ILO Principles on Collective Bargaining

Promoting effective recognition of the right to CB is part of ILO mandate Declaration of Philadelphia, 1944 (part of ILO Constitution) – 1949 Convention on Right to Organize & Collective Bargaining – ratified by 159 countries (out of 183 member states), including 19 from Asia 1998 Declaration on FPRW & its follow up – obligation of member states to respect, promote & realize fundamental/core ILO standards, even if not ratified 2008 Declaration on Social Justice for a fair Globalization – FoA & CB important to achieve four strategic objectives of ILO Global Jobs Pact (June 2009) affirms this

Factors that have affected CB Role and structure of State Globalization (capital mobility) Growing unemployment Industrial restructuring & growth of non- standard forms of work – subcontracting, Flexibilization & de-regulation of work, Temporary contracts, precarious work Global Economic crisis

ILO instruments dealing with collective bargaining & related issues Collective Agreements Recommendation, 1952 (No. 91) Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) Right to Organise and Collective Bargaining Convention, 1949 (No. 98) Workers’ Representatives Convention, 1971 (No. 135) Voluntary Conciliation & Arbitration Recommendation, 1951 (No. 92) Rural Workers’ Organisations Recommendation, 1975 (No. 149) Labour Relations (Public Service) Convention, 1978 (No. 151) Labour Relations (Public Service) Recommendation, 1978 (No. 159) Collective Bargaining Convention, 1981 (No. 154) Collective Bargaining Recommendation, 1981 (No. 163).

Complements C87, deals with relations between workers & employers Provides for: –Protection of workers against anti-union discrimination (Art 1) –Protection of workers’ & employers’ organization against acts of interference by each other (Art 2) –Promotes collective bargaining (Art 4) – right of workers to be represented by TUs in negotiating conditions of employment collectively Scope: all workers except armed forces, police and public servants engaged in the administration of the State 160 countries have ratified C98 BUT NOT BY – India, China, US, Thailand, Vietnam, Canada, Iran, Korea, Mexico Right to organize and collective Bargaining convention, 1949 (no. 98)

CB in public services C151 Labour Relations (Public Service) Convention, 1978: permits the possibility of opting between CB & other methods for determination of terms & conditions of employment in public admn requires Govt to promote machinery for negotiations/CB for public employees to determine their terms & conditions of employment Can be excluded – police, armed forces & high level policy making or managerial officials or employees with duties of confidential nature Public service employees negotiations & role of Parliament, public budgets, service rules, duties - CBAs of public employees should be respected by legislature C154 (Collective Bargaining Convention, 1981): extends the right to CB to public admn, for which special modalities may be fixed.

CB definition as per C 154 ( Article 2) The term “collective bargaining” extends to all negotiations which take place between an employer, a group of employers or one or more employers’ organisations, on the one hand, and one or more workers’ organisations, on the other, for: (a) determining working conditions and terms of employment; and/or (b) regulating relations between employers and workers; and/or (c) regulating relations between employers or their organisations and a workers’ organization or workers’ organisations.

Pre-conditions favouring collective bargaining  Respect of FoA and civil liberties  Appropriate rules governing the procedure  Workers’ organizations need to be representative of those for whom they collectively bargain (same goes for the employers)  Parties should recognize each other

Recognition may be: –optional –voluntary (agreements or practice) –Compulsory When compulsory: objective and pre-established criteria safeguards attached  certification by an independent body  chosen by a majority vote of the employees  possibility of new election after reasonable period

Subjects covered by CB Terms & conditions of work and employment Regulation of the relations between employers & workers, between organizations of employers & workers Range of subjects is broad, but not absolute – certain matters can be excluded such as – –those that are part of employers freedom to manage his/her enterprise (assignment of duties & appointments) –Discriminatory clauses or clauses that are against minimum standards of protection set out in law What is excluded from CB in your country?

Governing Principles Free & voluntary negotiations (Art 4 of C98) – - obligation on govts to promote CB should not lead to measures of compulsion, does not mean enforcing CB - state can set up machinery to support CB (provision of information, conciliation, mediation, arbitration) – of voluntary nature - state can prohibit unfair labour practices that hinder good faith collective bargaining - where unions not sufficiently developed, or to avoid strikes, precarious & tense situations in sectors with large employment, state can impose conciliation & mediation within reasonable time limits Where a union can show representativity, law can make it compulsory to negotiate with such union

Governing Principles Free Choice of bargaining level – - Govts can take measures adapted to national conditions so as to facilitate CB at any level - Plant/Company/Entreprise/ Industry wide/Sector wide/Regional/State/National - The level at which CB is to be conducted should be a matter for parties to the negotiation to decide (should not be imposed by law or by a decision of administrative authority) – when this question is decided by another body, then it is essential to ensure that it is truly independent body; - Representative union federations and Confederations should be able to conclude CBAs. - “in countries where collective bargaining takes place at several levels, the parties to negotiations should seek to ensure that there is co-ordination among these levels” – (Recommendation No. 163 Paragraph 4)

Governing Principles Good Faith – - necessary but cannot be imposed by law, has to come voluntarily - implies making every effort to reach an agreement, conducting genuine & constructive negotiations, avoiding unjustified delays, complying with the agreements which are concluded and applying them in good faith - the recognition of representative trade union organizations & mutual respect for commitments made “collective agreements should bind the signatories thereto and those on whose behalf the agreement is concluded” (Recommendation No. 91) Unions must have a possibility of going on strike in the event of break down of negotiations

role of machinery to facilitate negotiations/CB Legal framework & Admn structure: Existing machinery and procedures should facilitate bargaining between the two sides but leave them free to reach their own settlement Certain rules and practices can facilitate CB – Ex right to information relevant for CB on enterprises, economy, etc, provisions in law that enable the dispute resolution procedure to be set in motion either by the parties concerned or by conciliation machinery The bodies appointed for the settlement of disputes between the parties to collective bargaining should be independent, and recourse to these bodies should be on a voluntary basis

