Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Serbia (Ratification: 2000)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 2 of the Convention. Protection against interference. In its previous comments, the Committee had noted that the Labour Act does not contain any explicit protection against acts of interference of workers’ and employers’ organizations in each other’s establishment, functioning and administration. The Committee notes the Government’s indication that, in accordance with the Constitution of the Republic of Serbia (section 55) and the Labour Act (sections 6, 7, 206, 215, and 217), trade union organizations are established and act freely without conditioning by the state, other trade union, or employer organizations. The Committee notes that the mentioned provisions recognize the right of workers and employers to freely create and join independent organizations. The Committee recalls however the need for the adoption of specific legislative provisions in order to ensure an effective protection against interference within the meaning of the Convention. The Committee thereforeurges the Government to take the necessary measures to adopt specific provisions providing for full and adequate protection of workers’ and employers’ organizations against any acts of interference against each other, setting up rapid and impartial procedures as well as sufficiently effective and dissuasive sanctions against such acts, and to provide information on any developments in this regard.

Article 4. Collective bargaining in practice. The Committee notes the statistics provided by the Government on the number of collective agreements concluded: (i) 20 special collective agreements (covering approximately 546 688 employees) were concluded and in force, which the Ministry, in accordance with the Labour Act, registers and publishes in the Official Gazette of the Republic of Serbia; (ii) 20 additional collective agreements were concluded with the State as an employer, which in accordance with the Labour Act are not registered. TheCommittee requests the Government to continue providing information on the number of collective agreements concluded and in force, the sectors concerned, and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the Confederation of Autonomous Trade Unions of Serbia (CATUS) and the Serbian Association of Employers, transmitted with the Government’s report, on the application of the Convention in practice. The Committee notes that in addition, the CATUS alleges that certain collective agreements, in particular those concluded with the State as an employer, reduce the legal rights of workers. The Committee requests the Government to provide its comments in this regard.

The Committee notes the Government’s comments in reply to the observations of the International Trade Union Confederation (ITUC), the Trade Union Confederation “Nezavisnost”, and the CATUS, received in 2018 and alleging in particular anti-union discrimination and violations of good faith collective bargaining in practice. The Committee notes the Government replies concerning the applicable legislation, but observes that it does not provide information with regard to the specific allegations raised in the respective observations. The Committee requests the Government to provide its comments in this regard.

Furthermore, the Committee notes with regret that the Government did not provide a reply to previous observations from the following workers’ and employers’ organizations: (i) CATUS and the Trade Union of Judiciary Employees of Serbia (TUJES) (2013); (ii) the International Organisation of Employers (IOE) and the Serbian Association of Employers (SAE) (2013); (iii) the Union of Employers of Serbia (UES) (2012 and 2014); (iv) the ITUC (2015); (v) Nezavisnost (2012); and the Confederation of Free Trade Unions (2012). The Committee urges the Government to provide its comments to the mentioned outstanding social partners’ observations and trusts that it will show greater cooperation in the future.

Article 1 of the Convention. Protection against anti-union discrimination in practice. In its previous comments, the Committee had requested the Government to provide further details on the anti-union discrimination cases handled by the Commissioner for the Protection of Equality, as well as information on the labour inspection and judicial proceedings related to anti-union discrimination cases, their average duration and outcomes. The Committee notes that the Government indicates the Commissioner’s records related to anti-union discrimination cases: (i) from June 2021 to June 2022, trade union membership or activity was invoked as grounds for discrimination in four cases of which one case is still ongoing while the proceedings of the other three cases were suspended in accordance with the conditions set by the law; (ii) since the establishment of the Office of the Commissioner in May 2010, discrimination based on trade union membership or membership of other organizations is the third most frequent allegation of discrimination in employment and occupation, after discrimination based on gender and on marital and family status; (iii) in those cases where anti-union discrimination has been established, the Commissioner has recommended the employer to take all the necessary measures in order to eliminate the consequences of the discriminatory behaviour; and (iv) the Commissioner has also initiated 22 strategic lawsuits on behalf of discriminated persons but none of these cases involved trade union membership as grounds for discrimination. The Government adds that the Commissioner’s obligation to keep the records on discrimination cases pursuant to the 2021 amendments to the Law on the Prohibition of Discrimination will also include in the near future the relevant court decisions. The Committee takes note of this detailed information. It observes, however, that, despite the frequency of the allegations of anti-union discrimination reported by the Government, it has not been informed of any cases where specific sanctions have been imposed in this respect. The Committee recalls in this regard the need, in order to ensure an effective protection against anti-union discrimination, to provide for dissuasive sanctions through effective and rapid procedures. In order to be able to evaluate the effectiveness of the different mechanisms available in case of anti-union discrimination, the Committees therefore urges once again the Government to: (i) provide specific information on labour inspection and judicial proceedings related to anti-union discrimination cases, their average duration and outcomes; and (ii) tocontinue providing informationon anti-union discrimination cases handled by the Commissioner including details on the final outcomes of the referred cases.

Article 4. Promotion of collective bargaining. Representativeness of workers’ and employers’ organizations. The Committee had previously requested the Government to indicate whether the amended section 229 of the Labour Act had improved the operation and efficiency of the Representativeness Board when dealing with requests to grant representativeness and whether the Government was developing any further amendments to the Labour Act in this regard. The Committee notes that according to the Government, the criteria for determining the representativeness of trade unions and employers' associations are clearly defined in sections 218–237 of the Labour Act, and the amended section 229 of the Act improves the work of the Board as the decision-making is no longer made by consensus of all Board members but by a majority of votes. The Committee further recalls that the amendments to section 229 provide for the Minister of Labour to decide on a request for representativeness without the Board’s approval if the latter fails to submit a proposal to the Minister within 30 days from the date of the request. It recalls in this respect that the determination of the representative status of organizations for the purposes of bargaining 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. Reiterating that methods for the determination of the most representative organizations should be based on objective, pre-established and precise criteria, the Committee requests once again the Government to indicate whether the amendments to section 229 of the Labour Act have improved the Representativeness Board’s operation and efficiency when dealing with requests to grant representativeness, and to provide in particular specific information about: (i) how section 229, as amended, is applied in practice; (ii) the number of cases and more details on the cases in which the Minister has decided on the requests for representativeness without the Board’s approval; (iii) whether any further amendments to the Labour Act are being developed in this regard.

