legal brief underlying better work’s compliance ... for them to carry out their representation...

11 July 2012

Legal Brief Underlying Better Work’s Compliance Assessment Tool: Freedom of Association and Collective Bargaining

INTRODUCTION

The Better Work Compliance Assessment Tool (CAT) is used by Enterprise Advisors in all Better Work country programmes to assess enterprise compliance with international core labour standards, as well as national labour law. This brief provides an explanation of the legal standards underlying the questions in the Better Work CAT on Freedom of Association and Collective Bargaining. It is intended to serve as an annotation to the Better Work CAT, and is organized according to the structure of that document (by compliance point and question). As issues arise in applying the CAT, additional clarification of the standards will be incorporated.

ILO Conventions, Recommendations and supervisory body documents referred to in this brief

ILO Convention 87 (C.87): Convention concerning Freedom of Association and Protection of the Right to Organise

ILO Convention 98 (C.98): Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively

ILO Convention 135 (C.135): Convention concerning Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking

ILO Convention 154 (C.154): Convention concerning the Promotion of Collective Bargaining

ILO Convention 158 (C.158): Convention concerning Termination of Employment at the Initiative of the Employer

ILO Recommendation 91 (R.91): Recommendation concerning Collective Agreements

ILO Recommendation 94 (R.94): Recommendation concerning Consultation and Co-operation between Employers and Workers at the Level of the Undertaking

ILO Recommendation 143 (R.143): Recommendation concerning Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking

ILO Recommendation 163 (R.163): Recommendation concerning the Promotion of Collective Bargaining

ILO General Survey (1994): Freedom of Association and Collective Bargaining

ILO Digest of Decisions of the Committee on Freedom of Association (CFA Digest). “CFA Digest” citations refer to the 2006 edition, unless otherwise stated.

ILO Report of the Committee on Freedom of Association. Specific report and case numbers listed in citation.

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FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING

Compliance Point: Union Operations

1. Trade union representative’s access to workers in the workplace

Trade union representatives employed in the enterprise should have access to workplaces (including in the factory, on the premises, and in the free trade zone) so they can communicate with workers and carry out their representative functions.1 They should be able to communicate freely with their members as well as with non-members, provided they do not disrupt the company's regular operations.2 Employer consent may be required during times when workers are required to work, but free access should be allowed during breaks and before and after work.3 Access should not be restricted to a particular union(s).4 The employer should not unreasonably deny worker representatives the time off they need to carry out their representation functions (with no reduction in pay).5

Representatives of a union who are not employed in the factory, but whose union has members working in the factory also should be granted access (so long as this does not impair the factory’s efficient operation).6 When workers reside on the premises of the factory or industrial zone, suitable arrangements should be made to allow onsite access after work hours, even if the union does not have members employed by the factory.7 Access to free trade zones also should be provided during working hours, including so that

1

C.87, Art. 3 (workers' organizations have the right to organise their activities and formulate their programmes); C.135, Art. 2 (workers should be afforded appropriate facilities to enable them to carry out their functions promptly and efficiently without impairing the efficient operation of the enterprise); R.143, Arts. 9, 12 (workers' representatives in the enterprise should be granted access to all workplaces in the enterprise necessary for them to carry out their representation functions); General Survey, paras. 60 (workers in export processing zones have full rights to freedom of association), 128 (freedom of association implies the right of trade union officers to have access to places of work to organize their activities and defend the interests of their members); CFA Digest, paras. 1102-1104, 1106.

2 R.143, Art. 12; CFA Digest, paras. 1103 (trade union representatives should be granted access to workplaces,

with due respect for the rights of property and management, so they can inform workers of the advantages of unionizing), 1105 (trade union representatives who are not employed in the enterprise, but whose union has members working in the enterprise, should be granted access)

3 R.143, Arts. 9, 10(2) (employer’s consent is required before trade union representatives take paid time off

work to perform their representation functions)

4 CFA Digest, paras. 339-343 (governments and employers should not discriminate among unions)

5 R.143, Art. 10 (permission for union representatives to take paid time off work to perform their

representation functions should not be unreasonably withheld); CFA Digest, para. 1110 (citing cases involving time off for training, union meetings, and unspecified union activities)

6 R.143, Art. 17; CFA Digest, para. 1105

7 CFA Digest, para. 1108 (trade union officials should be granted access to the employer’s premises in order to

carry out union activities with farm workers, domestic workers and mining workers)

