Solicitud directa (CEACR) - Adopción: 2019, Publicación: 109ª reunión CIT (2021)

Bosnia y Herzegovina

Convenio sobre la seguridad social (norma mínima), 1952 (núm. 102) (Ratificación : 1993)
Convenio sobre las prestaciones en caso de accidentes del trabajo y enfermedades profesionales, 1964 [Cuadro I modificado en 1980] (núm. 121) (Ratificación : 1993)

In order to provide a comprehensive view of the issues relating to the application of ratified Conventions on social security, the Committee considers it appropriate to examine Conventions Nos 102 (minimum standards) and 121 (employment injury benefits) together.

Article 21, in conjunction with Articles 6 and 76, Article 72 of Convention No. 102 and Articles 8, 9(2), 10(1)(b), 16, 24 of Convention No. 121. The Committee notes the information provided by the Government in reply to its previous requests concerning persons protected by unemployment benefit, protection against unemployment by means of voluntary insurance, participation of representatives of the persons protected in the management of social security institutions, list of occupational diseases, eligibility for employment injury benefits, dental care benefits, and benefits for constant help or attendance of another person.

Part XI (Standards to be complied with by periodical payments). Articles 65 or 66 of Convention No. 102 and Articles 19 or 20 of Convention No. 121. Replacement rate of benefits. Federation of Bosnia and Herzegovina (FBiH), Republic of Srpska and District Brcko. The Committee once again requests the Government to provide information required by the report forms for the Conventions with respect to the replacement rates of sickness, unemployment, old-age, employment injury, maternity, and survivors’ benefits. The Committee recalls that the Government can avail itself of the technical assistance of the Office in this regard.

Articles 65(10) or 66(8) of Convention No. 102 and Article 21 of Convention No. 121. Review of the rate of periodical payments. FBiH, Republic of Srpska. The Committee once again requests the Government to provide statistical data on the revision of the rate of old-age, employment injury and survivors’ benefits in accordance with the report forms for the Conventions.

Parts II (Medical care) and III (Sickness benefit), in conjunction with Article 71(3) of Convention No. 102. General responsibility of a Member for the due provision of sickness benefit. Republic of Srpska. The Government indicates in its report that the income of the Health Insurance Fund of the Republic of Srpska, out of which medical care and sickness benefits are paid is not sufficient to finance the total costs. The Government further indicates the main obstacles to sustainable financing of the compulsory health insurance, consist among others, in the inefficient collection of contributions and “concealment” of the full salary on the basis of which contributions should be paid. Recalling that the Member shall accept general responsibility for the due provision of the benefits provided in compliance with the Convention, and that it shall take all measures required for this purpose, the Committee requests the Government to provide information on measures taken or envisaged to address gaps in funding of the Health Insurance Fund and to ensure the provision of medical care and sickness benefits as required by the Convention, including measures aimed at ensuring compliance with contributions obligations, such as labour inspection and penalties.

Part IV (Unemployment benefit). Article 20. Suitable employment and public works. Republic of Srpska. The Committee observes that, in accordance with Part IV of the Law on mediation in employment and unemployed rights in Republic of Srpska No. 30/10 of 2010, unemployed persons, including persons in receipt of unemployment benefit, can be designated by the Employment Office for performing public works. As per article 54 of the Law, registration with the Employment Office is terminated in case an unemployed person fails to respond to an offer to engage in public works without a “justified reason” or in the absence of “force majeure”. The Committee requests the Government to provide clarification as to: (i) whether termination of registration with the Employment Office leads to a suspension of the right to unemployment benefit; (ii) what is considered to be a “justified reason” which an unemployed person can invoke for not engaging in public works; and (iii) whether participation in public works entails an employment relationship.

Article 24(1)(a), in conjunction with Article 23. Duration of unemployment benefit. Republic of Srpska. The Committee notes, as indicated by the Government, that in accordance with article 39 of the Law on mediation in employment and unemployed rights in Republic of Srpska No. 30/10 of 2010, unemployment benefit is paid for one month in case of insurance period up to one year; for two months in case of insurance period of one to two years; and for three months in case of insurance period from two to five years. The Committee observes that, to become entitled to the minimum 13-week benefit guaranteed by Article 24(1)(a) of the Convention, an unemployed person needs to have completed a qualifying period from two to five years. The Committee considers such qualifying period to be excessive in terms of Article 23 of the Convention, which allows for a qualifying period only insofar as it is necessary to preclude abuse. In this respect, the Committee points out that a qualifying period which does not exceed one year of employment or residence for entitlement to the minimum 13 week benefit guaranteed by the Convention is usually considered sufficient to meet that objective. The Committee therefore considers that the qualifying period of two to five years required is too long as it limits access to the minimum benefit that must be provided to protected persons in the application of Article 24(1)(a) of the Convention. Recalling that Article 24(1)(a) of the Convention allows to limit the duration of unemployment benefit to no less than 13 weeks within a period of 12 months, and that Article 23 of the Convention only allows a qualifying period insofar as it is necessary to preclude abuse, which the Committee considers to be one year at the maximum, the Committee requests the Government to ensure a minimum duration of unemployment benefit of 13 weeks for persons with an insurance period no longer than one year.

