Freedom of Association: Standards and Supervision

Trade Union Training on Occupational Safety, health and the Environment, with Special Attention

to HIV/AIDS

Turin, 5 July 2006

Freedom of association is key

Is a human right universally recognized and protected

Is of particular importance for the ILO because of its tripartite structure

Preamble to the ILO Constitution, 1919 Declaration of Philadelphia, 1944 ILO Declaration on Fundamental Principles and

Rights at Work, 1998

Freedom of association and respect of civil liberties

1970 Resolution on Trade Union Rights and Civil Liberties The right to freedom and security of

person and freedom from arbitrary arrest and detention

Freedom of opinion and expression Freedom of assembly Protection of trade union premises

and property

ILO fundamental Conventions on freedom of association Freedom of Association and

Protection of the Right to Organise Convention, 1948 (No. 87)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

Other ILO instruments on freedom of association Right of Association (Agriculture) Convention,

1921 (No. 11) Rural Workers’ Organisations Convention (No.

141) and Recommendation (No. 149), 1975 Collective Agreements Recommendation, 1951

(No. 91) Workers’ Representatives Convention (No. 135)

and Recommendation (No. 143), 1971 Labour Relations (Public Service) Convention (No.

151) and Recommendation (No. 159), 1978 Collective Bargaining Convention (No. 154) and

Recommendation (No. 163), 1981

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)

145 ratifications Objectives: protection, in law and in practice, of

freedom to establish organizations protection of the free exercise of the

right to organize of workers’ and employers’ organizations vis-à-vis public authorities

Right to establish and join organizations without distinction whatsoever (Article 2)

All employers and workers Only exceptions: armed forces and

the police, interpreted narrowly No distinction based on grounds of,

inter alia, occupation, sex, colour, race, religion, age, residence, marital status, nationality, political opinion

Right to establish and join organizations without previous authorization (Article 2)

Statutory and by-law formalities are acceptable as long as they ensure the normal functioning and publicity of organizations

Incompatible: long and complicated registration procedures public authority discretionary power excessive minimum membership requirements

for establishment or registration Right to appeal to independent court, in

case of refusal to grant authorization

Right to establish and join organizations of their own choosing (Article 2)

No interference by public authorities when drawing up structure and composition

Trade union unity or monopoly must not be imposed by law or practice. Trade union plurality and diversity must be possible

Right of workers’ and employers’ organizations to draw up their constitutions and rules (Article 3)

The law may only lay down formal requirements as regards the organizations’ constitutions

Incompatible: approval by public authorities or already

existing trade unions imposed model constitution right to require amendments (beyond formal

changes) by public authorities Right to appeal to an independent and

impartial body in case of refusal

Right of workers’ and employers’ organizations to elect their representatives in full freedom (Article 3)

No interference by public authorities Only possible interventions: to promote democratic principles within trade unions to ensure proper conduct of the election process Possible violations if the law: requires that all candidates belong to an occupation, an

enterprise or production unit require that all candidates be national of the country

(requirement of a reasonable period of residence admissible)

excludes candidates because of their political beliefs, affiliation or criminal records

prohibits re-election fixes the maximum length of the term of trade union office

Right of workers’ and employers’ organizations to organize their administration (Article 3)

Autonomy Financial independence Protection of assets and

property (inviolability of union premises, correspondence and communications)

Right of workers’ and employers’ organizations to organize their activities and formulate their programmes (Article 3)

Includes: right to hold meetings right of trade union officers to have

access to the workplace and to communicate with members and management

certain political activities right to strike

Right to strike (Arts. 3 and 10)

Essential means available to workers for the protection and promotion of their interests

Is not an absolute right. Restrictions in case of: acute national crisis members of the armed forces and the police public servants exercising authority in the

name of the State workers in essential services in the strict sense

of the term

Essential services in the strict sense

Strike may endanger life, personal safety, health: hospitals electricity services water supply services telephone service air traffic control

Compensatory guarantees (arbitration)

Non-essential services Radio and television The petroleum sector and

ports Banking Computer services for the

collection of excise duties and taxes

Department stores and pleasure parks

The metal and mining sectors

Transport generally Refrigeration enterprises Hotel services

Construction Automobile manufacturing Aircraft repair Agricultural activities The supply and

distribution of foodstuffs The Mint The government printing

service The state alcohol, salt and

tobacco monopolies The education sector Postal services

Conditions The law may subordinate the exercise of

the right to strike to certain conditions Acceptable conditions: strike ballot advance notice exhaustion of conciliation/mediation procedures Not acceptable conditions: decisions by over half of all the workers involved a two-thirds quorum requirement compulsory arbitration before calling strike

