Rapport définitif - Rapport No. 378, Juin 2016

1. 85. The complaint is contained in a communication from the Confederation of Independent Trade Unions of Bosnia and Herzegovina (SSSBIH) dated 18 August 2015.
2. 86. The Government sent its observations in a communication dated 1 December 2015.
3. 87. Bosnia and Herzegovina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Collective Bargaining Convention, 1981 (No. 154).

A. The complainant’s allegations

1. 88. In its communication dated 18 August 2015, the complainant alleges violation of social dialogue and marginalization of trade unions by the Federation of Bosnia and Herzegovina (FBiH) Government in the negotiation and adoption process of the new Labour Act, its intervention in collective bargaining, as well as decreased protection of labour rights as a result of the adoption of the Labour Act. In particular, the complainant indicates that: (i) the preparatory activities related to the drafting of the new Labour Act intensively began in mid-April 2015, when representatives of the Ministry of Labour and Social Policy (MLSP), trade unions and employers defined the initial version of the Labour Act based on which further negotiations were to be conducted and which was submitted to the negotiating parties for comments and suggestions; (ii) the complainant submitted its recommendations to the competent ministry within the agreed timeframe; (iii) on two occasions in June 2015, the Government, in agreement with the International Monetary Fund and the World Bank, unilaterally amended individual provisions of the draft Labour Act and delivered the new wording in the form of a working document to the complainant; (iv) on 1 July 2015, during a session of the Economic and Social Council for the territory of the FBiH (ESC) it was clarified that the latest wording of the draft Labour Act as delivered to the social partners by the competent ministry on 24 June 2015 would be the basis for further negotiation; (v) it was agreed that the complete working document should be read at the first hearing before the social partners discussed provisions on which there was no agreement; (vi) the discussion on the working document began on 2 July 2015 while the Government and representatives of employers exerted pressure on trade union representatives to accept negotiating on a daily basis from 4 p.m. To 8 p.m. So that the negotiations could be completed speedily; (vii) although trade union representatives cautioned that the draft Labour Act was a very sensitive matter, the Government responded that the law had to be negotiated “in whatever form” by the end of July 2015; (viii) due to other obligations towards its members, the SSSBIH delegation to the ESC could not and did not succumb to the pressure exerted, after which the Government and the representatives of employers scheduled some sessions and Colleges of the ESC without prior consultation with trade unions, in violation of the ESC Rules of Procedure and the Agreement on the operation of the ESC (for instance, a College session was scheduled for 16 July 2015 and despite the ESC speaker having been notified in writing that the Chair of the SSSBIH delegation would not be able to attend, the session was held without the presence of trade union representatives, however, due to the lack of a quorum, the College session was rescheduled); (ix) after inquiries made by the complainant at the continuation of the ESC session on 15 July 2015, it was clarified that the Government would adopt the document as the draft Labour Act, which suggests that it would be in the form of a proposal and as such would be forwarded to the parliamentary procedure for adoption; (x) on 21 July 2015, the directors of public institutions, companies and institutions, which were, in majority, owned by the State submitted proposals and suggestions to the draft Labour Act, which were not subject to any discussion at the ESC; and (xi) the Government, at its session of 23 July 2015, changed some provisions that had previously been agreed upon in the ESC and unanimously adopted the proposed Labour Act without the consent of the ESC to its wording. The complainant thus alleges that the Government breached Articles 7 and 8 of Convention No. 154 and that trade unions were practically excluded from the social dialogue, even though a discussion between the three social partners was held on 15 July 2015; however, by that date not even the first reading of all legal provisions was completed.