Percentage required for collective bargaining. The Committee had previously referred to the need to amend section 222 of the Labour Act, with a view to lifting the 10 per cent requirement for employers’ organizations to be entitled to engage in collective bargaining. The Committee notes with regret that the Government in its report merely recalls the content of section 222 and provides no further information in this regard. Recalling that for a number of years it has been commenting on the discrepancies between section 222 of the Labour Act and the Convention, the Committee urges the Government to take all necessary steps to expedite the process for amendment of this Act, in consultation with social partners, so as to bring the legislation into conformity with the requirements of the Convention by lowering the above-mentioned percentage. It requests the Government to provide information on all progress made in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Article 2 of the Convention. Protection against interference. The Committee had previously observed that the Labour Act does not contain any explicit protection against acts of interference of workers’ and employers’ organizations in each other’s establishment, functioning and administration and it had requested the Government take the necessary measures to protect against acts of interference. Noting that the Government provides no comment in this regard, the Committee once again requests the Government to take the necessary measures to adopt provisions providing for full and adequate protection of workers’ and employers’ organizations against any acts of interference against each other, setting up rapid and impartial procedures as well as sufficiently effective and dissuasive sanctions against such acts, and to provide information on any developments in this regard.

Article 4. Collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements, as well as on any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations from the International Trade Union Confederation (ITUC) received on 1 September 2018 that concern: (i) alleged attempts by the Ministry of Education to blacklist trade union members in the education sector by obtaining confidential lists of unionized employees from school principals; and (ii) the alleged Government’s contribution to the persistent and widespread undermining of social dialogue and collective bargaining by favouring yellow unions and the hampering of good faith collective bargaining by unduly delaying the registration and publication of collective agreements. The Committee also notes the observations from the Trade Union Confederation “Nezavisnost” received on 7 November 2018 that concern the alleged poor implementation of good faith collective bargaining in the country, notably the withdrawal of representativeness of certain trade unions during the bargaining process and certain employers’ refusal to start the collective bargaining process or inappropriately extending this process for long periods. The Committee further notes the observations from the Confederation of Autonomous Trade Unions of Serbia (CATUS) received on 7 November 2018 that concern: (i) allegations of anti-union discrimination; (ii) a request to amend the existing Labour Act so as to grant the right to establish and join trade unions to all workers and not only to employees, given that a great number of people in the country are hired for non-standard work and remain completely unable to organize in trade unions or become members of existing organizations. The Committee requests the Government to provide its comments with respect to the issues raised by the ITUC, Nezavisnost and CATUS.

Furthermore, the Committee notes with regret that the Government did not provide a reply to previous observations from the following workers’ and employers’ organizations: (i) CATUS and the Trade Union of Judiciary Employees of Serbia (TUJES) (2013); (ii) the International Organisation of Employers (IOE) and the Serbian Association of Employers (SAE) (2013); (iii) the Union of Employers of Serbia (UES) (2012 and 2014); (iv) the ITUC (2015); (v) Nezavisnost (2012); and the Confederation of Free Trade Unions (2012). The Committee urges the Government to provide its comments to the mentioned outstanding trade unions’ observations.

Article 1 of the Convention. Protection against anti-union discrimination in practice. In its previous comments, the Committee had requested further details to be provided on proceedings related to anti-union discrimination, including judicial proceedings, and their average duration. The Committee notes the Government’s indication that the Commissioner for the protection of equality, who is in charge of receiving and reviewing complaints relating to anti-union discrimination, is authorized to initiate strategic lawsuits and/or provide recommendations to persons accused of discrimination. Even though the person accused of discrimination does not have to follow the recommendations, the Government indicates that action was taken on the basis of the recommendations, in 89.1 per cent of the cases in 2015, in 76.7 per cent of the cases in 2016, and in 75.86 per cent of the cases in 2017. While noting that the Government indicates that the biggest number of complaints lodged against the Commissioner belongs to the field of labour and employment (36.3 per cent in 2015; 33.9 per cent in 2016; and 31.2 per cent in 2017), no information is provided on the number of anti-union discrimination cases handled by the Commissioner nor on the type of action and recommendations issued by the Commissioner. The Committee therefore requests the Government to: (i) provide more details on the cases handled by the Commissioner for the protection of equality specifically related to anti-union discrimination, and (ii) provide information on labour inspection and judicial proceedings related to anti-union discrimination cases, their average duration and outcomes.

Article 4. Promotion of collective bargaining. Representativeness of workers’ and employers’ organizations. The Committee recalls that for many years it has been examining the conditions and mechanism for the establishment of the representativeness of trade unions and employers’ organizations. In its last comment, the Committee had requested the Government to provide information on the efficiency and operations of the amended section 229 of the Labour Act, which establishes decision-making by majority and allow the Minister to decide upon a request for representativeness without the Board’s approval if it fails to submit a proposal to the Minister within 30 days from the date of the request. The Committee notes with regret that the Government did not provide any information in this regard and that, at the same time, it continues to receive trade union observations raising representativeness determination issues. Reiterating that methods for the determination of the most representative organizations should be based on objective, pre-established and precise criteria, the Committee requests once again the Government to indicate whether the new amendments have improved the Representativeness Board’s operation and efficiency when dealing with requests to grant representativeness and whether the Government is developing any further amendments to the Labour Act in this regard.

