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ACT OF 15 AUGUST 2000 TO AMEND AND SUPPLEMENT THE LABOUR CODE, 2000
(Act No. 01-447 of 2000)
Pursuant to Chapter IV Section B Article 7.a (IV) of the Constitution of the Federation of Bosnia and Herzegovina I enact the following DECREE ON PROMULGATION OF THE LAW ON AMENDMENTS TO THE LABOR LAW
I hereby promulgate the Law on Amendments to the Labour Law passed by the Parliament at the session of the House of Representatives on 2 August 2000 and at the of the House of Peoples on 31 July 2000.
President of the Federation
of BiH
Prof. Dr. Ejup Ganic
THE LAW ON AMENDMENTS TO THE LABOUR LAW
Article 1
In the Labour Law (Official Gazette of the Federation of BiH, 43/99), Article 3 shall be amended to read as follows:
"By 'employer', as used in this Law, is meant any natural person or legal entity who or which employs any person under a contract of employment."
Article 2
Article 4 shall be amended to read as follows:
"By 'employee', as used in this Law, is meant any natural person who is employed under a contract of employment."
Article 3
Article 5 shall be amended to read as follows:
"A person seeking employment, as well as a person who becomes employed, shall not be discriminated against based on race, colour, sex, language, religion, political or other opinion, ethnic or social background, financial situation, birth or any other circumstance, membership or non-membership in a political party, membership or non-membership in a trade union, and physical or mental impairment in respect of recruitment, training, promotion, terms and conditions of employment, cancellation of the contract of employment or other matters arising out of the employment relationship.
The first paragraph shall not preclude :
1. Good faith distinctions based on the inherent requirements of a particular job;
2. Good faith distinctions based on the incapacity of a person to perform the work that is required for the job or to undertake training sought, provided that the employer or person providing training has made reasonable efforts to adapt the job or the training to the situation of such person or to provide suitable alternative employment or training, where this is possible;
3. Any program, activity or provision that has as its object the improvement of the situation of persons who are economically, socially, educationally or physically disadvantaged.
Where an infringement of the provisions under paragraphs 1 and 2 is alleged :
1. The person whose rights are alleged to have been infringed may bring a complaint of infringement to the courts;
2. If the complainant makes a showing of obvious evidence of a discriminatory distinction prohibited by this article, the respondant shall have to prove that such distinction was not made on a discriminatory basis;
3. If the court finds the complaint to be well-founded, it shall make such order as it deems necessary to ensure compliance with this article, including an order for employment, reinstatement, the provision or restoration of any right arising from the contract of employment."
Article 4
Article 6 shall be deleted.
Article 5
Article 7 shall be deleted.
Article 6
Article 8 shall be deleted.
Article 7
After Article 10 a new Article 10a shall be added to read as follows:
"Article 10a
No employer or employers' organization, acting on its own behalf or through any person, member or agent, shall :
1. Interfere with the establishment, functioning or administration of a trade union;
2. Promote or give any assistance to a trade union with the object of controlling the trade union;
No trade union acting on its own behalf or through any person, member or agent shall interfere with the establisment, functioning or administration of any employers' organization."
Article 8
The word "Legal" shall be added at the beginning of Article 11.
Article
9
Article 12 shall be amended to read as follows:
"Unless expressly
authorised by this Law or another law, a collective agreement, a Rule Book
or an employment contract, shall not stipulate any less favourable
provision than those provided in this Law."
A collective agreement, a
Rule Book or an employment contract may set forth more favourable
provisions than those provided in this Law, unless otherwise provided by
law."
Article 10
Article 13 shall be deleted.
Article 11
Article 14 shall be deleted.
Article 12
Article 15 shall be amended to read as follows:
"No person shall conclude a contract of employment with a person who is under the age of 15.
The employment of a person between the age of 15 and 18 (hereinafter referred to as a 'minor') shall be conditional upon that person providing a certificate from a recognized medical practitioner or institution attesting that his health is sufficient to perform the job."
