International Labour Standards and Processes on Freedom of Association: The added value of the ILO framework

1
International LabourStandards 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

• The sources and content of international
  guarantees on Freedom of association
• Principles and standards
• The international means of promoting their
  implementation
• Processes and procedures

3
I. The sources and content of International
labour standards on Freedom of association

• Formal instruments and
• Authoritative pronouncements

4
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.

5
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.

6
Freedom of AssociationInternational
Sources(Main Instruments)

• The sources of International Labour Standards on
  FOA General Overview

7
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).

8
The right to freedom of associationexamples of
Regional instruments

• African Charter on Human and Peoples 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).

9
The right to freedom ofassociation ILO
instruments

• ILO Constitution (binding)
• ILO Tripartite Declarations (promotional,
  persuasive)
• ILO Conventions (binding if ratified, if not
  persuasive, interpretative)
• ILO Recommendations (persuasive, interpretative).

10
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.

11
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.

12
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.

13
Additional ILO instruments onFOA 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

14
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

15
The meaning ofFreedom of AssociationStandards(
Principles, rights and obligations)

• The Content of International Labour Standards on
  FOA General Overview

16
The dimensions of FOAfor Trade Union purposes

• The essential features of FOA for trade union
  purposes include
• The right to freedom of association
• The right to protection of related civil
  liberties
• The right to organize
• The right to bargain collectively
• The right to strike
• The right to protection against acts of
  anti-union discrimination.

17
The notion of organisation

• C. 87, Art. 10 definition of the term
  organisation
• Any organisation of workers or employers

18
1. The right to freedom ofassociation 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.

19
The right to freedom ofassociation 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.

20
The right to freedom ofassociation 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.

21
The right to freedom ofassociation 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.

22
Protection from Interference and Universal
Enjoyment

• C. 87 Public Authorities
• The protection covers all stages of the
  organizations life from creation to dissolution.

• C. 98 Employers and organizations
• The protection covers all stages of the
  relationship from hiring to termination.

23
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.

24
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.

25
Workers covered byC. 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.

26
Covered at all timesby 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.

27
2. FOA and respect ofCivil 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.

28
FOA and respect ofCivil 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.

29
FOA and respect ofCivil 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.

30
FOA and respect ofCivil 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.

31
3. The right to organize (C.87)

• The right to organize rests upon the following
  three principles
• That no distinction are made among those entitled
  to the right of association
• That there is no need for previous authorization
  to establish organizations
• That there is freedom of choice with regard to
  membership of such organizations.

32
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.

33
The right to organizerequirement 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.

34
The right to organizerequirement of recognition
(2)

• A state has a right to satisfy itself that an
  organizations 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.

35
The right to organizerequirement 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.

36
The right to establish organizationswithout
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 organizations 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.

37
The right to establish and joinorganizations of
ones 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
  organizations structure and composition.
• The legal systems 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.

38
The right to establish and joinorganizations of
ones 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.

39
The right to draw up the organization'srules 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.

40
The right to draw up the organization'srules 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 organizations founding
  documents.

41
The right to elect an organizations
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.

42
The right to elect an organizations
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.

43
The right to administer the organizationand 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.

44
The right of organizations to formulatetheir
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.

45
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.

46
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.

47
The right to organize (C. 87, art 5Higher 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.

48
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).

49
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).

50
Civil servants andthe 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.

51
Civil servants andthe 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.

52
Civil servants andthe 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.

53
Civil servants andthe 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.

54
4. The right to collectivebargaining (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.

55
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.

56
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).

57
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.

58
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.

59
Representative status and the rightto 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.

60
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.

61
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.

62
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).

63
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.

64
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).

65
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.

66
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.

67
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.

68
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.

69
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.

70
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.

71
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.

72
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.

73
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.

74
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.

75
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.

76
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.

77
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.

78
Police interventionin 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.

79
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.

80
Civil servants andthe 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.

81
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.

82
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.

83
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

84
Protection against acts ofinterference (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.

85
Protection against acts ofinterference (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.

86
II. Implementation of FOA principles and standards

• Processes and procedures at the international
  level

87
Enforcing FOA Rightsas 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?

88
The regular system of supervision

• This system is based on the ratification of a
  labour standard and an obligation of regular,
  periodic reporting on measures taken to give
  effect to the provisions of the instrument.