Percentage required for collective bargaining. In its previous comments, having noted that the Government and the social partners had started an initiative to review the Labour Act, the Committee trusted that the Government would take the necessary measures to lift the 10 per cent requirement for employers’ organizations to be entitled to engage in collective bargaining. The Committee notes with regret that the Government provides no information in this respect. Recalling that the mentioned percentage is particularly high, especially in the context of negotiations at the sectoral or national level, the Committee requests once again the Government to take, in consultation with the representative social partners, the necessary measures to lower the above-mentioned percentage and to provide information on any developments in this regard.

The Committee expresses once again the hope that the Government will take the necessary measures without delay in order to bring the legislation into conformity with the requirements of the Convention, taking into account the preceding comment, and requests the Government to indicate the progress made in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2015, published 105th ILC session (2016)

Article 2 of the Convention. Protection against interference. The Committee observes that the Labour Act does not contain any explicit protection against acts of interference of workers’ and employers’ organizations in each other’s establishment, functioning and administration. The Committee requests the Government to take the necessary measures to adopt provisions providing for full and adequate protection of workers’ and employers’ organizations against any acts of interference against each other, setting up rapid and impartial procedures as well as sufficiently effective and dissuasive sanctions against such acts, and to provide information on any developments in this regard.

Article 4. Irregularities in collective bargaining. The Committee notes the observations of the Confederation of Autonomous Trade Unions of Serbia (CATUS) and the Trade Union of Judiciary Employees of Serbia (TUJES) received on 2 April 2013, in which the trade unions indicate that: (i) the TUJES signed a branch collective agreement and an annex about its prolongation with the Government as the employer, by which it became the employer’s social partner for further negotiations and decision-making; (ii) in line with the collective agreement, the TUJES submitted an initiative to negotiate about the increase of the basis for salary calculation of judicial employees; and (iii) the Government signed a protocol with an unrepresentative trade union, the representativity of which the TUJES asked the Government to re-examine but on which the authorities have not yet ruled. The Committee notes that in its reply the Government indicates that: (i) the Trade Union of Organisations of the Judiciary Authorities of Serbia (TUOJAS) had its representativeness established in 2006, while the TUJES had its representativeness established in 2005 and re established in 2009; (ii) both trade unions are regarded as representative under the Labour Act and may exercise rights belonging to representative trade unions as long as their representativeness is not withdrawn; (iii) under section 233 of the Labour Act, the TUJES applied for a review of representativeness of the TUOJAS and the procedure has been ongoing before the Representativeness Board which has not yet submitted its recommendation on the issue; and (iv) on the basis of the recommendation of the Reconciliation Committee of the Agency for Peaceful Resolution of Labour Disputes, whereby the Committee was deciding on the method of resolution of a collective labour dispute between the Government, the Ministry of Justice and Public Administration and the TUJES, the parties agreed to conclude a special agreement concerning the salaries of civil servants and public employees in the judiciary. The Committee takes note of the information provided by the TUJES and in the Government’s reply.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee takes note of the observations provided by the following workers’ and employers’ organizations: (i) the Confederation of Autonomous Free Trade Unions of Serbia (CATUS) and the Trade Union of Judiciary Employees of Serbia (TUJES) (2 April 2013) alleging irregularities in collective bargaining; (ii) the International Organisation of Employers (IOE) and the Serbian Association of Employers (SAE) (1 September 2013) concerning the determination of trade union representativeness; (iii) the Union of Employers of Serbia (UES) (18 November 2014) relating to employers’ participation in the Health Insurance Fund; and (iv) the International Trade Union Confederation (ITUC) (1 September 2015) relative to the Government’s refusal to consult trade unions over labour changes. The Committee also notes the Government’s comments received in 2013 in reply to the observations from the CATUS and the TUJES and in reply to the observations from the IOE and the SAE.

The Committee had previously requested the Government to provide its comments on the observations – forwarded to the Committee by the Government – from the following workers’ and employers’ organizations: (i) the Trade Union Confederation “Nezavisnost” (5 September 2012) alleging anti union discrimination, flaws in labour inspection, initiative for the establishment of courts specialized in labour relations, and irregularities in collective bargaining; (ii) the UES (5 September 2012) concerning delays in legislative amendments; and (iii) the Confederation of Free Trade Unions (CFTU) (30 October 2012) alleging anti-union harassment, pressure on trade union members and general non-respect of collective agreements by employers and claiming that the three-year period of validity of collective agreements, as provided in the Labour Act, has adverse consequences on the continuity of workers’ rights. The Committee notes that, in its report, the Government provides comments on some of the observations made by the workers’ and employers’ organizations. It requests the Government to reply to the outstanding observations made by these organizations as well as to the observations received from the ITUC on 1 September 2015.

Article 1 of the Convention. Protection against anti-union discrimination in practice. In its previous comments, the Committee had requested the Government to provide information on the application of the Convention in practice, including statistical data on the number of complaints of anti-union discrimination brought before the competent authorities (labour inspectorate and judicial bodies), as well as on the outcome of investigations and judicial proceedings and their average duration. The Committee notes that in its report the Government provides detailed information on the activities of the labour inspectorate, in particular its meetings with the social partners in order to strengthen social dialogue and control compliance with collective agreements and inspection of allegations of anti-union discrimination, including cases relative to expulsion from union membership, termination of affiliation fee deduction or irregularities relating to the payment of union dues. The Committee notes the information provided and requests the Government to provide further details on proceedings particularly related to anti-union discrimination, including judicial proceedings, and their average duration.

Article 4. Promotion of collective bargaining. Representativeness of workers’ and employers’ organizations. The Committee had previously raised the need to amend section 233 of the Labour Act which imposed a time period of three years before a trade union, an employer or an employers’ association could submit a request for reassessment of an already determined representativeness of a trade union. The Committee had requested the Government to take the necessary measures to amend section 233 of the Labour Act so that the three-year time span is reduced to a more reasonable period or to explicitly allow the procedure for determination of the most representative status to take place in advance of the expiration of the applicable collective agreement. The Committee notes with satisfaction that amendments were made to section 233 of the Labour Act, which reduce the period during which it is not possible to challenge an already determined representativeness of a trade union.

