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

Workers' Representatives Convention, 1971 (No. 135) - Bosnia and Herzegovina (Ratification: 1993)

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 notes the adoption in April 2016 of the Labour Act of the Federation of Bosnia and Herzegovina (FBiH Labour Act) and its amendment in November 2018, the adoption of the 2016 Labour Act of the Republika Srpska (the RS Labour Act) and its 2018 amendments, the adoption of the 2019 Labour Act of the Brčko District (BD Labour Act) and of the 2020 Act on Inspections of the Republika Srpska.

Article 1 of the Convention. Adequate protection of workers’ representatives against acts of discrimination related to their representative functions. The Committee refers to its 2016 comments made under the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), in which it noted the Government’s indication that the FBiH Labour Act, the RS Labour Act and the BD Labour Act provided for a comprehensive prohibition against anti-union discrimination and observed the detailed information provided by the Government on the relevant provisions applicable in this regard. The Committee further notes the Government’s indication with regard to the Republika Srpska that, in 2020, one arbitration proceeding has been brought to the Agency for Amicable Settlement of Labour Disputes on the issue of termination of employment of a trade union president but the procedure has not yet been completed (under section 191 of the RS Labour Act, a workers’ representative may be dismissed during his office or six months after only with the approval of the trade union or workers’ council and if such agreement is not given, the employer may request arbitration). It also notes the Government’s indication, concerning the Federation of Bosnia and Herzegovina that the competent authorities ensure protection of rights of workers’ representatives when deciding about employers’ requests for consent on intended terminations of employment of workers’ representatives. The Government states in this regard that, since June 2019, the Ministry of Labour and Social Policy received 16 requests to give consent to the dismissal of trade union representatives, out of which 12 were granted but 11 of these referred to dismissal with an offer to modify the worker’s employment contract resulting in practice in an amendment of the labour contract with more favourable conditions for the worker. Finally, as regards the Brčko District, the Committee notes with interest the Government’s indication that section 121 of the new BD Labour Act stipulates that the employer may not terminate the employment contract of trade union representatives organized at the employer nor put them in any less favourable position in comparison to the position they had before they were appointed representatives without the prior consent of the trade union and for as long as they hold that position, as well as for three months after they stop performing their duty. The Committee requests the Government to indicate whether this protection also extends to elected workers’ representatives other than trade union officers.

Article 2. Facilities granted to workers’ representatives. Federation of Bosnia and Herzegovina and Republika Srpska. In its previous comment, the Committee welcomed the Government’s indication on the facilities provided to workers’ representatives in the Federation of Bosnia and Herzegovina and the Republika Srpska. The Committee further noted that section 215(7) of the RS Labour Act allows external trade union representatives (not employed by the employer) to have free access to the concerned trade unions but that such activities and visits are subjected to prior announcement to the employer. The Committee requested the Government to provide information on the application in practice of this provision, in particular to indicate whether there have been cases in which the employer refused external trade union representatives not employed by the employer to have access to the concerned trade unions. The Committee notes the Government’s supplementary indication that it does not have data about the instances in which such access was refused.

Brčko District. The Committee previously requested the Government to provide information on the legislative or other provisions which give effect to Article 2 of the Convention in the Brčko District. The Committee notes the Government’s statement that the BD Labour Act does not foresee any benefits which would facilitate the performance of duties of workers’ representatives. The Committee therefore requests the Government to indicate whether any other measures are in place or foreseen to give effect to Article 2 of the Convention and if not, to take the necessary measures, including legislative, to grant such facilities to workers’ representatives so as to enable them to carry out their functions promptly and efficiently.

Articles 3, 4 and 5. Relations between trade union representatives and elected representatives. In its previous comments, the Committee had requested the Government to provide information on the provisions which give effect to Articles 3, 4 and 5 of the Convention in the Brčko District and on the content of the specific provisions governing relations between trade union representatives and elected representatives in the Brčko District and in Republika Srpska, indicating whether they preserve the position and rights of trade union representatives when there are elected representatives in the enterprise. With regard to the Republika Srpska, the Committee welcomes the Government’s clarification, provided under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that the legislation clearly and unambiguously distinguishes between trade unions and workers’ councils and that workers’ councils are subordinate to trade unions. Concerning the Brčko District, the Government indicates with respect to Articles 3, 4 and 5 that the basic provisions of the BD Labour Act do not define the term workers’ representative and do not set forth the types of workers’ representatives who are entitled to the protection and benefits, except for the protection of trade union officers against dismissal. The Committee observes, however, that under section 134 of the new BD Labour Act, workers may constitute a workers’ council, which is a form of workers’ representation, and points to its comments made in this regard under Convention No. 87, in which it requests the Government to clarify the relationship between workers’ councils and trade unions. In light of the above, the Committee requests the Government once again to clarify the relationship between trade unions and workers’ councils, or any other form of elected representatives, as a matter of law and practice, in the Brčko District.