FREEDOM OF ASSOCIATION (FOA): A UNIVERSAL PERSPECTIVE

1. FREEDOM OF ASSOCIATION (FOA): A UNIVERSAL PERSPECTIVE The right to form or join a union or an employers’ association of one’s own choosing without previous authorization A universally recognized human right • Universal Declaration on Human Rights (1948) • International Covenant on Economic, Social and Cultural Rights (1966) • ILO Constitution (1919) • ILO Convention 87 (1948)

2. FREEDOM OF ASSOCIATION (FOA): A RIGHT UNIVERSALLY RECOGNIZED • FOA is a human right universally recognized and protected. • FOA is of particular importance for the ILO because of its tripartite structure. • FOA recognition and respect expressly requested by the ILO Constitution. • The ILO Declaration on Fundamental Principles and Rights at Work adopted in 1998, states that all Member States, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights... ", which include FOA.

3. ILO FOA INSTRUMENTS Right of Association (Agriculture), 1921 (No. 11) (ratified by China) Freedom of Association and Protection of the Right toOrganize Convention, 1948 (No. 87) Right to Organize and Collective Bargaining Convention, 1949 (No. 98)

4. ILO FOA INSTRUMENTS Workers’ Representatives Convention (No. 135) and Recommendation (No. 143), 1971 Rural Workers’ Organizations (No. 141) and Recommendation (No. 149), 1975 Labour Relations (Public Service) (No. 151) and Recommendation (No. 159), 1978 Collective Bargaining Convention (No. 154)

5. Committee on Freedom of Association • Established in 1951 • Tripartitecommittee of the Governing Body; It has 3 representatives for each group (Government, Employers, Workers) and is chaired by an independent person • Meets three times a year (March, May and November)

6. Committee on Freedom of AssociationMandate • Deals with the complaints filed against a government for violation of the conventions and principles on freedom of association. • Legislative as well as factual examination even without ratification or consent • Decisions adopted unanimously

7. Committee on Freedom of Association • Complaints must emanate from: • National organization having direct interest in the matter • International organization having consultative status with the ILO (International Confederation of Free Trade Unions-ICFTU; International Organization of Employers-IOE) • International organization where allegations relate to matters directly affecting their affiliated organizations • A government

8. Committee on Freedom of Association Special characteristics • Not subject to the prior exhaustion of national remedies • Examination even without the government’s reply *** • The Committee has dealt with nearly 2400 cases

10. Freedom of association and protection of the 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.

11. Freedom of association and protection of the right to organize convention, 1948 (no. 87) This right to organize is based on three principles: 1. That no distinction is 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.

12. 1. Right to establish and join organizations without distinction 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.

13. 2. Right to establish organizations without previous authorization • Statutory and by-law formalities are acceptable as long as they ensure the normal functioning and publicity of organizations • Right to appeal to independent courts against refusal of authorization

14. 3. Right of workers and employers to establish and join organizations of their own choosing • Subject only to the rules of organizations concerned • Rules and practices may not unduly affect organizational structure and composition. However, are acceptable limitations as regards: • required minimum number of members • Legislation and practices must not unduly affect organizational plurality and diversity. Monopoly must not be imposed by law or practice.

15. Recognition of the most representative organizations • 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.

16. Right of workers’ and employers’ organizations to draw up their constitutions and rules (art. 3) • The law should only lay down formal requirements as regards the organizations’ constitution • Procedure for appeal to an independent and impartial body in case of refusal

17. Right of workers’ and employers’ organizations to elect their representatives in full freedom (art. 3) • No control shall be exercised by public authorities over the election process. • Results should not be subject of approval by public authorities. If contested, recourse to independent and impartial judicial body.

18. Right of workers’ and employers’ organizations to organize their administration and activities (art. 3) • Be able to hold congresses of members without interference. • Covers necessary financial autonomy and independence .

19. Right of workers’ and employers’ organizations to formulate their programmes (art. 3) • Right of organizations to formulate their programmes include: The Right to Strike • Even if not expressly mentioned in ILO Conventions on FOA, the right to strike is fully recognized and protected • Legitimate means of workers’ organizations for the furtherance and defence of their members’ interests

20. 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 : services the interruption of which would endanger the life, the personal safety or health of the whole or part of the population • In cases of not essential services but of public utility, possible to establish a system of negotiated minimum service

21. Protection against dissolution or suspension of organizations by administrative authority (art. 4) • Most extreme form of interference by public authorities • If administrative dissolution exists, right of appeal to independent courts with suspensive effect.

22. Right to establish federations and confederations and to affiliate with international organizations (art. 5) • Right to organize at higher level • Should enjoy the various rights accorded to first-level organizations

23. Right to organize and collective bargaining 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.

24. Right to organize and collective bargaining convention, 1949 (no. 98) • All workers are covered • Only exceptions: • Armed forces and the police • Civil servants engaged in the administration of the state

25. Protection against acts of anti-union discrimination (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

26. Protection against acts of anti-union discrimination (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.

27. 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 • Rapid appeal procedure • Effective and dissuasive sanctions

28. Promotion of Collective Bargaining (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 • Within multinational enterprises. Special incentives to attract foreign investments should not, interalia, include any limitation of the workers’ right to bargain collectively

29. 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 • Levels of negotiation: • Should be possible at any level (in law and in practice) • Should be left to the choice of the parties concerned * * *