FOA PROJECT (C.87 and C.98) Training Centre Programme on ILS and HR Freedom of Association

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE FREEDOM OF ASSOCIATION (FOA): A RIGHT UNIVERSALLY RECOGNIZED  FOA is a human right universally recognized and protected  FOA recognition and respect expressly requested by ILO Constitutional documents  FOA is of particular importance for the ILO in reason of its tripartite structure

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE FOA AND RESPECT OF CIVIL LIBERTIES  A system of democracy and the respect of fundamental human rights are essential to full and genuine FOA  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  The interdependence of FOA and civil liberties was reiterated in the ILO 1970 Resolution Concerning Trade Union Rights and Their Relation to Civil Liberties

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE FOA AND RESPECT OF CIVIL LIBERTIES  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

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE  No impunity should prevail. The absence of judgement (or excessive delay in its pronouncement) reinforces the climate of violence and insecurity, extremely damaging to the exercise of FOA  All appropriate measures should be taken to guarantee that FOA can be exercised in normal conditions. Violation of this right can be denounced before the ILO  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

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) ILO FOA INSTRUMENTS Right of Association (Agriculture), 1921 (No. 11) Right to Organize and Collective Bargaining Convention, 1949 (No. 98)

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE ILO FOA INSTRUMENTS Labour Relations (Public Service) (No. 151) and Recommendation (No. 159), 1978 Collective Bargaining Convention (No. 154) Rural Workers’ Organizations (No. 141) and Recommendation (No. 149), 1975 Collective Agreements Recommendation (No. 91), 1951 Workers’ Representatives Convention (No. 135) and Recommendation (No. 143), 1971

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 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  Protects in law and in practice the freedom to establish organizations, which could be considered a prerequisite without which the other guarantees enunciated in ILO instruments would remain a dead letter

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Freedom of association and protection of the right to organize convention, 1948 (no. 87) This right to organize depends on three principles: 2. That there is no need for previous authorization to establish organizations 1. That no distinction are made among those entitled to the right of association 3. That there is freedom of choice with regard to membership of such organizations

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 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  Recognition of legal personality without delay if formal requirements complied with  Would be incompatible:  Right to appeal to independent courts against refusal of authorization  Long and complicated registration procedures  Discretionary power granted to public authority  Excessive minimum membership required for establishment or registration

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 3. Right of workers and employers to establish and join organizations of their own choosing  Subject only to the rules of organizations concerned  No interference by public authorities when drawing up their structure and composition  Rules and practices may not unduly affect organizational structure and composition. However, are acceptable limitations as regards :  required minimum number of members  certain categories of workers to whom membership is limited at the first level as long as they can organise

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 3. Right of workers and employers to establish and join organizations of their 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. Should take effect trough collective agreements

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Right of workers’ and employers’ organizations to draw up their constitutions and rules (art. 3)  The law should only law down formal requirements as regards the organizations’ constitution  Would be incompatible :  Procedure for appeal to an independent and impartial body in case of refusal  Approval of by-laws by public authorities or already existing trade union  Imposed model constitution  Where public authorities have the right to require amendments (beyond formal changes)

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 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  No arbitrary interference by public authorities in the election process  Results should not be subject of approval by public authorities. If contested recourse to independent and impartial judicial body  Conditions of eligibility: avoid situations where qualified persons would be disqualified

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Right of workers’ and employers’ organizations to elect their representatives in full freedom (art. 3)  Possible violations of FOA if a law:  Requires that all candidates belong to an occupation or an enterprise  Requires that all candidates be national of the country. Possible requirement of a reasonable period of residence  Prohibits re-election  Excludes candidates because of their political beliefs or criminal records

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Right of workers’ and employers’ organizations to organize their administration and activities (art. 3)  Be able to hold congresses of members without interference  No prior authorization to receive funds  Covers necessary financial autonomy and independence  Protection of workers’ and employers’ organizations assets shall be guaranteed. Inviolability of union premises, correspondence and communications

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Right of workers’ and employers’ organizations to formulate their programmes (art. 3)  Right of organizations to formulate their programmes include:  Right to hold meetings  Right to have access to the working place by trade union leaders with due respect for the rights of property and management  Right to communicate with management  Right to obtain information  Right to present a list of dispute grievances  Political vs trade union activities