The Committee had previously noted the Government’s indications that: (i) the conditions and mechanism for the establishment of the representativeness of trade unions and employers’ organizations are decided by the Minister of Labour upon a proposal by a specific tripartite board, the Representativeness Board; (ii) since this Board was not functional due to its method of decision-making (consensus), the Ministry established an independent commission, which was dismantled in view of the huge discontent of the members of the Representativeness Board; and (iii) the Ministry noted that the issue could be addressed by the adoption of the amendments to the Labour Act or of a separate law. The Committee notes the observations received from the IOE and SAE on 1 September 2013, in which the organizations allege that the Government bypassed the existing legal process for determining representativeness of trade unions by creating a new entity to assess the representativeness of trade unions, in particular of the CFTU, and that the Minister of Finance unduly intervened and put pressure on the secretary and members of the Social and Economic Council (SEC) by requesting them to include the CFTU in the SEC. The Committee notes that in its reply the Government reiterates what it had previously stated in respect of the developments relative to the Representativeness Board and further specifies that the Ministry of Labour will propose a revision of the Labour Act to ensure that applications for representativeness are resolved in a more efficient and timely manner, following clearly defined criteria that will enable any organization to prove its eligibility for representativeness. According to the Government, the issues of concern with the current system are that: (i) it is not possible for an organization to become recognized unless representative social partners, members of the Representativeness Board, reach an agreement on it; and (ii) the current social partners only cease to be recognized if they vote against themselves. The Committee observes that new paragraphs were added to section 229 of the Labour Act which establish decision-making by majority and allow the Minister to decide upon a request for representativeness without the Board’s approval if it fails to submit a proposal to the Minister within 30 days from the date of the request. Recalling that methods for the determination of the most representative organizations should be based on objective, pre-established and precise criteria, the Committee requests the Government to indicate whether the new amendments have improved the Representativeness Board’s operation and efficiency when dealing with requests to grant representativeness and whether the Government is developing any further amendments to the Labour Act in this regard.

Percentage required for collective bargaining. The Committee had previously noted that section 222 of the Labour Act required employers’ associations to represent 10 per cent of the total number of employers and employ 15 per cent of the total number of employees in order to exercise collective bargaining rights. The Committee had requested the Government to lift the 10 per cent requirement for employers’ organizations to be entitled to engage in collective bargaining, which is particularly high, especially in the context of negotiations in large enterprises, at the sectoral or national level. The Committee had noted that, according to the Government, this issue would be reconsidered in the framework of the revision of the Labour Act. The Committee notes that the Government indicates that the Ministry of Labour and the social partners have started to analyse the effect of the Labour Act, including its compliance with the Convention. Welcoming this initiative to review the Labour Act in consultation with the social partners, the Committee trusts that the necessary measures will be taken so as to lower the abovementioned percentages and to provide information on any developments in this regard.

The Committee had also previously noted, that according to the observations of the CFTU received on 30 October 2012, an agreement to achieve representativeness may only be signed by two or more unrepresentative trade unions at company level in order to be able to be party to collective bargaining, and that this is not possible for trade unions and employers’ associations at higher levels. The Committee notes that according to the Government, section 249 of the Labour Act does not restrict the conclusion of agreements between trade unions and employers’ associations at any level as it stipulates that if none of the trade unions or employers’ associations meet the requirements of representativeness within the meaning of the law, trade unions and employers’ associations may conclude an agreement on association in order to meet the conditions for representativeness and participation in collective agreements. The Committee takes note of this information.

The Committee expresses the hope that the Government will take the necessary measures without delay in order to bring the legislation into conformity with the requirements of the Convention, taking into account the preceding comments, and requests the Government to indicate the progress made in this respect.

The Committee is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the comments made by the Government in reply to the observations made by the Confederation of Autonomous Trade Unions of Serbia (CATUS), dated 26 August 2011, and by the International Trade Union Confederation (ITUC), dated 24 August 2010. The Committee also notes the comments made by ITUC dated 4 August 2011 and 31 July 2012 and observations submitted by the Trade Union Confederation Nezavisnost (TUC Nezavisnost) on the application of the Convention in practice, with particular regard to anti-union dismissals and limited social dialogue. It takes note of the Government’s reply of 20 November 2012 to the 2011 and 2012 ITUC comments, especially the information provided concerning inspection visits carried out by labour inspectors in the relevant companies and the measures of redress taken as a result. The Committee further notes the comments of the Union of Employers of Serbia dated 5 September 2012 and the comments of the Confederation of Free Trade Unions received on 30 October 2012. The Committee requests the Government to reply in its next report to all pending comments.

Article 1 of the Convention. Protection against anti-union discrimination in practice. On several occasions, the Committee had requested the Government to provide information on the application of the Convention in practice, including statistical data on the number of complaints of anti-union discrimination brought before the competent authorities (labour inspectorate and judicial bodies), as well as on the outcome of investigations and judicial proceedings and their average duration. The Committee urges the Government to provide the abovementioned information.

Article 4. Promotion of collective bargaining. The Committee had raised the need to amend section 233 of the Labour Law which imposes a time period of three years before an organization which previously failed to obtain recognition as most representative, may seek a new decision on the issue of representativeness. The Committee had requested the Government to take the necessary measures to amend section 233 of the Labour Law so that the three-year time span is reduced to a more reasonable period or explicitly allows the procedure for determination of the most representative status to take place in advance of the expiration of the applicable collective agreement. The Committee notes that, according to the Government’s reply received on 29 October 2012, the legislation establishes that every trade union or employers’ association whose representativeness had not been established may at any moment, when it has fulfilled requirements for representativeness, apply for establishment of representativeness. Furthermore, the Committee notes that the Government indicates that the legislation allows the review of collective agreements under certain circumstances, when the representativeness of a non-signatory trade union or employers’ association of the agreement is established. The Committee recalls that this issue was raised by ITUC some years ago and invites it to send its comments with regard to the Government’s statement.