Restrictions on the principle of free & voluntary negotiations  In the drafting of collective bargaining  In the form of administrative approval of freely concluded collective agreements  In cancellation of agreements because they are contrary to national economic policy  In compulsory extension of the period for which collective agreements are in force  Intervention of public authorities  Compulsory arbitration

Compulsory arbitration Q? Should there be compulsory arbitration? In what situations? When parties do not reach agreement or when strike has gone on for too long – one of the parties or govt seeks compulsory arbitration – arbitration imposes solution, not an agreement voluntarily reached (ex in case of essential services, public services) Compulsory arbitration may also be stipulated in CB as a mechanism for settlement of dispute - as in Cuba, Malaysia, PNG, Uganda, Sudan – acceptable in case of legal disputes over implementation/interpretation of CBAs – dispute resolution machinery should have an option of suspending compulsory arbitration if parties wish to resume negotiations.

Intervention by Authorities ILO conventions on CB do not cover situations where there is a conflict between specific interests of the parties and general public interest of the population In a situation of national economic crisis, govts sometimes freeze wages, or prices, or in case of war, ban strikes or suspension of rights of unions, including CBAs – with or without agreement of the parties – is this a violation of CB rights? Can Govt change the content of CBAs already in force? Can they impose limitations on future negotiations?

Intervention by Authorities Prior approval by authorities – acceptable only if it is to ensure that CBA meets with technicalities &/or does not violate minimum standards set by law – Not acceptable if it is check that CBA meets with economic policy of the govt or complies with the criteria set by public authorities Stabilisation & structural adjustment policies – increase the chances of unilateral imposition of conditions and restricting the scope of CB – only in exceptional circumstances of national emergency, should be minimum, limited in time & accompanied by some guarantees to protect minimum standards of living of workers – prior consultation with workers organizations.

CB v/s Contract of employment Collective bargaining agreement should bind the parties to the agreement and those on whose behalf the agreement is signed CBA provisions supercedes anything contrary in the contract of employment, except those conditions in contract of employment that are more favourable to the workers (contract of employment is usually not between two equal parties) Binding nature of CBAs can be established by law or by CBA itself – depending on the practice followed in each country

CBAs concluded with non- unionized groups of workers Representatives of Workers can negotiate and sign CBA in a situation where there are no unions in the enterprise or at higher level having membership in the enterprise concerned Existence of elected worker representatives should not be used to undermine the position of the TUs concerned or their representatives (C154, R 91, C135). CBA with non-unionized workers or a minority union where a representative union exists is a violation of Art 4 of C98 and Art 3 of C 87 (FoA rights of workers)

avoiding a representative organization and entering into direct individual negotiation with employees is contrary to the promotion of collective bargaining – ILO Committee on Freedom of Association in a case concerning the United Kingdom (ILO, 1998e, Case No. 1852, para. 337). Promotion of CB by government does not mean recognition of any association of workers established, dominated or financed by employers or their representatives TU organization(s) may represent only their own members or all workers in the negotiating unit, depending on the system of CB in the country - CB can apply to only the members or to all workers in the negotiating unit.

Supervisory bodies on FoA Fact-Finding and Conciliation Commission on Freedom of Association Committee on Freedom of Association

Committee on FOA (CFA) Created in 1951 Governing Body tripartite organ: 3 representatives from each group + chaired by an independent person Meets, in private sittings, three times a year (March, May and November) Not subject to the prior exhaustion of national remedies Unanimous conclusions & recommendations

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

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

ILO on CB – summary principles CB is a fundamental right endorsed by member States & they have obligation to respect & promote It’s a right of employers & their organizations and organization of workers – only if organization of workers does not exist, then representatives of workers can conclude CB Applies to all - police, armed forces & public servants involved in admn of State can be excluded Purpose – to regulate terms & conditions of employment and relations between parties CB is binding (except where terms under CB are less favourable than individual contract or violate labour law) For effective CB, workers organizations must be independent, free from employers and govt intervention Exclusive bargaining rights can be given to majority union

ILO on CB – summary principles Good Faith implies recognition of representative organizations, engaging in genuine & constructive negotiations and desire to reach agreement, avoiding unjustified delays and mutually respecting the commitments made CB must be voluntary and procedures set up must recognise this – level of CB must be decided by the parties and not imposed by authorities Conciliation & mediation can be imposed by law, provided reasonable time limits are put. Voluntary arbitration is legitimate BUT Compulsory arbitration is contrary to the principle of voluntary CB and is admissible only in – essential services (in the strict sense of the term), with regard to public servants engaged in admn of State affairs, in case of deadlock, in national crisis situation.

ILO on CB – summary principles Govt intervention in CB are normally against the principles of C98 (annulling, modifying the contents of CBAs, suspension of CBAs w/o agreement of parties, requiring renegotiations of CBAs, compulsory extension of CBAs – not allowed except in emergencies and for short durations) Restrictions on future CBAs only allowed in exceptional circumstances (economic emergencies), with consultations with parties, for short duration, with provisions for protecting the standards of living of those affected.

Group Work