freedom of association programme international training centre of the ilo

International LabourStandards and Processes on

Freedom of Association: The added value of the

ILO framework

International LabourStandards and Processes on

Freedom of Association: The added value of the

ILO framework

Freedom of Association Programme

International Training Centreof the ILO

Presentation outlinePresentation outline

I. The sources and content of international guarantees on Freedom of association: Principles and standards

II. The international means of promoting their implementation: Processes and procedures

I. The sources and content of International labour

standards on Freedom of association

I. The sources and content of International labour

standards on Freedom of association

Formal instruments andAuthoritative

pronouncements

Sources of FOA ProtectionsSources 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.

Sources of FOA ProtectionsSources 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.

Freedom of Association:International Sources(Main Instruments)

Freedom of Association:International Sources(Main Instruments)

The sources of International Labour Standards on FOA: General Overview

The right to freedom of association: International

instruments

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).

The right to freedom of association:examples of Regional instruments

The right to freedom of association:examples of Regional instruments

African Charter on Human and People’s Rights, 1981 (AfCHPR), art 10 (10 and (2).

American Declaration of the Rights and Duties of Man, 1948 (ADRD), art. 22.

European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ECHR), art. 11 (1) and (2).

The right to freedom ofassociation: ILO instruments

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).

FOA: ILO ConstitutionFOA: 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.

FOA: Declaration of Philadelphia

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.

Freedom of Association: Fundamental ConventionsFreedom 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.

Additional ILO instruments on

FOA & CB

Additional ILO instruments on

FOA & CB

C. 11: The Rights of Association and Combination of Agricultural Workers Convention, 1921.

C. 135: Workers’ Representatives Convention, 1971

– R. 143: Workers’ Representatives Recommendation, 1971

C. 141: Rural Workers’ Organisations Convention, 1975

– R. 149: Rural Workers’ Organisation Recommendation, 1975

Additional ILO instruments on FOA & CB

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

The meaning ofFreedom of Association:

Standards(Principles, rights and

obligations)

The meaning ofFreedom of Association:

Standards(Principles, rights and

obligations)The Content of

International Labour Standards on FOA: General Overview

The dimensions of FOAfor Trade Union purposesThe dimensions of FOA

for Trade Union purposes

The essential features of FOA for trade union purposes include:1. The right to freedom of association;2. The right to protection of related

civil liberties;3. The right to organize;4. The right to bargain collectively;5. The right to strike;6. The right to protection against acts

of anti-union discrimination.

The notion of “organisation”The notion of “organisation”

C. 87, Art. 10: definition of the term organisation:

– Any organisation of workers or employers…

1. The right to freedom ofassociation: basic notions1. 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.

The right to freedom ofassociation: basic notionsThe right to freedom of

association: basic notions

The right to form an association is an inherent part of this right: That individuals should be able to form a legal entity in order to act collectively in a field of mutual interest or concern is one of the most important aspects of the right to freedom of association.

Accordingly, when someone joins a trade union, that person is exercising his or her right of freedom of association.

The right to freedom ofassociation: basic notionsThe right to freedom of

association: basic notions

Uniting protects individuals from the vulnerability of isolation.

It enables those who would otherwise be ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.

The right to freedom ofassociation: basic principles

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.

Protection from Interference and Universal Enjoyment

Protection from Interference and Universal Enjoyment

C. 87: Public Authorities

The protection covers all stages of the organization’s life: from creation to dissolution.

C. 98: Employers and organizations

The protection covers all stages of the relationship: from hiring to termination.

The freedom of association and protection of the right to organize

convention, 1948 (no. 87)

The freedom of association and protection of the right to organize


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.

The right to organize and collective bargaining


The right to organize and collective bargaining


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.

Workers covered byC. 87 and C. 98

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.

Covered at all timesby C. 87 and C. 98

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.

2. FOA and respect ofCivil liberties (1)

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.

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.



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.



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.

3. The right to organize (C.87)

3. The right to organize (C.87)

The right to organize rests upon the following three principles:

1. That no distinction are made among those entitled to the right of association

2. That there is no need for previous authorization to establish organizations

3. That there is freedom of choice with regard to membership of such organizations.

The right to organize: No distinction (C.87, art. 2)

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.

The right to organize:requirement of recognition

(1)


(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.


(2)


(2)

A state has a right to satisfy itself that an organization’s aims and activities are in conformity with the rules laid down in legislation.

However, it must do so in a manner compatible with its obligation to ensure to everyone the enjoyment of the right to freedom of association.


(3)


(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.