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union representatives can inform workers about the potential advantages of unionization. Permission can be required to enter the zone, but should not be unreasonably withheld.8

2. Workers’ rights to freely form and join the union of their choice

Workers should be able to form and join unions of their choosing without distinction, and without prior authorization.9 These rights should not restricted based on occupation, sex, colour, race, beliefs, nationality, political opinion,10 age,11 migrant status,12 contract type,13 probationary or training status,14 location in export processing zones,15 employment by one employer,16 retirement17 or dismissal from employment.18

The right to form a union exists even when one or more unions already exist in the enterprise, and includes forming a minority union in the factory, a second union or other

8 CEACR Individual Observation, C 87, Nigeria (2010)

9 C.87, Art. 2; CFA Digest, paras. 310, 338 (workers have the right to establish organizations outside of the

official trade union)

10 General Survey, paras. 45 (the right to organize is a general principle; exceptions are allowed only for the

armed forces and the police), 61 (restrictions relating to race, nationality, sex, opinion or political affiliation are not compatible with Convention 87); CFA Digest, para. 209-213

11 General Survey, para. 64 (some countries have legislative provisions concerning union membership of

minors). The Committee of Experts insists on the need to guarantee the right to organize of minors who have access to the labour market both as workers and as apprentices, without parental authorization being necessary (see, for instance, Senegal, Burkina Faso, Burundi, Djibouti, Mali, Mauritania – 2010.81 (obs. and direct requests)).

12 General Survey, paras. 63 (anyone legally residing in a country is entitled to trade union rights under C.87,

regardless of citizenship or nationality), 118 (foreign workers should be able to take up trade union office, at least after a reasonable period of residence in the country); CFA Digest, paras. 214 (migrants are protected under C.87), 215 (requirement of reciprocity for migrants’ trade union rights is not acceptable under C.87)

13 CFA Digest, para. 255 (referring to permanent and temporary workers, as well as contract workers)

14 CFA Digest, para. 256-259

15 General Survey, para. 60; CFA Digest, para. 264-266

16 CFA Digest, para. 271 (requiring that workers be employees of only one employer violates their rights to

freedom of association), citing CFA Digest 1996, para. 243; Report No. 284, Case No. 1622, paras. 648, 691 (workers having multiple employers (e.g., agricultural workers) are entitled to trade union rights)

17 CFA Digest, para. 270 (trade unions themselves can decide whether to represent the interests of retired

workers)

18 CFA Digest, para. 268 (prohibiting dismissed trade union activists from union membership deprives them of

their trade union rights, and risks dismissals of activists in order to prevent them from engaging in union activities)

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worker association.19 Any limits imposed on trade union diversity should be freely and voluntarily decided upon by the workers themselves.20

Workers also should be free to determine the structure and composition of unions.21 Workers have the right to elect their representatives in full freedom, free from interference by public authorities or employers regarding trade union elections, conditions of eligibility or the re-election or removal of representatives.22 Workers also should be able to organize their administration and activities and to formulate their programmes without interference by public authorities or by employers or employers’ organizations.23

It should be possible to join an enterprise and a branch union at the same time.24 Workers also should be able to resign from a union if they so choose, without encountering practical or financial difficulties.25

3. The right of union(s) to freely form and join federations and confederations of their choice

Unions can freely form and join federations and confederations of their choice.26 This right would be impaired, for example, if the law specifies the federations and confederations that can be established; requires an excessively large number of organizations in order to form a federation or confederation; prohibits multiple federations or confederations within an occupation, branch of activity or region; or if prior permission is required to establish higher-level organizations.27

An enterprise union should have the right to join the federation and confederation of its choice without any previous authorization, subject to the rules of the federation or confederation concerned. The federations and confederations themselves can decide

19

C.87, Art. 2 (workers have the right to establish organizations of their own choosing); CFA Digest, paras. 313-326, 328; 337th Report, Case No. 2371 (minimum membership requirement in order to form a workers’ organization should be amended to avoid obstacles to freedom of association)

20 CFA Digest, para. 322


22 C.87, Art. 3; General Survey, para. 112

23 C.87, Art. 3


25 CFA Digest, para. 361 (requirements to resign that entail practical difficulties for workers may restrict their

right to join organizations of their choosing)

