Freedom of association: Standards and Supervision Monique Cloutier Turin 10-03-2009

Freedom of association is key Preamble to the ILO Constitution, 1919 Declaration of Philadelphia, 1944 Declaration on Fundamental Principles and Rights at Work, 1998 ILO Constitution and Declaration of Philadelphia Fundamental principles upon which ILO is based: freedom of expression and of association are essential to sustained progress 1998 Declaration Obligation of all Members to promote and realize freedom of association and the effective recognition of the right to collective bargaining Turin 10-03-2009

Fundamental Conventions on Freedom of Association and Collective Bargaining Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (147 ratifications) Right to Organise and Collective Bargaining Convention, 1949 (No. 98) (156 ratifications) Turin 10-03-2009

Other Conventions and Recommendations Right of Association (Agriculture) Convention, 1921 (No. 11) Rural Workers’ Organisations Convention, 1975, (No. 141) and Recommendation (No. 149) Collective Agreements Recommendation, 1951 (No. 91) Workers’ Representatives Convention, 1971 (No. 135) and Recommendation, (No. 143) Labour Relations (Public Service) Convention, 1978 (No. 151) and Recommendation (No. 159) Collective Bargaining Convention, 1981 (No. 154) and Recommendation (No. 163) Turin 10-03-2009

Resolutions 1952 Resolution on the independence of the trade union movement 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 Turin 10-03-2009

Convention No. 87 Deals with constitutive elements of freedom of association Objective: The right, freely exercised, of all workers and employers to organize to further and defend their interests Scope: employers and workers without distinction except armed forces and police. Turin 10-03-2009

Convention 87 Civil and political rights Freedom of expression The right of workers and employers freely to form and join organizations The right of these organizations to organize their own internal administration and activities and formulate their programmes Turin 10-03-2009

Individual and collective rights The right to strike The right of organizations to establish and join federations and confederations Protection against acts of anti-union discrimination Protection against acts of interference Promotion of collective bargaining Turin 10-03-2009

Right of employers and workers (Article 2) Without distinction whatsoever (public servants, rural workers, home workers, EPZ workers, seafarers, young workers, teachers, managers, foreigners) Without previous authorization (registration, minimum membership) Turin 10-03-2009

Right of employers and workers (Article 2) To establish and join organizations of their own choosing Structure and composition Limitation of first-level organizations of public servants Not restricted to employees of any particular ministry, department or service May freely join confederations of their own choosing, including with private sector Trade union diversity Turin 10-03-2009

Right of employers and workers (Article 2) Of their own choosing Relevance of trade union recognition Most representative trade union granted certain advantages: Collective bargaining rights Consultation by the authorities Designation of delegates to international organizations Must be based on objective, pre-established and precise criteria Turin 10-03-2009

Exclusive bargaining agent Conditions Certification made by an independent body Chosen by a majority vote of those in the unit concerned Right of organization failing vote to ask for a new vote after a stipulated time Right of another organization to demand new election after fixed period Turin 10-03-2009

Convention 87 (cont.) Right to form and join organizations without previous authorization Previous authorization v. mere formality Registration procedures – formalities v. discretion Turin 10-03-2009

Rights of employers’ and workers’ organizations (Article 3) Draw up their constitutions and rules Elect their representatives Organize their administration Organize their activities and formulate their programmes 1. (only formal requirements, no prior approval) 2. (results not subject to approval, eligibility requirements not excessively restrictive) 3. (autonomy, financial independence, protection of assets and property) 4. hold meetings, access to the workplace, political activities, the right to strike) Turin 10-03-2009

The right to strike (art. 3, 10) Essential means available to workers for the protection and promotion of their interests 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 Turin 10-03-2009

The right to strike (cont.) Essential services (strike may endanger life, personal safety, health): hospitals, electricity services, water supply services, telephone service air traffic control Compensatory guarantees (arbitration) Turin 10-03-2009

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 Turin 10-03-2009

The right to strike (cont.) Minimum services Genuinely minimum Workers’ and employer's participation in definition Compulsory arbitration acceptable only: Acute national crisis Public servants exercising authority in the name of the state Essential services Turin 10-03-2009

Other provisions Right to form federations and confederations (Articles 5, 6) Right to affiliate with international organizations of employers and workers (Article 5) Turin 10-03-2009

Other provisions No dissolution or suspension by administrative measures (Article 4) Right of appeal to independent and impartial judicial body Administrative decision should not take effect until a final judicial decision is handed down Turin 10-03-2009

Convention No. 98 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 Turin 10-03-2009

Protection against anti-union discrimination (art. 1) Based on trade union membership and legitimate activities Legitimate strike Former activities and membership Even where union not recognized Additional measures for trade union leaders Turin 10-03-2009

Protection against anti-union discrimination (art. 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 (accessible, rapid and effective, inexpensive and impartial, appeal procedures, sufficiently disuasive sanctions and reinstatement) Turin 10-03-2009

Protection against anti-union discrimination (art. 1) Workers’ Representatives Convention, 1971 (No. 135) Workers’ representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers’ representatives Turin 10-03-2009

Protection against anti-union discrimination (art. 1) Public servants – protection under Labour Relations (Public Servants) Convention, 1978 (No. 151) Article 4 Turin 10-03-2009

Protection against interference (art. 2) Independence is a fundamental prerequisite to collective bargaining Complements C87 Rapid appeal procedures, coupled with effective and dissuasive sanctions provided in legislation Turin 10-03-2009

Collective bargaining (art. 4) Nature: Collective bargaining leading to collective agreements Precedence over individual contracts Scope: Terms and conditions of work and employment Conditions of employment are included Subjects: Workers’ and employers’ organizations Turin 10-03-2009

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 Turin 10-03-2009

Collective bargaining (cont.) Voluntary nature No duty to use compulsory means No overly detailed regulation The level of negotiation should not be imposed Turin 10-03-2009

Collective bargaining (cont.) Obligation to adopt measures to facilitate bargaining Negotiations in good faith Conciliation, mediation Arbitration Rules of procedure Information - statistics Recognition of representative organizations –exclusive bargaining rights Turin 10-03-2009

Intervention by the authorities In case of economic crisis Not acceptable where intervention affects agreements in force Admissible for future negotiations under conditions Turin 10-03-2009

ILO supervisory mechanisms Turin 10-03-2009

Regular supervisory mechanism Committee of Experts on the Application of Conventions and Recommendations (art. 22, 23 ILO Constitution) 20 independent experts Conference Committee on the Application of Standards (art. 23 ILO Constitution) 225 Government, Employer and Worker delegates to the International Labour Conference Turin 10-03-2009

Regular supervisory mechanism (cont.) Reports from Governments (art. 22) and comments from Employers and Workers (art. 23) Committee of Experts on the Application of Conventions and Recommendations Observations Published in Report III (4A) Direct Requests sent to the Governments Conference Committee on Application of Standards Report to the International Labour Conference Turin 10-03-2009

Committee on Freedom of Association Established in 1951 by the Governing Body Tripartite Committee, nine members May examine complaints regardless of ratification Detailed rules of receivability Complaints communicated to governments Written procedure (direct contacts missions) Unanimous decisions Turin 10-03-2009

Conciliation Commission (independent experts) Committee on Freedom Fact-Finding and Conciliation Commission (independent experts) Committee on Freedom of Association (tripartite) Receivable complaints transmitted to Governments for observations Examination by CFA Direct contacts Recommendations adopted by Governing Body Follow up discussed in Conference Committee on the Application of Standards In case of ratification, CEACR follow up CFA follow up Turin 10-03-2009

CFA: allegations examined by type of violation or restriction Turin 10-03-2009