Process of harmonisation with the EU legislation in relation to mobbing and posting of workers
By Sanja Djukic and Tijana Milacic, Law Firm Sajic
In Bosnia and Herzegovina, a set of laws has been adopted in the last couple of years, bringing this legislation closer to the EU legislation. In that spirit the new Labour Law and the Law on Prohibition of Discrimination have been adopted, since this is one of the most sensitive areas due to the fact that it treats the rights of workers.
The inconsistent implementation of the previous legislation has led to serious breaches of labour rights, which often took the form of exploitation. This was primarily apparent in the widespread phenomena of work without a contract of employment (illegal employment), unpaid overtime, widespread exposure to non-physical treatment at the workplace (mobbing), as well as a particular problem that arises in the area of
sending workers to work abroad.
In the legal system of Bosnia and Herzegovina, mobbing has been defined as a form of discrimination and the same is standardised in several special laws; however, the aforementioned regulation does not represent the right response to the problem of legal protection against mobbing, which is especially evident in its practical application. Certain omissions in legal aspects have created a problem of legal vacuums and inconsistencies in the suppression of this form of discrimination.
The protection in case of mobbing is an important issue for all those involved in the application of labour standards, as mobbing is one of the forms of psychological harassment, which often includes a whole range of systematic activities which are specifically prepared and executed. The aggravating circumstance is, in addition, a vague description of behaviour in the workplace which can be attributed to mobbing activities. In this regard, a flexible approach to the problem of mobbing in terms of respecting the cultural aspects, traditions and generally accepted forms of behaviour in a particular society can serve as a guideline for the courts when determining whether an individual case is indeed a matter of mobbing or a form of behaviour that does not contain elements of mobbing activity. From the point of view of anti-mobbing mechanisms, the primary goal should be the prevention of mobbing, which means that an employee must be introduced by the employer to his/her rights in order to respond, in a timely manner, to any form of discrimination at work.
Therefore, it follows that there is a need for the adoption of a special law on mobbing or a special law on the prevention of harassment at work, where the emphasis would be on effective prevention activities, i.e. creating a framework for identifying, preventing and resolving mobbing cases, harassment, sexual harassment and violence on the basis of gender in the workplace.
Another area where there is a need to adopt a special law is certainly related to sending workers to work abroad. Once there is a need for an employer to send workers to work in another country, quite often the employer finds itself in a dilemma, especially with regard to the issue of taxes, contributions and insurance for the worker because the employer wants to fulfil all of its obligations under the Law, and avoid the situation whereby, due to the lack of regulation, the same is held liable for breaches of law or even punished according to the applicable legal regulations. The employer, in addition to the concluded and ratified international treaties, should apply other laws, such as the Labour Law, the Law on Pension and Disability Insurance, the Law on Health Care Protection, and the Law on Income. Countries from the region as well as other countries have already solved this issue, i.e. all the conditions and the procedure itself are regulated by a special law.
In order to improve the material and social status of workers, it is necessary to continue the harmonisation of legislation with all other regulations. Although Bosnia and Herzegovina is not a member of the European Union, nor is it a candidate, it is a signatory to the Stabilization and Association Agreement, and therefore undertook to harmonise the existing legislation of Bosnia and Herzegovina with the EU legislation, as well as its effective implementation.
Sanja DjukicLaw Firm Sajic, Banja Luka, Bosnia and Herzegovina
T: +387 51 227 620
Tijana MilacicLaw Firm Sajic, Banja Luka, Bosnia and Herzegovina
T: +387 51 227 620
Published: March 2018 l Photo: Andrey Popov - Fotolia.com