26 C.87, Art. 5

27 General Survey, para. 191

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whether or not to accept the affiliation of a trade union, in accordance with their own constitutions and rules.28

4. Employer deduction of union dues from wages upon worker’s request (if required under national law)

If required by national law, the employer should deduct union dues from wages upon workers’ request, regardless of whether they are members of the most representative union or another union.29 National law may specify the relevant procedures. The employer should not delay significantly in remitting the dues withheld to the union.30 If a check-off system is used, it should not be withdrawn, since this could lead to financial difficulties for the union(s).31

It is acceptable under international standards to require that workers confirm their trade union membership in writing in order to have their union dues deducted from their wages.32 However, additional requirements should not be imposed (the employer should only require evidence of members’ affiliation and disaffiliation.)33 Absent other arrangements for the collection of trade union dues, workers’ representatives who are authorized to do so by the trade union should be allowed to collect dues regularly on the premises of the enterprise.34

Special rules may apply in situations where union security clauses are in place, for example, requiring all workers, regardless of whether they are trade union members, to pay union dues.35 Laws that designate a specific trade union as the recipient of union dues can lead to a trade union monopoly and are not compatible with C.87. However, provisions that require the deduction at source of contributions by all workers, whether or not they are union members, to a majority union, without mentioning a specific trade union, are compatible with C.87.36

5. Private meeting space at the workplace (if required under national law)

28

CFA Digest, para. 722

29 CFA Digest, para. 477 (workers can choose to have their wages deducted under the check-off system for the

union of their choice, even if the union is not the most representative)




33 CFA Digest, para. 478 (as an example, requiring workers’ identity documents, union membership card, a

membership list and an affidavit by the union’s General-Secretary affirming the list, and the posting of the list on the employer’s website in order to deduct union dues from wages is excessive and violates principles of freedom of association)

34 R.143, Art. 14


36 General Survey, para. 102-03

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If required by national law, the employer should provide workers with a private meeting space. If there are multiple unions in the enterprise, the employer should treat them equally in this regard.37

6. Requiring workers to join a union

Absent a valid union security clause in a collective agreement or arbitration award that requires workers to join a union, workers should not be forced to join a union. Laws that require workers to join a union can lead to a trade union monopoly, and run counter to the right to join the union of one’s choosing established under C.87.38 (Union security clauses are acceptable under international standards so long as they are freely negotiated between the union and employer.)39

7. Compliance with union security clauses

Union security clauses are used to ensure the membership and funding of unions. These clauses may require employees to join the union, or they may require an employer to hire only union employees, or to deduct union dues from non-union employees.40 Under international standards, it is acceptable for a country’s laws to allow for union security clauses, or to forbid them.41 However, in order for these clauses to be compatible with C.87, they must be freely negotiated between the union and the employer.42

8. Financial or other support provided by the employer to the union (as required by national law)

Laws may allow employers to contribute to the financing of trade unions or to provide advantages to unions such as premises or facilities. Although this is acceptable under international standards, the employer’s support should not have the effect of allowing the employer to control a union, or favouring one union over another.43 A law requiring the employer to financially support a single national trade union on behalf of all workers

37

C.135, Art. 2 (appropriate facilities should be afforded to workers' representatives); R.143, Arts. 9, 16; General Survey, para. 104 (affording meeting space to one union and not others may place one union at an advantage and influence the choice of workers regarding which union to join, in violation of C.87)

38 C.87, Art. 2; General Survey, para. 103; CFA Digest, para. 363 (distinguishing between union security clauses

allowed by law, and those imposed by law)




42 General Survey, para. 102; CFA Digest, para. 480 (when the law allows for trade union security clauses, such

as the withholding of dues from the wages of non-members, these should only take effect through collective agreements)


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(whether they are members or not) would run counter to international standards, because it would serve to further strengthen the union monopoly.44

Laws may require the employer to provide unions a place to post notices that relate to normal trade union activities. The employer can manage the posting of notices to ensure the orderly operation and tidiness of the enterprise.45

Compliance Point: Interference and Discrimination

Anti-union discrimination, which is expressly prohibited under C.98, is one of the most serious violations of freedom of association, because it can jeopardize the existence of unions.46 Employers should not discriminate against workers based on their past or present trade union membership or activities.47 In addition, unions should be independent from employers in carrying out their activities.48 Protection against acts of interference and anti-union discrimination is particularly desirable for trade union officers and representatives.49

