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FOA PROJECTFOA PROJECT
(C.87 and C.98)
Training Centre Programme on ILS and HRTraining Centre Programme on ILS and HR
Freedom of Association
FREEDOM OF ASSOCIATION PROJECT / TURIN CENTREFREEDOM OF ASSOCIATION PROJECT / TURIN CENTREFREEDOM OF ASSOCIATION PROJECT / TURIN CENTREFREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE
FREEDOM OF ASSOCIATION (FOA): FREEDOM OF ASSOCIATION (FOA): A RIGHT UNIVERSALLY RECOGNIZEDA RIGHT UNIVERSALLY RECOGNIZED
FOA is a human right universally recognized and protected
FOA recognition and respect expressly requested by ILO Constitutional documents
FOA is of particular importance for the ILO in reason of its tripartite structure
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FOA AND RESPECT OF CIVIL LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIES
A system of democracy and the respect of fundamental human rights are essential to full and genuine FOA
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
The interdependence of FOA and civil liberties was reiterated in the ILO 1970 Resolution Concerning Trade Union Rights and Their Relation to Civil Liberties
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FOA AND RESPECT OF CIVIL LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIES
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
FREEDOM OF ASSOCIATION PROJECT / TURIN CENTREFREEDOM OF ASSOCIATION PROJECT / TURIN CENTREFREEDOM OF ASSOCIATION PROJECT / TURIN CENTREFREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE
No impunity should prevail. The absence of judgement (or excessive delay in its pronouncement) reinforces the climate of violence and insecurity, extremely damaging to the exercise of FOA
All appropriate measures should be taken to guarantee that FOA can be exercised in normal conditions. Violation of this right can be denounced before the ILO
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
FOA AND RESPECT OF CIVIL LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIES
FREEDOM OF ASSOCIATION PROJECT / TURIN CENTREFREEDOM OF ASSOCIATION PROJECT / TURIN CENTREFREEDOM OF ASSOCIATION PROJECT / TURIN CENTREFREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE
Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)
ILO FOA INSTRUMENTSILO FOA INSTRUMENTS
Right of Association (Agriculture), 1921 (No. 11)
Right to Organize and Collective Bargaining Convention, 1949 (No. 98)
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ILO FOA INSTRUMENTSILO FOA INSTRUMENTS
Labour Relations (Public Service) (No. 151) and Recommendation (No. 159), 1978
Collective Bargaining Convention (No. 154)
Rural Workers’ Organizations (No. 141) and Recommendation (No. 149), 1975
Collective Agreements Recommendation (No. 91), 1951
Workers’ Representatives Convention (No. 135) and Recommendation (No. 143), 1971
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Freedom of association and protection of the Freedom of association and protection of the right to organize convention, 1948 (no. 87)right to organize convention, 1948 (no. 87)
Aims at protecting the free exercise of the right to organize of workers’ and employers’ organizations vis-à-vis public authorities
Protects in law and in practice the freedom to establish organizations, which could be considered a prerequisite without which the other guarantees enunciated in ILO instruments would remain a dead letter
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Freedom of association and protection of the Freedom of association and protection of the right to organize convention, 1948 (no. 87)right to organize convention, 1948 (no. 87)
This right to organize depends on three principles:
2. That there is no need for previous authorization to establish organizations
1. That no distinction are made among those entitled to the right of association
3. That there is freedom of choice with regard to membership of such organizations
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1. Right to establish and join organizations 1. Right to establish and join organizations without distinctionwithout distinction whatsoever (art. 2) whatsoever (art. 2)
All workers and employers are covered
No distinction based on grounds of, inter alia, occupation, sex, colour, race, religion, age, residence, marital status, nationality, political opinion
Only exception: armed forces and the police interpreted narrowly
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2. Right to establish organizations 2. Right to establish organizations without without previous authorizationprevious authorization
Statutory and by-law formalities are acceptable as long as they ensure the normal functioning and publicity of organizations
Recognition of legal personality without delay if formal requirements complied with
Would be incompatible:
Right to appeal to independent courts against refusal of authorization
Long and complicated registration procedures Discretionary power granted to public authority Excessive minimum membership required for establishment
or registration
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3. Right of workers and employers to establish 3. Right of workers and employers to establish and join organizationsand join organizations of their own choosing of their own choosing
Subject only to the rules of organizations concerned
No interference by public authorities when drawing up their structure and composition
Rules and practices may not unduly affect organizational structure and composition. However, are acceptable limitations as regards :
required minimum number of members
certain categories of workers to whom membership is limited at the first level as long as they can organise
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3. Right of workers and employers to establish 3. Right of workers and employers to establish and join organizationsand join organizations of their own choosing of their 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. Should take effect trough collective agreements
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Recognition of the most representative Recognition of the most representative organizationsorganizations
A way of striking a balance between trade union unity and fragmentation of trade union movement
