Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 329, Novembre 2002

Cas no 2140 (Bosnie-Herzégovine) - Date de la plainte: 14-JUIN -01 - Clos

Allegations: The complainants allege that employers’ confederations cannot obtain registration as employers’ organizations and do not engage in collective bargaining.

1. 282. The complaints are contained in communications from the Employers of the Federation of Bosnia and Herzegovina and the Employers’ Confederation of Republika Srpska (SAVEZ POSLODAVACA) dated 14 and 19 June 2001, respectively.
2. 283. In the absence of a reply from the Government, the Committee had to postpone its examination of the case three times. At its June 2002 meeting [see 328th Report, para. 8], the Committee issued an urgent appeal to the Government drawing its attention to the fact that, in accordance with the procedural rules set out in paragraph 17 of its 127th Report, approved by the Governing Body, it might present a report on the substance of the case at its next meeting if the information and observations of the Government had not been received in due time (GB.284/8, paragraph 8).
3. 284. Bosnia and Herzegovina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants’ allegations

1. 285. In their communications dated 14 and 19 June 2001, the Employers of the Federation of Bosnia and Herzegovina and the Employers’ Confederation of Republika Srpska (SAVEZ POSLODAVACA) allege that legal obstacles impede the registration and legal recognition of employers’ confederations and seriously hinder the commencement of their activities. The complainants state moreover that employers’ confederations are not invited to consultations and do not engage in collective bargaining at the level of the Republic.
2. 286. The complainants state that they have been trying, along with other employers’ confederations for more than three years now, to obtain the registration and recognition of an employers’ confederation that they intend to establish at the level of the Republic of Bosnia and Herzegovina under the name of “Employers’ Confederation of the Republic of Bosnia and Herzegovina”. The complainants state that it is impossible under the current legal regime to obtain the registration of employers’ confederations and that, without registration, these organizations are unable to hire employees, collect funds from members, open a bank account, use their proper stamp, print letterheads, envelopes, etc. In addition, they cannot participate in activities organized by the ILO in the Republic.
3. 287. Concerning their own status, the complainants state that they themselves also have been unable to register as employers’ organizations and had to register, after several months and a lot of pressure, as “citizens’ associations” in the two entities of the Republic, namely, the Federation of Bosnia and Herzegovina and the Republika Srpska. As a result of their status, their membership can consist only of natural persons, for instance, enterprise managers, while enterprises cannot join as members. The complainants allege that they face a lack of funds and are unable to hire competent staff due to the impossibility of collecting membership fees from enterprises. In addition, the members of the board cannot act as representatives of the organization although some of them meet regularly and all of them maintain contacts with local organizations of employers. The complainants allege that these administrative difficulties and obstructions have seriously hindered the commencement of their activities.
4. 288. The complainants state that a few months before communicating their complaint, they had brought their case to the Presidency of the Republic of Bosnia and Herzegovina and the Government of the Federation of Bosnia and Herzegovina. The Presidency had promised to set up a working group with representatives of the Government and employers from both entities of the Republic to start legislative work on this question. The complainants allege that, although a solution had been promised for the near future, no action has been taken so far.
5. 289. The complainants state that, in the absence of registration, the confederation that they intend to establish is not invited to consultations on issues of interest to its members and is unable to engage in collective bargaining at the national level. The complainants state moreover that, in general, no employers’ organization is consulted or involved in the decision-making process at the national level, although the interests of employers are affected by the decisions taken on social and economic issues by the Presidency, the Government and the Parliament of Bosnia and Herzegovina.

