to repeal this provision.

The Committee further notes that section 37 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides for the establishment of a Complaints Committee which is a permanent body consisting of three members appointed by the Council of Ministers and is authorized to hear complaints against, inter alia, a refusal to grant registration. The Committee notes that section 38 authorizes the Minister of Internal Affairs and Communication to examine the receivability of complaints and to decide whether to transmit them to the Committee and that section 42 provides that, although the Committee’s rulings cannot be the object of a complaint, recourse can be had to the Administrative Court of Bosnia and Herzegovina. The Committee considers that employers’ and workers’ organizations should have the right to appeal to independent courts against any administrative decision regarding their registration. However, the Committee also considers that the existence of the right to appeal to a court is not in itself an adequate safeguard; the competent judges should be able, on the basis of the record, to review the grounds for refusal given by the administrative authorities, which grounds should not be contrary to the principles of freedom of association, and should be empowered to give a ruling rapidly and, where necessary, order appropriate remedies (see General Survey, paragraph 77). The Committee requests the Government to send a copy of the rules of procedure of the Complaints Committee and provide details on the substance and outcome of complaints examined by the Committee concerning the registration of employers’ and workers’ organizations. It further requests the Government to indicate whether the administrative ruling which may be issued by virtue of section 42 may be appealed, and whether the appeals court may review the grounds for refusal and order appropriate remedies.

Article 3. Right of employers’ and workers’ organizations to draw
up their constitutions and rules, to elect their representatives
in full freedom and to organize their administration and activities

  Right to elect representatives freely

Republika Srpska. The Committee notes that section 28 of the Law on the Associations and Foundations of Bosnia and Herzegovina provides that this recent and generally applicable law does not automatically replace the previous laws and regulations except in case of an insurmountable contradiction. The Committee also takes note of section 4(3) of the Regulation on the registration of trade union organizations in the registry of the Republika Srpska, 1998, which includes among the documents necessary for the registration of a trade union a certificate of the employer stating that the trade union representative authorized to submit the registration form is employed by the specific enterprise. The Committee is of the view that such a requirement may prevent individuals, for instance full-time union officers or pensioners, from carrying out union duties and becoming candidates for trade union office (see General Survey, paragraph 117). The Committee requests that the Government indicate in its next report whether this provision is still applicable in the Republika Srpska after the adoption of the Law on the Associations and Foundations of Bosnia and Herzegovina and, if this is the case, to take all necessary measures to amend the law in accordance with Article 3 of the Convention.

Political activities. The Committee notes that section 3(3) of the Law on the Associations and Foundations of Bosnia and Herzegovina prohibits associations, including trade unions, from engaging in electoral campaigns, fund-raising or the financing of candidates or political parties. The Committee requests that the Government indicate whether this prohibition includes union statements of support for electoral candidates.

Interference in the activities of employers’ and workers’ organizations. The Committee notes that section 20 of the Law on the Associations and Foundations of Bosnia and Herzegovina restricts the right to vote of officers in the internal bodies of associations, including employers’ and workers’ organizations, where a conflict of interest may exist. The Committee is of the view that this is an internal matter of such organizations and should be dealt with in their by-laws rather than in the law. The Committee requests the Government to take all necessary measures to repeal this provision.

  Public order limitations

Republika Srpska. The Committee notes that article 30 of the Constitution of the Republika Srpska allows legal restrictions on freedom of association for the purpose of protecting the safety of persons and property. The Committee is of the view that provisions restricting freedom of association should be subject to a predictable and restrictive interpretation and apply in conditions of transparency and due process. The Committee requests that the Government provide information on the exact nature of restrictions on freedom of association envisaged in article 30 of the Constitution of the Republika Srpska and the conditions under which they apply.

  Relationship with works councils

Federation of Bosnia and Herzegovina. The Committee notes that section 108(2) of the Law on Labour provides that if no works council has been created in the establishment, the trade union shall have the same powers and obligations as the works council in accordance with the law. The Committee also notes that section 98 of the Law on Labour as amended by section 41 of the Decree of 15 August 2000 enables the employer to organize collective dismissals in consultation with all trade unions representing 10 per cent of workers only if there is no works council in the enterprise. The Committee considers that these provisions seem to place trade unions in a secondary and subsidiary position in relation to works councils, thus involving the risk of weakening the institutional position of trade unions. Noting that the existence of works councils should not be used in order to undermine trade unions and their activities, the Committee requests that the Government provide information on the means of setting up works councils and the exact scope of their obligations and powers. The Committee also asks the Government to take all necessary steps to amend provisions which privilege works councils relative to trade unions.

  The right to strike

Federation of Bosnia and Herzegovina. The Committee notes that section 134 of the Law on Labour Relations and Wages of Employees of Federal Administrative Bodies, 1998, establishes that workers shall be ordered to interrupt a strike if the authorities consider that there is a serious threat to the provision of essential services which could give rise to an immediate danger or very serious repercussions for the life and safety of persons and the security of property, or other irreversible consequences. Section 134 further provides that such interruption will be decided by common agreement between the strike committee and the chief of the administrative organ or service where the strike takes place. The Committee asks the Government to provide information on the manner in which disagreements on interrupting a strike are resolved and to specify in particular whether there is a possibility of recourse to an independent body having the confidence of the parties concerned for a final determination.