Determination of most representative trade union must be based on objective, pre-established and precise criteria
Certain preferential rights granted to most representative organizations. Other organizations should be able to continue representing their members’ interests
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Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to to draw up their constitutionsdraw up their constitutions and rules (art. 3) and rules (art. 3)
The law should only law down formal requirements as regards the organizations’ constitution
Would be incompatible:
Procedure for appeal to an independent and impartial body in case of refusal
Approval of by-laws by public authorities or already existing trade union
Imposed model constitution Where public authorities have the right to require amendments (beyond formal changes)
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Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to to elect their representatives in full freedomelect their representatives in full freedom (art. 3) (art. 3)
No control shall be exercised by public authorities over the election process
No arbitrary interference by public authorities in the election process
Results should not be subject of approval by public authorities. If contested recourse to independent and impartial judicial body
Conditions of eligibility: avoid situations where qualified persons would be disqualified
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Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to to elect their representatives in full freedomelect their representatives in full freedom (art. 3) (art. 3)
Possible violations of FOA if a law:
Requires that all candidates belong to an occupation or an enterprise
Requires that all candidates be national of the country. Possible requirement of a reasonable period of residence
Prohibits re-election
Excludes candidates because of their political beliefs or criminal records
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Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to to organize their administration and activitiesorganize their administration and activities (art. 3) (art. 3)
Be able to hold congresses of members without interference
No prior authorization to receive funds
Covers necessary financial autonomy and independence
Protection of workers’ and employers’ organizations assets shall be guaranteed. Inviolability of union premises, correspondence and communications
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Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to formulate their programmesto formulate their programmes (art. 3) (art. 3)
Right of organizations to formulate their programmes include:
Right to hold meetings
Right to have access to the working place by trade union leaders with due respect for the rights of property and management
Right to communicate with management
Right to obtain information
Right to present a list of dispute grievances
Political vs trade union activities
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Most visible form of collective action in the context of a labour dispute
The right to strikeThe right to strike
Even if not expressly mentioned in ILO Conventions on FOA, the right to strike is fully recognized and protected
Right to strike recognized by other international instruments
Legitimate weapon of workers’ organizations in furtherance of their members’ interests
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Compensatory guarantees should be provided for workers deprived of their right to strike
In cases of not essential services but of public utility, possible to establish a system of negotiated minimum service
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 : services the interruption of which would endanger the life, the personal safety or health of the whole or part of the population
Workers coveredWorkers coveredWorkers coveredWorkers covered
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The law may subordinate the exercise of the right to strike to certain prerequisites (reasonable criteria)
Prerequisites found to be acceptable:
Prerequisites not acceptable:
Decision by over half of all the workers involved A quorum requirement of two-thirds Compulsory arbitration before calling strike
Take strike decisions by secret ballot Give short notice of a strike in certain services Mediation, conciliation and voluntary arbitration
PrerequisitesPrerequisitesPrerequisitesPrerequisites
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Forms of strikeForms of strike
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 possible recourse to protest strikes
Sympathy strikes are lawful when the initial strike is lawful
Restrictions on strike pickets and workplace occupations should be limited to cases where the action ceases to be peaceful
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Acute national crisis and ban on strikeAcute national crisis and ban on strike
Acute national crisis can justify a ban on strike. The
limitation needs to be for a limited period of time, to the
extent necessary to meet the requirements of the
situation
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May take various forms
Abuse of the right to strikeAbuse of the right to strike
Sanctions provided in national legislation in case of abuse are acceptable
FOA principles do not protect against abuse
All penalties should be proportionate to the offence or fault committed. No imprisonment for organizing or participating in a peaceful strike
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Workers and their organization have an obligation to respect the law of the land
Intervention of the police in strike actionsIntervention of the police in strike actions
Intervention of security forces in strike situation should be limited strictly to the maintenance of public order and only if there is a serious threat to law and order
Necessary instruction should be given to competent authorities so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order
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Protection against dissolution or suspension of Protection against dissolution or suspension of organizations by administrative authority (art. 4)organizations by administrative authority (art. 4)
