Freedom of Association: Standards and Supervision

1. Freedom of Association: Standards and Supervision Trade Union Training on Occupational Safety, health and the Environment, with Special Attention to HIV/AIDS Turin, 5 July 2006

2. Freedom of association is key • Is a human right universally recognized and protected • Is of particular importance for the ILO because of its tripartite structure • Preamble to the ILO Constitution, 1919 • Declaration of Philadelphia, 1944 • ILO Declaration on Fundamental Principles and Rights at Work, 1998

3. Freedom of association and respect of civil liberties • 1970 Resolution on Trade Union Rights and Civil Liberties • The right to freedom and security of person and freedom from arbitrary arrest and detention • Freedom of opinion and expression • Freedom of assembly • Protection of trade union premises and property

4. ILO fundamental Conventions on freedom of association • Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) • Right to Organise and Collective Bargaining Convention, 1949 (No. 98)

5. Other ILO instruments on freedom of association • Right of Association (Agriculture) Convention, 1921 (No. 11) • Rural Workers’ Organisations Convention (No. 141) and Recommendation (No. 149), 1975 • Collective Agreements Recommendation, 1951 (No. 91) • Workers’ Representatives Convention (No. 135) and Recommendation (No. 143), 1971 • Labour Relations (Public Service) Convention (No. 151) and Recommendation (No. 159), 1978 • Collective Bargaining Convention (No. 154) and Recommendation (No. 163), 1981

6. Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) • 145 ratifications • Objectives: • protection, in law and in practice, of freedom to establish organizations • protection of the free exercise of the right to organize of workers’ and employers’ organizations vis-à-vis public authorities

7. Right to establish and join organizations without distinction whatsoever (Article 2) • All employers and workers • Only exceptions: armed forces and the police, interpreted narrowly • No distinction based on grounds of, inter alia, occupation, sex, colour, race, religion, age, residence, marital status, nationality, political opinion

8. Right to establish and join organizations without previous authorization (Article 2) • Statutory and by-law formalities are acceptable as long as they ensure the normal functioning and publicity of organizations • Incompatible: • long and complicated registration procedures • public authority discretionary power • excessive minimum membership requirements for establishment or registration • Right to appeal to independent court, in case of refusal to grant authorization

9. Right to establish and join organizations of their own choosing (Article 2) • No interference by public authorities when drawing up structure and composition • Trade union unity or monopoly must not be imposed by law or practice. Trade union plurality and diversity must be possible

10. Right of workers’ and employers’ organizations to draw up their constitutions and rules (Article 3) • The law may only lay down formal requirements as regards the organizations’ constitutions • Incompatible: • approval by public authorities or already existing trade unions • imposed model constitution • right to require amendments (beyond formal changes) by public authorities • Right to appeal to an independent and impartial body in case of refusal

11. Right of workers’ and employers’ organizations to elect their representatives in full freedom (Article 3) • No interference by public authorities • Only possible interventions: • to promote democratic principles within trade unions • to ensure proper conduct of the election process • Possible violations if the law: • requires that all candidates belong to an occupation, an enterprise or production unit • require that all candidates be national of the country (requirement of a reasonable period of residence admissible) • excludes candidates because of their political beliefs, affiliation or criminal records • prohibits re-election • fixes the maximum length of the term of trade union office

12. Right of workers’ and employers’ organizations to organize their administration (Article 3) • Autonomy • Financial independence • Protection of assets and property (inviolability of union premises, correspondence and communications)

13. Right of workers’ and employers’ organizations to organize their activities and formulate their programmes (Article 3) • Includes: • right to hold meetings • right of trade union officers to have access to the workplace and to communicate with members and management • certain political activities • right to strike

14. Right to strike (Arts. 3 and 10) • Essential means available to workers for the protection and promotion of their interests • Is not an absolute right. Restrictions in case of: • acute national crisis • members of the armed forces and the police • public servants exercising authority in the name of the State • workers in essential services in the strict sense of the term

15. Essential services in the strict sense • Strike may endanger life, personal safety, health: • hospitals • electricity services • water supply services • telephone service • air traffic control • Compensatory guarantees (arbitration)