1. Promoting the formation of a workers’ organization to compete against existing union(s)

One way in which an employer can interfere with union affairs is by promoting or supporting the establishment of an employer-dominated workers’ organization in order to undermine existing unions.50 Interference would be indicated if an employer exerts pressure to establish a parallel or puppet union, dismisses trade union officers of an existing trade union and promotes the establishment of another trade union, 51 or promotes the establishment of an employer-dominated workers’ organization that undertakes trade union activities, such as collective bargaining.52

2. Workers’ freedom to meet without management present

44


45 R.143, Art.15

46 C.98, Art. 1 (workers are protected against acts of anti-union discrimination in employment); CFA Digest,

para. 769


48 C.98, Art. 2 (workers' organizations should be protected against any acts of interference by employers in

their establishment, functioning and administration)


50 C.98, Art. 2(2) (acts designed to promote the establishment of workers' organizations that are dominated by

employers constitute interference in violation of C.98)

51 General Survey, para. 231. Interference also was indicated when a member of government who served as a

trade union leader representing several categories of workers employed by the State.

52 CFA Digest, paras. 869-879

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If the employer attends trade union meetings, this may influence the deliberations and the decisions taken (especially if the employer participates in the proceedings), and can constitute an act of interference incompatible with the freedom to hold trade union meetings.53 If there is frequently a management representative at the workers meetings without them having been invited, it is a strong indicator of interference.

3. Equal treatment of multiple unions

The employer should treat all unions in the enterprise equally (or as required under national law). Otherwise, there is the risk that the employer may influence the workers’ choice regarding which union they join, in violation of C.87.54 In general, the employer should adopt a neutral attitude in dealing with unions.55 Examples of unequal treatment include not allowing all unions equal access to space for posting notices, or to premises for meetings or activities,56 or refusing to recognize or meet with the leaders of some unions.57

Unequal treatment in representation (for example, in collective bargaining) is acceptable when national law allows for distinctions among unions based on the number of members they have. Most representative unions may be granted priority in collective bargaining, consultation by governments, and/or for nominating delegates to international bodies.58 The determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse.59 However, smaller unions still must be able to organize their administration, activities and programmes, and to defend the interests of their members, for example, by representing them on individual claims.60

4. Interference with, manipulation or control of the union(s)

Interference is indicated when the employer acts in an effort to dominate, control or undermine workers' organizations.61 For example, if employer representatives are involved 53

CFA Digest, paras. 130 (unions should be free to meet on their premises without interference by the authorities), 131 (the right to organize meetings is an essential aspect of trade union rights), 132 (attendance of public authorities at union meetings may constitute interference), 859 (public authorities, but even more importantly, employers must refrain from intervening in internal union affairs)


55 CFA Digest, paras. 341, 343

56 CFA Digest, paras. 340, 342, 345 (in the context of equal treatment of unions by the government)





61 C.98, Art. 2(2) (acts designed to establish employer-dominated unions, or to place unions under the

employer’s control constitute interference); CFA Digest, para. 864 (undermining unions through artificial promotions violates principles of freedom of association)

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in union decision-making; the formation of the union’s constitution and rules; the composition of the union’s executive board; or in the union’s activities, correspondence, administration, finances or elections, interference in union affairs would be indicated.62 However, the mere fact that supervisors or managers are union members is not by itself sufficient to indicate interference. Their presence in the union may be acceptable if workers freely chose to include them as members, and their presence does not impede the ability of the union to represent the interests of workers. Workers must be able to freely express their interests, and the union must be oriented to genuinely advocate on their behalf.

Interference would be indicated if the employer tries to gain control of the union by financing it in a way that is not intended by national law.63 Employers also might try to undermine a union by offering bribes to union members to withdraw from the union,64 or by artificially promoting union officials in an effort to hamper their participation in union affairs. 65

5. Union membership or union activities factored into hiring decisions

Workers should not be subject to discrimination during hiring based on their union membership or union activities.66 For example, an employer should not condition an applicant’s employment upon the applicant’s not joining a union or upon giving up trade union membership.67 Laws should allow for job applicants to appeal against anti-union discrimination during hiring even though they are not employees.68