2. 89. The complainant states that as a result of the unacceptable manner in which the Labour Act was adopted by the FBiH Government, on 30 July 2015 it organized protests in front of the Parliament building which, according to the assessment of trade unions, assembled around 12,000 workers. The complainant further specifies that with the aim of preventing the adoption of the proposed Labour Act in the FBiH Parliament House of Peoples, it invited representatives of political parties to sign the Joint Declaration and condemn the Government decision to submit the Labour Act to parliamentary procedure since it was not agreed upon by the ESC. The Joint Declaration also expressed the need to draft a series of other relevant laws prior to the adoption of the Labour Act, such as Act on Amendments to the Act on Strikes. According to the complainant, the appeals of the gathered workers who asked for additional time to harmonize the legal provisions were disregarded and the House of Peoples adopted the proposed Labour Act in a tight majority and in violation of the Parliament Rules of Procedure and the constitutional rights of the delegates (the proposed Labour Act was on the agenda two days before the House of Peoples session, and since section 177(3) of the House of Peoples Rules of Procedure provides that the amendments are to be submitted in the period which cannot be shorter than three days from the scheduled House of Peoples session, the House of Peoples delegates were prevented from submitting amendments to the proposed Labour Act). The complainant further indicates that on the following day, in an urgent procedure, the FBiH Parliament House of Representatives, in a tight majority, adopted the proposed Labour Act, in violation of the House of Representatives Rules of Procedure (according to section 192(2) the proponent has to clarify in writing the reasons for adoption of an act in an urgent procedure, which was not done in this case, and in line with section 191(2) urgent procedure can only be used if the adoption in regular procedure could have detrimental consequences for the Federation). The complainant also claims that at the session of the House of Representatives, the FBiH Government rejected all 45 amendments to the proposed Labour Act just for the reason that in case of the acceptance of any of them, the act would be adopted in two different wordings in the House of Peoples and the House of Representatives and would have to be harmonized, which would be an additional “waste” of time.
3. 90. In addition, the complainant alleges that the Government intervened in collective bargaining as the Prime Minister (Chair of the Government FBiH delegation in the ESC) stated that the amendments of the representatives of two smaller political parties in the House of Representatives would be incorporated in the collective agreements in exchange for their support for the adoption of the Labour Act, by which a simple majority was secured. According to the complainant, this intervention violates Conventions Nos 87 and 98 and causes a prejudice towards the outcome of collective bargaining, which has not even begun, and is a total disregarding and marginalization of the role of trade unions in the process, given that the Government is not a party to the General Collective Agreement.
4. 91. Furthermore, the complainant insists that the new Labour Act reduces certain rights and protection of workers and jeopardizes free collective bargaining. The complainant provides a summary of 26 problematic issues in an annex to the complaint, suggesting in relation to freedom of association that:
   • – collective agreements for an indefinite period of time cannot be concluded while fixed term collective agreements may be concluded for a maximum period of three years (section 140);
   • – employers decide on the representativeness of trade unions with the employer (section 129(1));
   • – public companies may not conclude collective agreements (section 138);
   • – applicable collective agreements have to be harmonized with the Labour Act within 120 days from its coming into force otherwise they cease to apply (section 182).
5. For this reason the complainant addressed a letter to the ITUC requesting assistance and explaining that the SSSBIH was excluded from negotiations of the Act and that it became obvious that there would be no social dialogue in relation to the Labour Act. The complainant indicates that the ITUC Secretary-General addressed a communication to the Prime Minister of the FBiH in which she expressed her deep concerns over the marginalization of trade unions in the process of negotiation, and called on the Government to bring the policy and legislative process back to a responsible and efficient social dialogue on the basis of full respect for all social partners.

B. The Government’s reply

1. 92. In a communication dated 1 December 2015, the Government of Bosnia and Herzegovina provides the response from the FBiH Government which contests the statements made by the complainant on neglecting it as a social partner and denies any violation of Convention No. 154 in the elaboration process of the new Labour Act. It claims that the workers’ representatives were involved in all stages preceding the drafting of specific versions of the Labour Act in the period until its final adoption, both through their participation in working groups and in the work of the ESC, which constitutes an institutionalized form of social dialogue. The Government also indicates that it did not interfere in the social dialogue between the social partners but encouraged their cooperation in order to reach agreement through consultations based on mutual respect and affirms that it will continue to promote and give full support to the freedom of association of workers and employers and to conducting social dialogue.
