Freedom of association and Social Dialogue Claude Akpokavie

FOA : UNIVERSAL HUMAN RIGHT Freedom of association (FOA) is a universally recognised human right Enabling right: democracy; development Constitutional obligation in the ILO Key importance because of the ILO tripartite structure

ILO FOA INSTRUMENTS Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) 149 ratifications Right to Organize and Collective Bargaining Convention, 1949 (No. 98) 159 ratifications

ILO FOA INSTRUMENTS Workers’ Representatives Convention (No. 135), 1971 Rural Workers’ Organizations (No. 141), 1975 Labour Relations (Public Service) (No. 151), 1978 Collective Bargaining Convention (No. 154),1981

KEY COMPONENTS OF FOA & CB Civil Liberties Organisational rights Dispute resolution Non-Interference Anti-union discrimination Promotion of collective bargaining

Freedom of association and protection of the right to organize convention, 1948 (no. 87) Aims at protecting the free exercise of the right to organize of workers’ and employers’ organizations vis-à-vis public authorities (independence) Protects in law and in practice the freedom to establish organizations

Freedom of association and protection of the right to organize convention, 1948 (no. 87) Convention 87: article 2 Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of he organisation concerned, to join organisations of their own choosing without previous authorisation

CIVIL LIBERTIES Civil liberties essential to the normal exercise of trade union rights: The right to life and personal safety The right to freedom and security of person from arbitrary arrest and detention Freedom of opinion and expression Freedom of assembly (before or at the time of meetings) The right to a fair trial by an independent and impartial tribunal The right to protection of the property of trade union organizations

FOA AND RESPECT OF CIVIL LIBERTIES The detention, arrest, physical threats, assaults or disappearances of leaders of workers’ and employers’ organizations for activities in connection with the exercise of their right to organize are blatant violations of FOA No impunity should prevail. The absence of judgement reinforces the climate of violence and insecurity, extremely damaging to the exercise of trade union rights

Freedom of association and protection of the right to organize convention, 1948 (no. 87) This right to organize depends on three principles: 1. That no distinction are made among those entitled to the right of association 2. That there is no need for previous authorization to establish organizations 3. That there is freedom of choice with regard to membership of such organizations

1. Right to establish and join organizations without distinction whatsoever (art. 2) All workers and employers are covered No distinction based on grounds of, inter alia, occupation, sex, colour, race, religion, age, residence, marital status, nationality, political opinion Only exception: armed forces and the police interpreted narrowly

2. Right to establish organizations without previous authorization Statutory and by-law formalities are acceptable as long as they ensure the normal functioning and publicity of organizations Would be incompatible: Long and complicated registration procedures Discretionary power granted to public authority Right to appeal to independent courts against refusal of authorization

3. Right of workers and employers to establish and join organizations of their own choosing Subject only to the rules of organizations concerned Rules and practices should not unduly affect organizational structure and composition. However, some limitations are acceptable as regards : minimum number of members required certain categories of workers to whom membership is limited at the first level as long as they can organise

3. Right of workers and employers to establish and join organizations of their own choosing Plurality and Monopoly: possibility of pluralism Recognition of the most representative organizations A way of striking a balance between trade union unity and fragmentation of trade union movement Determination based on objective, pre-established and precise criteria Certain preferential rights granted to most representative organizations. Other organizations should be able to continue representing their members’ interests

Right of workers’ and employers’ organizations to draw up their constitutions and rules (art. 3) Convention 87: article 3 Workers and employers organisations, shall have the right to draw up their own constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes Public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof

Right of workers’ and employers’ organizations to draw up their constitutions and rules (art. 3) The law should only law down formal requirements as regards the organizations’ constitution Would be incompatible: Approval of by-laws by public authorities or already existing trade union Imposed model Constitution Where public authorities have the right to require amendments Procedure for appeal to an independent and impartial body

Right of workers’ and employers’ organizations to elect their representatives in full freedom (art. 3) No control shall be exercised by public authorities over the election process No arbitrary interference by public authorities in the election process Results should not be subject of approval by public authorities. If contested recourse to independent and impartial judicial body