6. Use of blacklists to ensure that union members or union officials are not employed

Blacklists are used to identify individuals based on their union membership or union activities, so the information can be factored into hiring decisions. The strength of blacklisting lies in its secrecy. Although it is important for employers to obtain information about prospective workers, workers who engaged in trade union activities or workers who are current or former union members should not be discriminated against on those grounds. Moreover, prospective workers should be informed about the information held on

62

General Survey, para. 231; CFA Digest, paras. 455, 857 - 859, 867, 868, 876

63 C.98, Art. 2(2) (financially supporting workers' organizations in order to place them under control constitutes

interference); General Survey, para. 229



66 General Survey, paras. 203 (protection against anti-union discrimination applies both at hiring and during

employment; the employer’s recognition of freedom of association is a necessary corollary to recognition of these rights by the State), 210 (protection provided for under C.98, Article 1 covers recruitment, employment, and termination)

67 C.98, Art. 1(2)(a)


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them.69 All practices involving the blacklisting of trade union officials or members constitute a serious threat to trade union rights.70

7. Punishing workers for joining a union or engaging in union activities

Workers are protected against discriminatory treatment that is based on their union membership or participation in union activities outside working hours or, with the consent of the employer, during working hours.71 This protection extends to members of unions representing a majority of workers, as well as to minority union members.72 Punishing workers could involve transferring, relocating, downgrading or demoting them, denying them the opportunity to work overtime, reducing their wages, benefits, or opportunities for vocational training, or changing their conditions of work.73

8. Providing incentives to workers to keep them from joining a union or engaging in union activities

The employer should not encourage workers to refrain from union membership or activities. Granting bonuses to non-unionized workers, but not to union members (even if not all non-unionized workers were included); providing bonuses to workers who do not participate in a strike;74 and providing a pay raise to workers who give up the right to bargain collectively all would be considered acts of anti-union discrimination in violation of C.98.75

9. Threatening, intimidation of or harassment of workers who join a union or engage in union activities

Harassment or intimidation of workers based on trade union membership or activities may violate their right to organize by discouraging workers’ membership in organizations of their choice.76 Threats, intimidation or harassment could include threats to terminate, illegal or unreasonable searches, the use of violence or force, unwarranted presence of the police or

69



71 C.98, Art. 1


73 General Survey, para. 212. The various forms of discrimination in employment are covered under Article

1(2)(b) of C.98 as acts which otherwise prejudice a worker. CFA Digest, paras. 781, 802.


75 CFA Digest, para. 1058; CFA Digest 1996, para. 913; Report No. 294, Case No. 1730, para. 200: (“by

proposing a substantial pay raise to the workers who accepted individual contracts and gave up collective representation, and refusing it to those workers who did not, the employers were offering a sweetener which removed much of the interest of being a trade union member”)


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the military, or use of the courts to bring illegitimate claims against individual unionists.77 Dismissal of a trade union leader for anti-union reasons followed a few days later by reinstatement could amount to intimidation aimed at preventing the free exercise of trade union functions.78

10. Non-renewal of a worker's employment contract due to the worker's union membership or activities

The non-renewal of a worker’s contract for anti-union reasons runs counter to C.98.79

11. Termination of employment for joining a union or engaging in union activities

Workers are protected against dismissal due to their union membership or participation in union activities outside working hours or, with the consent of the employer, during working hours.80 Dismissal is one of the most obvious forms of anti-union discrimination and it has very serious consequences.81 Dismissal of union leaders can threaten the existence of the union.82 Staff reductions based on economic necessity should not be used as a pretext to carry out acts of anti-union discrimination.83

If anti-union discrimination is suspected as the reason for a worker’s employment termination, the employer can be asked to provide information showing that the termination was not related to the worker’s union membership or activities.84 Although workers and trade union leaders should not be dismissed due to their union membership or activities, they are not immune to dismissal for valid reasons.85 For example, dismissal of trade unionists for unexcused absence while they attended a workers’ education course would not necessarily run counter to C 98.86

77

CFA Digest, para. 786 (citing a case involving the illegal arrest and detention of trade union leaders, and harassment, threats and acts of intimidation against trade union members by government officials and management)



80 C.98, Art. 1(2)(b); CFA Digest, para. 789; this includes compulsory retirement (CFA Digest, para. 793)


82 CFA Digest, para. 769 (citing a case involving dismissal of trade union leaders)


84 General Survey, para. 217 (due to the difficulties of proving that a worker has been a victim of anti-union

discrimination, legislation or practice should address this, for example by placing the burden of proof on the employer to show that the act was based on non-discriminatory reasons, or by establishing a presumption in the worker's favour), and para. 218 (citing provisions in C.158 and R.143 that place the burden of proof on the employer for invalid termination, and discriminatory dismissal or changes in working conditions, respectively)