2. 93. With regard to the elaboration and adoption process of the Labour Act, the Government indicates that: (i) the drafting process of the new Labour Act started in 2008–09, and in November 2012, after a broad and comprehensive public debate which lasted 60 days, the Government prepared the Labour Act proposal and communicated it to the ESC for reconsideration and to allow the social partners to agree on certain controversial points; (ii) a meeting of delegations of the Government, the Association of Employers and the SSSBIH was held, during which the complainant demanded to first address the text of section 182 of the proposed Act, which the complainant considered unacceptable, and which regulates the harmonization of collective agreements with the provisions of the new Labour Act and the cessation of their application if it is not done within the time limits established by the Act; (iii) consultations were held with the Prime Minister of the FBiH with the aim of finding a compromise solution for draft section 182 and a new text was proposed to the social partners who requested to hold additional consultations on the proposed text within their bodies but failed to provide any opinion on it despite written requests from the MLSP; (iv) all further negotiations and work on drafting a final text of the Labour Act were interrupted and the proposed Act was not submitted to Parliament; (v) although workers’ representatives were involved in all stages of the negotiating and drafting process they made public statements alleging that the new Act would reduce workers’ rights, thus creating an atmosphere of distrust and disregard; (vi) in April 2015, the newly appointed Government relaunched negotiations with the social partners on the previously established draft Labour Act, which was considered as a key step on the path to reforms; (vii) an active social dialogue was agreed upon between the representatives of the social partners and the ESC met four times in July 2015 when sections of the new Labour Act were individually analysed; (viii) at a meeting on 15 July 2015, the trade unions’ delegation questioned the form of the proposed legal solution, even though the document was submitted to it several times with clear indications that the Act was in the form of a draft; (ix) in addition to the public debate conducted in 2012 with the participation of representatives of trade unions, employers, chambers of commerce, banks, public institutions, non-government organizations (NGOs) and inspection authorities, the examination of the text at the sessions of the ESC is considered as a form of public debate; and (x) during the sessions of the ESC, the complainant repeatedly stated that it did not provide support for adopting the new Labour Act, it led a media campaign to misinform the public on matters relating to the basic principles of the Labour Act in order to prevent its adoption, and continued to oppose section 182 of the new Act.
3. 94. The Government further explains that since 2012, the social partners were given enough time, methods and mechanisms for harmonization of contentious provisions and the draft Labour Act was thus put on its agenda in July 2015 in order to establish its final version and submit it to Parliament. The Government points out that while preparing the Act, the relevant ministry as a drafting authority and the Government as the Act proposer had to take account of the objectivity of the requests made by trade unions, employers and other stakeholders of the public and private sectors, horizontal alignment with other regulations, the law system in force, commitments in international instruments as well as the obligations arising from European Union legislation. All proposed initiatives were considered and the drafting authority ultimately decided what was acceptable and what would be incorporated into the text. Denying the allegation that it wanted to negotiate the Act by the end of July 2015 whatever the outcome, the Government suggests that the need to implement labour market reforms in line with the Reform Agenda 2015–2018 and the Work Programme of the Government 2015–18, impelled it to submit the new Labour Act to Parliament. The Government also contests the allegation that it did not address the demands of workers for additional time for harmonization, as after the establishment of the Labour Act proposal on 23 July 2015, another meeting was held with workers’ representatives during which the complainant was offered an additional seven days for negotiations and agreement but this offer was not accepted by the workers’ representatives. Concerning the allegation relating to the irregularities in the adoption process of the Labour Act, the Government states that the Act was considered and adopted in both Parliament Houses on 30 and 31 July 2015 and that the allegations are irrelevant as the process of adopting laws cannot be the subject of discussion before the Committee.
4. 95. With regard to the allegation of interference in collective bargaining by promising to members of two small political parties in FBiH Parliament to include their proposals in collective agreements in exchange for their support for the draft, the Government claims that this allegation is ungrounded since the conclusion of collective agreements is exclusively subject to bipartite social dialogue between workers’ and employers’ representatives and the role of the Government is restricted to the provision of the necessary legal framework for the negotiating process and improvement of voluntary collective bargaining.
5. 96. Concerning the allegation that the provisions of the new Labour Act reduce the rights of workers, the Government states that these allegations are unfounded and inaccurate and provides a list of 18 areas in which the Labour Act improves the position of workers, including in relation to freedom of association and collective bargaining:
   • – The requirement to obtain the consent of the competent Ministry of Labour for the protection of a trade union representative is applicable not only against dismissal but also against unfavourable transfers.