Representativeness of workers’ and employers’ organizations. The Committee had previously noted the Government’s indication that the conditions and mechanism for the establishment of the representativeness of trade unions and employers’ organizations: (a) are decided by the Minister of Labour upon a proposal by a specific tripartite committee; and (b) will be subject to amendments in the process of the current revision of the Labour Law, in consultation with the social partners. In this regard, the Committee also takes note of the comment of the Union of Employers of Serbia, which indicates that, despite the existing Panel for Establishment of Representativeness of Trade Unions and Employers Associations (tripartite body), the Minister for Labour and Social Policy established the so-called “Independent Committee” for assessing the requirements for representativeness, which is not independent at all and interferes in social dialogue and collective bargaining; and that on the basis of one recommendation of this “Independent Committee”, the Ministry of Labour and Social Policy established, on 3 May 2012, the representativeness of the Confederation of Free Trade Unions, a matter which had been previously examined by the abovementioned panel which had requested additional supportive documents. In this regard, the Committee notes from the Government’s reply to the ITUC communications that: (i) due to its method of decision-making (consensus), the panel was not operational and is currently not able to examine all pending applications nor to adopt new rules of procedure; (ii) the Ministry attempted to find a way out of this situation by establishing an independent committee; (iii) in view of the huge discontent of the panel members, the Ministry dismissed this method of determining representativeness; and (iv) the Ministry is aware that the current issue may be addressed by the adoption of the amendments to the Labour Law or of a separate law. The Committee notes this information and requests the Government to provide information in its next report on any developments relating to the process of revision of the Labour Law as well as a copy of the amended Labour Law once adopted.

Percentage required for collective bargaining. Moreover, the Committee had noted that section 222 of the Labour Law required employers’ associations to represent 10 per cent of the total number of employers and employ 15 per cent of the total number of employees in order to exercise collective bargaining rights. The Committee had noted that, according to the Government, this issue would be reconsidered in the framework of the revision of the Labour Law, with the participation of the representative workers’ and employers’ organizations. The Committee recalls that, in its previous observation, it had requested the Government to lift the 10 per cent requirement for employers’ organizations to be entitled to engage in collective bargaining, which is particularly high, especially in the context of negotiations in large enterprises, at the sectoral or national level. The Committee notes that, according to the Government, when employers’ or workers’ organizations do not fulfil the representativeness requirements, they can conclude an association agreement with another organization in order to fulfil the abovementioned requirement. The Committee notes that, according to the comments of the Confederation of Free Trade Unions received on 30 October 2012, an agreement on association to achieve representativeness may only be signed by two or more unrepresentative trade unions at company level in order to be able to be party in collective bargaining; nevertheless, this is not possible for trade unions and employers associations at higher levels. The Committee considers that the abovementioned percentages are very high and thus difficult to reach. The Committee had taken note of the fact that the amendments to the Labour Law that were under way also addressed the representativeness of trade unions and employers’ organizations. The Committee requests the Government once again to take the necessary measures so as to lower the abovementioned percentages.

The Committee notes the fact that, according to the Government’s report dated 31 August 2012, elections were held in May 2012 and that all the legislative activities were deferred until the formation of the new Government and Parliament. The Committee expresses its hope that the Government will take the necessary measures without delay in order to bring the legislation into conformity with the requirements of the Convention and requests the Government to indicate the progress made in this respect in its next report.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments made by the International Trade Union Confederation (ITUC) on 24 August 2010 and the Government’s reply thereon. The Committee further notes the comments made by the Confederation of Autonomous Trade Unions of Serbia (CATUS) received on 15 November 2010. The Committee requests the Government to provide its observations thereon in its next report.

Article 1 of the Convention. Protection against anti-union discrimination in practice. In its previous comments, the Committee had noted that, according to the ITUC and the CATUS, although the Labour Law of 2005 prohibits discrimination on the basis of trade union membership, it does not expressly prohibit discrimination for trade union activities and establishes no specific sanctions for anti-union harassment and, moreover, the right to organize is not protected in practice. The Committee had requested the Government to provide information on the application of the Convention in practice, including through statistical data on the number of complaints of anti-union discrimination brought to the competent authorities (labour inspectorate and judicial bodies), the outcome of any investigations and judicial proceedings and their average duration. The Committee notes that, while the Government recalls in its report that specific and dissuasive sanctions against anti-union discrimination are provided in sections 13, 18–21, 273 and 274 of the Labour Law, it does not provide the information previously requested by the Committee. In these circumstances, the Committee once again requests the Government to provide information, in its next report, on the application of the Convention in practice, including through statistical data on the number of complaints of anti-union discrimination brought to the competent authorities (labour inspectorate and judicial bodies) as well as on the outcome of investigations and judicial proceedings and their average duration.

Article 4. Promotion of collective bargaining. In its previous comments, the Committee had noted that, according to section 263 of the Labour Law, “[c]ollective agreements shall be concluded for a three-year term”. The Committee had recalled that the parties should be in a position to shorten this duration by mutual agreement, if they consider it appropriate. The Committee had requested the Government to indicate the measures taken or contemplated to amend section 263 of the Labour Law in accordance with the above. The Committee notes that the Government indicates in its report that: (i) section 264 of the Labour Law provides that the validity of a collective agreement may cease prior to the expiry of a three-year period, by mutual agreement of all parties, or by termination, in the manner stipulated by law; and (ii) in case of termination, collective agreements shall be applied for a maximum of six months after the termination and the parties are bound to commence the bargaining process within 15 days after the termination, at the latest.