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12. Termination of employment of a union official in a way that does not comply with the law

National laws may seek to prevent dismissals of union officials for discriminatory reasons by requiring prior authorization by an independent body or public authority, or by compensating dismissed union officials for the harm suffered. Reinstatement with full pay for back wages should be available as a remedy. However, if reinstatement is not possible for objective and compelling reasons, the dismissed worker should be paid compensation that provides a sufficient deterrent against anti-union dismissals.87 In all cases, quick, fair, and inexpensive means of redressing grievances caused by anti-union discrimination should be provided.88

Compliance Point: Collective Bargaining

Collective bargaining includes all negotiations that take place between an employer and a workers' organization to determine working conditions and terms of employment, or to structure relations between an employer and workers or between their organizations.89 Collective bargaining agreements are written agreements regarding working conditions and terms of employment concluded between an employer and representative workers' organization(s).90

1. Consulting with unions where legally required

Consultation and cooperation between employers and workers should be encouraged on matters of mutual concern that are not normally dealt with through collective bargaining.91

For example, national law may require the employer to consult with unions regarding business decisions that have a collective impact, such as workforce restructurings or mass layoffs.92

2. Refusal to bargain collectively or to bargain in good faith with the union or worker representatives

87

General Survey, paras. 214-216; see also, for example, Report No. 359, Case No. 2760, para. 1176; Report No. 359, Case No. 2769, para. 484; Report No. 356, Case No. 2362, para. 599

88 General Survey, para. 216; CFA Digest, paras. 817, 820

89 C.98, Art. 4; C.154, Art. 2 (this includes negotiations between one or more employers or employers’

organization(s) on the one hand, and one or more workers' organizations on the other)

90 R.91, Art. 2 (this includes agreements between one or more employers or employers’ organization(s) on the

one hand, and one or more workers' organizations on the other; in the absence of representative workers’ organizations, the representatives of the workers duly elected and authorised in accordance with national law may conclude a CBA)

91 R.94, Art. 1

92 C.158, states that when the employer is considering terminations for economic, technological, or structural

reasons, workers' representatives should be consulted (Article 13). See also, General Survey, para 213; CFA Digest, paras. 1080-1083

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As noted above, collective bargaining includes all negotiations that take place between an employer and one or more workers' organizations to determine working conditions and terms of employment, or to structure relations between an employer(s) and workers, or between their organizations.93 Collective bargaining should be available for all groups of workers, including, for example, workers in export processing zones, contract workers, temporary workers and migrant workers.94

The employer should recognize representative trade unions for purposes of collective bargaining (subject to provisions on most representative status).95 At the same time, it is acceptable for national law to require that trade unions be registered in order to engage in collective bargaining, so long as the conditions required for registration are not excessive.96

It is acceptable, if provided for under national law, for the most representative unions to be granted priority in representation for purposes of collective bargaining.97 It is also acceptable for national law to provide a compulsory procedure for recognizing unions as exclusive bargaining agents. However, in this case, the certification should be made by an independent body; workers should choose the representative union by majority vote; and unions that fail to secure enough votes, as well as new unions, should have the right to request a new election after some time has elapsed.98 If no union meets the requirements for exclusive bargaining rights, or if no such exclusive rights are recognized, all unions within the bargaining unit should be able to bargain collectively, at least on behalf of their own members.99

Negotiations should be carried out in good faith, with both parties negotiating with the expectation and willingness to compromise, discuss and reach a mutually agreed solution. Both parties should make every effort to reach an agreement through genuine and constructive negotiations. Unjustified delays in holding negotiations should be avoided.100 A failure to reply to a statement of claims would run counter to the principle of good faith.101

93

C.154, Art. 2

94 C.154, Art. 5(2)(a); CFA Digest, paras. 264-266, 898, 906




98 General Survey, para. 240 (a fixed period of time to request a new election may be set for existing unions,

while a reasonable period of time is appropriate for new unions); CFA Digest, para. 970 (if there is a change in the relative strength of unions, it should be possible to revisit the bases on which exclusive bargaining rights have been granted)