Part V (Old-age benefit). Article 29(2)(a). Reduced benefit after 15 years of contribution or employment. FBiH. In its reply to the Committee’s request to indicate the legal provision guaranteeing payment of a reduced old-age pension after 15 years of contributions or employment, the Government indicates that old-age benefits “are not discounted” for beneficiaries with an insurance period up to 15 years, and that a minimum insurance period of 20 years is required for payment of old-age benefit. Recalling that Article 29(2)(a) of the Convention requires the provision of a reduced benefit upon completion of 15 years of contribution or employment, the Committee requests the Government to take the necessary measures to give full effect to this Article of the Convention.

Part X (Survivors’ benefit). Article 63(1)(a) and (2)(a). Survivors’ benefit after 15 and 5 years of contribution or employment. FBiH. The Committee notes the Government’s indication that the amount of survivors’ pension is determined on the basis of the old-age or disability pension which the insured person would receive or was receiving at the time of his/her death. The Committee notes that the minimum insurance period for entitlement to old-age pension is 20 years according to article 30 of the Law on pension and invalidity insurance No. 29/98. The Committee also notes from the MISSCEO report attached to the Government’s report, that the qualifying period for entitlement to disability benefit is one year. Recalling that Article 63(1)(a), (2)(a) of the Convention requires survivors’ benefit to be granted in the full amount prescribed by the Convention after completion of 15 years of contribution or employment and in a reduced amount after completion of 5 years, the Committee requests the Government to indicate whether the application of the above-mentioned qualifying conditions ensure that the spouse and children of an insured person who dies after having completed 15 years of insurance or contributions are entitled to a survivors’ benefit, and to a reduced survivors’ benefit after completion of 5 years of contributions or insurance by the deceased person.

Article 71. Financing of social security benefits. FBiH, Republic of Srpska and District Brcko. The Committee once again requests the Government to provide statistical data on the share of insurance contributions borne by the employees protected in the total of the financial resources allocated to the protection of employees and their dependants in accordance with Article 71 of the report form for the Convention.

Article 14(1)(3), in conjunction with Article 9 of Convention No. 121. Partial loss of earning capacity or faculty. FBiH. In its previous comments, the Committee requested the Government to specify the minimum level of partial loss of earning capacity or faculty above which a disability pension is paid and to indicate the rate of such pension as compared to the pension paid in case of total loss of earning capacity or faculty. The Committee notes the Government’s reply that in the FBiH, a partial loss of working capacity does not give right to a disability pension, which is granted to persons with category I disabilities, but that it may give right to benefits granted to persons with category II disabilities or benefits for physical disability. The Committee requests the Government to specify whether there is a minimum degree of partial loss of earning capacity or faculty required for the entitlement to benefits for category II disabilities. Recalling that Article 14(1)(3) of the Convention requires the benefit provided in case of partial loss of earning capacity or faculty to represent a suitable proportion of the benefit provided in case of total loss of earning capacity or faculty, the Committee requests the Government to provide information on the amount of the benefit granted in case of partial loss of earning capacity or faculty, compared to that granted in case of total loss of earning capacity or faculty.

Article 18(2) of Convention No. 121. Funeral benefit. Republic of Srpska. The Committee notes the Government’s statement that in the Republic of Srpska, the funeral expenses of a deceased pension beneficiary are covered by the Fund for Pension and Disability Insurance, even though it is not considered as a right in the legislation. The Committee recalls that Article 18(2) of the Convention requires the provision of a funeral benefit at a prescribed rate which shall not be less than the normal cost of a funeral. The Committee further recalls that the prescribed rate shall be determined by or in virtue of national legislation, in accordance with Article 1(b) of the Convention. The Committee requests the Government to provide information on the amount of the funeral benefit and on the cost of a funeral in the Republic of Srpska and to take the necessary measures to ensure that the rate of the funeral benefit be prescribed by law.

Article 22(e) of Convention No. 121. Suspension of benefit. Republic of Srpska. The Committee notes the Government’s statement that benefit for temporary incapacity for work is not granted by the Health Insurance Fund in case of abuse of the right to absence from work due to temporary incapacity for work. In addition, it is not granted if the incapacity for work is caused by drunkenness. The Committee recalls that in accordance with Article 22(e) of the Convention, employment injury benefits may be suspended where the employment injury has been caused by voluntary intoxication or by the serious and wilful misconduct of the person concerned. The Committee requests the Government to explain the manner in which this provision of the Convention is applied in practice and to provide examples of the Health Insurance Fund’s decisions on refusal of benefits due to above-mentioned reasons.