FOA PROGRAMME Turin Training Centre Turin Training Centre International labour standards for judges, lawyers and legal educators

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE FREEDOM OF ASSOCIATION (FOA): A RIGHT UNIVERSALLY RECOGNIZED  FOA is a human right universally recognized and protected  FOA is of particular importance for the ILO in reason of its tripartite structure

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE SOURCES IN THE FIELD OF FOA:  Conventions and recommendations  Committee of Experts  Annual report  General report of 1994  Committee on Freedom of Association

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) ILO FOA INSTRUMENTS Right to Organize and Collective Bargaining Convention, 1949 (No. 98)

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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE The Committee on Freedom of Association lEstablished in 1951 lTripartite committee of the GB, comprised of three representatives for each group and chaired by an independent person the representatives of a State which is concerned by the case, must leave the room participation on an individual basis  Meets three times a year (March, May and November) private session

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE The Committee on Freedom of Association Mandate  Deals with the complaints filed against the government for violation of the conventions and principles on FOA Focus on specific situation Focus on specific situation Legislative as well as factual examination even without ratification or consent Legislative as well as factual examination even without ratification or consent Decisions adopted unanimously Decisions adopted unanimously Digest (jurisprudence) Digest (jurisprudence)

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE The Committee on Freedom of Association  Complaints must emanate from: National organization having direct interest in the matter International organization having consultative status with ILO (ICFTU, IOE) International organization where allegations relate to matters directly affecting their affiliated organizations A government  Exiled or dissolved organizations may lodge complaints

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE The Committee on Freedom of Association Procedure POSSIBLE INTERVENTION DECISIONS BY CONSENSUS POSSIBLE DIRECT CONTACTS ADOPTION BY GOVERNING BODY IF ILO CONVENTION IS RATIFIED COMMITTEE OF EXPERTS ON THE APPLICATION OF CONVENTIONS AND RECOMMENDATIONS (CEACR) IF ILO CONVENTION IS NOT RATIFIED FOLLOW-UP BY THE CFA COMMITTEE ON FREEDOM OF ASSOCIATION (CFA) WORKERS EMPLOYERS GOVERNMENTS COMPLAINT PRESENTED TO ILO AND TRANSMITTED TO GOVERNMENTS FOR OBSERVATIONS

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE The Committee on Freedom of Association Types of reports: Types of reports: final; final; interim; interim; « follow up » (the Committee requests to be kept informed of developments) « follow up » (the Committee requests to be kept informed of developments)

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE The Committee on Freedom of Association Special characteristics lQuasi-judicial body lNot subject to the prior exhaustion of national remedies lExamination even without the government’s replay lNot bound by national judicial decision ***  The Committee has dealt with nearly 2400 cases

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE

FOA AND RESPECT OF CIVIL LIBERTIES  A system of democracy and the respect of fundamental human rights are essential to full and genuine FOA  The interdependence of FOA and civil liberties was reiterated in the ILO 1970 Resolution Concerning Trade Union Rights and Their Relation to Civil Liberties

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE FOA AND RESPECT OF 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE  No impunity should prevail. The absence of judgement reinforces the climate of violence and insecurity, extremely damaging to the exercise of trade union rights  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 FOA AND RESPECT OF CIVIL LIBERTIES

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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, prerequisite to the other guarantees enunciated in ILO instruments

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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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:  Right to appeal to independent courts against refusal of authorization  Long and complicated registration procedures  Discretionary power granted to public authority

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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 :  Procedure for appeal to an independent and impartial body  Approval of by-laws by public authorities or already existing trade union  Imposed model Constitution  Where public authorities have the right to require amendments

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE  Most visible form of collective action in the context of a labour dispute The right to strike  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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE  The law may subordinate the exercise of the right to strike to certain prerequisites (reasonable criteria)  Prerequisites found to be acceptable:  Prerequisite not acceptable:  Decision by over half of all the workers involved  A quorum requirement of two-thirds  Compulsory arbitration before calling strike  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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE  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  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  acute national crisis (limited period of time) Workers covered

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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE The legality and the workers’ and employers’ organizations rights (art. 8)  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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE Right to organize and collective bargaining convention, 1949 (no. 98)  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)  Only exceptions:  All workers are covered

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE 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  Effective and dissuasive sanctions  Rapid appeal procedure

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE Promotion of Collective Bargaining (art. 4)  Fundamental right endorsed by Member States by the very fact of their membership to the ILO  Process to create standards to govern labour relations  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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE  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

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE  Restrictions on the principle of free and voluntary negotiations  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  Compulsory arbitration  Intervention of public authorities

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE  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)  Obligation to negotiate in good faith:

FREEDOM OF ASSOCIATION PROGRAMME / TURIN CENTRE  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  Topics to be covered:  Should be possible at any level (in law and in practice)  Should be left to the choice of the parties concerned  Levels of negotiation:  Agreements reached:  Collective agreements  Other forms of agreements * * *