99 General Survey, para. 241; CFA Digest, paras. 976-78



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3. Undermining the union(s) by negotiating directly with individual workers

Where trade unions exist, the employer should normally bargain with the union(s) (at the enterprise, federation, or confederation level, as determined by the unions). In the absence of unions, worker representatives, elected and authorized by workers, may be able to bargain collectively on behalf of workers in accordance with national law.102 However, if a union exists, the employer should not try to undermine it by negotiating directly with the worker representatives.103

When an enterprise has both trade union representatives and elected worker representatives, the presence of the elected representatives should not be used to undermine the position of the trade unions.104

The same holds true for individual workers—the employer should not undermine the union(s) by negotiating directly with individual workers.105 For example, the employer should not offer better working conditions to non-unionized workers under individual agreements while collective bargaining is ongoing, because this would likely undermine the negotiating capacity of the trade union, discriminate against the unionized staff, and it could also encourage unionized workers to withdraw from the union.106

4. Refusal to bargain collectively with union federations and confederations

Collective bargaining should be possible at any level whatsoever, including that of the establishment, the undertaking, the branch of activity, the industry, or the regional or national levels. Where collective bargaining takes place at several levels, the parties to negotiations should seek to ensure that there is co-ordination among these levels.107 The right to bargain collectively should also be granted to federations and confederations. They may be able to help enterprise-level unions, since they may be better equipped to engage successfully in collective bargaining in terms of staff, funds and experience. Employers and unions themselves should decide on the level(s) at which they each bargain.108

5. Limiting the issues that can be negotiated

All issues relating to working conditions and terms of employment should be open to negotiation.109 In addition, issues pertaining to the relations between the parties such as 102

C.154, Art. 3(1)

103 C.154, Art. 3(2); CFA Digest, para. 946

104 C.135, Art. 5; C.154, Art. 3; CFA Digest, para. 946



107 R.163, Article 4



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facilities for worker representatives, dispute resolution procedures, and mechanisms for cooperation, communication and consultation on issues of mutual concern are subject to negotiation.110 Restrictions on the scope of bargaining regarding the type of employment contracts to be offered to workers, wages, benefits and allowances, working time, rest periods, annual leave, the coverage of the collective agreement, the granting of trade union facilities including access to the workplace, collection of union dues, boycott clauses, mandatory retirement, selection criteria in case of redundancy, pre-dismissal rights and indemnities all have been found to be improper.111 However, matters that pertain essentially to the management and operation of the business are outside the scope of negotiation.112

6. Provisions in the collective agreement being at least as favourable for workers as the law

If the collective agreement does not provide workers more than what is already required by law, this may indicate that the union is not independent. Collective agreements requiring approval by the authorities may be rejected on the grounds that the collective agreement does not conform to the minimum standards laid down in the labour legislation.113 National laws often prohibit clauses in collective agreements that fall short of national legal requirements.

7. Workers’ access to collective bargaining agreements

National law may require employers to make available to workers the texts of the collective agreements that apply to them.114

8. Failure to implement the provisions of the collective agreement(s) in force

Collective agreements are binding on the parties.115 Implementation of the commitments agreed to in collective agreements is a key element of the right to bargain collectively, and is necessary for stable labour relations.116 Failure to implement a collective agreement, even on a temporary basis, violates the right to bargain collectively, as well as the principle of bargaining in good faith.117

110

C.154, Arts. 2, 5; C.135, Arts. 2, 4; Gernigon B, Odero A, Guifo H, Collective Bargaining: ILO Standards and the Principles of the Supervisory Bodies, International Labour Office (2000) at 25.

111 CFA Digest, paras. 912-917, 919-921, 924



114 R.91, Art. 8




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Compliance Point: Strikes

A strike is any form of collective action by workers arising out of a labour dispute in which working time is lost. It can include complete work stoppages, sit-ins, working to rule, go-slows and overtime bans.118 Although the right to strike is not explicitly stated in the ILO Constitution, the Declaration of Philadelphia, or C.87 or C.98, it is recognized as falling within the right of workers’ organizations to organize their activities under Article 3 of C.87.119 The right to strike is therefore a corollary of the right to organize protected under C.87.120 However, it is not an absolute right—it may be subject to a general prohibition in exceptional circumstances, and also may be subject to conditions and restrictions as established under national law.121