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE  Most visible form of collective action in the context of a labour dispute The right to strike  Even if not expressly mentioned in ILO Conventions on FOA, the right to strike is fully recognized and protected  Right to strike recognized by other international instruments  Legitimate weapon of workers’ organizations in furtherance of their members’ interests

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE  Compensatory guarantees should be provided for workers deprived of their right to strike  In cases of not essential services but of public utility, possible to establish a system of negotiated minimum service  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 Workers covered

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE  The law may subordinate the exercise of the right to strike to certain prerequisites (reasonable criteria)  Prerequisites found to be acceptable:  Prerequisites not acceptable:  Decision by over half of all the workers involved  A quorum requirement of two-thirds  Compulsory arbitration before calling strike  Take strike decisions by secret ballot  Give short notice of a strike in certain services  Mediation, conciliation and voluntary arbitration PrerequisitesPrerequisites

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Forms of strike  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 possible recourse to protest strikes  Sympathy strikes are lawful when the initial strike is lawful  Restrictions on strike pickets and workplace occupations should be limited to cases where the action ceases to be peaceful

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Acute national crisis and ban on strike  Acute national crisis can justify a ban on strike. The limitation needs to be for a limited period of time, to the extent necessary to meet the requirements of the situation

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE  May take various forms Abuse of the right to strike  Sanctions provided in national legislation in case of abuse are acceptable  FOA principles do not protect against abuse  All penalties should be proportionate to the offence or fault committed. No imprisonment for organizing or participating in a peaceful strike

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE  Workers and their organization have an obligation to respect the law of the land Intervention of the police in strike actions  Intervention of security forces in strike situation should be limited strictly to the maintenance of public order and only if there is a serious threat to law and order  Necessary instruction should be given to competent authorities so as to avoid the danger of excessive violence in trying to control demonstrations that might undermine public order

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Protection against dissolution or suspension of organizations by administrative authority (art. 4)  Most extreme form of interference by public authorities  Same applies 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)  If administrative dissolution exists, right of appeal to independent courts with suspensive effect

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 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  At the national level, would be incompatible:  Requirement of an excessively large number of member organizations  Prohibition imposed on setting up more than one confederation per occupation, branch of activity or region  Imposed monopoly at the federal or confederal levels

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Right to establish federations and confederations and to affiliate with international organizations (art. 5)  At the international level would be incompatible:  Only a single, named national organization permitted to affiliate internationally  Prohibition placed on international affiliation  Prior authorization required for international affiliation  Restrictions or conditions placed on assistance (including financial), communications or contacts resulting from international affiliations

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Right to organize and collective bargaining convention, 1949 (no. 98)  Armed forces and the police  Civil servants engaged in the administration of the state  No distinction based on grounds of occupation, sex, colour, race, religion, age, residence, marital status, nationality, political opinion  Only exceptions:  All workers are covered

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 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

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 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  Not enough protection in cases where employers can, in practice, on condition they pay the compensation prescribed by law for cases of unjustified dismissal dismiss any worker if true reason is the worker’s trade union membership or activities

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE 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  Effective and dissuasive sanctions  Rapid appeal procedure

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE Promotion of Collective Bargaining (art. 4)  Fundamental right endorsed by Member States by the very fact of their membership to the ILO  Process to create standards to govern labour relations  Instrument of democratization  Within multinational enterprises. Special incentives to attract foreign investments should not, inter alia, include any limitation of the workers’ right to bargain collectively

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE  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  Workers’ organizations need to be representative of those for whom they collectively bargain:  Criteria  Parties should recognize each other  Recognition procedure based on objective, pre-established and precise criteria. Possible exclusive bargaining agent

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE  Restrictions on the principle of free and 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  Compulsory arbitration  Intervention of public authorities

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE  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)  Obligation to negotiate in good faith:  Negotiation process :  Informal and within pre-established institutions or bodies  Certain behaviour should be prohibited (unfair labour practices)

FREEDOM OF ASSOCIATION PROJECT / TURIN CENTRE  Terms and conditions of work and employment  Regulation of the relations between employers and workers and between organizations of workers and employers  Strict limitations possible in case of stabilization policies  Topics to be covered:  Should be possible at any level (in law and in practice)  Should be left to the choice of the parties concerned  Levels of negotiation:  Agreements reached:  Collective agreements  Other forms of agreements * * *