1. International Labour Standards and Processes on Freedom of Association: The added value of the ILO framework Freedom of Association Programme International Training Centre of the ILO

2. Presentation outline I.The ILO framework on Freedom of association (dimensions and added value) II.The rationale for the international recognition of FOA in the labour context (justification) III.The sources and content of international labour law on Freedom of association (principles and standards) IV.The international means of promoting their implementation and enforcement (processes and procedures)

3. I. The ILO framework on Freedom of Association Dimensions and added value

4. Outline of Part I 1)The ILO framework on FOA a.The components of the ILO framework b.The dimensions of FOA for trade union purposes 2) The added value of the ILO framework on FOA a.Increased legitimacy b.Increased effectiveness

5. 1) The ILO Framework on Freedom of Association Essential components and dimensions

6. The components of the ILO framework on FOA  Substantive content  Fundamental Principles  International Labour Standards (ILS)  Processes for ensuring implementation  Institutional Framework and Machinery (mechanisms)  Practices and Procedures (processes)

7. The dimensions of FOA for Trade Union purposes  The essential features of FOA for trade union purposes include : 1.The principle and right to freedom of association; 2.The right to organize; 3.The right to bargain collectively; 4.The right to strike; 5.The right to protection of related civil liberties; 6.The right to protection against acts of anti-union discrimination.

8. 2) The added-value of the ILO framework on Freedom of Association Purpose and Legitimacy

9. Legitimacy of purpose and outcomes  Legitimacy of purpose (objectives) – Universal and lasting peace through social justice – Social justice through fairer distribution and effective participation  Legitimacy of outcomes (standards) – Tripartism: Strength of consensus – Universalism: Scope of application

10. Legitimacy of purpose and means  Social justice as a purpose: –Promoting a participatory process –Promoting a distributive approach  Subsidiarity as a means: – Top-down approach to promote effective bottom-up action – Support for rather than interference in

11. Legitimacy of means and outcomes  Tripartism: – Greatest strength of consensus: standards stemming from the conciliation of the most diverse interests (employers, workers and governments) – Flexible approach reflecting tripartism: standards drafted to be suitable for local transposition anywhere  Universalism: – Broadest level of consensus : standards formulated at the highest (international) level – Universal scope of standards: universal application of standards supported by international recognition of their reliability and relevance

12. From legitimacy to effectiveness  The ILO framework is characterized by legitimacy of purpose, means and outcomes.  Increased legitimacy favours increased effectiveness, notably: –Effectiveness of implementation –Effectiveness of collective action.

13. II. The Rationale for the International Recognition of Freedom of Association for Trade Union Purposes Justification

14. Outline of Part II  The rationale for the international recognition of FOA in the labour context 1)The special status of FOA as both a fundamental right and a fundamental mean 2)The pivotal role of FOA as a fundamental component of the enabling framework for ensuring decent work.

15. The pivotal role of Freedom of Association  Freedom of association as a fundamental right –A fundamental human right –A fundamental worker right –A precondition to the exercise of other rights  Freedom of association as a fundamental mean –A fundamental pillar of labour regulation –A fundamental means of worker empowerment

16. Freedom of association as a fundamental worker right  More than a standard, a “mean” of implementing all international labour standards –A means of achieving not only decent work, but better conditions of work  More than a principle, a “precondition” to social action and securing a voice at work –A precondition to collective action and social dialogue

17. The meaning of “Freedom”  What is freedom? Freedom implies autonomy.  The word “autonomy” is based on two Greek words: “ auto ”, meaning “ self ”, and “ nomos ” meaning “ law ”.  So to be autonomous is to be self-ruling.  And to be self-ruling implies having a power of choice.

18. The limitation of “Freedom”  Evidently, however, the exercise of all freedoms is inherently constrained by the freedom of others.  Such that at most, we may behave with a relative and limited degree of autonomy, under certain conditions.  Such a limitation can be described in terms of interaction.  We can also call this interaction “ heteronomy ”, to stress that all relatively autonomous individuals are inherently related in this way.

19. The exercise of “Freedom”  Thus, any power of choice is inherently constrained by the power of choice of others  In this sense, there seems to be perfect equality.  But what happens when this equality is absent due to an imbalance in power relationships?

20. The central role of trade union action in ensuring “Freedom” The exercise of fundamental freedoms though trade union action is the most effective means of minimizing the adverse implications of the fundamental power imbalance in worker-employer relationships.  This brings us back to the pivotal role of freedom of association.

21. Freedom of association as a precondition to worker empowerment  Without freedom of association, there is no possibility of collective action.  Without collective action, workers remain isolated and unable to influence the conditions under which they work.  Without such influence, disempowered workers cannot achieve decent work, much less secure better conditions of work.

22. Freedom of association as a precondition to collective bargaining:  Collective bargaining is the most effective mean to restore the fundamental imbalance in employer-employee power relationships:  Collective action enables workers to negotiate on an equal (or more equal) footing with their employer  Collective bargaining is a means for ensuring equitable self-regulation though worker empowerment.

23. Collective bargaining as a pillar of labour regulation (1)  Collective bargaining is one of the two fundamental means of labour regulation: – The first mean of labour regulation is the adoption of protective legislation : the imposition of minimum terms and conditions of work by public authorities (for e.g. minimum standards legislation, health and safety legislation). –This is direct legislative intervention.

24. Collective bargaining as a pillar of labour regulation (2)  Collective bargaining is one of the two fundamental means of labour regulation: – The second mean of labour regulation is the adoption of a legislative framework for collective bargaining: this is meant to favour the negotiation of terms and conditions of work by the parties themselves ( self- regulation). – This can be called indirect legislative intervention.

25. Collective bargaining as a pillar of labour regulation (3)  What is the purpose of a legislative framework for collective bargaining?  To set the proper conditions to ensure the free, universal and effective exercise by all of the right to collective bargaining.  To ensure that the parties can bargain on an equal footing.