In its previous comments, the Committee had raised the need to amend section 233 of the Labour Law – which imposes a time period of three years before an organization which previously failed to obtain recognition as most representative, or a new organization, may seek a new decision on the issue of representativeness. The Committee had emphasized the need to ensure that a new request may be made after a reasonable period has elapsed, sufficiently in advance of the expiration of the applicable collective agreement. The Committee had recalled that the Serbian Association of Employers (SAE) had criticized this provision in its communication of 7 April 2005 as imposing an excessively long period of time. The Committee had noted the Government’s indication that this provision is aimed at protecting unions and employers’ associations whose representativeness has been established by providing that their status may not be reviewed prior to the expiry of a three-year term. Moreover, according to the Government, this provision does not prevent trade unions and employers’ organizations, that had previously failed to establish their representativeness, from asking for a new decision on this issue at any moment, without having to wait for three years. The Committee notes the Government’s indication that amendments and addendums to the Labour Law are under way, which will address, inter alia, the conditions and procedures for the establishment and reconsideration of trade unions’ and employers’ associations’ representativeness. In these circumstances, the Committee hopes that due account will be taken of its comments concerning the amendment of section 233 of the Labour Law, in a manner which will reduce the three-year time span to a more reasonable period or allow explicitly the procedures for the determination of most representative status to take place in advance of the expiration of the applicable collective agreement and requests the Government to indicate any development in this regard in its next report.

Representativeness of workers’ and employers’ organizations. In its previous comments, the Committee had noted the comments made by the CATUS, according to which there is a lack of a mechanism for the identification of the number of members of representative workers’ and employers’ organizations, as well as for the verification of such data at the enterprise level. The Committee had noted that, according to section 227(4) and (5) of the Labour Law, “[t]he total number of employees and employers on a territory of a certain territorial unit, in a branch, group, subgroup or a line of business shall be determined on the basis of information supplied by the competent statistical body, or other body keeping the pertinent records” and “[t]he total number of employees with an employer shall be determined according to the certificate issued by the employer”. The bodies in charge of assessing representativeness are the employer, in the first place, and the tripartite panel for establishing representativeness, in the second place. The Committee had requested the Government to provide additional information on the mechanism for assessing representativeness of trade unions and employers’ organizations. The Committee notes the Government’s indication that the conditions and mechanism for the establishment of the representativeness of trade unions and employers’ organizations: (a) are decided by the Minister of Labour upon a proposal by a specific tripartite committee; and (b) will be subject to amendments in the process of the current revision of the Labour Law, in consultation with the social partners. The Committee requests the Government to provide information in its next report on any developments in this regard as well as a copy of the amended Labour Law once adopted.

The Committee recalls that, in its previous observations, it had requested the Government to lift the 10 per cent requirement for employers’ organizations to be able to engage in collective bargaining which is particularly high, especially in the context of negotiations in large enterprises, at the sector or national level. The Committee notes that section 222 of the Labour Law still requires employers’ associations to represent 10 per cent of the total number of employers and employ 15 per cent of the total number of employees in order to exercise collective bargaining rights. The Committee had noted that, according to the Government, the issue will be reconsidered in the framework of the revision of the Labour Law, with the participation of the representative workers’ and employers’ organizations. The Committee notes that the amendments to the Labour Law that are currently under way also address the representativeness of trade unions and employers’ organizations. In these circumstances, the Committee hopes that due account will be taken of its comments concerning the amendment of section 222 of the Labour Law so as to lower the percentage requirements which must be fulfilled by employers’ organizations in order to engage in collective bargaining and requests the Government to indicate any development in this regard in its next report.

The Committee expresses the hope that the Government will take the necessary measures without delay in order to bring the legislation into conformity with the requirements of the Convention and requests the Government to indicate the progress made in this respect.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee takes note of the Law on the Peaceful Settlement of Labour Disputes of 2004.

Article 1 of the Convention. Protection against anti-union discrimination in law. The Committee takes note of the comments made by the International Trade Union Confederation (ITUC) in 2008, to the effect that although the Labour Law of 2005 prohibits discrimination on the basis of trade union membership, it does not expressly prohibit discrimination for trade union activities and establishes no specific sanctions for anti-union harassment. The Committee also notes that, according to the Confederation of Autonomous Trade Unions of Serbia (CATU), the right to organize is not protected in practice. The Committee notes, however, that the Labour Law prohibits all acts of anti-union discrimination and establishes dissuasive sanctions and remedies. The Committee requests the Government to provide information on the application of the Convention in practice, including through statistical data on the number of complaints of anti-union discrimination brought to the competent authorities (labour inspectorate and judicial bodies), the outcome of any investigations and judicial proceedings and their average duration.

Article 4. Promotion of collective bargaining. The Committee notes that, according to section 263 of the Labour Law, “[c]ollective agreements shall be concluded for a three-year term”. The Committee considers that the parties should be in a position to shorten this duration by mutual agreement, if they consider it appropriate. The Committee requests the Government to indicate the measures taken or contemplated to amend section 263 of the Labour Law in accordance with the above.

Representativeness of workers’ and employers’ organizations. In its previous observation, the Committee had raised the need to amend section 233 of the Labour Law – which imposes a time period of three years before an organization which previously failed to obtain recognition as most representative, or a new organization, may seek a new decision on the issue of representativeness. The Committee had emphasized the need to ensure that a new request may be made after a reasonable period has elapsed, sufficiently in advance of the expiration of the applicable collective agreement. The Committee recalls that the Serbian Association of Employers (SAE) had criticized this provision in its communication of 7 April 2005 as imposing an excessively long period of time. The Committee notes that the Government indicates that this provision is aimed at protecting unions and employers’ associations whose representativeness have been established by providing that their status may not be reviewed prior to the expiry of a three-year term. Nevertheless, according to the Government, this provision does not prevent trade unions and employers’ organizations, that previously failed to establish their representativeness, from asking for a new decision on this issue at any moment, without having to wait for three years. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to amend section 233 of the Labour Law in a manner which reduces the three-year time span to a more reasonable period or to allow explicitly the procedures for the determination of most representative status to take place in advance of the expiration of the applicable collective agreement.