The right to establish organizations

without previous authorization

The right to establish organizations

without previous authorization

Legal formalities for the establishment of an organisation: Statutory and by-law formalities are acceptable as long as they ensure the normal functioning and publicity of organizations. Would be incompatible:

Long and complicated registration procedures Discretionary power granted to public authority Excessive minimum membership required for

establishment or registration. The recognition of the organization’s legal personality

must be granted without delay if formal requirements complied with.

A right to appeal to independent courts against refusal of authorization must be provided.

The right to establish and joinorganizations of one’s own choosing


The right is subject only to the rules of organizations concerned.

There must be no interference by public authorities in the articulation of the organization’s structure and composition.

The legal system’s rules and practices must not unduly affect the structure and composition of organizations.

However, there are acceptable limitations as regards : The required minimum number of members

Certain categories of workers to whom membership is limited to the first level as long as they can organise.



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.

The right to draw up the organization's

rules in full freedom (C. 87, art. 3)



Permissible requirements: The law should only lay down formal requirements with respect to an organizations’ founding instruments (constitution and by-laws), such as:

A requirement that the constitution be approved by a majority of members present at a duly constituted meeting;

A requirement that the purpose of the organization be lawful and related to the pursuit of the social and economic interests of its members.

Unacceptable requirements: Would be incompatible with this principle:

The approval of by-laws by public authorities or by an already existing trade union;

An imposed model constitution; The right of public authorities to require constitutional amendments beyond formal changes.





Necessary safeguards:

The national legal framework should contain an appeal procedure to an independent and impartial body for cases of refusal to recognize the legitimacy of an organization’s founding documents.

The right to elect an organization’s representatives in full freedom (C.

87, art. 3)


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.


87, art. 3)


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.

The right to administer the organizationand to conduct its activities in full freedom

(C. 87, art. 3)

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.

The right of organizations to formulate

their programmes (C. 87, art. 3)

The right of organizations to formulate

their programmes (C. 87, art. 3)

The right of organizations to formulate their programmes include:

The right to hold meetings;

The right of trade union representatives to access the work place with due respect for property and management rights (i.e., at least outside working hours in standards cases, and during working hours in remote areas under terms of consent orders);

The right to communicate with management;

The right to obtain information;

The right to present a list of grievances.

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.



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.

The right to organize (C. 87, art 5:

Higher level organizations)

The right to organize (C. 87, art 5:

Higher level organizations)

At the international level would be incompatible with the principle of non-interference:

The requirement that only a single, named national organization permitted to affiliate internationally;

A prohibition placed on international affiliation;

The requirement of a prior authorization for international affiliation;

Restrictions or conditions placed on assistance (including financial), communications or contacts resulting from international affiliations.

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).



The principle of non-interference applies to the The principle of non-interference applies to the the dissolution or suspension of organizations the dissolution or suspension of organizations (art. 4)(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).

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.



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.



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.



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.

4. The right to collectivebargaining (C.98)

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.

The right to collective bargaining (Tripartite Declaration on MNEs)

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.

The right to collective bargaining

(C.154)

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).

The right to collective bargaining (C.154)

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.

The right to collective bargaining: appropriate

framework

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.

Representative status and the rightto collective bargaining

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.

Scope and level(s) of collective bargainingScope 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.

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.



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).

Bargaining must be free and voluntary

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.

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).



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.



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.



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.



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.



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.

5. The right to strike (nature)

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.

The right to strike (source)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.

The right to strike(prerequisites)

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.

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.



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.



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.



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.

The right to strike(general prohibition)

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.

Police interventionin strike action

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.

Forms of strikesForms 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.

Civil servants andthe right to strikeCivil 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.

6. The right to protection against acts of antiunion

discrimination (C. 98, art. 1)

6. The right to protection against acts of antiunion

discrimination (C. 98, art. 1)

No person must be prejudiced by reason of his/her trade union membership or legitimate trade union activities.

This protection is vitally necessary for trade union officials who are particularly exposed.

Protection against acts of antiunion discrimination (C. 98,

art. 1)

Protection against acts of antiunion discrimination (C. 98,

art. 1)

To be effective, protection against acts of anti-union discrimination requires:

The existence of broad enough protective provisions in legislation;

The existence of procedures capable of ensuring that complaints be examined promptly, impartially, inexpensively and effectively.

The law should provide for effective and dissuasive sanctions.