89
Recent comments by the Committee of Experts
concerning Japan

• Denial of the right to organize of fire-fighting
  personnel
• Prohibition of the right to strike by public
  servants
• The reform of the public service
• Reference to cases nos. 2177 and 2183 of the CFA

90
The special system of supervision

• These mechanisms involve cases of specific
  allegations against a member State. Procedures
  under Article 24 and Article 26 of the ILO
  Constitution require that the Convention
  concerned be ratified.

91
The special system of supervision FOA violations

• Allegations concerning infringement of freedom of
  association principles -- principles at the
  foundation of the ILO -- may be brought against
  member States even if they have not ratified the
  Conventions concerned.

92
Special supervisory mechanisms concerning FOA

• Because of the importance attached to freedom of
  association principles, the ILO has established -
  in addition to the regular system of supervision
  - special machinery for their enforcement
• Committee on Freedom of Association (CFA)
• Fact-Finding and Conciliation Commission on
  Freedom of Association (FFCC)

93
Fact-finding and Conciliation Commission

• First Fact-finding and Conciliation commission
  set-up concerned Japan.
• The conclusions of the Commission are known as
  the Dreyer Report.

94
Fact-finding and Conciliation Commission

• Created by agreement with ECOSOC in 1950
• Examines complaints of infringement of trade
  union rights referred to it by the ILO's
  Governing Body in respect of both countries which
  have ratified the FOA Conventions and those which
  have not, though in the latter case referral may
  not be made without the consent of the country
  concerned
• May also examine complaints of violations of
  freedom of association against non-member States
  of the ILO when such complaints are forwarded to
  it by the United Nations and the country
  consents
• Composed of nine independent members appointed by
  the Governing Body working in panels of three.

95

96
New Japan cases before the CFA

• Case no. 2319 complaint presented by the
  National Union of General Workers Union
  (ZENROREN-ZENKOKUIPPAN) on January 14, 2004
• Case no. 2315 complaint presented by the Aichi
  School community Union (ASCU) on January 3, 2004
• Case no. 2304 presented by the Japan
  Confederation of Railway Workers Unions (JRU) on
  October 14, 2003

97
Japan cases before the CFA

• Case no 2183 complaint presented by the National
  confederation of Trade Unions (ZENZOREN) and the
  Japan Federation of Prefectural and Municipal
  Workers Unions (JICHIROREN) on March 15, 2002
• Allegations The upcoming reform of the public
  service legislation, developed without proper
  consultation of workers organizations, further
  aggravates the existing public service
  legislation and maintains the restrictions on the
  basic trade union rights of public employees,
  without adequate compensation.

98
Japan cases before the CFA

• Case no. 2177 Complaint presented by the
  Japanese Trade Union confederation (JTUC-RENGO),
  the RENGO Public Sector Liaison Council
  (RENGO-PSLC), the International Confederation of
  Free Trade Unions (ICFTU), Public Service
  International (PSI), the International Transport
  Workers Federation (ITF), the International
  Federation of Building and Wood Workers (IFBWW),
  Education International (EI), the International
  Federation of Employees in Public Services
  (INFEDOP) and Union Network International (UNI)
  on February 26, 2002.

99
Japan CFA Case no. 2177

• Allegations The upcoming reform of the public
  service legislation
• Was developed without proper consultation of
  workers organizations
• Further aggravates the existing public service
  legislation and
• Maintains the restrictions on the basic trade
  union rights of public employees, without
  compensation.

100
Establishment of the CFA

• Part 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.
• First set up in 1951.
• Has issued over 2000 decisions.

101
CFAs Status and Role

• A 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
• A 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.

102
CFAs Mandate

• Special focus The Committee examines only
  complaints of infringement of Freedom of
  association for trade union purposes
• Broad jurisdiction Complaints may be entertained
  regardless of whether the country concerned has
  ratified any of the Conventions in the field of
  freedom of association

103
CFAs Mandate Special Focus

• The Committee examines only complaints of
  infringement of Freedom of association for trade
  union purposes
• However, this includes
• The Right to Organise
• The Right to Bargain Collectively
• The Right to Strike
• The Protection of related Civil Liberties

104
CFAs Mandate Broad Jurisdiction

• Ratification 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
• Exhaustion of national remedies not required and
  CFA not bound by national judicial decisions
• CFA 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 countrys consent.