26. Collective bargaining as an essential component of FOA  Collective bargaining is the instrumental expression of freedom of association at work.  Collective bargaining is the primary mean of ensuring a voice at work.  Collective bargaining allows workers to further and defend their interests.

27. The meaning of “the effective recognition of the right to collective bargaining”  An inherent commitment to equality.  An inherent commitment to universal access.  An inherent commitment to effective access.  An inherent commitment to inclusive democracy.

28. Freedom of association as a precondition to social dialogue  Without freedom of association, social dialogue remains social monologue.  A prerequisite for effective social dialogue is autonomous and representative social partners.  Social dialogue, which means active interaction among represented groups, it can be bipartite, tripartite or tripartite plus.  All forms of social dialogue imply freedom of association and the effective recognition of the right to organize and to bargain collectively.

29. Freedom of association as a precondition to tripartism The ILO Principle of Tripartism: Tripartism means active interaction among governments, workers and employer as representative, equal and independent social partners The tripartite structure of the ILO enables the representatives of workers and employers to participate on an equal footing with those of governments in all discussions and decision-making.

30. Freedom of association as a precondition to sustained progress  The ILO is based on the recognition that freedom of expression and association are essential to sustained progress:  Declaration of Philadelphia, Article I (b).  The synergy between freedom of association and development:  The establishment and operation of organizations for the representation of sectoral interests is one of the most important ways of guaranteeing a maximum level of balance between economic and social matters.

31. The links between Freedom of association and Social protection  Collective action is the essential mean to secure improved conditions of work, including improved health and safety protections and other conditions of social protection.  Without freedom of association workers cannot make use of this mean.  Thus, securing universal enjoyment of the fundamental right to freedom of association is the first step towards improving health and safety protections and other conditions of social protection.

32. The links between Collective Bargaining and Equality Freedom of association as an essential component of the enabling framework for ensuring decent work

33. The links between Freedom of association and Equality  Freedom of association is a precondition to restoring vertical equality:  Labour law developed in response to the recognition of the fundamental inequality of bargaining relationships: vertical inequality due to worker subordination.  As a precondition to any form of collective action and therefore collective bargaining, freedom of association is the precondition to restoring vertical equality.

34. Collective bargaining as premised upon workers’ horizontal equality  Restoring vertical equality presupposes equality of access to collective representation, i.e, universal enjoyment by all workers  But traditionally disadvantaged groups also suffer from various forms of discrimination, which can be direct (overt), indirect or systemic  For women, the problem is compounded by persisting beliefs in gender subordination.

35. The limitations of existing models in ensuring universal access  Existing labour relations frameworks for collective bargaining often fail to capture the specific problems of access faced by traditionally disadvantaged (marginalized) groups  Hence the recognition of the need to address another type of inequality: horizontal inequality

36. Horizontal and Vertical Inequality  Horizontal inequality is inequality between workers due to structural and/or personal discrimination  Vertical inequality is inequality between a worker and his/her employer due to worker subordination and the resulting imbalance in the power relationship

37. The core principles of freedom of association and non-discrimination Complementarity and interdependence

38. The interface between Freedom of association and Non-discrimination  The need to ensure both horizontal and vertical inequality underscores the complementarity and interdependence of the core principles of freedom of association and non-discrimination  A precondition to the effective enjoyment by all of the right to freedom of association is the elimination of all forms of discrimination

39. International recognition of these core principles  Both the principle of freedom of association and the principle of non-discrimination are universally recognized as fundamental human rights in international instruments.  The principle of “freedom of association and the effective recognition of the right to collective bargaining” and the principle of “non- discrimination and the elimination of discrimination in respect of employment and occupation” are recognized as fundamental workers rights in the 1998 ILO Declaration on Fundamental Principles and Rights at Work.

40. ILO recognition of these core principles  The preamble of the ILO Constitution affirms the cardinal importance of the core principles of freedom of association and non-discrimination.  Articles I (b) and II (a) of the ILO Declaration of Philadelphia assert that freedom of expression and association are essential to sustained progress and that discrimination poses a threat to human dignity.

41. ILO renewed commitment to the core principles of FOA & CB and Non- discrimination  The 1998 ILO Declaration on Fundamental Principles and Rights at Work reaffirms that: – Freedom of association and collective bargaining, and the elimination of discrimination in respect of employment and occupation are so central to the achievement of social justice and the ILO decent work agenda, that its Members have a good faith obligation to respect, to promote and to realize them whether or not they have ratified the Conventions on the subject.

42. Equality at work: the enabling framework for decent work (1)  The pivotal notion implied in this statement is that the core principles of freedom of association and non- discrimination are complementary and interdependent.  Together these principles provide the enabling framework for ensuring equality at work.

43. Equality at work: the enabling framework for decent work (2)  This enabling framework is reinforced by the other two fundamental principles affirmed in the 1998 ILO Declaration, namely: –The need to eliminate forced labour; and –The need to eradicate the worst forms of child labour.

44. Status of forced and child labour  In the case of forced labour and the worst forms of child labour, there is no balance of power to rectify or equality to restore because these forms of work admit no freedom.  As a result, these forms of work cannot be “improved”; only eliminated.

45. Ensuring decent work for all through equality at work  The effective realization of both the principle of freedom of association and the principle of non- discrimination is needed to ensure equality at work (as the enabling framework for decent work).  Both principles are necessary to promote a vision of sustainable development and workplace governance which reconciles economic with social goals.  At the same time, when properly articulated together, both principles can foster the achievement of social justice in a mutually supportive way.

46. FOA’s equality challenge  Equality and the principle of non-discrimination are fundamental components of Freedom of association.  Unequal access to collective bargaining is an equality challenge.  Ensuring universal access to the full enjoyment of FOA, including the effective exercise of organisational rights, contributes to the promotion of equality of opportunities and treatment on grounds such as gender, disability and religion.

