Demande directe (CEACR) - adoptée 2016, publiée 106ème session CIT (2017)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Bosnie-Herzégovine (Ratification: 1993)

Article 2. Protection against acts of interference from employers’ and workers’ organizations into each other’s establishment, functioning or administration. In its previous comment, the Committee expressed its expectation that the new FBiH Labour Act would prescribe sufficiently dissuasive sanctions for acts of anti-union interference prohibited under the Act. The Committee notes the Government’s indication that section 171(2) of the FBiH Labour Act provides for penalties for cases where employers disable the access of union representatives to the company premises or fail to comply with the collective agreement, and that section 264(1)(2) of the RS Labour Act provides for penalties for employers who prevent or disrupt the organization of trade unions. The Committee observes, however, that while interference in trade union affairs is explicitly and comprehensively prohibited by all three Labour Acts (section 16 of the FBiH Labour Act, section 211 of the RS Labour Act and section 7 of the BD Labour Act), none of these laws establish sanctions for violation of these provisions. Recalling that legislation must establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations to ensure the practical application of Article 2 of the Convention, the Committee requests the Government to take the necessary measures to ensure that national legislation establishes such sanctions and to provide information on any developments in this regard.

Article 4. Promotion of collective bargaining at the level of the Republic as a whole. In its previous comments, the Committee requested the Government to provide information on measures taken or contemplated in order to encourage and promote collective bargaining and to provide statistics on the number and coverage of collective agreements concluded in the two entities and in the Brčko District. It also requested the Government to provide information on the previously announced legislative action aimed at promoting the development and the use of procedures for voluntary negotiation in the Brčko District. The Committee notes the detailed information provided by the Government on the provisions of the FBiH Labour Act and the RS Labour Act, which govern the issue of collective bargaining, as well as on its practical application (one branch collective agreement on finances was concluded in the Federation of Bosnia and Herzegovina, active negotiations to conclude collective agreements at all levels are under way in the Republika Srpska, and no collective agreement has been concluded in the Brčko District). The Committee requests the Government to continue to provide information on concrete measures taken or contemplated, including at the level of the Republic as a whole, in order to encourage and promote collective bargaining, as well as on the previously announced legislative action in this regard in the Brčko District. The Committee also requests the Government to continue to provide detailed information on the number of collective agreements concluded in the Federation of Bosnia and Herzegovina, in the Republika Srpska and in the Brčko District at all levels (enterprise, branch and national levels), the sectors to which they apply and the number of workers covered.

Bipartite negotiations. Federation of Bosnia and Herzegovina. The Committee notes that the Association of Employers of the Federation of Bosnia and Herzegovina (AEFBiH) alleges that: (i) its representative status was revoked in January 2016 in order to avoid the signing of the General Collective Agreement agreed between the AEFBiH and the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBiH); (ii) a new decision on its representativity was taken only once the FBiH Government’s comments on the General Collective Agreement were taken into account, and paragraph 2 of the decision removes the possibility of the AEFBiH to participate in collective bargaining for members whose ownership structure includes State capital; (iii) the representativity status of many sectoral trade unions and confederations of trade unions was revoked in a similar manner; (iv) the FBiH Government adopted a decision on appointing a working group to draft amendments to the General Collective Agreement and all sectoral collective agreements for the territory of the Federation of Bosnia and Herzegovina, in which the Government is the negotiator; and (v) the FBiH Government, while insisting on tripartite negotiations, requested the AEFBiH to provide a list of all sectoral agreements in which it acted as the negotiator for the employers and informed the AEFBiH that if it refused to reply it would be considered as preventing collective bargaining. In response to these observations, the Government indicates that when deciding upon the representative status of the AEFBiH, the intention was not to limit or disable its participation in collective bargaining but rather to identify the parties to collective bargaining in public enterprises founded by the FBiH Government, canton, city or municipality or fully or in majority owned by these entities, and that the General Collective Agreement, which was negotiated in a bipartite manner between the AEFBiH and the SSSBiH, also contains provisions to this effect. The Government further states that it is in constant contact with the AEFBiH in relation to the need to change decisions on its representativity and that it encourages social dialogue and collective bargaining. Noting with concern the AEFBiH indication that its members whose ownership structure includes State capital are prevented from collective bargaining and that the FBiH Government intends to participate in collective bargaining at the sectoral and national levels, the Committee recalls that the Convention is applicable to all branches of economic activity, including public enterprises, that collective bargaining should essentially be bipartite and that the participation of public authorities should be limited to issues which are broad in scope, such as the formulation of legislation and economic or social policy or the fixing of the minimum wage rate. In this regard, the Committee observes that the Committee on Freedom of Association also recently examined allegations of Government interference in collective bargaining, which were contested by the Government, and recalled that State bodies should refrain from intervening in free collective bargaining between workers’ and employers’ organizations (see Case No. 3155, 378th Report, paragraph 105). The Committee requests the Government to take the necessary measures to ensure that all members of the AEFBiH may freely participate in collective bargaining and that negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect.

