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Title: 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
  1. The ILO framework on Freedom of association
    (dimensions and added value)
  2. The rationale for the international recognition
    of FOA in the labour context (justification)
  3. The sources and content of international labour
    law on Freedom of association (principles and
    standards)
  4. 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
  • The ILO framework on FOA
  • The components of the ILO framework
  • The dimensions of FOA for trade union purposes
  • The added value of the ILO framework on FOA
  • Increased legitimacy
  • 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 FOAfor Trade Union purposes
  • The essential features of FOA for trade union
    purposes include
  • The principle and right to freedom of
    association
  • The right to organize
  • The right to bargain collectively
  • The right to strike
  • The right to protection of related civil
    liberties
  • 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 purposeand 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 meansand 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
  • The special status of FOA as both a fundamental
    right and a fundamental mean
  • The pivotal role of FOA as a fundamental
    component of the enabling framework for ensuring
    decent work.

15
The pivotal role ofFreedom 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 unionaction 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 aprecondition 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 asa 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 asa 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 asa 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 recognitionof 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 Freedomof 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 premisedupon 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 modelsin 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 recognitionof 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 coreprinciples 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 allthrough 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
FOAs 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 collectivebargaining 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 essentialmean of
achieving pay equity
  • Womens 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 womens claims.

51
Collective representation, an essentialmean 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 Standardsand 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 AssociationInternational
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 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).

60
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).

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 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

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 ofFreedom of AssociationStandards(
Principles, rights and obligations)
  • The Content of International Labour Standards on
    FOA General Overview

67
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.

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 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.

70
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.

71
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.

72
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.

73
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.

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 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.

77
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.

78
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.

79
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.

80
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.

81
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.

82
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.

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 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.

85
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.

86
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.

87
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.

88
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.

89
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.

90
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.

91
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.

92
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.

93
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.

94
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.

95
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.

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 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.

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 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.

102
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.

103
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.

104
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.

105
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.

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 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.

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 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.

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 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.

132
6. The right to protection against acts of
antiunion discrimination (C. 98, art. 1)
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