47. The links between collective bargaining and equality  Unequal access to collective bargaining is an equality challenge.  At the same time, obstacles in the way of achieving equality at work can be eliminated through collective bargaining.

48. Negotiating equality  An equality agenda can enhance the scope, effectiveness and legitimacy of collective action.  An equality agenda serves to remedy inequality and discrimination.  Collective action has proved particularly effective in remedying inequality and discrimination.

49. The interface between collective bargaining and equality  The negotiation process has contributed to the promotion of equality of opportunities and treatment on grounds such as gender, disability and religion.  In turn, an equality agenda can enhance the scope, effectiveness and legitimacy of collective bargaining.

50. Collective bargaining, an essential mean of achieving pay equity Women’s groups and trade unions have been able to use pay equity legislation to win some significant gains –Not only in terms of wages, but also –In terms of addressing the related problems of pervasive and persistent undervaluing that underlies the resistance to women’s claims.

51. Collective representation, an essential mean for addressing discrimination  Women with union representation tend to be more successful in remedying discrimination than those without.  When trade unions are either absent or are not effective, employers are free to develop plans that offer little or no compensation to women and to implement workplace policies that systematically favours men.

52. Collective representation, best suited to address systemic discrimination  Collective agreements can provide effective mechanisms for identifying double-standard policies and practices with a view to ensuring their elimination.  Collective representation is best suited to address instances of systemic discrimination, which is, by definition, group-directed.  Systemic discrimination exists where employment policies and practices, which may appear neutral on their face, disproportionately have an adverse impact on traditionally disadvantaged groups such as women.

53. International Standards and Processes for securing Freedom of Association Sources and Content Implementation and Enforcement

54. III. The sources and content of International labour standards on Freedom of association Formal instruments and Authoritative pronouncements

55. Sources of FOA Protections  They arise from domestic standards: –In State constitutions –In general human rights and labour laws –In rights to collective bargaining and supporting legislative framework.

56. Sources of FOA Protections  They arise from international standards: –As Members of the ILO, States have constitutional obligations to promote and effectively realize FOA rights; in addition : –States have obligations as signatories to relevant ILO and UN conventions which recognize and affirm their commitment to FOA –States may have additional obligations as signatories of regional conventions.

57. Freedom of Association: International Sources (Main Instruments) The sources of International Labour Standards on FOA: General Overview

58. The right to freedom of association: International instruments  Universal Declaration of Human Rights (UDHR), art. 20(1), (2) and (4).  International Covenant on Civil and Political Rights (ICCPR), art. 22 (1), (2) and (3).  International Covenant on Economic, Social and Cultural Rights (ICESCR), art. 8 (1), (2) and (3).

59. The right to freedom of association: examples of Regional instruments  African Charter on Human and People’s Rights, 1981 (AfCHPR), art 10 (10 and (2).  American Declaration of the Rights and Duties of Man, 1948 (ADRD), art. 22.  European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ECHR), art. 11 (1) and (2).

60. The right to freedom of association: ILO instruments  ILO Constitution (binding)  ILO Tripartite Declarations (promotional, persuasive)  ILO Conventions (binding if ratified, if not persuasive, interpretative)  ILO Recommendations (persuasive, interpretative).

61. FOA: ILO Constitution  The Preamble of the Constitution of the ILO expressly declares “ recognition of the principle of freedom of association ” to be one of the means of improving the conditions of the workers and of ensuring social justice, which is a precondition to universal and lasting peace.

62. FOA: Declaration of Philadelphia  In 1944, the International Labour conference reaffirmed as one of the principles on which the ILO is based that “ freedom of expression and association are essential to sustained progress ”.  The Declaration of Philadelphia also affirms the need to promote “ the effective recognition of the right to collective bargaining ”.  The terms of the Declaration of Philadelphia were incorporated in the Constitution of the ILO in 1946.

63. Freedom of Association: Fundamental Conventions  Convention 87: Freedom of Association and Protection of the Right to Organize, 1948.  Asserts the principle of independence of trade unions’ organisations from public authorities.  Convention 98: Right to Organise and Collective Bargaining, 1949.  Completes the guarantees of independence in C.87 by focusing on the relations between workers organisations and employers.

64. Additional ILO instruments on FOA & CB  C. 11: The Rights of Association and Combination of Agricultural Workers Convention, 1921.  C. 135: Workers’ Representatives Convention, 1971 –R. 143: Workers’ Representatives Recommendation, 1971  C. 141: Rural Workers’ Organisations Convention, 1975 –R. 149: Rural Workers’ Organisation Recommendation, 1975

65. Additional ILO instruments on FOA & CB  C. 151: Labour Relations (Public Service) Convention, 1978 –R. 159: Labour Relations (Public Service) Recommendation, 1978  C. 154: Collective Bargaining Convention, 1981 –R. 163: Collective Bargaining Recommendation, 1981 –R. 91: Collective Agreements Recommendation, 1951

66. The meaning of Freedom of Association: Standards (Principles, rights and obligations) The Content of International Labour Standards on FOA: General Overview

67. The dimensions of FOA for Trade Union purposes  The essential features of FOA for trade union purposes include: 1.The right to freedom of association; 2.The right to protection of related civil liberties; 3.The right to organize; 4.The right to bargain collectively; 5.The right to strike; 6.The right to protection against acts of anti-union discrimination.

68. The notion of “organisation”  C. 87, Art. 10: definition of the term organisation : – Any organisation of workers or employers …

69. 1. The right to freedom of association: basic notions  The right to freedom of association recognizes the basic human right to unite in order to pursue or achieve a common purpose, whether for political, religious, ideological, economic, labour, social, cultural, recreational (such as sport), or professional objectives.

70. The right to freedom of association: basic notions  The right to form an association is an inherent part of this right: That individuals should be able to form a legal entity in order to act collectively in a field of mutual interest or concern is one of the most important aspects of the right to freedom of association.  Accordingly, when someone joins a trade union, that person is exercising his or her right of freedom of association.