   • – The Act regulates the representativeness of workers’ and employers’ organizations, the criteria and procedure to determine representativeness.
   • – The Act defines collective bargaining participants, the procedure for concluding collective agreements, form, duration and content of collective agreements.
6. The Government further clarifies that while under the previous Labour Act collective agreements were generally concluded for indefinite duration without conditions prescribed for their termination and amendment (termination of a collective agreement without the consent of the social partners was thus prevented), under the new Act, collective agreements would be concluded for a definite duration and would be harmonized with the provisions of the Act. The Government emphasizes that the amendment of section 182 was required by broader economic interests, budget burdened due to the multi-million lawsuits of workers, as well as numerous requests and initiatives expressed both during the public debate and addressed to the relevant Ministry individually. According to the Government, the complainant’s refusal to accept the need for concluding collective agreements for a definite duration and their harmonization with the Labour Act showed that the complainant was refusing any negotiations and sought to maintain the existing situation, which was classified as unsustainable according to the Government’s assessment.

C. The Committee’s conclusions

1. 97. The Committee notes that this case concerns allegations of violation of social dialogue and marginalization of trade unions by the FBiH Government in the negotiation and adoption process of the new Labour Act, Government intervention in collective bargaining, as well as decreased protection of labour rights as a result of the adoption of the new Labour Act.
2. 98. In relation to the allegation of violation of social dialogue and marginalization of trade unions, the Committee notes the following relevant information as provided by the complainant: (i) the preparatory activities relating to the drafting of the new Labour Act intensively began in April 2015 when representatives of the MLSP, trade unions and employers defined the initial version of the Labour Act based on which further negotiation was to take place and on which the complainant submitted comments and recommendations to the competent ministry; (ii) on two occasions in June 2015, the FBiH Government, in agreement with the International Monetary Fund and the World Bank, unilaterally modified individual provisions of the draft Labour Act and delivered the new wording in a form of a working document to the complainant; (iii) the discussion on the working document began on 2 July 2015 while the Government and the representatives of employers exerted pressure on trade union representatives to accept negotiating on a daily basis from 4 p.m. to 8 p.m. so that the negotiations could be completed speedily and even though the trade unions cautioned that the Labour Act was a very sensitive matter, the Government responded that the law had to be negotiated “in whatever form” by the end of July 2015; (iv) the complainant did not succumb to the pressure exerted, after which the Government and the representatives of employers scheduled some sessions and Colleges of the ESC without prior consultation with trade unions, in violation of the ESC Rules of Procedure and the Agreement on the Operation of ESC; (v) following the complainant’s enquiries at the continuation of the ESC session on 15 July 2015, it was clarified that the Government would adopt the document as the draft Labour Act, which suggests that it would be in the form of a proposal and as such would be forwarded to the parliamentary procedure for adoption; (vi) proposals and suggestions submitted by public institutions, companies and institutions, which were in majority owned by the State were not discussed in the ESC; (vii) at its session of 23 July 2015, the Government changed some provisions of the text that had previously been agreed upon in the ESC and unanimously adopted the proposed Labour Act without the consent of the ESC to its wording; and (viii) the trade unions were thus practically excluded from the social dialogue, even though a discussion between the three social partners was held on 15 July 2015, however, by that date not even the first reading of all legal provisions was completed.
3. 99. The Committee further notes that the complainant indicates that as a result of the unacceptable manner in which the Labour Act was adopted by the FBiH Government, it organized protests in front of the FBiH Parliament building, which assembled around 12,000 workers. The Committee notes the complainant’s statement that in order to prevent the adoption of the proposed Labour Act in the House of Peoples, it invited political parties to sign the Joint Declaration and condemn the Government decision to submit the Labour Act to the parliamentary procedure since it was not agreed upon in the ESC. The Committee also observes the complainant’s claim that despite the appeal of the gathered workers for additional time to harmonize legal provisions, both the House of Peoples and the House of Representatives adopted the proposed Labour Act in a tight majority and in violation of the House of Peoples and the House of Representatives Rules of Procedure. The Committee further notes that the complainant alleges that at the session of the House of Representatives, the Government rejected all 45 amendments to the proposed Labour Act in order to avoid that the Act would be adopted in two different wordings in the House of Peoples and the House of Representatives and would have to be harmonized, which would be an additional “waste” of time.
