State Police on Alert: Is the Decision on Travel Allowances Legal!

Regarding the adoption of the Decision on the amount, method, and procedure for exercising the right to compensation for commuting to and from work in institutions of Bosnia and Herzegovina, adopted by the Council of Ministers on August 24, 2017, a meeting of the Steering Board of the Union of Police Bodies was held to discuss the legality of the said Decision and the consequences it will produce, writes Patria.

- An analysis of the Decision in question has determined that it contains discriminatory provisions regarding the calculation of the monthly cost compensation amount, the direct application of which places employees in an unequal position, primarily considering the distance between the place of work and the place of residence as a criterion for determining monetary compensation on this basis, and the established limit of 300 KM – say the Union.

First and foremost, the Steering Board of the Union of Police Bodies in BiH emphasizes the undeniable fact that during the preparation, or rather before the adoption, of the said Decision, the Union of Police Bodies or other representative unions were not consulted, even though Article 57, Paragraph (2) of the Law on Salaries and Allowances in Institutions of Bosnia and Herzegovina stipulates that the Council of Ministers shall consult with representatives of the representative union in the institutions of Bosnia and Herzegovina when preparing bylaws.

- By Decision No. 123/17 of May 23, 2017, the Council of Ministers confirmed the representativeness of the Union of Police Bodies with multiple employers, namely: the Directorate for Coordination of Police Bodies of Bosnia and Herzegovina, the Border Police of Bosnia and Herzegovina, and the State Investigation and Protection Agency – they state.

Furthermore, considering the nature of the matter and the specifics of state institutions of Bosnia and Herzegovina, the Steering Board of the Union of Police Bodies in BiH emphasized that regional representation during the employment of staff and the establishment of employment relationships is one of the criteria or parameters that must be met.

- From the foregoing, it follows that the obligation to implement and operationalize regional representation, which incorporates, among other things, the recruitment and employment of staff whose place of residence is more than 50 kilometers from their place of work – the Union warns.

Namely, by consistent application of the said Decision in practice, i.e., by applying an incorrect methodology for determining the amount of cost compensation (daily and weekly) in each individual case, the principle of equality is directly violated in relation to employees, given that employees whose place of residence is more than 50 kilometers from their place of work are discriminated against because, according to this calculation method, due to the established upper limit of 300 kilometers, they are entitled to a lower monetary amount per calculated kilometer, so the limit for entitlement to a daily ticket, defined by Article 3, Paragraph (1), Point a, is fictitiously set at 80 kilometers, considering that the travel of employees from the 50th to the 80th kilometer is not paid.

- Employees whose place of residence is closer to their place of work are in a significantly more favorable position. For illustration, to understand the nature of the matter, by applying the said calculation methodology and determining the amount of compensation, an employee whose place of residence is in the municipality of Sokolac, which is 50 kilometers away from the place of work, is entitled to compensation in the amount of 300 KM, while on the other hand, an employee living in Han Pijesak, whose distance from the place of work is significantly greater and amounts to 74 kilometers, and uses the same route to Sokolac and then continues for another 24 kilometers, is also entitled to compensation in the amount of 300 KM, which results in an evident discriminatory or unequal position of employees – the Union explains.

Also, the Steering Board of the Union of Police Bodies in BiH concluded that special attention should be paid to the amount, method, and procedure for exercising the right to compensation for commuting to and from work for police officers in the Border Police, considering the fact that they work in shifts, the nature of their jobs and tasks, and that they must travel to the border crossing every working day/shift. The Decision in question only covers part of the travel for these police officers to reach their workplace.

The Steering Board considers that the said discriminatory treatment of employees whose place of residence is more than 50 kilometers from their place of work is contrary to the Constitution of BiH as the highest legal and political act, as well as contrary to the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Law on Prohibition of Discrimination, which directly stipulate, affirm, and promote the principle of equality for all citizens and explicitly prohibit discrimination on any grounds.

- Furthermore, we believe that the said provision is contrary to Article 41, Paragraph (1) of the Law on Salaries and Allowances in Institutions of Bosnia and Herzegovina, which defines that: "An employee in the institutions of BiH is entitled to compensation for travel expenses to and from work, if transportation is not organized by the institution." Furthermore, Paragraph (2) of Article 41 of the Law on Salaries and Allowances of Employees in the Institutions of BiH stipulates that the "Council of Ministers, at the proposal of the Ministry of Finance and Treasury of BiH, shall regulate by bylaws in detail the right to compensation for commuting to and from work in the institutions of BiH," and by the Decision in question, the Council of Ministers, contrary to the aforementioned legal provision, in addition to regulating the right to compensation for commuting to and from work, also regulates the amount of compensation – they further state.

Similarly, the Steering Board of the Union of Police Bodies considers the provision of Article 5, Paragraph (5) of the Decision on the amount, method, and procedure for exercising the right to compensation for commuting to and from work in the institutions of Bosnia and Herzegovina, according to which the shortest traffic route on the given route is used to determine the distance between the employee's place of work and place of residence, to be problematic.

- We explain this through the example of employees who commute daily on the Zenica – Sarajevo route; the shortest traffic route involves paying a toll for the highway in the amount of 12 KM/day, which amounts to at least 252 KM per month (21 working days), and under the Decision in question, they will be paid compensation for commuting to and from work in the amount of 300 KM – they explained.

Consequently, considering the unacceptable discriminatory treatment arising from the said decision, the Steering Board considers it justified and expedient to undertake urgent and energetic activities to initiate the legally prescribed procedure in order to eliminate the existing anomalies, i.e., to harmonize and align bylaws, respecting the fundamental human rights and freedoms of every employee, as well as the principle of equality when determining the amount of cost compensation (daily and weekly) in each individual case.

The Union of Police Bodies will request the Council of Ministers to exclude employees of the three police agencies from the application of the said Decision, given that its application calls into question the functioning of these agencies.

At the same time, the Union of Police Bodies will contact all competent bodies and the Ombudsman institution in Bosnia and Herzegovina in order to initiate a procedure for assessing the legality and constitutionality of the Decision in question.

Furthermore, the Union of Police Bodies will insist on the application of the provisions of the Labor Law and the Law on Salaries in Institutions of Bosnia and Herzegovina regarding the right of the representative union to be consulted during the preparation of bylaws, in order to directly protect the rights of employees arising from employment relationships and to improve the overall position or status, and we also express our readiness to find a way with the employer to prevent abuses regarding the use of the right to compensation for commuting to and from work.