71. The right to freedom of association: basic notions  Uniting protects individuals from the vulnerability of isolation.  It enables those who would otherwise be ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.

72. The right to freedom of association: basic principles  The Principle of Non-interference –The importance of independence –The meaning of non-interference  The Principle of Non-discrimination –The importance of universal access: “effective enjoyment by all” –The meaning of non-discrimination: “no distinction”:  No distinction based on grounds of occupation, sex, colour, race, religion, age, residence, marital status, nationality, political opinion.

73. Protection from Interference and Universal Enjoyment l C. 87: Public Authorities  The protection covers all stages of the organization’s life: from creation to dissolution. l C. 98: Employers and organizations  The protection covers all stages of the relationship: from hiring to termination.

74. The freedom of association and protection of the right to organize convention, 1948 (no. 87)  Affirms the right of all workers and employers to organize without interference from public authorities.  Affirms the right of workers’ and employers’ organizations to conduct their affairs and carry out their activities without interference from public authorities.  Affirms the duty of public authorities to protect in law and in practice these freedoms, without which the other guarantees enunciated in ILO instruments would remain a dead letter.

75. The right to organize and collective bargaining convention, 1949 (no. 98)  Affirms the need to effectively protect all workers against acts of anti-union discrimination by employers or other organizations.  Affirms the right of all workers to be protected against such acts.  Affirms the right of workers’ and employers’ organizations to be protected against acts of interference by each other.  Reaffirms the responsibility of States to effectively promote of collective bargaining.

76. Workers covered by C. 87 and C. 98  All workers covered.  Only exceptions (narrowly construed):  Armed forces and the police  C. 98: Civil servants engaged in the administration of the state, but these workers are covered by Conventions no. 151 and no. 154.

77. Covered at all times by C. 87 and C. 98  An ongoing protection for an ongoing right:  Freedom to associate implies not only the right to commence an association, but also to continue or terminate that association.  Freedom is characterized by the absence of coercion or constraint.  Therefore, the safeguards against coercion or constraint must be ongoing (not time or event specific), to ensure the full enjoyment of the right to freedom of association.

78. 2. FOA and respect of Civil liberties (1)  Absence of civil liberties removes all meaning from the concept of FOA.  Genuine, free and independent workers’ and employers’ organizations cannot develop in a climate of violence and uncertainty.  A system of democracy and 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.

79. FOA and respect of Civil liberties (2)  Civil liberties essential to the normal exercise of FOA 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  The right to a fair trial by an independent and impartial tribunal  The right to protection of the property of workers’ and employers’ organizations.

80. FOA and respect of Civil liberties (3)  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.

81. FOA and respect of Civil liberties (4)  All appropriate measures should be taken to guarantee that FOA can be exercised in normal conditions.  Violations of civil liberties related to the exercise of FOA can be denounced before the ILO.  No impunity should prevail.  The absence of judgement, or excessive delay in its issuance, reinforces the climate of violence and insecurity, extremely damaging to the exercise of FOA.

82. 3. The right to organize (C.87) The right to organize rests upon the following 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.

83. The right to organize: No distinction (C.87, art. 2)  The right to establish and join organizations without distinction: – 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.

84. The right to organize: requirement of recognition (1)  The right to form an association may not be conditioned by a law that requires the recognition of that association by the public authorities.  Similarly, if the conditions granting registration are tantamount to obtaining prior permission from the authorities for the establishing or functioning of a trade union, this will constitute an infringement of the principles of freedom of association.

85. The right to organize: requirement of recognition (2)  A state has a right to satisfy itself that an organization’s aims and activities are in conformity with the rules laid down in legislation.  However, it must do so in a manner compatible with its obligation to ensure to everyone the enjoyment of the right to freedom of association.

86. The right to organize: requirement of recognition (3)  Recognition of the most representative organizations:  A way of striking a balance between trade union unity and fragmentation of trade union movement.  The determination of most representative trade union must be based on objective, pre-established, relevant and precise criteria.  Certain preferential rights may be granted to most representative organizations. However, other organizations should be able to continue representing their members’ interests.

87. The right to establish organizations without previous authorization  Legal formalities for the establishment of an organisation: 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  Excessive minimum membership required for establishment or registration.  The recognition of the organization’s legal personality must be granted without delay if formal requirements complied with.  A right to appeal to independent courts against refusal of authorization must be provided.

88. The right to establish and join organizations of one’s own choosing  The right is subject only to the rules of organizations concerned.  There must be no interference by public authorities in the articulation of the organization’s structure and composition.  The legal system’s rules and practices must not unduly affect the structure and composition of organizations.  However, there are acceptable limitations as regards :  The required minimum number of members  Certain categories of workers to whom membership is limited to the first level as long as they can organise.

89. The right to establish and join organizations of one’s own choosing  Legislation and practices must not unduly affect organizational plurality and diversity:  Monopoly must not be imposed by law or practice.  Systems prohibiting union security practices as well as systems which permit such practices, are compatible with FOA principles.  However, such systems should take effect trough collective agreements.

90. The right to draw up the organization's rules in full freedom (C. 87, art. 3)  Permissible requirements: The law should only lay down formal requirements with respect to an organizations’ founding instruments (constitution and by-laws), such as:  A requirement that the constitution be approved by a majority of members present at a duly constituted meeting;  A requirement that the purpose of the organization be lawful and related to the pursuit of the social and economic interests of its members.  Unacceptable requirements: Would be incompatible with this principle:  The approval of by-laws by public authorities or by an already existing trade union;  An imposed model constitution;  The right of public authorities to require constitutional amendments beyond formal changes.

91. The right to draw up the organization's rules in full freedom (C. 87, art. 3)  Necessary safeguards :  The national legal framework should contain an appeal procedure to an independent and impartial body for cases of refusal to recognize the legitimacy of an organization’s founding documents.