Right of workers’ and employers’ organizations to elect their representatives in full freedom (art. 3) Conditions of eligibility: possible violations of FOA if a law: Requires that all candidates belong to an occupation or an enterprise Requires that all candidates be national of the country. Possible requirement of a reasonable period of residence Prohibits re-election Excludes candidates because of their political beliefs or criminal records

Right of workers’ and employers’ organizations to organize their administration and activities (art. 3) Be able to formulate their programme Covers necessary financial autonomy and independence Protection of workers’ and employers’ organizations assets shall be guaranteed. Inviolability of union premises, correspondence and communications

Right of workers’ and employers’ organizations to formulate their programmes (art. 3) Right of organizations to formulate their programmes include: Right to hold meetings Right to have access to the working place by trade union leaders with due respect for the rights of property and management Right to communicate with management Right to obtain information Right to present a list of dispute grievances Political vs trade union activities

The right to strike Most visible form of collective action in the context of a labour dispute Even if not expressly mentioned in ILO Conventions on FOA, the right to strike is fully recognized and protected Legitimate weapon of workers’ organizations in furtherance of their members’ interests

Prerequisites found to be acceptable: The law may subordinate the exercise of the right to strike to certain prerequisites (reasonable criteria) Prerequisites found to be acceptable: Take strike decisions by secret ballot Give 20 days’ notice of a strike in certain services Give prior notice to the employer before calling a strike Prerequisite not acceptable: Decision by over half of all the workers involved A quorum requirement of two-thirds Compulsory arbitration before calling strike

Workers covered Certain categories of workers can see their right to strike limited, even prohibited: civil servants exercising authority in the name of the state workers in essential services : services the interruption of which would endanger the life, the personal safety or health of the whole or part of the population – hospitals, electricity & water utilities, air traffic control acute national crisis (limited period of time) Compensatory guarantees should be provided for workers deprived of their right to strike In cases of not essential services but of public utility, possible to establish a system of negotiated minimum service

Abuse of the right to strike FOA principles do not protect against abuse Sanctions provided in national legislation in case of abuse are acceptable May take various forms All penalties should be proportionate to the offence or fault committed. No imprisonment for organizing or participating in a peaceful strike

Protection against dissolution or suspension of organizations by administrative authority (art. 4) Most extreme form of interference by public authorities If administrative dissolution exists, right of appeal to independent courts with suspending effect

Right to organize at higher level Right to establish federations and confederations and to affiliate with international organizations (art. 5) Right to organize at higher level Should enjoy the various rights accorded to first-level organizations At the national level, would be incompatible: Requirement of an excessively large number of member organizations Prohibition imposed on setting up more than one confederation per occupation, branch of activity or region Imposed monopoly at the federal or confederal levels

The legality and the workers’ and employers’ organizations rights (art Workers’ and employers’ shall respect the law of the land The law of the land shall not be such as to impair the guarantees provided for in the Convention

Right to organize and collective bargaining convention, 1949 (no. 98) Protection of workers against acts of anti-union discrimination from employers Protection of workers’ and employers’ organizations against acts of interference by each other Promotion of collective bargaining

Right to organize and collective bargaining convention, 1949 (no. 98) All workers are covered Only exceptions: Armed forces and the police Civil servants engaged in the administration of the state (civil servants employed in government ministries and other comparable bodies and officials acting as supporting elements in these activities)

Protection against acts of anti-union discrimination (art. 1) No person shall be prejudiced in his employment by reason of his/her trade union membership or legitimate trade union activities This protection is particularly necessary for trade union officials Protection against acts of anti-union discrimination requires to be effective: Existence of broad enough protective provisions in legislation Existence of procedures able to ensure that complaints are examined promptly, impartially, inexpensively and effectively

Protection against acts of anti-union discrimination (art. 1) Period covered: In taken up the employment In the course of employment At the time of termination The law should provide for effective and dissuasive sanctions Preventive or reparatory mechanisms Inversion of the burden of proof Compensation is not enough