The Committee takes note of the comments made by the CATU, forwarded with the Government’s report, according to which there is a lack of a mechanism for identification of the number of members of representative workers’ and employers’ organizations, as well as for verification of such data at the enterprise level. The Committee notes that, according to section 227, paragraphs 4 and 5, of the Labour Law, “[t]he total number of employees and employers on a territory of a certain territorial unit, in a branch, group, subgroup or a line of business shall be determined on the basis of information supplied by the competent statistical body, or other body keeping the pertinent records” and “[t]he total number of employees with an employer shall be determined according to the certificate issued by the employer”. The bodies in charge of assessing representativeness are the employer, in the first place, and the tripartite panel for establishing representativeness, in the second place. The Committee requests the Government to provide additional information on the mechanism for assessing representativeness of trade unions and associations of employers.

The Committee recalls that, in its previous observations, it had requested the Government to lift the 10 per cent requirement for employers’ organizations to be able to engage in collective bargaining which is particularly high, especially in the context of negotiations in large enterprises, at the sector or national level. The Committee notes that section 222 of the Labour Law of 2005 still requires employers’ associations to represent 10 per cent of the total number of employers and employ 15 per cent of the total number of employees in order to exercise collective bargaining rights. The Committee recalls that the SAE had criticized these provisions. The Committee notes that, according to the Government, the issue will be considered when making changes and amendments to the Labour Act, with the participation of the representative workers’ and employers’ organizations. The Committee once again requests the Government to indicate in its next report the measures taken or envisaged to amend section 222 of the Labour Law of 2005 so as to lower the percentage requirements which must be fulfilled by employers’ organizations in order to engage in collective bargaining.

The Committee expresses the hope that the Government will take the necessary measures without delay in order to bring the legislation into conformity with the requirements of the Convention and requests the Government to indicate the progress made in this respect.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

1. Comments of the International Confederation of Free Trade Unions (ICFTU). The Committee further notes the observations submitted by the ICFTU in its communication dated 10 August 2006, concerning the Labour Law of 2005 and alleging cases of anti-union discrimination against leaders and members of the UGS Nezavisnost trade union and denial of collective bargaining rights. The Committee recalls that in its previous observations it had requested the Government to provide information on measures taken to investigate the allegation of anti-union discrimination against members and officials of the Nezavisnost national trade union centre submitted by the ICFTU. The Committee requests the Government to communicate its observations on the above ICFTU comments, as well as on the outcome of the investigations into all alleged cases of anti-union discrimination.

2. Article 4 of the Convention. Representativeness of workers’ and employers’ organizations. In its previous observation, the Committee had requested the Government to indicate whether appeals can be brought before the courts against the Minister’s decision on the issue of the representativeness of employers’ and workers’ organizations. The Committee notes with interest the Government’s indication that section 231(4) of the new Labour Law allows for an appeal against the decision of the Minister to the Supreme Court.

The Committee regrets that the Government provides no information in respect of its previous request to amend section 233 of the Labour Law so as to ensure that workers’ and employers’ organizations which previously failed to obtain recognition, or a new organization, may request a new decision on the issue of representativeness after a reasonable period has elapsed, and may do so sufficiently in advance of the expiration of the applicable collective agreement. The Committee notes that the Serbian and Montenegrin Employers’ Association (UPSCG) has criticized this provision in its communication of 7 April 2005. The Committee once again points out that a time period of three years before another organization could seek recognition as the most representative, imposed by section 233, is an excessively long period of time. It once again requests the Government to take the necessary measures so as to amend this legislative provision. The Committee requests the Government to keep it informed of the measures taken or envisaged in this respect.

The Committee recalls that in its previous observations, it had requested the Government to lift the 10 per cent requirement for employers’ organizations to engage in collective bargaining. The Committee notes that section 222 of the Labour Code (2005) still requires employers’ associations to represent 10 per cent of the total number of employers and employ 15 per cent of the total number of employees for exercising collective bargaining rights. While noting the Government’s statement that, according to section 249, if no employers’ association fulfils the representativeness criteria, an association agreement might be concluded with a trade union for participation in the collective agreement, the Committee observes that the UPSCG has criticized these provisions. The Committee considers that these two provisions combined together unduly generate confusion and could obstruct collective bargaining. The Committee therefore requests the Government to indicate in its next report the measures taken or envisaged to lower the mentioned percentage requirements, which it considers excessively high.

The Committee expresses the hope that the Government will take the necessary measures without delay in order to bring the legislation into conformity with the requirements of the Convention and requests the Government to keep it informed in this respect.

Observation (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee takes note of the comments made by the Serbian and Montenegrin Employers’ Association (UPSCG) in a communication dated 7 April 2005. It observes that most of these comments concern issues which have already been raised by the Committee in previous observations. The Committee will examine these comments at its next session, along with the Government’s report which is due in 2006.

Article 4 of the Convention. The Republic of Serbia. 1. The Committee notes that according to the UPSCG, sections 231 and 232 of the Labour Law give excessively wide discretion to the minister to decide, after consultation with a board (that has not yet been established) the representativeness of trade unions and employers’ organizations. The Committee notes that section 222 contains objective and pre-established criteria (percentage of affiliates) for determining the most representative organization. However, recalling that trade unions and employers’ organizations should have the right to appeal to independent courts against administrative decisions regarding their status, the Committee requests the Government to indicate whether appeals can be brought before the courts against the Minister’s decision on the issue of the representativeness of employers’ and workers’ organizations.