92. The right to elect an organization’s representatives in full freedom (C. 87, art. 3)  No control must be exercised by public authorities over the election process.  There must be no arbitrary interference by public authorities in the election process.  The elections results should not be subject to the approval of public authorities. A recourse to an independent and impartial judicial body should be available for possible instances of contested results.  Conditions of eligibility should be provided to avoid situations where qualified persons would be disqualified.

93. The right to elect an organization’s representatives in full freedom (C. 87, art. 3)  Likely violation of FOA principles if a law:  Requires that all candidates belong to a certain occupation or a certain enterprise;  Requires that all candidates be nationals of the country. (A requirement of a reasonable period of residence may however be deemed reasonable.)  Prohibits re-election;  Excludes candidates because of their political beliefs or criminal records.

94. The right to administer the organization and to conduct its activities in full freedom (C. 87, art. 3)  The right extends to financial autonomy and independence:  No prior authorization to receive funds  The protection of workers’ and employers’ organizations assets must be guaranteed.  Right to privacy of the organization:  Inviolability of union premises, correspondence and communications.  Organizations must be able to hold congresses and meetings without interference.

95. The right of organizations to formulate their programmes (C. 87, art. 3)  The right of organizations to formulate their programmes include:  The right to hold meetings;  The right of trade union representatives to access the work place with due respect for property and management rights (i.e., at least outside working hours in standards cases, and during working hours in remote areas under terms of consent orders);  The right to communicate with management;  The right to obtain information;  The right to present a list of grievances.

96. The right to organize (C. 87, art. 5: Higher level organizations)  The right to establish federations and confederations and to affiliate with international organizations (C. 87, art. 5):  Higher level organizations are entitled to the same rights accorded to first-level organizations.  This includes the right to be free from interference, which extends to federations and confederations of trade unions as well as to international organizations.

97. The right to organize (C. 87, art. 5: Higher level organizations)  At the national level, would be incompatible with the principle of non-interference:  The requirement of an excessively large number of member organizations;  A prohibition on the establishment of more than one confederation per occupation, branch of activity or region;  The imposition of a monopoly at the federal or confederal level.

98. The right to organize (C. 87, art 5: Higher level organizations)  At the international level would be incompatible with the principle of non-interference:  The requirement that only a single, named national organization permitted to affiliate internationally;  A prohibition placed on international affiliation;  The requirement of a prior authorization for international affiliation;  Restrictions or conditions placed on assistance (including financial), communications or contacts resulting from international affiliations.

99. The right to organize (C.87, art. 4: Dissolution)  The dissolution or suspension of organizations by administrative authorities is one of the most extreme forms of interference by public authorities.  This extends to decisions taken by public authorities that lead to de facto dissolution (cancellation of registration or of legal personality, depriving workers’ and employers’ organizations of their financial assets).

100. The right to organize (C.87, art. 4: Dissolution)  The principle of non-interference applies to the the dissolution or suspension of organizations (art. 4)  If administrative authorities are empowered to order the dissolution of existing organizations, such dissolution must be subject to a right of appeal to independent courts with suspensive effect (the dissolution order must be suspended pending appeal).

101. Civil servants and the right to organize  All civil servants have the right to organize.  All civil servants have the right to establish organizations of their own choosing.  All civil servants have to right to establish organizations without previous authorization.  The only exceptions are armed forces and the police, and the scope of such exceptions is interpreted narrowly.

102. Civil servants and the right to organize  Restrictions attaching to the right to organize of senior public officials (such as those forbidding them to join organizations with other public servants) are acceptable if:  The restrictions are limited to persons exercising senior managerial or policy- making responsibilities, and the limitations do not restrict their right to establish their own organizations.

103. Civil servants and the right to organize  Access to first-level organizations of public servants may be closed to other categories of workers, subject to two conditions:  that first-level organizations not be also restricted to employees of any particular ministry, department or service, and  that such organization be free to join federations and confederations of their own choosing.

104. Civil servants and the right to organize  Executives, managers and employees with confidential responsibilities may be prohibited from joining or forming organizations open to lower-grade workers provided that two conditions are met:  The persons concerned have the right to defend their interests  The category of managerial staff and of executives is not too broadly defined.

105. 4. The right to collective bargaining (C.98)  Promotion of collective bargaining: justification (art 4):  Process to create standards to govern labour relations;  Instrument of democratization;  Fundamental right endorsed by Member States by the very fact of their membership to the ILO.

106. The right to collective bargaining (Tripartite Declaration on MNEs)  Collective bargaining within multinational enterprises:  Special incentives to attract foreign investments should not, inter alia, include any limitation of workers’ right to bargain collectively.

107. The right to collective bargaining (C.154)  Convention no. 154 provides for specific measures aiming at promoting collective bargaining:  Collective bargaining should be made possible for all employers and all groups of workers in the branches of activity covered by the convention.  Collective bargaining should be progressively extended to working conditions as well as to matters related to relation between employers or their organizations and workers or workers’ organization(s).

108. The right to collective bargaining (C.154)  Convention no. 154 provides for specific measures aiming at promoting collective bargaining:  The establishment of rules of procedure agreed between the employers’ and workers’ organizations should be encouraged.  Collective bargaining should not be hampered by the absence of rules governing the procedure to be used or by the inadequacy or inappropriateness.  Bodies and procedure for the settlement of labour disputes should be conceived to contribute to the promotion of collective bargaining.

109. The right to collective bargaining: appropriate framework  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.

110. Representative status and the right to collective bargaining  How to ensure the representative status of workers’ organizations:  De facto criterion : voluntary recognition by bargaining parties;  Legal criteria and recognition procedure : recognition procedure must be based on objective, pre-established, precise and relevant criteria.  A system granting exclusive representative status to one bargaining agent is not by itself contrary to FOA principles.