Bipartite negotiations. Republika Srpska and the Brčko District. For a number of years, the Committee had requested the Government to ensure that the Government of Republika Srpska was not a party to collective agreements concluded between the trade union and the employers’ association, at the level of the Republika Srpska. In its last comment, the Committee expressed its expectation that the new Labour Act would fully recognize the bipartite nature of collective bargaining, including at the national and sectoral levels, and would ensure that mediation of the labour authorities was only possible at the request of the parties. The Committee observes, however, that section 240 of the RS Labour Act provides for the possibility of concluding a general collective agreement in which the Government of Republika Srpska is a signatory party and notes the Government’s indication that this provision is motivated by the particular situation in the Republika Srpska, where the procedure of privatization and transition has not yet been completed and where the Government continues to have the majority ownership or co-ownership share in a significant number of companies and corporations. The Committee further observes that under section 96 of the BD Labour Act, the Government of the Brčko District may also be a party to collective agreements concluded at the level of the Brčko District. Recalling that the Convention tends essentially to promote bipartite negotiation and to limit the participation of public authorities to issues which are broad in scope, such as the formulation of legislation and economic or social policy or the fixing of the minimum wage rate, the Committee requests the Government once again to take the necessary measures to ensure that negotiations of collective bargaining agreements are conducted in a bipartite context, including at the national and sectoral levels, in order to ensure that the parties enjoy full autonomy in this respect and that the content of the agreements is not dependent on the policy choices of successive governments.

Procedure to determine the representativity of trade unions and employers’ associations. Federation of Bosnia and Herzegovina and the Republika Srpska.  The Committee observes that: (i) in the Federation of Bosnia and Herzegovina, the representativity of a trade union at the company level and its review are determined by the employer and are subject to appeal only to the Federal or Cantonal Ministry in charge of labour (sections 129 and 133 of the FBiH Labour Act), and representativity of trade unions and employers’ organizations, as well as its review, at the level of the Federation or canton are determined by the Ministry (section 130 of the FBiH Labour Act); (ii) in the Republika Srpska, representativity at the level of the enterprise is generally determined by the employer and in some cases by a tripartite Board or by the Minister (section 222 of the RS Labour Act), and representativity at the branch or national level, as well as representativity of employers’ associations are determined by the Minister upon proposal of the tripartite Board (sections 223 and 230 of the RS Labour Act). Noting that the issue of determining representativity at the level of the enterprise in the Federation of Bosnia and Herzegovina has been previously examined by the Committee on Freedom of Association in Case No. 3155 (see 378th Report, paragraph 111), the Committee recalls that determination of representativity should be carried out in accordance with a procedure that offers every guarantee of impartiality, by an independent body that enjoys the confidence of the parties, and without political interference. The Committee invites the Government, in consultation with the social partners, to consider establishing an independent and impartial mechanism for determining the representativity of trade unions and employers’ associations and to provide information on any developments in this regard.

Representativity threshold for workers’ and employers’ organizations. Republika Srpska. The Committee notes that the stipulated threshold of representativity for workers’ organizations is set at 20 per cent at the level of the enterprise (section 218 of the RS Labour Act), 10 per cent at the level of the branch and 5 per cent at the level of the State (section 219 of the RS Labour Act). The Committee further observes that an association of employers will only be considered as representative if its members represent at least 10 per cent of the total number of employers in the domain, area or branch at the level of the Republic and if those employers employ not fewer than 10 per cent of the total number of employees in the domain, area or branch (section 221 of the RS Labour Act). However, the Committee also observes that when no trade union or employers’ association meets the required threshold of representativity, workers’ and employers’ organizations may conclude a written agreement for the purpose of meeting together the stipulated threshold (section 241 of the RS Labour Act). While taking due note of this possibility, the Committee requests the Government to indicate whether the 20 per cent threshold imposed at the level of the enterprise does not, in practice, hinder collective bargaining in certain enterprises. Further observing that the requirement for an employers’ association to represent at least 10 per cent of employers to be able to negotiate collective agreements is particularly high, especially for negotiations at the sectoral and national level, and that the dual requirement imposed by section 221 may unduly restrict collective bargaining rights of employers’ organizations, the Committee requests the Government to take, in consultation with the social partners, the necessary measures to amend the legislation in this regard.

Compulsory arbitration. Federation of Bosnia and Herzegovina. The Committee observes that if in the course of negotiations, within 45 days, there is no agreement to conclude a collective agreement, the parties can request arbitration (section 139 of the FBiH Labour Act), and that in case of disputes related to a collective bargaining agreement, which has not been solved through mediation, parties can submit the dispute to an arbitration body (section 154 of the FBiH Labour Act). Recalling that compulsory arbitration is only acceptable in relation to public servants engaged in the administration of the State (Article 6 of the Convention), essential services in the strict sense of the term and acute national crises, the Committee requests the Government to clarify the nature of arbitration referred to in sections 139 and 154 of the FBiH Labour Act, indicating whether arbitration can be requested by one party to a labour dispute, and provide information on its application in practice.

Republika Srpska. The Committee requests the Government to clarify whether the arbitration procedure provided for in the Act on Peaceful Settlement of Labour Disputes of the Republika Srpska 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. Observing that a new RS Act on the Peaceful Settlement of Labour Disputes is currently before Parliament, the Committee trusts that the use of compulsory arbitration will only be allowed in line with the abovementioned principles and requests the Government to provide a copy of the text once adopted.