B. The Committee’s conclusions

1. 290. The Committee deplores the fact that, despite the time which has elapsed since the presentation of the complaint and, bearing in mind the extreme gravity of the allegations, the Government has not provided in due time the comments and information requested by the Committee, although it was invited to send its reply on several occasions, including by means of an urgent appeal at its June 2002 meeting. In these circumstances, and in accordance with the applicable rule of procedure [see 127th Report of the Committee, para. 17, approved by the Governing Body at its 184th Session], the Committee is bound to present a report on the substance of this case, in the absence of the information it had hoped to receive in due time from the Government.
2. 291. The Committee reminds the Government, first, that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations concerning violations of freedom of association is to ensure respect for the rights of employers’ and workers’ organizations in law and in fact. If this procedure protects governments against unreasonable accusations, governments on their side should recognize the importance of formulating, for objective examination, detailed factual replies concerning the substance of the allegations brought against them [see First Report of the Committee, para. 31].
3. 292. The Committee notes that the present complaint concerns allegations of obstacles to the registration of employers’ confederations and the exercise of their right to collective bargaining.
4. 293. The Committee notes that the complainants, namely, the Employers of the Federation of Bosnia and Herzegovina and the Employers’ Confederation of Republika Srpska (SAVEZ POSLODAVACA), have been trying without success, for more than three years now, to obtain registration and legal recognition of an employers’ confederation that they intend to establish at the level of the Republic of Bosnia and Herzegovina under the name of “Employers’ Confederation of the Republic of Bosnia and Herzegovina”. The Committee notes that, according to the complainants, the current legal regime does not allow the registration and legal recognition of employers’ confederations and that without registration employers’ organizations are not vested with legal personality and cannot commence their activities. Moreover, they are not invited by the Government to participate in activities organized by the ILO in the Republic.
5. 294. The Committee notes that according to the complainants, they themselves have also been unable under the law to register as employers’ organizations and had to accept registration as citizens’ associations at the level of the two entities of the Republic. The Committee notes that the complainants state that, as a result of their legal status, they face serious constraints concerning their membership, their sources of revenue and the organization of their administration. In particular, the complainants are not entitled to accept enterprises as members and receive membership fees from them, while the members of their board cannot act as representatives of the organization. The Committee notes that, according to the complainants, these constraints have seriously hindered the commencement of their activities. The Committee notes that the complainants state that no steps have been taken by the Government to amend the current legislative framework, despite assurances to the contrary.
6. 295. In the absence of any reply from the Government, the Committee observes that the current legislative framework in the area of registration constitutes such an obstacle to the establishment of employers’ confederations that it deprives employers and their organizations of the fundamental right to establish occupational organizations of their own choosing. The Committee recalls that under Article 2 of Convention No. 87, ratified by Bosnia and Herzegovina, workers and employers without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. The Committee recalls that this implies for the organizations themselves the right to establish and join federations and confederations of their own choosing [Digest, para. 606]. The Committee recalls moreover that requirements must not be such as to be equivalent in practice to previous authorization, or as to constitute such an obstacle to the establishment of an organization that they amount in practice to outright prohibition [Digest, para. 244]. In particular, the acquisition of legal personality by federations and confederations shall not be made subject to conditions of such a nature as to restrict the exercise of [this] right [Digest, para. 607]. The Committee observes, moreover, that obstructions to the commencement of the activities of employers’ confederations, due to a legal status which is unrelated to their objectives, amount in practice to an obstacle to the establishment of such organizations. The Committee recalls in this respect that, in accordance with Article 3 of Convention No. 87, freedom of association implies not only the right of workers and employers to form freely organizations of their own choosing but also the right for the organizations themselves to pursue lawful activities for the defence of their occupational interests [Digest, para. 447]. The Committee requests the Government to initiate discussions with the complainants as soon as possible with a view to finalizing the registration process of the complainants and the Employers’ Confederation of the Republic of Bosnia and Herzegovina, under a status conducive to the full and free development of their activities as employers’ organizations. The Committee requests to be kept informed of developments in this respect.
7. 296. The Committee notes with concern that, in the absence of registration and legal personality, the envisaged confederation is not invited by the authorities to consultations and does not engage in collective bargaining at the level of the Republic of Bosnia and Herzegovina. Moreover, the Committee notes the allegations that no employers’ organization is consulted or involved in the decision-making process at the level of the Republic. In the absence of any reply from the Government, the Committee recalls the Principle laid down in Article 4 of Convention No. 98, ratified by Bosnia and Herzegovina, to the effect that measures appropriate to national conditions shall be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation and emphasizes the importance which it attaches to the right of representative organizations to negotiate, whether these organizations are registered or not [Digest, para. 784]. The Committee requests the Government to take all necessary measures urgently to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers’ and workers’ organizations in conformity with Convention No. 98.
8. 297. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.

The Committee's recommendations

1. 298. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee deplores the fact that the Government has not replied to the allegations despite the fact that it was invited to do so on several occasions, including by means of an urgent appeal, and urges it to reply promptly.
   • (b) The Committee requests the Government to initiate discussions with the complainants as soon as possible with a view to finalizing the registration process of the complainants and the Employers’ Confederation of the Republic of Bosnia and Herzegovina, under a status conducive to the full and free development of their activities as employers’ organizations. The Committee requests to be kept informed of developments in this respect.
   • (c) The Committee requests the Government to bring its legislation concerning registration of employers’ organizations in conformity with Convention No. 87.
   • (d) The Committee requests the Government to take all necessary measures urgently to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers’ and workers’ organizations in conformity with Convention No. 98.
   • (e) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of the case.