4. 100. The Committee notes that the Government contests the allegations of violation of social dialogue and claims that the workers’ representatives were involved in all stages preceding the drafting of specific versions of the Labour Act in the period until its final adoption, both through their participation in working groups and in the work of the ESC. The Committee notes the Government’s indication that: (i) the drafting process of the new Labour Act started in 2008-09, and in 2012, following a comprehensive public debate, the Labour Act Proposal was communicated to the ESC for reconsideration and to allow the social partners to agree on certain controversial points; (ii) the complainant demanded to first address the text of section 182 which it considered unacceptable and which regulates the harmonization of collective agreements with the provisions of the new Labour Act and the cessation of their application if it is not done within the time limits established by the Act; (iii) after consultations with the Prime Minister, a new text of section 182 was proposed to the social partners who requested to hold additional consultations on the wording within their bodies but failed to provide any opinion on the proposal despite written requests from the MLSP and as a result, all negotiations and work on drafting a final text of the Labour Act were interrupted and the proposed Act was not submitted to Parliament; (iv) in April 2015, the newly appointed FBiH Government relaunched negotiations with the social partners on the previously established draft Labour Act and an active social dialogue was agreed upon; (v) the ESC met four times in July 2015 when sections of the new Labour Act were analysed; (vi) at a meeting on 15 July 2015, the trade unions delegation questioned the form of the proposed legal solution even though the draft Labour Act was submitted to it several times with clear indications that the Act was submitted as a draft; (vii) in addition to the public debate conducted in 2012 with the participation of representatives of trade unions, employers, chambers of commerce, banks, public institutions, NGOs and inspection authorities, the examination of the text at the sessions of the ESC is considered as a form of public debate; and (viii) during the sessions of the ESC, the complainant repeatedly stated that it did not support the adoption of the new Labour Act and led a media campaign to misinform the public on matters relating to the basic principles of the Labour Act in order to prevent its adoption. According to the Government, the complainant continued to oppose section 182 of the new Act, thus refusing to negotiate.
5. 101. The Committee further notes the Government’s opinion that since 2012, the social partners were given enough time, methods and mechanisms for harmonization of contentious provisions and that the draft Labour Act was thus put on its agenda in July 2015 in order to establish its final version and submit it to the FBiH Parliament, taking into account the objectivity of the requests made by trade unions, employers and other stakeholders of the public and private sectors, as well as other national regulations, laws and international commitments. The Committee notes that, denying the allegation that it wanted to negotiate the Act by the end of July 2015 whatever the outcome, the Government suggests that the need to implement labour market reforms in line with the Reform Agenda 2015–18 and the Work Programme of the Government 2015–18, impelled it to submit the new Labour Act to the FBiH Parliament. The Committee observes that the Government also contests the allegation that it did not address the demands of workers for additional time for harmonization, as after the establishment of the Labour Act Proposal on 23 July 2015, another meeting was held with workers’ representatives during which the complainant was offered an additional seven days for negotiations and agreement but this offer was not accepted by the workers’ representatives. Concerning the allegation relating to the irregularities in the adoption process of the Labour Act, the Committee notes that the Government states that the Act was considered and adopted in both Parliament Houses on 30 and 31 July 2015 and that the allegations are irrelevant as the process of adopting laws cannot be the subject of discussion before the Committee.