Protection against dissolution or suspension of organizations by administrative authority (Article 4)

Same applies to decisions taken by public authorities that lead to de facto dissolution

If administrative dissolution exists, right to appeal to independent courts with suspensive effect

Right to establish federations and confederations and to affiliate with international organizations (Arts. 5 and 6)

Federations and confederations should enjoy the rights accorded to first-level organizations

The law should not: prohibit the setting up of more than one

confederation restrict international affiliation to only a

single, named national body

Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

154 ratifications Completes C87, deals with relations

between workers and employers Objectives: safeguards against anti-union discrimination

and interference promotion of collective bargaining Scope: all workers, except armed

forces, police and public servants engaged in the administration of the state

Protection against anti-union discrimination (Article 1)

In taking up employment, the course of employment and its termination

All acts (refusal to hire, dismissal, transfer, demotion, refusal to train, blacklisting)

For membership and participation in trade union activities

Legislative provisions combined with enforcement mechanism (effective, expeditious, inexpensive and impartial)

Protection against interference (Article 2)

Independence is a fundamental prerequisite to collective bargaining

Express legislative provisions against acts of interference necessary

Rapid appeal procedures, coupled with effective and dissuasive sanctions provided in legislation

Promotion of collective bargaining (Article 4)

Nature: collective bargaining leading to collective agreements

Scope: terms and conditions of work and employment

Subjects: workers’ and employers’ organizations

Levels: at any level to the choice of the parties concerned

Collective bargaining (cont.)

The right is also granted to: Staff of the bus and water administration Persons working in public or nationalized undertakings Employees of postal and telecommunications services Employees of state-owned commercial or industrial

enterprises Employees of the national bank National radio and television institutes Seafarers not resident in the country Civil aviation technicians Workers in export processing zones Contract employees

Interventions by the authorities contrary to the voluntary nature of collective bargaining

Restricting the scope of collective bargaining

Refusal to approve collective agreements at the discretion of the authorities

Annulling of modifying the content of collective agreements

Suspension of collective agreements by decree

Obligation to negotiate in good faith

Genuine and consistent efforts by both parties to reach an agreement

No obligation to conclude an agreement Avoid unjustified delay in the holding of

negotiations Support measures aiming at promoting

collective bargaining (information, statistics, voluntary procedures designed to facilitate bargaining)

Supervisory bodies on freedom of association

Fact-Finding and Conciliation Commission on Freedom of Association

Committee on Freedom of Association

Committee on Freedom of Association

Established in 1951 Governing Body tripartite organ, nine

members May examine complaints regardless of

ratification Detailed rules of receivability Written procedure (direct contacts missions) Unanimous conclusions and

recommendations

Conditions of receivability for complaints on FOA

Complaints must: emanate from governments, employers’ and

workers’ organizations national organization having direct interest in the

matter international organizations having consultative

status with the ILO international organizations where allegations relate

to matters directly affecting their affiliated organizations

be in writing be signed be supported by evidence

Procedure for the examination of complaints on FOA

Committee on Freedom of Association

(tripartite)

Fact-Finding and Conciliation Commission(independent experts)

Receivable complaints transmitted to governments for observations

Examination by CFA

Direct contacts possibleRecommendations adopted by Governing

Body

In case of ratification, CEACR follow up

Follow up discussed in Conference Committee on the Application of Standards

CFA follow up

CFA: allegations examined by type of violation or restriction (March 1995 to November 1999)

Denial of civil liberties

30%

Restrictive legislation6% Collective bargaining

11%

Interference4%

Acts of anti-union discrimination

23%

By-laws, elections and activities

8%

Right to strike9%

Establishment of organizations

9%

0

10

20

30

40

50

60

1971-1980 1981-1990 1991-2000

Total number of cases of progress

Committee on Freedom of Association

Cases of progress

Complaints presented before theCommittee on Freedom of Association (1951-2003)

Europa24%

North America6%

Latin America45%

Africa13%

Asia12%

Continent N° of cases

L. America 1001Europe 546Africa 289Asia 283N. America 147

Total 2266

Complaints presented before theCommittee on Freedom of Association (1995-2003)

Europa18%

North America5%

Latin America50%

Africa16%

Asia11%

Continent N° of cases

L. America 224Europe 81Africa 72Asia 50N. America 24

Total 451