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

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

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.