16. Radio and television The petroleum sector and ports Banking Computer services for the collection of excise duties and taxes Department stores and pleasure parks The metal and mining sectors Transport generally Refrigeration enterprises Hotel services Construction Automobile manufacturing Aircraft repair Agricultural activities The supply and distribution of foodstuffs The Mint The government printing service The state alcohol, salt and tobacco monopolies The education sector Postal services Non-essential services

17. Conditions • The law may subordinate the exercise of the right to strike to certain conditions • Acceptable conditions: • strike ballot • advance notice • exhaustion of conciliation/mediation procedures • Not acceptable conditions: • decisions by over half of all the workers involved • a two-thirds quorum requirement • compulsory arbitration before calling strike

18. Protection against dissolution or suspension of organizations by administrative authority (Article 4) • Same applies to decisions taken by public authorities that lead to de facto dissolution • If administrative dissolution exists, right to appeal to independent courts with suspensive effect

19. Right to establish federations and confederations and to affiliate with international organizations (Arts. 5 and 6) • Federations and confederations should enjoy the rights accorded to first-level organizations • The law should not: • prohibit the setting up of more than one confederation • restrict international affiliation to only a single, named national body

20. Right to Organise and Collective Bargaining Convention, 1949 (No. 98) • 154 ratifications • Completes C87, deals with relations between workers and employers • Objectives: • safeguards against anti-union discrimination and interference • promotion of collective bargaining • Scope: all workers, except armed forces, police and public servants engaged in the administration of the state

21. Protection against anti-union discrimination (Article 1) • In taking up employment, the course of employment and its termination • All acts (refusal to hire, dismissal, transfer, demotion, refusal to train, blacklisting) • For membership and participation in trade union activities • Legislative provisions combined with enforcement mechanism (effective, expeditious, inexpensive and impartial)

22. Protection against interference (Article 2) • Independence is a fundamental prerequisite to collective bargaining • Express legislative provisions against acts of interference necessary • Rapid appeal procedures, coupled with effective and dissuasive sanctions provided in legislation

23. Promotion of collective bargaining (Article 4) • Nature: collective bargaining leading to collective agreements • Scope: terms and conditions of work and employment • Subjects: workers’ and employers’ organizations • Levels: • at any level • to the choice of the parties concerned

24. Collective bargaining (cont.) • The right is also granted to: • Staff of the bus and water administration • Persons working in public or nationalized undertakings • Employees of postal and telecommunications services • Employees of state-owned commercial or industrial enterprises • Employees of the national bank • National radio and television institutes • Seafarers not resident in the country • Civil aviation technicians • Workers in export processing zones • Contract employees

25. Interventions by the authorities contrary to the voluntary nature of collective bargaining • Restricting the scope of collective bargaining • Refusal to approve collective agreements at the discretion of the authorities • Annulling of modifying the content of collective agreements • Suspension of collective agreements by decree

26. Obligation to negotiate in good faith • Genuine and consistent efforts by both parties to reach an agreement • No obligation to conclude an agreement • Avoid unjustified delay in the holding of negotiations • Support measures aiming at promoting collective bargaining (information, statistics, voluntary procedures designed to facilitate bargaining)

27. Supervisory bodies on freedom of association • Fact-Finding and Conciliation Commission on Freedom of Association • Committee on Freedom of Association

28. Committee on Freedom of Association • Established in 1951 • Governing Body tripartite organ, nine members • May examine complaints regardless of ratification • Detailed rules of receivability • Written procedure (direct contacts missions) • Unanimous conclusions and recommendations

29. Conditions of receivability for complaints on FOA Complaints must: • emanate from governments, employers’ and workers’ organizations • national organization having direct interest in the matter • international organizations having consultative status with the ILO • international organizations where allegations relate to matters directly affecting their affiliated organizations • be in writing • be signed • be supported by evidence

30. Procedure for the examination of complaints on FOA Fact-Finding and Conciliation Commission (independent experts) Committee on Freedom of Association (tripartite) Receivable complaints transmitted to governments for observations Examination by CFA Direct contacts possible Recommendations adopted by Governing Body Follow up discussed in Conference Committee on the Application of Standards In case of ratification, CEACR follow up CFA follow up

31. CFA: allegations examined by type of violation or restriction (March 1995 to November 1999)