Civil servants and protection against acts of antiunion

discrimination

Civil servants and protection against acts of antiunion

discrimination

All public sector workers are protected: Those not engaged in the administration

of the State: art. 1 of C.98 Those engaged in the administration of

the State: art. 4 of C.151 Source of protection against acts of

interference by employers: Workers not engaged in the

administration of the State: art. 1 of C.98 Workers engaged in the administration of

the State: art. 4 of C.151

Protection against acts ofinterference (C. 98, art. 2)Protection against acts ofinterference (C. 98, art. 2)

There should be total independence of workers’ organizations from employers and their organizations in exercising their activities and vice versa.

To ensure this, the following is necessary: Express legislative provisions against acts

of interference; Rapid appeal procedure; Effective and dissuasive remedies and

sanctions.

Protection against acts ofinterference (C. 98, art. 2)Protection against acts ofinterference (C. 98, art. 2)

The protection covers all dimensions and stages in the life of an organisation:

– formation, functioning, organisation and administration.

The protection covers all aspects and stages of the working relationship:

– at hiring, during employment, against unlawful termination.

II. Implementation of FOA principles and

standards

II. Implementation of FOA principles and

standards

Processes and procedures at the international level

Enforcing FOA Rightsas Human Rights

Enforcing FOA Rightsas Human Rights

The success of a framework for ensuring full and effective enjoyment of FOA rights can ultimately be measured by one test:

Does the framework lead to universal enjoyment by ensuring an effective exercise of rights and by favouring a real reduction in the discrimination faced by workers protected by the law?

The regular system of supervisionThe regular system of supervision

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

Recent comments by the Committee of Experts

concerning Japan

Recent comments by the Committee of Experts

concerning Japan

Denial of the right to organize of fire-fighting personnel

Prohibition of the right to strike by public servants

The reform of the public service Reference to cases nos. 2177 and

2183 of the CFA

The special system of supervision The special system of supervision

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

be ratified.

The special system of supervision: FOA violations

The special system of supervision: FOA violations

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

Special supervisory mechanisms concerning FOA

Special supervisory mechanisms concerning FOA

Because of the importance attached to freedom of association principles, the ILO has established - in addition to the regular system of supervision - special machinery for their enforcement:

– Committee on Freedom of Association (CFA)

– Fact-Finding and Conciliation Commission on

Freedom of Association (FFCC)

Fact-finding and Conciliation Commission


First Fact-finding and Conciliation commission set-up concerned Japan.

The conclusions of the Commission are known as the “Dreyer Report”.



Created by agreement with ECOSOC in 1950;

Examines complaints of infringement of trade union rights referred to it by the ILO's Governing Body in respect of both countries which have ratified the FOA Conventions and those which have not, though in the latter case referral may not be made without the consent of the country concerned;

May also examine complaints of violations of freedom of association against non-member States of the ILO when such complaints are forwarded to it by the United Nations and the country consents;

Composed of nine independent members appointed by the Governing Body working in panels of three.

New Japan cases before the CFANew Japan cases before the CFA

Case no. 2319: complaint presented by the National Union of General Workers Union (ZENROREN-ZENKOKUIPPAN) on January 14, 2004

Case no. 2315: complaint presented by the Aichi School community Union (ASCU) on January 3, 2004

Case no. 2304 presented by the Japan Confederation of Railway Workers’ Unions (JRU) on October 14, 2003

Japan cases before the CFAJapan cases before the CFA

Case no 2183: complaint presented by the National confederation of Trade Unions (ZENZOREN) and the Japan Federation of Prefectural and Municipal Workers’ Unions (JICHIROREN) on March 15, 2002:

Allegations: The upcoming reform of the public service legislation, developed without proper consultation of workers’ organizations, further aggravates the existing public service legislation and maintains the restrictions on the basic trade union rights of public employees, without adequate compensation.

Japan cases before the CFAJapan cases before the CFA

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

Japan CFA Case no. 2177Japan CFA Case no. 2177

Allegations: The upcoming reform of the public service legislation:

Was developed without proper consultation of workers’ organizations;

Further aggravates the existing public service legislation; and

Maintains the restrictions on the basic trade union rights of public employees, without compensation.

Establishment of the CFA

Establishment of the CFA

Part of the special machinery in the field of FOA for trade union purposes, which was established by the ILO in 1950 following an agreement with the Economic and Social Council of the United Nations.

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

CFA’s Status and RoleCFA’s Status and Role

A Special (Tripartite) Organ of the Governing Body; as such:

– Not bound by national judicial decisions– Not subject to the prior exhaustion of

national processes/remedies A Quasi-judicial Body:

– It examines complaints of freedom of association for trade union purposes

– It submits its conclusions and recommendations to the Governing Body of the ILO.