Republika Srpska. The Committee notes that sections 10 and 11 of the Law on Strike, 1998, authorize the employer to determine the minimum service and to assign workers to posts at least three days before the beginning of the strike, taking into consideration the opinion, suggestions and comments of the trade union. The Committee also notes that section 12(2) of the Law on Strike authorizes the competent public authority to secure the conditions for the provision of minimum service if the management fails to do so and to engage workers who are not employed by the enterprise if the minimum working process cannot be secured otherwise. The Committee is of the view that organizations of workers should be able, if they so wish, to participate along with the employers and the public authorities in defining the minimum service, which must be limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, the only possible exception being the case of essential services in the strict sense of the term, i.e. those the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The Committee also notes that, in case of disagreement, the minimum service should be defined by an independent body (see General Survey, paragraph 161). The Committee requests that the Government take all necessary measures to amend the legislation so that workers may participate in the definition of the minimum service and so that an independent body may make the determination when the parties concerned cannot agree.

Article 4. Dissolution and suspension of organizations by administrative authority. The Committee notes that section 51(1) of the Law on the Associations and Foundations of Bosnia and Herzegovina authorizes the Minister of Internal Affairs and Communication to order the dissolution of an association that abstains from its main activity for the realization of its objectives for at least two years without valid reason. The Committee notes that it is normally a matter for the employers’ and workers’ organizations themselves to decide on their dissolution and that the matters set out in this section are not an issue for the Government to evaluate. The Committee requests the Government to indicate in its next report the measures taken or envisaged to repeal this provision.

The Committee notes furthermore that subsections 1 to 3 of section 51 of the Law on the Associations and Foundations of Bosnia and Herzegovina authorize the Minister of Internal Affairs and Communication to order the cessation of the activities of an association in case of recurrent and serious irregularities in its functioning, and that sections 35 and 37 allow the filing of a complaint before the Complaints Committee against such a decision. The Committee considers that measures of dissolution or suspension of organizations by administrative authority involve a serious risk of interference by the authorities in the very existence of organizations and that it is preferable for legislation not to allow this possibility. If it does, such measures should be accompanied by all of the necessary guarantees, in particular due judicial safeguards, in order to avoid the risk of arbitrary action. The Committee notes that the organization affected must have the right of appeal to an independent and impartial judicial body which is competent to examine the substance of the case, to study the grounds for the administrative measure and, where appropriate, to rescind such measure. Moreover, the Committee recalls that the administrative decision should not take effect until a final decision is handed down (see General Survey, paragraph 185). The Committee requests the Government to provide details on any decisions of the Minister of Internal Affairs and Communication ordering the dissolution of employers’ and workers’ organizations and on any complaints brought by these organizations before the Complaints Committee. The Committee also requests the Government to indicate whether appeals may be lodged to the courts against the decisions of the Complaints Committee and whether such appeals have the effect of suspending the execution of the Minister’s order.

Article 5. Right of organizations to establish federations and confederations and to affiliate with international organizations. The Committee notes that there is no provision in the Law on the Associations and Foundations of Bosnia and Herzegovina on the right of employers’ and workers’ organizations to affiliate with international organizations. The Committee asks the Government to specify whether employers’ and workers’ organizations have full freedom to affiliate with international organizations of their own choosing.

Republika Srpska. The Committee notes that section 2(2) of the regulation on the registration of trade union organizations in the registry of the Republika Srpska identifies a single central organization, the Union of Trade Unions, as the broadest form of trade union organization in the Republika Srpska and makes no provision concerning the registration of additional organizations at that level. The Committee notes furthermore that sections 1-4 of the instructions on the implementation of the regulation authorize this single organization to carry out all the administrative tasks necessary for the registration of trade union federations at the branch, city or communal levels and to countersign and certify the relevant documents before their submission to the authorities. The Committee also notes that a corresponding authority is accorded to trade union federations at the city or communal levels for the registration of trade unions which operate at the enterprise level or in the public sector. The Committee points out that trade union diversity should remain possible in all cases and freedom of choice must be safeguarded even where employers’ and workers’ organizations have chosen a single central organization - a situation which should not be institutionalized by legislation (see General Survey, paragraphs 96 and 194). Noting that section 28 of the recent Law on the Associations and Foundations of Bosnia and Herzegovina provides that this law does not automatically replace the previous laws and regulations except in case of an insurmountable contradiction, the Committee asks the Government to indicate whether these provisions continue to apply in the Republika Srpska after the adoption of the new Law on the Associations and Foundations of Bosnia and Herzegovina.

