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Freedom of association and Social Dialogue
Claude Akpokavie
Freedom of association and Social Dialogue
Claude Akpokavie
Freedom of association (FOA) is a universally recognised human right
Enabling right: democracy; development
Constitutional obligation in the ILO
Key importance because of the ILO tripartite structure
FOA : UNIVERSAL HUMAN RIGHTFOA : UNIVERSAL HUMAN RIGHT
Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)
149 ratifications
ILO FOA INSTRUMENTSILO FOA INSTRUMENTS
Right to Organize and Collective Bargaining Convention, 1949 (No. 98)
159 ratifications
ILO FOA INSTRUMENTSILO FOA INSTRUMENTS
Labour Relations (Public Service) (No. 151), 1978
Collective Bargaining Convention (No. 154),1981
Rural Workers’ Organizations (No. 141), 1975
Workers’ Representatives Convention (No. 135), 1971
KEY COMPONENTS OF FOA & CB
Civil Liberties
Organisational rights
Dispute resolution
Non-Interference
Anti-union discrimination
Promotion of collective bargaining
Freedom of association and protection of the Freedom of association and protection of the right to organize convention, 1948 (no. 87)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 (independence)
Protects in law and in practice the freedom to establish organizations
Freedom of association and protection of the Freedom of association and protection of the right to organize convention, 1948 (no. 87) right to organize convention, 1948 (no. 87)
Convention 87: article 2
Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of he organisation concerned, to join organisations of their own choosing without previous authorisation
CIVIL LIBERTIESCIVIL LIBERTIES
Civil liberties essential to the normal exercise of trade union 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 (before or at the time of meetings) The right to a fair trial by an independent and impartial
tribunal The right to protection of the property of trade union
organizations
No impunity should prevail. The absence of judgement reinforces the climate of violence and insecurity, extremely damaging to the exercise of trade union rights
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 LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIES
Freedom of association and protection of the Freedom of association and protection of the right to organize convention, 1948 (no. 87)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
1. 1. Right to establish and join organizations Right to establish and join organizations without distinctionwithout distinction whatsoever (art. 2) 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
2. 2. Right to establish organizations Right to establish organizations without without previous authorizationprevious authorization
Statutory and by-law formalities are acceptable as long as they ensure the normal functioning and publicity of organizations
Would be incompatible:
Right to appeal to independent courts against refusal of authorization
Long and complicated registration procedures Discretionary power granted to public authority
3. 3. Right of workers and employers to establish Right of workers and employers to establish and join organizationsand join organizations of their own choosing of their own choosing
Subject only to the rules of organizations concerned
Rules and practices should not unduly affect organizational structure and composition. However, some limitations are acceptable as regards :
minimum number of members required
certain categories of workers to whom membership is limited at the first level as long as they can organise
3. 3. Right of workers and employers to establish Right of workers and employers to establish and join organizationsand join organizations of their own choosing of their own choosing
Plurality and Monopoly: possibility of pluralism
Recognition of the most representative organizations
A way of striking a balance between trade union unity and fragmentation of trade union movement
Determination 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
Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to draw up their constitutionsto draw up their constitutions and rules (art. 3) and rules (art. 3)
Convention 87: article 3
Workers and employers organisations, shall have the right to draw up their own constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes
Public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof
Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to draw up their constitutionsto draw up their constitutions and rules (art. 3) 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
Approval of by-laws by public authorities or already existing trade union
Imposed model Constitution Where public authorities have the right to require amendments
Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to to elect their representatives in full freedomelect their representatives in full freedom (art. 3) (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
Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to to elect their representatives in full freedomelect their representatives in full freedom (art. 3) (art. 3)
Conditions of eligibility: 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
Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to to organize their administration and activitiesorganize their administration and activities (art. 3) (art. 3)
Be able to formulate their programme
Covers necessary financial autonomy and independence
Protection of workers’ and employers’ organizations assets shall be guaranteed. Inviolability of union premises, correspondence and communications
Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to formulate their programmesto formulate their programmes (art. 3) (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
The right to strikeThe right to strike
Even if not expressly mentioned in ILO Conventions on FOA, the right to strike is fully recognized and protected
Legitimate weapon of workers’ organizations in furtherance of their members’ interests
Most visible form of collective action in the context of a labour dispute