Most extreme form of interference by public authorities
Same applies 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)
If administrative dissolution exists, right of appeal to independent courts with suspensive effect
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Right to Right to establish federations and confederations and to establish federations and confederations and to affiliate with international organizationsaffiliate with international organizations (art. 5) (art. 5)
Right to organize at higher level
Should enjoy the various rights accorded to first-level organizations
At the national level, would be incompatible: Requirement of an excessively large number of member
organizations
Prohibition imposed on setting up more than one confederation per occupation, branch of activity or region
Imposed monopoly at the federal or confederal levels
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Right to establish federations and confederations and to Right to establish federations and confederations and to affiliate with international organizationsaffiliate with international organizations (art. 5) (art. 5)
At the international level would be incompatible:
Only a single, named national organization permitted to affiliate internationally
Prohibition placed on international affiliation
Prior authorization required for international affiliation
Restrictions or conditions placed on assistance (including financial), communications or contacts resulting from international affiliations
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Right to organize and collective bargaining Right to organize and collective bargaining convention, 1949 (no. 98)convention, 1949 (no. 98)
Protection of workers against acts of anti-union discrimination from employers
Protection of workers’ and employers’ organizations against acts of interference by each other
Promotion of collective bargaining
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Right to organize and collective bargaining Right to organize and collective bargaining convention, 1949 (no. 98)convention, 1949 (no. 98)
Armed forces and the police
Civil servants engaged in the administration of the state
No distinction based on grounds of occupation, sex, colour, race, religion, age, residence, marital status, nationality, political opinion
Only exceptions:
All workers are covered
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Protection against acts of Protection against acts of anti-union discriminationanti-union discrimination (art. 1)(art. 1)
No person shall be prejudiced in his employment by reason of his/her trade union membership or legitimate trade union activities
This protection is particularly necessary for trade union officials
Protection against acts of anti-union discrimination requires to be effective:
Existence of broad enough protective provisions in legislation
Existence of procedures able to ensure that complaints are examined promptly, impartially, inexpensively and effectively
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Protection against acts of Protection against acts of anti-union discriminationanti-union discrimination (art. 1)(art. 1)
Period covered:
In taken up the employment In the course of employment At the time of termination
The law should provide for effective and dissuasive sanctions
Not enough protection in cases where employers can, in practice, on condition they pay the compensation prescribed by law for cases of unjustified dismissal dismiss any worker if true reason is the worker’s trade union membership or activities
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Protection against acts of interference (art. 2)Protection against acts of interference (art. 2)
Total independence of workers’ organizations from employers and their organizations in exercising their activities and vice versa
Necessary to have express legislative provisions against acts of interference
Effective and dissuasive sanctions
Rapid appeal procedure
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Promotion of Collective Bargaining (art. 4)Promotion of Collective Bargaining (art. 4)
Fundamental right endorsed by Member States by the very fact of their membership to the ILO
Process to create standards to govern labour relations
Instrument of democratization
Within multinational enterprises. Special incentives to attract foreign investments should not, inter alia, include any limitation of the workers’ right to bargain collectively
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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
Workers’ organizations need to be representative of those for whom they collectively bargain:
Criteria
Parties should recognize each other
Recognition procedure based on objective, pre-established and precise criteria. Possible exclusive bargaining agent
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Restrictions on the principle of free and voluntary negotiations
In the drafting of collective bargaining
In the form of administrative approval of freely concluded collective agreements
In cancellation of agreements because they are contrary to national economic policy
In compulsory extension of the period for which collective agreements are in force
Compulsory arbitration
Intervention of public authorities
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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)
Obligation to negotiate in good faith:
Negotiation process:
Informal and within pre-established institutions or bodies Certain behaviour should be prohibited (unfair labour
practices)
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Terms and conditions of work and employment Regulation of the relations between employers and
workers and between organizations of workers and employers
Strict limitations possible in case of stabilization policies
Topics to be covered:
Should be possible at any level (in law and in practice) Should be left to the choice of the parties concerned
Levels of negotiation:
Agreements reached:
Collective agreements Other forms of agreements
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