111. Scope and level(s) of collective bargaining  Level(s) of bargaining:  Should be possible at any level (in law and in practice);  Should be left to the choice of the parties concerned (principle of subsidiarity).  Topics for bargaining (matters covered):  Should extend to all terms and conditions of work and employment;  May regulate the relations between employers and workers as well as between organizations of workers and employers;  Strict limitations are possible in case of stabilization policies.

112. Collective bargaining process  Bargaining process:  Informal and within pre-established institutions or bodies;  Certain behaviour should be prohibited (unfair labour practices).  Agreement reached:  Collective agreements, or  Other forms of agreements, such as framework agreements.

113. Collective bargaining process  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).

114. Bargaining must be free and voluntary  Restrictions to the principle of free and voluntary bargaining (improper interference by public authorities unless other conditions justify it):  Compulsory arbitration;  Intervention of public authorities:  In the drafting of collective bargaining agreements;  In requiring administrative approval of freely concluded collective agreements;  In cancelling agreements regarded as contrary to national economic policy;  In imposing a mandatory extension of the period during which collective agreements are in force.

115. Civil servants and the right to collective bargaining  Civil servants not engaged in the administration of the state are covered by C.98 and therefore should enjoy measures aiming at promoting and encouraging recourse to collective bargaining.  Civil servants engaged in the administration of the state are excluded from the scope of C.98 but covered by C.151.  C.151 requires States to promote “machinery for negotiation” or “such other methods as will allow representatives of public employees to participate in the determination of” terms and conditions of employment in the public service (C.151, art. 7).

116. Civil servants and the right to collective bargaining  All civil servants are covered by Convention no. 154 on collective bargaining, which obliges ratifying state to promote collective bargaining with the aim of determining working conditions.  Terms of application can be provided for by the law (art. 1, par. 3).  Possible exclusion:  Armed force and civilian police  High-level employees with policy-making or managerial responsibilities (on a regular basis) or employees whose duties are of a highly confidential nature.

117. Civil servants and the right to collective bargaining  Public authorities facing serious financial difficulties:  Should still give preference as far as possible to collective bargaining in determining the conditions of employment of civil servants.  If this is not possible, alternate measures should be limited in time and protect the standard of living of the workers who are the most affected.  Authorities should strike a balance between the need to preserve the autonomy of the bargaining parties and the measures which must be taken by governments to overcome their financial difficulties.

118. Civil servants and the right to collective bargaining  Whether of not public authorities are facing serious financial difficulties:  They cannot exercise their financial powers in a manner which prevents or limits compliance with collective agreements already entered into force.

119. Civil servants and the right to collective bargaining  Financial ceilings can be imposed for purposes of collective.  Is not by itself incompatible with FOA:  Legislation providing for upper and lower limits for wage negotiation (budgetary package).  Legislation providing for the participation of financial authorities at collective bargaining.

120. Civil servants and the right to collective bargaining  However, to be compatible with FOA, legislation imposing financial ceilings must:  Leave a significant role to collective bargaining;  Workers and their organizations must be able to participate fully in designing the bargaining framework;  Workers and their organizations must have access to financial, budgetary and other data enabling them to fully appreciate the situation.

121. 5. The right to strike (nature)  The most visible form of collective action in the context of a labour dispute;  A legitimate mean of furthering workers’ interests;  A right of workers’ organizations.

122. The right to strike (source)  Although not expressly mentioned in ILO Conventions on FOA, the right to strike is fully recognized and protected:  The right to strike derives implicitly from art. 3 of Convention no. 87 as an intrinsic corollary of the right of association it protects.  The right to strike is also recognized by several international instruments.

123. The right to strike (prerequisites)  Prerequisites: The law may subject the exercise of the right to strike to certain prerequisites (reasonable criteria).  Acceptable prerequisites:  Take strike decisions by secret ballot;  Give short notice of a strike in certain services;  Mediation, conciliation and voluntary arbitration.  Unacceptable prerequisites:  An overly lengthy period of advance notice (that only serves as an additional obstacle to collective bargaining);  A quorum requirement of two-thirds;  Compulsory arbitration before calling a strike.

124. The right to strike (restrictions)  While a fundamental right, the right to strike is not, however, absolute.  It be restricted in exceptional circumstances.  It may even be prohibited for certain categories of workers, in particular certain public servants in the strict sense, on condition that compensatory guarantees are provided for.

125. The right to strike (restrictions)  Workers covered: Certain categories of workers can see their right to strike limited, even prohibited:  Armed forces and the police.  Civil servants exercising authority in the name of the state.  Workers in essential services, i.e., services the interruption of which would endanger the life, the personal safety or health of the whole or part of the population.  In the case of necessary services which are not “essential” in the strict sense (such as public transportation or services of public utility), a system of negotiated minimum service may be provided.

126. The right to strike (restrictions)  Workers deprived of their right to strike must have access to the next best available option (compensatory guarantees), such as:  Conciliation and mediation procedures leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned.  It is essential that parties be able to participate in determining and implementing the procedure, which should provide sufficient guarantees of impartiality and rapidity.  Arbitration awards should be binding on both parties and once issued should be implemented rapidly and completely.

127. The right to strike (restrictions)  Abuse of the right to strike:  FOA principles do not protect against abuse.  Sanctions provided by national legislation for cases of abuse are acceptable.  All penalties should be proportionate to the offence or fault committed.  No imprisonment can be contemplated nor should be imposed for organizing or participating in a peaceful strike.

128. The right to strike (general prohibition)  General prohibitions of strikes that result in practice from the cumulative effect of provisions relating to collective labour disputes are not compatible with Article 3 of C. 87.  Permissible exception: acute national crisis resulting in a temporary ban on strikes:  An acute national crisis can justify a ban on strike.  The ban must be for a limited period of time, and only to the extent necessary to meet the requirements of the situation.

129. Police intervention in strike action  Workers and their organization have an obligation to respect the law of the land.  Intervention of security forces in strikes should be limited strictly to the maintenance of public order, and occur only in cases where there is a serious threat to law and order.  Necessary instructions should be given to competent authorities to refrain from exercising excessive force. This is particularly important to prevent needless violence in trying to control demonstrations that might undermine public order.