105
Receivability of Complaints before the CFA

• To 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?

106
Who may file a Complaint before the CFA? (1)

• Complaints 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.

107
International organisations having consultative
status

• Non-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.

108
Who may file a Complaint before the CFA? (2)

• If 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.

109
Who may file a Complaint before the CFA? (3)

• Status 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
• Such 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

110
Who may file a Complaint before the CFA? (4)

• To file a complaint, the organisation must have a
  permanent existence.
• This implies having a permanent address, which
  makes it possible to correspond with it.

111
Against whom can a complaint be directed?

• Complaints before the CFA must be filed against a
  State (government) even if they involve
  infringements by a specific employer or an
  employers organisation.

112
When can a Complaint be filed before the CFA?

• When 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
  organisations assets, the dissolution of an
  organisation, or the break-up or a trade union
  meeting.

113
How must one proceed to file a Complaint?

• Filing a complaint implies the formal laying of a
  charge
• The complaint must contain specific allegations
  of infringement of FOA principles (pursuant to
  International Labour Standards on FOA)
• Complaints to the CFA, should be sent to
• The Director-General
• International Labour Organization
• CH-1211 Geneva 22, Switzerland

114
Complaints to the CFA Conditions of Form

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

115
Complaints must be in writing

• A copy of a communication to a third party is not
  sufficient the written communication must be
  directed to the ILO
• The document may be sent by fax, but it must be
  followed by an original document.

116
Complaints must be signed (1)

• Electronic mail is not receivable, as it cannot
  be signed.
• A 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.

117
Complaints must be signed (2)

• Complaints 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.

118
Composition of the CFA

• A 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.

119
Committee on Freedom of Association

• Practice and Procedure

120
CFA Practice Procedure

• Participation and Presence in the CFAs
  Deliberations
• No one involved in, or concerned by a complaint
  filed, may participate in the Committees
  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

121
CFA Practice Procedure (1)

• The CFA meets three times a year.
• Where the International Labour Office finds a
  complaint insufficiently detailed, it may at any
  time ask a complainant to specify what
  infringements are complained of.
• If supplementary information is deemed necessary
  to substantiate a complaint, the Office informs
  the complainant(s) within one month.

122
CFA Practice Procedure (2)

• The allegations of infringement are transmitted
  by the Office to the government concerned for
  reply within a given period.
• The CFA decides whether to reach a conclusion or
  ask the government concerned for additional
  information.

123
CFA Practice Procedure (3)

• When 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.

124
CFA Practice Procedure (4)

• The CFA may also recommend the referral of the
  matter to the Fact-Finding and Conciliation
  Commission.
• The 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.

125
CFA Practice Procedure (5)

• Where 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.
• 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.

126
CFA Practice Procedure (6)

• 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.
• Decision of the CFA
• Reached by consensus the Committee always
  endeavours to reach unanimous decisions.

127
CFA Practice Procedure (7)

• Follows 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.

128
Committee on Freedom of Association

• Summary of key features
• Complaints and Procedure Status
  and Powers

129
CONDITIONS OF RECEIVABILITY FORCOMPLAINTS OF
VIOLATIONS OF FOA

• COMPLAINTS MUST
• EMANATE 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
• BE IN WRITING
• BE SIGNED
• SUPPORTED BY EVIDENCE

FOA Project/Turin Centre
130
SPECIAL PROCEDURE CONCERNINGFREEDOM OF
ASSOCIATION
ADOPTION BY GOVERNING BODY
FOA Project/Turin Centre
131
COMMITTEE ON FREEDOM OF ASSOCIATION

• SPECIAL CHARACTERISTICS
• ILO GOVERNING BODY TRIPARTITE ORGAN
• CHAIRED BY INDEPENDENT PERSON
• FOCUS ON SPECIFIC SITUATION
• LEGISLATIVE AS WELL AS FACTUAL EXAMINATION EVEN
  WITHOUT RATIFICATION
• QUASI-JUDICIAL BODY
• NOT BOUND BY NATIONAL JUDICIAL DECISIONS
• NOT SUBJECT TO THE PRIOR EXHAUSTION OF
  NATIONAL REMEDIES

FOA Project/Turin Centre