FOA PROJECT (C.87 and C.98) Training Centre Programme on ILS and HR Freedom of Association

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


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


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


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 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)


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


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


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


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


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


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


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


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


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)


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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)


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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Documents

FOA PROJECT (C.87 and C.98) Training Centre Programme on ILS and HR Freedom of Association