1. Freedom of association
and Social Dialogue
Claude Akpokavie

2. 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

3. 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

4. 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

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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

27. 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

28. 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

29. 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)

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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)

37. 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
* * *

38. Social Dialogue

39. 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."

40. 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

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

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

43. 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?

44. 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

45. 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

46. 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

47. 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)