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International Labour
Standards and Processes on
Freedom of Association:
The added value of the ILO
framework
Freedom of Association Programme
International Training Centre
of the ILO
Presentation 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
Formal instruments and
Authoritative pronouncements
Sources 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 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)
The sources of International
Labour Standards on FOA:
General Overview
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
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 of
association: 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 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
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 Conventions
Convention 87: Convention 98:
Freedom of Association Right to Organise and
and Protection of the Collective Bargaining,
1949.
Right to Organize, 1948.
Completes the
Asserts the principle guarantees of
of independence of independence in C.87
trade unions’ by focusing on the
organisations from relations between
public authorities. workers organisations
and employers.
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
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 of
Freedom of Association:
Standards
(Principles, rights and
obligations)
The Content of International
Labour Standards on FOA:
General Overview
The 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”
C. 87, Art. 10: definition of the term
organisation:
– Any organisation of workers or
employers…
1. The right to freedom of
association: 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 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 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 of
association: 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
C. 87: Public C. 98: Employers
Authorities and organizations
The protection covers The protection covers
all stages of the all stages of the
organization’s life: relationship: from
from creation to hiring to termination.
dissolution.
The freedom of association and protection of
the right to organize convention, 1948 (no. 87)
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 convention, 1949 (no. 98)
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 by
C. 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 times
by 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 of
Civil 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 of
Civil 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.
FOA and respect of
Civil liberties (3)
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 liberties (4)
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)
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 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)
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.
The right to organize:
requirement of recognition (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.
The right to organize:
requirement of recognition (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
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 join
organizations 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.
The right to establish and join
organizations of one’s 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.
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.
The right to draw up the organization's
rules in full freedom (C. 87, art. 3)
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)
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.
The right to elect an organization’s
representatives in full freedom (C. 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 organization
and 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 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.
The right to organize (C. 87, art. 5:
Higher level 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)
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 right to organize
(C.87, art. 4: Dissolution)
The principle of non-interference applies to the
the dissolution or suspension of organizations
(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 and
the 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.
Civil servants and
the right to organize
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.
Civil servants and
the right to organize
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.
Civil servants and
the right to organize
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 collective
bargaining (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)
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)
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)
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
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 right
to 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 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.
Collective bargaining process
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
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).
Civil servants and the right to
collective bargaining
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.
Civil servants and the right to
collective bargaining
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.
Civil servants and the right to
collective bargaining
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.
Civil servants and the right to
collective bargaining
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.
Civil servants and the right to
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)
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)
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)
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.
The right to strike
(restrictions)
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.
The right to strike
(restrictions)
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.
The right to strike
(restrictions)
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)
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 intervention
in 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 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 and
the 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)
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)
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
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 of
interference (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 of
interference (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
Processes and procedures at the
international level
Enforcing FOA Rights
as 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 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
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
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
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
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”.
Fact-finding and Conciliation
Commission
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 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 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 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. 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
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 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 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
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
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
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
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.
Who may file a Complaint
before the CFA? (2)
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.
Who may file a Complaint
before the CFA? (3)
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
Who may file a Complaint
before the CFA? (4)
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?
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 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?
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 Organization
CH-1211 Geneva 22, Switzerland
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
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 (2)
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 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
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)
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.
CFA Practice & Procedure (2)
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.
CFA Practice & Procedure (3)
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.
CFA Practice & Procedure (4)
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.
CFA Practice & Procedure (5)
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.
CFA Practice & Procedure (6)
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.
CFA Practice & Procedure (7)
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.
Committee on Freedom of
Association
Summary of key features:
Complaints and Procedure
Status and Powers
CONDITIONS OF RECEIVABILITY FOR
COMPLAINTS OF VIOLATIONS OF FOA
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
FOA Project/Turin Centre
SPECIAL PROCEDURE CONCERNING
FREEDOM OF ASSOCIATION
COMPLAINT PRESENTED TO ILO AND
TRANSMITTED TO GOVERNMENTS
FOR OBSERVATIONS
POSSIBLE
INTERVENTION
WORKERS
COMMITTEE ON FREEDOM OF
EMPLOYERS ASSOCIATION (CFA)
GOVERNMENTS
POSSIBLE DIRECT
CONTACTS
DECISIONS BY CONSENSUS
ADOPTION BY GOVERNING BODY ESTABLISH STRATEGY
AT NATIONAL LEVEL
IF ILO CONVENTION IS IF ILO CONVENTION IS
RATIFIED NOT RATIFIED
COMMITTEE OF EXPERTS ON THE FOLLOW-UP BY
APPLICATION OF CONVENTIONS THE CFA
AND RECOMMENDATIONS (CEACR)
FOA Project/Turin Centre
COMMITTEE ON FREEDOM OF ASSOCIATION
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
FOA Project/Turin Centre