6. 102. With respect to the allegation of violation of social dialogue and marginalization of trade unions, the Committee welcomes the detailed information provided by both the complainant and the Government on the negotiation, drafting and adoption process of the new Labour Act. In this regard, the Committee notes that the initial debate on the draft Labour Act began in 2008-09 and that in 2012 a public debate was conducted with the participation of representatives of trade unions, employers, chambers of commerce, banks, public institutions, NGOs and inspection authorities. The Committee further notes that the debate was interrupted in 2012 due to the need to further harmonize contested provisions, after which more intensive negotiations between the social partners within the ESC resumed in July 2015 during which the social partners, including the complainant, were consulted and offered an opportunity to discuss and harmonize the text of the draft Labour Act on several occasions. Despite the opposition of the complainant, the Labour Act was adopted by both Parliament Houses at the end of July 2015. The Committee observes that there is a disagreement between the complainant and the Government on the level of inclusion of trade union representatives in the social dialogue preceding the adoption of the Labour Act. While the complainant argues that trade unions were marginalized and practically excluded from the social dialogue due to the pressure exerted upon them by the Government and representatives of employers and the Government’s unilateral modifications to the wording of the draft Labour Act which had been previously agreed upon in the ESC, the Government claims that workers’ representatives were involved in all stages of the negotiation and drafting process until the final adoption of the Labour Act, both through their participation in working groups and in the work of the ESC and were given enough time, methods and mechanisms for harmonization of contentious provisions.
7. 103. The Committee also notes that the complainant insists on the hasty nature of the negotiations but that the Government explains that the need to implement labour market reforms in line with the national work and reform programme impelled it to submit the new Labour Act to Parliament. While noting with interest the indications that public debate and social dialogue were established in relation to the draft Labour Act and that trade unions, including the complainant were given the opportunity to harmonize the legal provisions, the Committee notes with concern the specific allegations made by the complainant according to which the Government unilaterally modified the text of the draft Labour Act, exerted pressure on the representatives of trade unions to negotiate on a daily basis from 4 p.m. to 8 p.m. in order to speed up the negotiations, scheduled some Colleges and sessions of the ESC without prior consultation of representatives of trade unions, modified individual provisions of the draft Labour Act which had been previously agreed upon by the social partners and submitted the draft Labour Act for adoption in a wording that had not been approved by the ESC.
8. 104. The Committee has considered it useful to refer to the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), Paragraph 1 of which provides that measures should be taken to promote effective consultation and cooperation between public authorities and employers’ and workers’ organizations without discrimination of any kind against these organizations. In accordance with Paragraph 5 of the Recommendation, such consultation should aim at ensuring that the public authorities seek the views, advice and assistance of these organizations, particularly in the preparation and implementation of laws and regulations affecting their interests [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1068]. Tripartite consultation should take place before the Government submits a draft to the Legislative Assembly or establishes a labour, social or economic policy [see Digest, op. cit., para. 1070]. It is important that consultations take place in good faith, confidence and mutual respect, and that the parties have sufficient time to express their views and discuss them in full with a view to reaching a suitable compromise. The Government must also ensure that it attaches the necessary importance to agreements reached between workers’ and employers’ organizations [see Digest, op. cit., para. 1071]. The Committee does not consider that the adoption process of the new Labour Act was in violation of the principles of freedom of association. Nevertheless, the Committee encourages the Government to promote the continuation of tripartite social dialogue in the FBiH to assure the follow-up of the implementation of the legislative provisions mentioned.
9. 105. Concerning collective bargaining, the Committee notes the complainant’s allegations that the FBiH Government intervened in collective bargaining by stating that the amendments of the representatives of two smaller political parties in the House of Representatives would be incorporated in the collective agreements in exchange for their support for the adoption of the draft Labour Act, by which a simple majority was secured. The Committee observes that, according to the complainant, such intervention causes a prejudice towards the outcome of collective bargaining, which had not even begun, and totally disregarded and marginalized the role of trade unions in the process, given that the Government is not a party to the General Collective Agreement. The Committee also notes, however, the Government’s assertion that this allegation is ungrounded since the conclusion of collective agreements is exclusively subject to bipartite social dialogue between workers’ and employers’ representatives and the role of the Government is restricted to the provision of the necessary legal framework for the negotiating process and improvement of voluntary collective bargaining. Given the contradictory nature of the complainant’s allegations and the Government’s reply, the Committee simply recalls the principle that state bodies should refrain from intervening in free collective bargaining between workers’ and employers’ organizations.
