1. Freedom of association: Standards and Supervision
Monique Cloutier
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2. 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
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3. 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)
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4. 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)
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5. 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
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6. 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.
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7. 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
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8. 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
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9. 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)
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10. 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
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11. 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
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12. 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
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13. Convention 87 (cont.) Right to form and join organizations
without previous authorization
Previous authorization v. mere formality
Registration procedures – formalities v. discretion
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14. 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)
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15. 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
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16. 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)
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17. 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
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18. 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
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19. Other provisions
Right to form federations and confederations (Articles 5, 6)
Right to affiliate with international organizations of employers and workers (Article 5)
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20. 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
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21. 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
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22. 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
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23. 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)
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24. 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
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25. Protection against anti-union discrimination (art. 1)
Public servants – protection under Labour Relations (Public Servants) Convention, 1978 (No. 151)
Article 4
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26. 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
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27. 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
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28. 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
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29. Collective bargaining (cont.)
Voluntary nature
No duty to use compulsory means
No overly detailed regulation
The level of negotiation should not be imposed
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30. 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
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31. Intervention by the authorities
In case of economic crisis
Not acceptable where intervention affects agreements in force
Admissible for future negotiations under conditions
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32. ILO supervisory mechanisms
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33. 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
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34. 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
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35. 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
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36. 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
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37. CFA: allegations examined by type of violation or restriction
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