freedom of association (foa): a universal perspective

The International Training Centre of the ILOThe International Training Centre of the ILOThe International Training Centre of the ILOThe International Training Centre of the ILO1

FREEDOM OF ASSOCIATION (FOA): FREEDOM OF ASSOCIATION (FOA): A UNIVERSAL PERSPECTIVEA UNIVERSAL PERSPECTIVE

The right to form or join a union or an employers’ The right to form or join a union or an employers’ association of one’s own choosing without association of one’s own choosing without

previous authorizationprevious authorization

The right to form or join a union or an employers’ The right to form or join a union or an employers’ association of one’s own choosing without association of one’s own choosing without

previous authorizationprevious authorization

A universally recognized human right

Universal Declaration on Human Rights (1948) International Covenant on Economic, Social and

Cultural Rights (1966) ILO Constitution (1919) ILO Convention 87 (1948)

Universal Declaration on Human Rights (1948) International Covenant on Economic, Social and

Cultural Rights (1966) ILO Constitution (1919) ILO Convention 87 (1948)


FREEDOM OF ASSOCIATION (FOA): FREEDOM OF ASSOCIATION (FOA): A RIGHT UNIVERSALLY RECOGNIZEDA RIGHT UNIVERSALLY RECOGNIZED

FOA is a human right universally recognized and protected.

FOA is of particular importance for the ILO because of its tripartite structure.

FOA recognition and respect expressly requested by the ILO Constitution.

The ILO Declaration on Fundamental Principles and Rights at Work adopted in 1998, states that all Member States, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights... ", which include FOA.


Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)

ILO FOA INSTRUMENTSILO FOA INSTRUMENTS

Right of Association (Agriculture), 1921 (No. 11) (ratified by China)

Right to Organize and Collective Bargaining Convention, 1949 (No. 98)


ILO FOA INSTRUMENTSILO 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

Workers’ Representatives Convention (No. 135) and Recommendation (No. 143), 1971


Committee on Freedom of AssociationCommittee on Freedom of Association

Established in 1951 Tripartite committee of the Governing Body;

It has 3 representatives for each group (Government, Employers, Workers) and is chaired by an independent person

Meets three times a year (March, May and November)


Committee on Freedom of AssociationMandate

Committee on Freedom of AssociationMandate

Deals with the complaints filed against a government Deals with the complaints filed against a government for for violation of the conventions and principles on violation of the conventions and principles on freedom of association.freedom of association.

Legislative as well as factual examination even Legislative as well as factual examination even without ratification or consentwithout ratification or consent

Decisions adopted unanimouslyDecisions adopted unanimously


Committee on Freedom of AssociationCommittee on Freedom of Association

Complaints must emanate from: National organization having direct interest in the

matter International organization having consultative status

with the ILO (International Confederation of Free Trade Unions-ICFTU; International Organization of Employers-IOE)

International organization where allegations relate to matters directly affecting their affiliated organizations

A government


Committee on Freedom of Association Special characteristics

Committee on Freedom of Association Special characteristics

Not subject to the prior exhaustion of national remedies

Examination even without the government’s reply

*** The Committee has dealt with nearly 2400

cases


Complaints presented before theCommittee on Freedom of Association (1951-2004)

Europa23%

North America7%

Latin America44%

Asia13%

Africa13%

Continent N° of cases

L. America 1072Europe 566Asia 302Africa 301N. America 157

Total 2398


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.


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 is based on three principles:

2. That there is no need for previous authorization to establish organizations.

1. That no distinction is made among those entitled to the right of association.

3.That there is freedom of choice with regard to membership of such organizations.


1. Right to establish and join organizations 1. 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. Right to establish organizations 2. 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

Right to appeal to independent courts against refusal of authorization


3. Right of workers and employers to establish 3. 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 may not unduly affect organizational structure and composition. However, are acceptable limitations as regards:

required minimum number of members

Legislation and practices must not unduly affect organizational plurality and diversity. Monopoly must not be imposed by law or practice.


Recognition of the most Recognition of the most representative organizationsrepresentative 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.


Right of workers’ and employers’ organizations Right of workers’ and employers’ organizations to to draw up their constitutionsdraw up their constitutions and rules (art. 3) and rules (art. 3)

The law should only lay down formal requirements as regards the organizations’ constitution

Procedure for appeal to an independent and impartial body in case of refusal


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.

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 organize their administration and activitiesorganize their administration and activities (art. 3) (art. 3)

Be able to hold congresses of members without interference.

Covers necessary financial autonomy and independence .


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:

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 means of workers’ organizations for the furtherance and defence of their members’ interests


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 coveredWorkers coveredWorkers coveredWorkers covered


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 suspensive 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


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

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.


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

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


Implies genuine and consistent efforts by both parties to reach an agreement

Does not mean that there is an obligation to conclude an agreement

Obligation to negotiate in good faith:

Levels of negotiation:

Should be possible at any level (in law and in practice) Should be left to the choice of the parties concerned

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freedom of association (foa): a universal perspective

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