Article 13
Article 16 shall be deleted.
Article 14
Article 17 shall be deleted.
Article 15
The word "three" shall be replaced by the word "six" in Article 18 paragraph 2.
Article 16
Article 19 shall be amended to read as follows:
"A contract of employment may be concluded:
1. For an unspecified period of time;
2. For a specified period of time.
A contract of employment which contains no indication of its duration shall be deemed to be for an unspecified period of time.
A contract for a specified period of time may not be concluded for a period of more than 2 years;
Should an employee have expressly or tacitly renewed, with the same employer, his contract of employment for a specified period of time or have expressly or tacitly concluded, with the same employer, successive contracts of employment for a specified period of time, for a period of employment of more than 2 years without interruption, the contract of employment shall be deemed to be a contract for an unspecified period of time, unless otherwise provided by collective agreement . "
Article 17
Article 20 shall be amended to read as follows:
"The following circumstances shall not be considered as an interruption to the contract of employment:
1. Annual leave ;
2. Sick leave ;
3. Maternity leave ;
4. Any other leave taken in accordance with this Law, a collective agreement, a Rule Book or the employment contract;
5. Period between the cancellation of his employment contract and the date of effective reinstatement as decided by a court or similar body in accordance with this Law, a collective agreement, a Rule Book or the employment contract ;
6. Absence from work with the agreement of the employer ;
7. An interval of maximum fifteen days between contracts of employment with the same employer, unless otherwise provided by collective agreements. "
Article 18
Article 21 shall be amended to read as follows:
"A contract of employment may be written or oral.
The written contract of employment shall include the following in particular :
1. Name and seat of the employer;
2. Name, surname, residence or domicile of the employee;
3. Duration of the employment contract;
4. Day of start of employment;
5. Location of employment;
6. Working position an employee is employed for and a brief job description;
7. Length and schedule of work hours;
8. Salaries, additions to salaries, benefits, and periods of payment;
9. Duration of annual leave;
10. Dismissal notice period to be complied with by both the employee and the employer
11. Other information related to the terms of employment as determined in the collective agreement.
Instead of the information referred to under Paragraph 2 Items 7 to 11, there may be an indication of the relevant law, collective agreement or Rule Book regulating those issues."
Article 19
After Article 21, a new Article 21a shall be introduced to read as follows:
"Article 21a
If the employer does not conclude the written contract of employment under Article 21 of the Law with the employee he shall provide the employee with a written statement including particulars set forth in Article 21 paragraph 2 of this Law.
The employer shall provide the employee with the written statemant under paragraph 1 of this Article:
1. Within one month from the day the employee begins to do work for the employer in the case of a contract of employment for an unspecified period of time ;
2. At the latest on the day the employee begins to do work for the employer in the case of a contract of employment for a specified period of time.
If the employer does not provide the employee with a written statement of the terms of the employment contract for a specified period of time, the contract shall be deemed to be a contract for an unspecified period of time, unless otherwise provided in a collective agreement or unless the employer proves that the contract of employment was concluded for a specified period of time."
Article 20
Article 22 shall be amended to read as follows:
"If an employee is sent to
work abroad, the following contractual terms shall be agreed in writing
before departure of the employee abroad:
1. Duration of the employment
abroad ;
2. The currency of payment of salary and other receipts in
cash and kind to which the employee is entitled during work abroad ;
3.
Terms of return to the country."
Article 21
After paragraph 2, a new paragraph 3 under Article 32 shall be introduced to read as follows:
"An employee may voluntarily agree to perform, at the request of the employer, overtime work not more than additional 10 hours weekly."
Paragraphs 3, 4 and 5 shall become paragraphs 4, 5 and 6.
In paragraph 6, the words "and 4" shall be replaced by the words "4 and 5".
Article
22
Paragraph 2 under Article 34 shall be amended to read as follows:
" If work is organised in shifts, collective agreement, Rule Book or employment contract shall regulate the rotation."
Article 23
Article 35 shall be deleted.