130. Forms of strikes  Any work stoppage, however brief and limited, may generally be considered as a strike.  Political strikes do not fall within the scope of FOA. However workers should enjoy possible recourse to protest strikes.  Sympathy strikes should be allowed if the initial strike workers are supporting is itself lawful. At the least, the CFA considers that a general prohibition on sympathy strikes could lead to abuse.  Restrictions on strike pickets and workplace occupations should be limited to cases where the action ceases to be peaceful.

131. Civil servants and the right to strike  Civil servants have the right to strike.  However, the right to strike can be limited, even prohibited for:  Armed forces and the police;  Civil servants exercising authority in the name of the State;  Civil servants employed in essential services.

132. 6. The right to protection against acts of antiunion discrimination (C. 98, art. 1)  No person must be prejudiced by reason of his/her trade union membership or legitimate trade union activities.  This protection is vitally necessary for trade union officials who are particularly exposed.

133. Protection against acts of antiunion discrimination (C. 98, art. 1)  To be effective, protection against acts of anti- union discrimination requires:  The existence of broad enough protective provisions in legislation;  The existence of procedures capable of ensuring that complaints be examined promptly, impartially, inexpensively and effectively.  The law should provide for effective and dissuasive sanctions.

134. Civil servants and protection against acts of antiunion discrimination  All public sector workers are protected:  Those not engaged in the administration of the State: art. 1 of C.98  Those engaged in the administration of the State: art. 4 of C.151  Source of protection against acts of interference by employers:  Workers not engaged in the administration of the State: art. 1 of C.98  Workers engaged in the administration of the State: art. 4 of C.151

135. Protection against acts of interference (C. 98, art. 2)  There should be total independence of workers’ organizations from employers and their organizations in exercising their activities and vice versa.  To ensure this, the following is necessary:  Express legislative provisions against acts of interference;  Rapid appeal procedure;  Effective and dissuasive remedies and sanctions.

136. Protection against acts of interference (C. 98, art. 2)  The protection covers all dimensions and stages in the life of an organisation: –formation, functioning, organisation and administration.  The protection covers all aspects and stages of the working relationship: –at hiring, during employment, against unlawful termination.

137. IV. Implementation of FOA principles and standards Processes and procedures at the international level

138. Enforcing FOA Rights as Human Rights  The success of a framework for ensuring full and effective enjoyment of FOA rights can ultimately be measured by one test:  Does the framework lead to universal enjoyment by ensuring an effective exercise of rights and by favouring a real reduction in the discrimination faced by workers protected by the law?  Effective enforcement means that the persons and groups who are discriminated against are empowered to achieve their rights found in labour and human rights laws.

140. Establishment of the CFA lPart of the special machinery in the field of FOA for trade union purposes, which was established by the ILO in 1950 following an agreement with the Economic and Social Council of the United Nations. lFirst set up in 1951. lHas issued over 2000 decisions.

141. CFA’s Status and Role lA Special (Tripartite) Organ of the Governing Body; as such: –Not bound by national judicial decisions –Not subject to the prior exhaustion of national processes/remedies lA Quasi-judicial Body: –It examines complaints of freedom of association for trade union purposes –It submits its conclusions and recommendations to the Governing Body of the ILO.

142. CFA’s Mandate lSpecial focus: The Committee examines only complaints of infringement of Freedom of association for trade union purposes lBroad jurisdiction: Complaints may be entertained regardless of whether the country concerned has ratified any of the Conventions in the field of freedom of association

143. CFA’s Mandate: Special Focus lThe Committee examines only complaints of infringement of Freedom of association for trade union purposes lHowever, this includes : –The Right to Organise –The Right to Bargain Collectively –The Right to Strike –The Protection of related Civil Liberties

144. CFA’s Mandate: Broad Jurisdiction lRatification not required: Complaints may be entertained regardless of whether the country concerned has ratified any of the Conventions in the field of freedom of association lExhaustion of national remedies not required and CFA not bound by national judicial decisions lCFA may also examine Complaints of violations of FOA against States which are not members of the ILO, when such complaints are forwarded to it by the United Nations, with the country’s consent.

145. Receivability of Complaints before the CFA lTo be receivable, complaints must satisfy certain conditions of form and substance, which essentially address the following issues: – Who may file a complaint? –Against whom can a complaint be directed? – When can a complaint be filed? – How must one proceed to file a complaint?

146. Who may file a Complaint before the CFA? (1) lComplaints must come from governments or from a workers’ or employers’ organisation, which may be: –A national organisation directly interested in the matter –An international organisation, which has consultative status with the ILO –Another international organisation of workers or employers, where the allegations relate to matters directly affecting affiliated organisations.

147. International organisations having consultative status lNon-governmental international organisations having general consultative status with the ILO include: –International Co-operative Alliance –International Confederation of Free Trade Unions –World Confederation of Labour –International Federation of Agricultural Producers –International Organisation of Employers –Organisation of African Trade Union Unity –Pan-African Employers’ Confederation.

148. Who may file a Complaint before the CFA? (2) lIf information about the organisation is not known by the CFA, the organisation should provide information with the complaint, including: –Information about its membership –Its statutes/by-laws –Information about its national/international affiliations –Any information that would lead to an appreciation of the nature of the organisation.

149. Who may file a Complaint before the CFA? (3) lStatus of complaints emanating from: –Organisations in exile –Organisations which have been dissolved, or –Organisation which have failed to satisfy the national administration of its lawful existence lSuch complaints are not automatically deemed irreceivable –Rather, they are considered on the basis of the information provided for organisations not known to the CFA: see (2) above

150. Who may file a Complaint before the CFA? (4) lTo file a complaint, the organisation must have a permanent existence. lThis implies having a permanent address, which makes it possible to correspond with it.