Protection against acts of interference (art. 2) Total independence of workers’ organizations from employers and their organizations in exercising their activities and vice versa Necessary to have express legislative provisions against acts of interference Rapid appeal procedure Effective and dissuasive sanctions

Promotion of Collective Bargaining (art. 4) Process to create standards to govern labour relations Fundamental right endorsed by Member States by the very fact of their membership to the ILO Conditions favouring collective bargaining: Respect of FOA and civil liberties Parties should be organized, independent and free from any public interference Parties should be of equal strength Appropriate rules governing the procedure

Workers’ organizations need to be representative of those for whom they collectively bargain: Parties should recognize each other Recognition procedure based on objective, pre-established and precise criteria Possible exclusive bargaining agent

Prohibition of Restrictions on the principle of free and voluntary negotiations Compulsory arbitration Intervention of public authorities In the drafting of collective bargaining In the form of administrative approval of freely concluded collective agreements In cancellation of agreements because they are contrary to national economic policy In compulsory extension of the period for which collective agreements are in force restrictions on future agenda of collective bargaining Restrictions on clauses to index wages to cost of living

Obligation to negotiate in good faith: Implies genuine and consistent efforts by both parties to reach an agreement Does not mean that there is an obligation to conclude an agreement Any unjustified delay in the holding of negotiations should be avoided Support measures aiming at promoting collective bargaining (information, statistics, voluntary procedures designed to facilitate bargaining)

Levels of negotiation: Topics to be covered: Terms and conditions of work and employment Regulation of the relations between employers and workers and between organizations of workers and employers Strict limitations possible in case of stabilization policies Levels of negotiation: Should be possible at any level (in law and in practice) Should be left to the choice of the parties concerned Agreements reached: Collective agreements Other forms of agreements * * *

Social Dialogue

Social Dialogue What is Social Dialogue? "Social dialogue is defined by the ILO to include all types of negotiation, consultation or simply exchange of information between, or among representatives of governments, employers and workers, on issues of common interest relating to economic and social policy."

Levels and forms of social dialogue: Different levels national, sectoral, enterprise, regional, sub-regional, global? Different forms negotiation, consultation, information Collective bargaining is a form of social dialogue

What are the key components: Social Dialogue What are the key components: Actors Institutions Agenda

Social Dialogue Who are the actors? Bipartite (workers’ and employers’ organizations) Tripartite (government, workers’ and employers’ organizations)

Social Dialogue What type of institutions? Depends on industrial relations framework and culture: Formal, legally-based Informal, voluntary Ad-hoc arrangements Key question: are the institutions flexible and efficient and do they facilitate the dialogue?

Social Dialogue The Agenda of social dialogue The agenda must be rooted in the reality of the economic and social experiences of the parties - Need for a shared analysis of the key problems - Need to develop a common vision - Adopt a problem-solving approach

Social Dialogue Why engage in social dialogue? Link between good industrial relations climate, productivity and competitiveness Minimizes conflict and promotes stability and social/industrial peace Enhances flexibility and adaptability Promotes innovation and joint problem-solving Replaces adversarial approach with collaboration, consultative, partnership approaches Promotes win-win solutions

Enabling Conditions for effective Social dialogue Strong, independent workers' and employers' organizations with the technical capacity and the access to relevant information to participate in social dialogue; Political will and commitment to engage in social dialogue on the part of all the parties; Respect for the fundamental rights of freedom of association and collective bargaining; Appropriate institutional support

Lessons learnt for successful social dialogue Respect High levels of trust Willingness to share power and influence Search for a wider consensus Acceptance of interdependence Consultation, information-sharing, negotiation and deal-making Respect for freedom of association – independence of actors Open, democratic decision-making processes Government is a key player Trade-offs between and within interest groups Willingness to embrace change Dynamic not static process Capacity to deliver Links between different levels (national, enterprise, community, regional, global)