Unconstitutionality of Labor Law provision which imposes an obligation to approach to an employer before seeking judicial protection of employment rights

In the “Official Gazette of FBiH” no. 23/20 as of 3 April 2020, Judgement of the Constitutional Court of FBiH has been published. The Judgement declares Article 9 of the Law on Amendments to Labor Law incompliant with the Constitution of FBiH.

Disputable Article regulates the obligation of an employee to request from his/her employer exercising the right he/she considers to have been violated. Only if an employer would not accept employee’s request, i.e. if they would not reach an agreement on amicable settlement of the dispute, employee would be entitled to a right to file a lawsuit to the competent court. An exception from this obligation is the case of termination of the employment contract, when employee’s right to access to court is not preconditioned with filing the request to an employer.

Pursuant to decision of the Constitutional Court of FBiH, the respective article limits employee’s right to access to court, which is inconsistent with the right to a fair trial, stipulated within Article 6 of the European Convention on Human Rights.

Implications of the Judgement

Commencing with the day of publishing Judgment in the “Official Gazette of FBiH” (i.e. as of 3 April 2020), Article 9 of the Law on Amendments to Labor Law ceases to apply, meaning that it is a discretionary right of an employee to request from employer exercising of his/her rights, prior to accessing to court.

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