2. The Committee notes moreover that according to UPSCG, the Minister’s decision on the issue of representativeness cannot be challenged by other organizations, which might wish to seek recognition for three years (section 233). The Committee recalls that when national legislation provides for a compulsory procedure for recognizing unions or employers’ organizations as an exclusive bargaining agent, it should safeguard the right of an organization which, in a previous trade union election failed to secure a sufficiently large number of votes, or of a new organization, to demand a new election after a reasonable period had elapsed (see General Survey on freedom of association and collective bargaining, 1994, paragraph 240). In the Committee’s view, depending on the circumstances, three years could be an excessively long period of time (section 233 of the Labour Law). The Committee requests the Government to take the necessary legislative measures so as to ensure that an organization which previously failed to obtain recognition, or a new organization, may request a new decision on the issue of representativeness after a reasonable period has elapsed, and in any case, may do so sufficiently in advance of the expiration of the applicable collective agreement.

3. The Committee finally requests the Government to provide in its next report its response to the other questions addressed in the previous observation (see 2004 observation, 75th Session).

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes with regret that the Government’s first report has still not been received.

With regard to its previous comments concerning the power of the Yugoslav Chamber of Commerce and Industry to sign collective agreements previously negotiated between employers’ and workers’ organizations, the Committee takes note of the written and oral information provided by the Government representative during the discussion that took place at the Conference Committee in June 2004. The relevant issues, which concern both Conventions Nos. 87 and  98, are treated under Convention No. 87 (see observation on Convention No. 87).

The Committee takes note of the comments communicated by the International Confederation of Free Trade Unions (ICFTU) dated 18 September 2002 and 19 July 2004 respectively, which concern acts of anti-union discrimination, including dismissals, against members and officials of the Nezavisnost national trade union centre. The Committee requests the Government to indicate in its next report its observations in this respect, and in particular, any measures taken to investigate these allegations and the outcome of the investigations.

The Committee notes that articles 139 and 142 of the Labour Law of 21 December 2001 of the Republic of Serbia limit the right to collective bargaining to employers’ associations representing at least 10 per cent of the employers in the branch of activity concerned, or of the total number of employers in a territorial unit. The Committee considers that this percentage requirement is excessively high and obstructs collective bargaining in violation of Article 4 of the Convention. The Committee requests the Government to indicate in its next report the measures taken or contemplated so as to lift this requirement.

Observation (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee takes note of the comments made by the International Organisation of Employers (IOE) dated 7 October 2002, as well as of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2146 (327th Report paragraphs 893-898). The Committee also takes note of the written and oral information provided by the Government representative during the discussion that took place at the Conference Committee in June 2003 in the framework of the discussion on the application of the Convention as well as the text of the Law on the Termination of the Law on the Yugoslav Chamber of Commerce and Industry which came into force on 4 June 2003 and was recently transmitted by the Government.

1. Article 4 of the Convention. Measures to promote machinery for voluntary negotiation between employers’ and workers’ organizations. The Committee takes note of the comments communicated by the IOE in October 2002 to the effect that Article 4 of the Convention is violated by section 6 of the Law on the Yugoslav Chamber of Commerce and Industry which vests chambers of commerce with the power to sign collective agreements previously negotiated between employers’ and workers’ organizations. The Committee also takes note of the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2146 according to which, while the law did not appear in itself to provide a monopoly to the Chamber of Commerce to conclude collective agreements, any collective agreement resulting from negotiations should be signed by the Chamber of Commerce which was legislatively constituted and had compulsory membership of all employers. The Committee notes that the Committee on Freedom of Association had requested the Government to take the necessary measures to ensure that the results of negotiations would not be subjected to the approval of the legislatively constituted Chamber of Commerce. The Committee further notes from the IOE comments that the Government had not taken any measure to repeal the provisions that granted the Chamber of Commerce the power to approve the results of collective bargaining, so as to give effect to the recommendations of the Committee on Freedom of Association, while the Chamber of Commerce was trying to by-pass any obstacles by creating parallel employers’ organizations.

The Committee notes from the written and oral information provided by the Government representative to the Conference Committee in June 2003, that the Chamber of Commerce and Industry had been dissolved by a law which was not available at the time. The Committee also notes that according to the Government, the Chamber did not participate in collective bargaining, which was reserved to the voluntary associations of employers under section 136, paragraph 1, of the Labour Law.

The Committee takes note of the text of the Law on the Termination of the Law on the Yugoslav Chamber of Commerce and Industry transmitted by the Government in October 2003 on the basis of which the Chamber of Commerce and Industry of Yugoslavia has been dissolved. The Committee observes however, that section 2, paragraph 1, of the Law provides that the rights, obligations and activities of the dissolved Yugoslav Chamber of Commerce and Industry shall be taken over by the Chamber of Commerce and Industry of Serbia and the Chamber of Commerce and Industry of Montenegro. The Committee therefore observes that the new Chambers of Commerce and Industry of Serbia and Montenegro appear to continue to have the power to sign collective agreements and that, therefore, the new legislation does not substantially modify the previous regime.

The Committee considers that the power of chambers of commerce to approve the results of collective bargaining constitutes interference contrary to Article 4 of the Convention and a violation of the free and voluntary nature of collective bargaining by the negotiating parties. The Committee therefore requests the Government to take all necessary legislative measures without delay so as to eliminate this power of the Chambers of Commerce and Industry of Serbia and Montenegro. The Committee requests the Government to indicate any measures adopted in this respect.

2. Comments of the International Confederation of Free Trade Unions (ICFTU) on the questions raised by the new Labour Law. The Committee takes note of the comments made by the ICFTU in September 2002 and will examine the questions raised therein at its next meeting in the framework of the regular reporting cycle.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the observations supplied by the International Organisation of Employers (IOE) dated 7 October 2002 and by the International Confederation of Free Trade Unions (ICFTU) dated 18 September 2002, concerning the application of the Convention. The Committee requests that the Government transmit its comments in this regard so that it may examine these points at its next meeting.

In addition, the Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2146 (March 2002) and requests the Government to transmit information on measures taken in this respect and on the content and application of the Labour Law of 12 December 2001.

The Committee requests the Government to send a detailed report, including the legislation in force, concerning the questions addressed in the Convention.