Article 24
The word "Exceptionally" shall be deleted at the beginning of the second paragraph of Article 38.
Article 25
Article 40 shall be deleted.
Article 26
Article 52 shall be amended to read as follows:
"A woman may not be employed on underground work (in mines), unless the woman is employed in a position of management not requiring manual work or in health and welfare services or unless the woman must spend a period of training underground in a mine or must occasionally enter the underground part of a mine for the purpose of a non-manual occupation."
Article 27
Article 55 shall be amended to read as follows:
" During pregnancy, birth-giving and child-care, a woman shall be entitled to maternity leave in the duration of one year without interruption.
A woman may start maternity leave 28 days prior to the expected date of the birth of the child based on the findings by a certified doctor.
A woman may take shorter maternity leave, but not shorter than 42 days following the birth of the child."
Article 28
The words "and 3" under Article 56 shall be deleted.
Article 29
The words "as well as absence under Article 59 of this Law" under the first paragraph of Article 62 shall be deleted.
Article 30
Article 76 shall be deleted.
Article 31
In Article 86, item 3, the words "or completes 40 years of insurance record" shall be inserted after the words "insurance record".
Article 32
Article 87 shall be amended to read as follows:
An employer may cancel the employment contract of an employee with the prescribed period of notice of cancellation, when
1. Such cancellation is justified for economic, technical or organizational reasons; or
2. the employee is no longer able to perform the job.
The employer may cancel the employment contract in the circumstances specified in paragraph 1 of this Article, if, having regard to the size, capacity and economic situation of the enterprise and the employee's abilities, it can not reasonably be expected from the employer to transfer the employee to other employment or to train or qualify the employee to perform other jobs."
Article 33
Article 88 shall be amended to read as follows:
"An employer may cancel the employment contract of an employee without providing the period of notice of cancellation required, where the employee is guilty of serious misconduct or a serious breach of obligations under the employment contract or relating to the employment of such a nature that it would be unreasonable to expect the employer to continue the employment relationship.
If the misconduct or breach of obligations under the employment contract are not serious, the cancellation may not take place without prior written warning to the employee.
The written warning shall contain a description of the misconduct or breach of obligations for which the employee is held responsible and a statement of intention to cancel the contract without providing a period of notice if such misconduct or breach is repeated.
Collective agreements or rule books may specify the types of misconduct or breaches of obligations referred to in paragraphs 1 and 2 of this article."
Article 34
After Article 88, a new Article 88a shall be introduced to read as follows:
"Article 88a
An employee may cancel his or her contract of employment without providing the period of notice of cancellation required, where the employer is guilty of conduct or breach of obligations under the employment contract or relating to the employment of such a nature that it would be unreasonable to expect the employee to continue the employment relationship.
In case of cancellation of the employment contract under paragraph 1, an employee shall be entitled to all rights under the law as if the contract was unlawfully cancelled by the employer."
Article 35
The words "Article 88, paragraph 1" under the first paragraph of Article 89 shall be replaced by the words "Article 88 and Article 88a".
The second paragraph of Article 89 shall be deleted.
Article 36
The first paragraph of Article 91 shall be amended to read as follows:
"In case the cancellation referred to in article 88, paragraph 1 and 2 is contested in a court of law, the employer shall be obligated to prove the existence of the requirements."
Article 37
Article 92 shall be deleted.
Article 38
The words "of the trade union" shall be replaced by "of the Federal Ministry in charge of labour (hereafter: the Federal Ministry)" under Article 93.
Article 39
Article 95 shall be amended to read as follows:
" The cancellation period may not be less than seven days if the employee cancels the employment contract and 14 days if the employer cancels the employment contract.
The cancellation period shall start from the date of the delivery of the notice to the employee or the employer.
Collective agreements, Rule Book and the employment contract may increase the length of the cancellation period."