The law may subordinate the exercise of the right to strike to certain prerequisites (reasonable criteria)
Prerequisites found to be acceptable:
Prerequisite 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 20 days’ notice of a strike in certain services Give prior notice to the employer before calling a strike
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:
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 – hospitals, electricity & water utilities, air traffic control
acute national crisis (limited period of time)
Workers coveredWorkers coveredWorkers coveredWorkers covered
May take various forms
Abuse of the right to strikeAbuse 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
Protection against dissolution or suspension of Protection against dissolution or suspension of organizations by administrative authority (art. 4)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 suspending effect
Right to Right to establish federations and confederations and to establish federations and confederations and to affiliate with international organizationsaffiliate with international organizations (art. 5) (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
The legality and the workers’ and employers’ organizations The legality and the workers’ and employers’ organizations rightsrights (art. 8) (art. 8)
Workers’ and employers’ shall respect the law of the land
The law of the land shall not be such as to impair the guarantees provided for in the Convention
Right to organize and collective bargaining Right to organize and collective bargaining convention, 1949 (no. 98)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
Right to organize and collective bargaining Right to organize and collective bargaining convention, 1949 (no. 98)convention, 1949 (no. 98)
Armed forces and the police
Civil servants engaged in the administration of the state
(civil servants employed in government ministries and other comparable bodies and officials acting as supporting elements in these activities)
Only exceptions:
All workers are covered
Protection against acts of Protection against acts of anti-union discriminationanti-union discrimination (art. 1)(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
Protection against acts of Protection against acts of anti-union discriminationanti-union discrimination (art. 1)(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
Preventive or reparatory mechanisms
Inversion of the burden of proof
Compensation is not enough
Protection against acts of interference (art. 2)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
Promotion of Collective Bargaining (art. 4)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
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:
Parties should recognize each other
Recognition procedure based on objective, pre-established and precise criteria
Possible exclusive bargaining agent
Prohibition of 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
restrictions on future agenda of collective bargaining Restrictions on clauses to index wages to cost of living
Compulsory arbitration
Intervention of public authorities
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:
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
* * *
Social DialogueSocial Dialogue
What is Social Dialogue?
"Social dialogue is defined by the ILO to include all types ofnegotiation, consultation or simply exchange of information between, or among representatives of governments, employers and workers, on issues of common interest relating to economic and social policy."
Social DialogueSocial Dialogue
Levels and forms of social dialogue:
Different levels national, sectoral, enterprise, regional, sub-regional, global?
Different formsnegotiation, consultation, information
Collective bargaining is a form of social dialogue
Social DialogueSocial Dialogue
Who are the actors?
Bipartite (workers’ and employers’ organizations)
Tripartite (government, workers’ and employers’ organizations)
Social DialogueSocial Dialogue
What type of institutions?
Depends on industrial relations framework and culture:Formal, legally-based Informal, voluntaryAd-hoc arrangements
Key question: are the institutions flexible and efficient and do they facilitate the dialogue?
Social DialogueSocial Dialogue
The Agenda of social dialogue
The agenda must be rooted in the reality of the economic and social experiences of the parties
- Need for a shared analysis of the key problems- Need to develop a common vision- Adopt a problem-solving approach
Social DialogueSocial Dialogue
Why engage in social dialogue?
• Link between good industrial relations climate, productivity and competitiveness
• Minimizes conflict and promotes stability and social/industrial peace• Enhances flexibility and adaptability• Promotes innovation and joint problem-solving• Replaces adversarial approach with collaboration, consultative,
partnership approaches • Promotes win-win solutions
Social DialogueSocial Dialogue
Enabling Conditions for effective Social dialogue
Strong, independent workers' and employers' organizations with the technical capacity and the access to relevant information to participate in social dialogue;
Political will and commitment to engage in social dialogue on the part of all the parties;
Respect for the fundamental rights of freedom of association and collective bargaining;
Appropriate institutional support
Social DialogueSocial Dialogue
Lessons learnt for successful social dialogue• Respect• High levels of trust• Willingness to share power and influence• Search for a wider consensus• Acceptance of interdependence• Consultation, information-sharing, negotiation and deal-making• Respect for freedom of association – independence of actors• Open, democratic decision-making processes• Government is a key player• Trade-offs between and within interest groups• Willingness to embrace change• Dynamic not static process• Capacity to deliver• Links between different levels (national, enterprise, community, regional, global)
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