The Committee requests that the Government transmit in its next report the information requested on the above points including the measures taken to amend its legislation so as to bring it into full conformity with the Convention.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note with interest of the information contained in the first report of the Government and, in particular, the adoption of the new Law on the Associations and Foundations of Bosnia and Herzegovina of 30 November 2001.

Article 2. Right of employers and workers, without distinction
whatsoever, to establish and join organizations of their own
choosing without previous authorization

Time limits. The Committee recalls that in its previous comments it had noted, pursuant to the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2053, that the time limitations prescribed in the legislation for the registration of associations, including trade unions, were very short and were equivalent in practice to a system of previous authorization. In this respect, the Committee observes that although the recent Law on the Associations and Foundations of Bosnia and Herzegovina lifted the requirement that a registration request be filed within 15 days from an organization’s constituent assembly, sections 30(2), 34 and 35 of the new Law continue to lay down brief time limits in the context of changing the name or emblem of an association, making corrections to the statute of an association, completing a registration request or lodging a complaint against a decision to deny registration. The Committee further notes with concern that the consequences of exceeding such time limitations include the dissolution of the organization in question, or cancellation of its registration. It considers such a severe penalty totally disproportionate to a delay in meeting formal registration requirements. The Committee therefore requests that the Government take all necessary measures in the very near future in order to amend its legislation so as to provide more reasonable time limitations 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. It also requests that the Government transmit information in its next report concerning the measures taken in this respect and to indicate the current status of the Associated Workers’ Trade Union of Bosnia and Herzegovina (URS/FBiH), the complainant in Case No. 2053.

Articles 2 and 5. Right of employers and workers to establish and
join organizations of their own choosing; right of employers’ and
workers’ organizations to establish federations and confederations

Employers’ organizations. The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2140 concerning registration requirements which constitute obstacles to the establishment of employers’ confederations and the commencement of their activities at the level of the Republic of Bosnia and Herzegovina and its two Entities (329th Report, November 2002, paragraphs 290-298). The Committee notes in particular that it is impossible to obtain the registration and legal recognition of an employers’ confederation at the level of the Republic of Bosnia and Herzegovina as a whole. The Committee notes moreover that, at the level of the Federation of Bosnia and Herzegovina and the Republika Srpska, employers’ confederations can only obtain registration under the status of "citizens’ associations" which seriously impedes the commencement of their activities. The Committee recalls that the Convention covers both employers and workers and that, in accordance with Article 2, employers shall have the right to establish and, subject only to the rules of the organization concerned, join organizations of their own choosing without previous authorization (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 63). The Committee requests the Government to take all necessary measures in the very near future to amend its legislation 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. The Committee requests that the Government transmit information in its next report on measures taken in this respect and on the effective registration of the Employers’ Confederation of the Republic of Bosnia and Herzegovina at the level of the Republic as a whole. The Committee also requests that the Government indicate the current status of the complainants in the abovementioned Case No. 2140, namely, the Employers of the Federation of Bosnia and Herzegovina and the Employers’ Confederation of Republika Srpska (SAVEZ POSLODAVACA).

The Committee trusts that the Government will fully take into account the abovementioned comments and draws the Government’s attention to the availability of ILO technical assistance in this respect.

The Committee is addressing a request on other points directly to the Government.

Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

The Committee requests the Government to provide detailed information in reply to the questions raised in the report form concerning the application of this fundamental Convention.

The Committee also requests the Government to provide the text in force of the Labour Code as well as the texts governing freedom of association, the right to organize, the settlement of collective disputes and the right to strike.

Noting the conclusions of the Committee on Freedom of Association in Case No. 2053 (324th Report, approved by the Governing Body at its 280th Session, March 2001), the Committee observes that the time limitations prescribed in the legislation for the registration of associations, including trade unions, are very short and, in practice, are equivalent to a system of previous authorization. The Committee requests that the Government amend the legislative provisions concerning trade union registration in order to bring them into conformity with the Convention.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes with regret that the Government’s report has not been received.

The Committee requests the Government to provide detailed information in reply to the questions raised in the report form concerning the application of this fundamental Convention.

The Committee also requests the Government to provide the text in force of the Labour Code as well as the texts governing freedom of association, the right to organize, the settlement of collective disputes and the right to strike.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes with regret that for the fourth year in succession the Government's first report has not been received.

The Committee requests the Government to provide detailed information in reply to the questions raised in the report form concerning the application of this fundamental Convention.

The Committee also requests the Government to provide the text in force of the Labour Code as well as the texts governing freedom of association, the right to organize, the settlement of collective disputes and the right to strike.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes with satisfaction the provisions of the Constitution of 13 March 1994 which in article 2(1)(l) guarantees freedom of association and the right of all persons within the territory of the Federation to form and belong to trade unions.

The Committee requests the Government to provide detailed information in reply to the questions raised in the report form concerning the application of this fundamental Convention. The Committee also requests the Government to provide with its report the text in force of the Labour Code and Penal Code and of the text governing freedom of association, the right to organize, the settlement of collective disputes and the right to strike.

[The Government is asked to report in detail in 1999.]