Article 40
The second and the third paragraphs of Article 96 shall be amended to read as follows:
"If the court finds that the employer's cancellation of the employment contract is unlawful, it shall order the employer to do one of the following:
1. to reinstate the employee, if the employee so requests, in his or her previous employment or in comparable employment and to pay the compensation for lost salary and other damages suffered; or
2. to pay the employee- lost salary ;
- damages ;
- the severance allowance to which the employee is entitled to under this law, a collective agreement, a rule book or the contract of employment ;
- any other amount to which the employee may be entitled under this law, a collective agreement, a rule book or the contract of employment .
An employee contesting the cancellation of his or her employment contract may request the court to order a temporary return to work until a decision by the court on the case."
Article 41
Article 98 shall be amended to read as follows:
"An employer employing over 15 employees who intends, because of economic, technical or organizational reasons, to cancel, over a 3 month period, the employment contracts of more than 10% of employees but not less than 5 employees, shall consult with the works council in the enterprise or, in the absence of a works council, with all trade unions representing at least 10% of employees."
Article 42
Article 99 shall be amended to read as follows:
"The consultation referred to in Article 98 shall
1. be based upon a written document prepared by the employer ;
2. be commenced at least 1 month before giving the employees concerned notice of the cancellation.
The written document referred to in paragraph 1 shall be presented to the works council or trade union before the consultation has commenced and shall include the following information in particular:
- the reasons for the cancellations envisaged;
- the number and categores of employees the cancellation of whose contracts is envisaged;
- the measures, if any, that the employer believes can be taken to avoid some or all of the cancellations envisaged (for example, by transferring the employees concerned to other jobs with the same employer, with retraining where necessary and by temporarily reducing hours of work);
- the measures, if any, that the employer believes can be taken to assist the employees concerned to find employment with other employers;
- the measures, if any, that the employer believes can be taken to retrain the employees concerned for employment with other employers.
If, within a period of one year from the cancellation of the employment contracts of employees for the reasons mentioned in Article 98, the employer intends to hire employees with the same qualifications or training, the employer shall offer to reemploy employees whose contracts have been cancelled before hiring other persons."
Article 43
The words "or the employment contract" shall be added under the second paragraph of Article 100 after the words "Rule Book".
Article
44
The words "the employment" shall be replaced by words "the employment contract" in the first paragraph of Article 101.
Article 45
Article 103 shall be amended to read as follows:
"An employee believing that his employer has violated a right of his arising from employment may request the exercise of the right from the employer.
The submission of a request under paragraph 1 shall not prevent the employee from filing a claim before a court.
An employee may introduce a claim before a court regarding a violation of his rights arising from the employment relationship within three years from the receipt of the decision violating the rights or from the day that the employee learns of the violation of his rights arising from the employment relationship.
In accordance with the law, the collective agreement or the Rule Book may stipulate the procedure of peaceful resolution of a labour dispute, in which case the period of submission of the appeal to the court shall begin to run from the day of termination of this procedure.
Should a final decision under the procedure mentioned in paragraph 4 not be issued within a reasonable time, nothing shall then prevent the employee to file a claim before the competent court."
Article 46
The words "if the employee so consents" shall be added under the second paragraph of Article 105 after the words "the new employer".
Article 47
The words "the Federal Ministry in charge of labour (hereafter the Federal Ministry)" shall be replaced by the words "the Federal Ministry" under Article 118 paragraph 1.
Article 48
In Chapter XXI PENAL
PROVISIONS, after Article 139, a new Article 139a shall be added to read
as follows:
"Article 139a
A fine from KM 1,000 to KM 10,000 shall be imposed on an employer who is a legal entity for an offence if:
- he fails to conclude the employment contract with an employee (Art. 2),
- he discriminates against a person seeking employment and a person whom he has employed (Art. 5)."
An employer - natural person shall be fined for the offence referred to in paragraph 1 of this article with KM 1,000 to KM 3,500.
A responsible person with the employer who is a legal entity shall be fined for the offence referred to in paragraph 1 of this article with KM 500 to KM 1,000 KM."
Article 49
In Article 140
paragraph 1, the figure: "KM 10,000.00" shall be replaced by the figure:
"KM 7,000.00".