CFA’s MandateCFA’s Mandate

Special focus: The Committee examines only complaints of infringement of Freedom of association for trade union purposes

Broad jurisdiction: Complaints may be entertained regardless of whether the country concerned has ratified any of the Conventions in the field of freedom of association

CFA’s Mandate: Special Focus

CFA’s Mandate: Special Focus

The Committee examines only complaints of infringement of Freedom of association for trade union purposes

However, this includes: – The Right to Organise– The Right to Bargain Collectively– The Right to Strike– The Protection of related Civil Liberties

CFA’s Mandate: Broad Jurisdiction

CFA’s Mandate: Broad Jurisdiction

Ratification not required: Complaints may be entertained regardless of whether the country concerned has ratified any of the Conventions in the field of freedom of association

Exhaustion of national remedies not required and CFA not bound by national judicial decisions

CFA may also examine Complaints of violations of FOA against States which are not members of the ILO, when such complaints are forwarded to it by the United Nations, with the country’s consent.

Receivability of Complaints before the

CFA

Receivability of Complaints before the

CFA

To be receivable, complaints must satisfy certain conditions of form and substance, which essentially address the following issues:

– Who may file a complaint?– Against whom can a complaint be

directed?– When can a complaint be filed?– How must one proceed to file a complaint?

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


Complaints must come from governments or from a workers’ or employers’ organisation, which may be:

– A national organisation directly interested in the matter

– An international organisation, which has consultative status with the ILO

– Another international organisation of workers or employers, where the allegations relate to matters directly affecting affiliated organisations.

International organisations having consultative status

International organisations having consultative status

Non-governmental international organisations having general consultative status with the ILO include:

– International Co-operative Alliance– International Confederation of Free Trade Unions– World Confederation of Labour– International Federation of Agricultural Producers– International Organisation of Employers– Organisation of African Trade Union Unity– Pan-African Employers’ Confederation.



If information about the organisation is not known by the CFA, the organisation should provide information with the complaint, including:

– Information about its membership– Its statutes/by-laws– Information about its national/international

affiliations– Any information that would lead to an

appreciation of the nature of the organisation.



Status of complaints emanating from:– Organisations in exile– Organisations which have been dissolved, or– Organisation which have failed to satisfy the

national administration of its lawful existence Such complaints are not automatically

deemed irreceivable– Rather, they are considered on the basis of

the information provided for organisations not known to the CFA: see (2) above



To file a complaint, the organisation must have a permanent existence.

This implies having a permanent address, which makes it possible to correspond with it.

Against whom can a complaint be directed?

Against whom can a complaint be directed?

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

When can a Complaint be filed before the CFA?

When can a Complaint be filed before the CFA?

When an infringement of FOA principles/ standards is identified. This can include:

– An action with ongoing implications, such as infringement embodied in legislation or in policy

– A specific act or occurrence, which may require immediate remedial action, such as the arrest or detention of trade unionists, the seizing of an organisation’s assets, the dissolution of an organisation, or the break-up or a trade union meeting.

How must one proceed to file a Complaint?

How must one proceed to file a Complaint?

Filing a complaint implies the formal laying of a charge

The complaint must contain specific allegations of infringement of FOA principles (pursuant to International Labour Standards on FOA)

Complaints to the CFA, should be sent to:– The Director-General

International Labour OrganizationCH-1211 Geneva 22, Switzerland

Complaints to the CFA: Conditions of Form

Complaints to the CFA: Conditions of Form

Complaints must be in writing Complaints must be signed by an official

of the complaining organisation or government

Complaints must be supported by written proof of allegations (sworn statements of facts and/or documentary evidence) relating to specific infringements of freedom of association.

Complaints must be in writing

Complaints must be in writing

A copy of a communication to a third party is not sufficient: the written communication must be directed to the ILO

The document may be sent by fax, but it must be followed by an original document.

Complaints must be signed (1)


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

A request for anonymity will be respected only after the Director-General has examined the complaint and concluded that it contains allegations of some degree of gravity which have not previously been examined by the CFA.



Complaints must be signed by a representative of a body entitled to make a Complaint:

– An “entitled representative” includes, for example, a president or executive director.

– It would not include, for e.g., a clerical assistant to the president or a lower-level official of the organisation.

Composition of the CFAComposition of the CFA

A tripartite organ of the Governing Body

– Comprises 9 members and 9 substitutes with an independent Chair (since 1978, chaired by an independent person);

– 3 members drawn from each of the Employers’, Workers’ and Government groups in the GB.