10. 106. Concerning the level of protection of labour rights, the Committee notes that the complainant provides a summary of 26 problematic issues and argues that the Labour Act diminishes certain rights and protection of workers and jeopardizes free collective bargaining. The Committee notes in particular that the complainant states that collective agreements for an indefinite period of time cannot be concluded while fixed-term collective agreements may be concluded for a maximum period of three years (section 140) and that applicable collective agreements have to be harmonized with the Labour Act within 120 days from its coming into force otherwise they cease to apply (section 182). The complainant suggests that this annuls the effects of prior collective agreements, because if workers do not want to stay without collective agreements, trade unions will have to accept all changes in the Act based on “take it or leave it” basis. The Committee also notes the allegations of the complainant stating that the new Act does not allow for collective agreements to be concluded in public companies (section 138) and that the determination of representativeness of a trade union at the company level by the employer is illogical and can serve as a method of abuse (section 129(1)).
11. 107. The Committee observes that the Government indicates that the Labour Act improves the position of workers in 18 areas, in particular that it defines collective bargaining participants, the procedure for concluding collective agreements, form, duration and content of collective agreements as well as regulates the representativeness of workers’ and employers’ organizations, the criteria and the procedure to determine representativeness. In relation to the disputed section 182, the Committee observes the Government’s explanation: while under the previous Labour Act, collective agreements were generally concluded for indefinite duration without conditions prescribed for their termination and amendment (termination of a collective agreement without the consent of the social partners was thus prevented), under the new Act, collective agreements are concluded for a definite duration and need to be harmonized with the provisions of the Act. The Committee also observes the Government’s reasoning that the amendment of section 182 was required by broader economic interests, budget burdened due to the multi-million lawsuits of workers, as well as numerous requests and initiatives expressed both during the public debate and addressed to the relevant Ministry individually.
12. 108. In this regard, the Committee notes differences of opinion between the complainant who argues that the Labour Act diminishes certain rights and protection of workers and jeopardizes free collective bargaining and the Government, who asserts that these allegations are unfounded and inaccurate as the Labour Act contains a number of provisions that improve the position of workers in comparison to the previous Act. The Committee takes note of the list of issues considered as problematic by the complainant as well as the areas in which, according to the Government, the Labour Act strengthens the rights of workers.
13. 109. In light of the above, the Committee does not consider that the provision subjecting existing collective agreements to harmonization with the new legislation (section 182) is contrary to the principles of freedom of association and collective bargaining.
14. 110. As regards section 140, while recalling the general principle according to which the duration of collective agreements is primarily a matter for the parties involved, but if government action is being considered any legislation should reflect tripartite agreement [see Digest, op. cit., para. 1047], the Committee nevertheless understands the need to have clear rules relating to the validity of collective agreements and considering that the Act provides that collective agreements may be extended by the parties, does not consider this provision to be in violation of the freedom of association principles.
16. 111. Regarding the representativeness of trade unions at the company level, the Committee observes that the Act provides pre-established, objective and precise criteria and that section 129(1) provides that representativeness is determined by the employer. In this regard, the Committee wishes to underline that the determination to ascertain or verify the representative character of trade unions can best be ensured when strong guarantees of secrecy and impartiality are offered. Thus, verification of the representative character of a union should be a priori carried out by an independent and impartial body [see Digest, op. cit., para. 351]. In light of these considerations and the concerns raised by the complainant, the Committee notes that the determination of representativeness by the employer, although subject to an appeal with the federation or a canton ministry in charge of labour, could give rise to trade union discrimination, especially if it is compulsory to provide the employer with a list of trade union members. The Committee, therefore, invites the Government to encourage the initiation of consultations with the social partners, within the framework of the ESC for the territory of the FBiH, with a view to establishing an independent and impartial mechanism for determining the representativeness of trade unions at the company level.
17. 112. With regard to the right to conclude collective agreements in public companies, the Committee observes that the text of section 138 does not provide that collective agreements may not be concluded in public companies, and therefore trusts that workers in public companies will be able to bargain collectively. The Committee recalls that the complainant may provide further detailed information on any remaining aspects relating to the application of Conventions Nos 87 and 98 to the Committee of Experts on the Application of Conventions and Recommendations.