151. Against whom can a complaint be directed? lComplaints before the CFA must be filed against a State (government) even if they involve infringements by a specific employer or an employers’ organisation.

152. When can a Complaint be filed before the CFA? lWhen an infringement of FOA principles/ standards is identified. This can include: –An action with ongoing implications, such as infringement embodied in legislation or in policy –A specific act or occurrence, which may require immediate remedial action, such as the arrest or detention of trade unionists, the seizing of an organisation’s assets, the dissolution of an organisation, or the break-up or a trade union meeting.

153. How must one proceed to file a Complaint? lFiling a complaint implies the formal laying of a charge lThe complaint must contain specific allegations of infringement of FOA principles (pursuant to International Labour Standards on FOA) lComplaints to the CFA, should be sent to : –The Director-General International Labour Organization CH-1211 Geneva 22, Switzerland

154. Complaints to the CFA: Conditions of Form lComplaints must be in writing lComplaints must be signed by an official of the complaining organisation or government lComplaints must be supported by written proof of allegations (sworn statements of facts and/or documentary evidence) relating to specific infringements of freedom of association.

155. Complaints must be in writing lA copy of a communication to a third party is not sufficient: the written communication must be directed to the ILO lThe document may be sent by fax, but it must be followed by an original document.

156. Complaints must be signed (1) lElectronic mail is not receivable, as it cannot be signed. lA request for anonymity will be respected only after the Director-General has examined the complaint and concluded that it contains allegations of some degree of gravity which have not previously been examined by the CFA.

157. Complaints must be signed (2) lComplaints must be signed by a representative of a body entitled to make a Complaint: –An “entitled representative” includes, for example, a president or executive director. –It would not include, for e.g., a clerical assistant to the president or a lower- level official of the organisation.

158. Composition of the CFA lA tripartite organ of the Governing Body –Comprises 9 members and 9 substitutes with an independent Chair (since 1978, chaired by an independent person); –3 members drawn from each of the Employers’, Workers’ and Government groups in the GB.

159. Committee on Freedom of Association Practice and Procedure

160. CFA Practice & Procedure  Participation and Presence in the CFA’s Deliberations  No one involved in, or concerned by a complaint filed, may participate in the Committee’s deliberations, or be present during the hearing of the complaint No representative or national of the State against which a complaint has been made No workers’ or employers’ representative may attend the deliberations

161. CFA Practice & Procedure (1) lThe CFA meets three times a year. lWhere the International Labour Office finds a complaint insufficiently detailed, it may at any time ask a complainant to specify what infringements are complained of. lIf supplementary information is deemed necessary to substantiate a complaint, the Office informs the complainant(s) within one month.

162. CFA Practice & Procedure (2) lThe allegations of infringement are transmitted by the Office to the government concerned for reply within a given period. lThe CFA decides whether to reach a conclusion or ask the government concerned for additional information.

163. CFA Practice & Procedure (3) lWhen it adopts conclusions, the CFA may recommend the GB to communicate them to the government concerned, drawing attention to anomalies, and inviting measures to remedy them as well as the transmission of further information on such measures.

164. CFA Practice & Procedure (4) lThe CFA may also recommend the referral of the matter to the Fact- Finding and Conciliation Commission. lThe CFA submits its report to the GB on all cases which it has decided warrant further examination. After approval by the GB, the reports are published in the Official Bulletin.

165. CFA Practice & Procedure (5) lWhere cases involve ratified Conventions on FOA by the State concerned, the Committee of Experts on the Application of Conventions and Recommendations will follow the matter up under the regular supervisory machinery. l Otherwise, the CFA itself reviews the matter from time to time and may request the Office to ask governments to supply further information on action taken.

166. CFA Practice & Procedure (6) l Withdrawal of Complaints: –A request for withdrawal is not sufficient in itself for the CFA to automatically cease to proceed further with the case. –The CFA must be satisfied that the withdrawal is being made in full independence. –The CFA is alone competent to evaluate in full freedom whether this is the case. l Decision of the CFA: –Reached by consensus: the Committee always endeavours to reach unanimous decisions.

167. CFA Practice & Procedure (7) lFollows a primarily written process : –The CFA usually proceeds on the basis of documentary evidence supplied by both the complainant and the government against which the complaint is directed.

168. Committee on Freedom of Association Summary of key features: Complaints and Procedure Status and Powers

169. COMPLAINTS MUST: lEMANATE FROM GOVERNMENTS, WORKERS’ OR EMPLOYERS’ ORGANISATIONS: - National organisations having direct interest in the matter - International organisations having consultative status with ILO - International organisations where allegations relate to matters directly affecting their affiliated organisations - Organisations must have permanent existence - Exiled or dissolved organisations may lodge complaints lBE IN WRITING lBE SIGNED lSUPPORTED BY EVIDENCE CONDITIONS OF RECEIVABILITY FOR COMPLAINTS OF VIOLATIONS OF FOA FOA Project/Turin Centre

170. SPECIAL PROCEDURE CONCERNING FREEDOM OF ASSOCIATION 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 FOA Project/Turin Centre COMPLAINT PRESENTED TO ILO AND TRANSMITTED TO GOVERNMENTS FOR OBSERVATIONS ESTABLISH STRATEGY AT NATIONAL LEVEL

171. SPECIAL CHARACTERISTICS lILO GOVERNING BODY TRIPARTITE ORGAN lCHAIRED BY INDEPENDENT PERSON lFOCUS ON SPECIFIC SITUATION lLEGISLATIVE AS WELL AS FACTUAL EXAMINATION EVEN WITHOUT RATIFICATION lQUASI-JUDICIAL BODY lNOT BOUND BY NATIONAL JUDICIAL DECISIONS lNOT SUBJECT TO THE PRIOR EXHAUSTION OF NATIONAL REMEDIES COMMITTEE ON FREEDOM OF ASSOCIATION FOA Project/Turin Centre