"1. he fails to provide an employee with the written statement under Article 21a of this Law."
"26. he employs a woman to perform work underground (in mines) in contravention of Article 52 of this Law."
"49. he fails to consult with the works council in a pursuance of Article 98 of this Law;
50. he acts in contravention of provisions under Article 99 of this Law."
Article 50
Paragraph 4 of Article 143 shall be amended to read as follows:
"If a laid off employee referred to in paragraph 1 and 2 of this Article is not invited to work within the deadline referred to in paragraph 1 of this Article, his employment shall be terminated with a right to severance pay which shall not be less than two thirds of the average monthly salary paid at the level of the Federation valid at the affective day of this Law, as published by the Federal Statistics Bureau.
After paragraph 4, a new paragraph 5 shall be added to read as follows:
"The severance pay under
paragraph 4 of this Law shall be paid for the entire number of years of
employment and shall be computed by multiplying the average salary under
paragraph 4 by the following coefficients: "
| Years of employment | coefficient |
| up to 5 | 1.33 |
| from 5 to 10 | 2.00 |
| from 10 to 21 | 2.66 |
| over 20 | 3.00 |
Paragraphs 5, 6 and 7 shall become paragraphs 6,7 and 8.
Article 51
After Article 143, new Articles 143a, 143b and 143c shall be added to read as follows:
"Article 143a
An employee believing that his employer has violated a right of his arising from paragraph 1 and 2 of Article 143 may, within 90 days from the entry into force of the Law on Amendments to Labor Law, introduce a claim against the employer to the Cantonal Commission for Implementation of Article 143 of the Labor Law (hereafter: Cantonal Commission), established by the Cantonal Minister in charge of labour (hereafter: Cantonal Minister).
Appeals filed against the Cantonal Commission's decisions shall be adjudicated by the Federal Commission for Implementation of Article 143 of the Labour Law (hereafter: Federal Commission), established by the Federal Minister.
In the event of the Cantonal Commission's failure to perform the function for which it has been established the Federal Commission shall take over competencies of the Cantonal Commission.
If a procedure pertaining to the rights of the employee under paragraph 1 and 2 of the Article 143 has been instituted before a Court, this Court shall refer the case to the Commission and interrupt the procedure.
Article 143b
Members of the Federal/ Cantonal Commission shall be appointed by the Federal/Cantonal Minister on the basis of their professional experience and demonstrated ability to exercise their function within the Commission.
Members of the Commissions shall be independent and impartial and shall not be elected officials or hold any political mandate.
The Federal Ministry and relevant Cantonal authority shall provide the Commissions with an operating budget.
Article 143c
The Federal/Cantonal Commission may:
1. Hear the employee, the employer and their representatives;
2. Call witnesses and experts;
3. Require the production, from the competent authorities and the companies concerned, of all relevant information.
The decisions of the Commission shall be:
1. Final subject to any judicial review which may be provided by the laws of the Federation;
2. Reasoned on legal grounds;
3. Filed to the applicant within 7 days."
Article 52
Nothing in this Law shall affect agreements and payments done between an employer and his employee in application of Article 143 of the Labour Law prior to the entry into force of this Law.
Article 53
Nothing in this Law shall affect final decisions issued by a Court prior to the entry into force of this Law in application of Article 143 of the Labour Law.
Article 54
The procedures to exercise and protect the rights of employees instituted before the entry into force of this Law shall be completed according to the regulations applicable on the territory of the Federation before the entry into force of this Law, if it is more favourable to the employee, with the exception of Article 143 of the Labour Law. In such case, the Court shall determine the rights of the employee in accordance with this Law.
Article 55
This Law shall enter into force eight days after its publication in the Official Gazette of the Federation of Bosnia and Herzegovina.
| Speaker of the House of Peoples of the Parliament of the Federation Niko Lozancic, s. |
Speaker
of the House of Representatives of BiH of the Parliament of the Federation of BiH Enver Kreso, s. |
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