Committee on Freedom of Association


Practice and Procedure

CFA Practice & Procedure

CFA Practice & Procedure

Participation and Presence in the CFA’s Deliberations

No one involved in, or concerned by a complaint filed, may participate in the Committee’s deliberations, or be present during the hearing of the complaint• No representative or national of the State

against which a complaint has been made• No workers’ or employers’ representative

may attend the deliberations

CFA Practice & Procedure (1)CFA Practice & Procedure (1)

The CFA meets three times a year. Where the International Labour Office

finds a complaint insufficiently detailed, it may at any time ask a complainant to specify what infringements are complained of.

If supplementary information is deemed necessary to substantiate a complaint, the Office informs the complainant(s) within one month.


The allegations of infringement are transmitted by the Office to the government concerned for reply within a given period.

The CFA decides whether to reach a conclusion or ask the government concerned for additional information.


When it adopts conclusions, the CFA may recommend the GB to communicate them to the government concerned, drawing attention to anomalies, and inviting measures to remedy them as well as the transmission of further information on such measures.


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

The CFA submits its report to the GB on all cases which it has decided warrant further examination. After approval by the GB, the reports are published in the Official Bulletin.


Where cases involve ratified Conventions on FOA by the State concerned, the Committee of Experts on the Application of Conventions and Recommendations will follow the matter up under the regular supervisory machinery.

Otherwise, the CFA itself reviews the matter from time to time and may request the Office to ask governments to supply further information on action taken.


Withdrawal of Complaints:– A request for withdrawal is not sufficient in itself

for the CFA to automatically cease to proceed further with the case.

– The CFA must be satisfied that the withdrawal is being made in full independence.

– The CFA is alone competent to evaluate in full freedom whether this is the case.

Decision of the CFA: – Reached by consensus: the Committee always

endeavours to reach unanimous decisions.


Follows a primarily written process:

– The CFA usually proceeds on the basis of documentary evidence supplied by both the complainant and the government against which the complaint is directed.



Summary of key features:Complaints and Procedure

Status and Powers

COMPLAINTS MUST:

EMANATE FROM GOVERNMENTS, WORKERS’ OR EMPLOYERS’ ORGANISATIONS:

- National organisations having direct interest in the matter- International organisations having consultative status with ILO- International organisations where allegations relate

to matters directly affecting their affiliated organisations- Organisations must have permanent existence- Exiled or dissolved organisations may lodge complaints

BE IN WRITING

BE SIGNED

SUPPORTED BY EVIDENCE

CONDITIONS OF RECEIVABILITY FORCOMPLAINTS OF VIOLATIONS OF FOACONDITIONS OF RECEIVABILITY FORCOMPLAINTS OF VIOLATIONS OF FOA

FOA Project/Turin CentreFOA Project/Turin Centre

SPECIAL PROCEDURE CONCERNINGFREEDOM OF ASSOCIATION

SPECIAL PROCEDURE CONCERNINGFREEDOM OF ASSOCIATION

POSSIBLE INTERVENTION

DECISIONS BY CONSENSUS

POSSIBLE DIRECT CONTACTS

ADOPTION BY GOVERNING BODY

IF ILO CONVENTION IS RATIFIED

COMMITTEE OF EXPERTS ON THE APPLICATION OF CONVENTIONS

AND RECOMMENDATIONS (CEACR)

IF ILO CONVENTION IS NOT RATIFIED

FOLLOW-UP BY THE CFA

COMMITTEE ON FREEDOM OF ASSOCIATION (CFA)

WORKERS

EMPLOYERS

GOVERNMENTS


COMPLAINT PRESENTED TO ILO AND TRANSMITTED TO GOVERNMENTS

FOR OBSERVATIONS

ESTABLISH STRATEGY AT

NATIONAL LEVEL

SPECIAL CHARACTERISTICS

ILO GOVERNING BODY TRIPARTITE ORGAN

CHAIRED BY INDEPENDENT PERSON

FOCUS ON SPECIFIC SITUATION

LEGISLATIVE AS WELL AS FACTUAL EXAMINATION EVEN

WITHOUT RATIFICATION

QUASI-JUDICIAL BODY

NOT BOUND BY NATIONAL JUDICIAL DECISIONS

NOT SUBJECT TO THE PRIOR EXHAUSTION

OF NATIONAL REMEDIES

COMMITTEE ON FREEDOM OF ASSOCIATIONCOMMITTEE ON FREEDOM OF ASSOCIATION


freedom of association programme international training centre of the ilo

Documents