Requiring the parties to submit to compulsory arbitration to end a collective labour dispute and/or a strike is acceptable if both parties request it, or if the strike in question may be restricted or banned, for example, in disputes involving essential services (services whose interruption would endanger the life, personal safety or health of the population).122 Compulsory arbitration should not, however, be imposed in a way that prevents strikes from taking place.123 Temporarily restricting workers from going on strike until all available dispute resolution procedures have been exhausted is acceptable so long as the parties can take part at every stage, and the dispute resolution mechanisms are impartial and rapid.124

Laws also may require workers to give prior notice to the employer before going on strike,125 or to take strike decisions by secret ballot.126 The right to strike can be subject to

118


119 General Survey, paras. 142, 149

120 General Survey, paras. 142-151; CFA Digest, para. 523

121 General Survey, para. 151. For example, a minimum level of service could be required when workers are

performing (1) essential services (whose interruption would endanger the life, safety, or health of the population), (2) services whose interruption could result in acute national crisis, and (3) public services of fundamental importance. CFA Digest, para. 606. While allowing the large majority of workers to go on strike, minimum services would ensure that users' basic needs are met and that facilities operate safely or without interruption. (General Survey, para. 162) If the right to strike is restricted or prohibited, workers should be afforded compensatory guarantees, such as impartial and rapid conciliation, mediation, and arbitration procedures. (General Survey, para. 164) Garment production would not justify the establishment of a minimum level of service.






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the agreement of a certain percentage of workers.127 However, it is not acceptable to require an absolute majority of workers or union members to vote in support of a strike, because this may make it excessively difficult to wage a legal strike.128

1. Preventing workers from participating in a strike

The employer should not prevent workers from exercising the right to strike. If a strike is illegal, this should be determined by an independent body, not by a party to the dispute or by the government (e.g., the ministry of labour).129 Back-to-work orders are only appropriate to address situations in which the life, health or personal safety of the general population might be endangered as a result of the strike.130

2. Hiring new workers to replace striking workers during a strike

The maintaining of the employment relationship is a normal legal consequence of recognition of the right to strike.131 Hiring workers to replace those on strike is permissible only if the striking workers were performing essential services or if the strike could result in acute national crisis.132 Essential services are those whose interruption would endanger the life, personal safety or health of all or part of the population.133 (Garment production is not considered an essential service.)

3. Punishment of workers for participating in a strike

Workers should not be penalized for carrying out or attempting to carry out a legitimate strike,134 either through dismissal or during employment.135 Examples of punishment include deducting more wages than those corresponding to the days lost during the

127

Report No. 333, Case No. 2251, para. 987 (while the requirement to observe a certain quorum to take strike

action may be acceptable, the observance of a two-thirds quorum of workers may be difficult to reach)

128 CFA Digest paras. 555-561. The Committee of Experts has observed that legal provisions requiring a certain

percentage of all registered union members to vote in favour of a strike should be revised to take into account only the votes cast. CEACR Individual Observation, C 87, Nigeria (2010)

129 CFA Digest, paras. 628 (the government should not have responsibility for declaring a strike illegal), 630 (the

heads of public institutions should not have the authority to declare a strike in the public service illegal, because this would render them both judge and party to the dispute); Report No. 330, Case No. 2208, para. 599 (minister of labour should not have responsibility for declaring a strike illegal).



132 General Survey, para. 175; CFA Digest, paras. 632, 633, 636

133 General Survey, para. 159; CFA Digest, paras. 581-583


135 Report No. 307, Case No. 1890, para. 372

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strike,136 dismissing workers,137 failing to renew workers' fixed-term contracts,138 deportation,139 reducing benefits or seniority, transferring or downgrading,140 imposing heavier workloads,141 prohibiting the trade union’s activities or ceasing to allow the check-off of trade union dues.142 Termination of employment may be justified if the striking worker engaged in serious misconduct or criminal acts.143 For example, if strikers engage in violence, or if they fail to respect the freedom of non-strikers to work or the right of the enterprise management to enter the premises, their conduct could be considered serious misconduct.144

No penal sanction or measures of imprisonment should be imposed against a worker for having carried out a non-violent strike. Penal sanctions are permissible only where violence against persons or property, or other serious infringements of rights, have been committed during a strike, and where they can be imposed under laws that punish such acts. No one should be arrested, imprisoned or deported for organizing or participating in a peaceful strike.145

Nevertheless, even in the absence of violence, if the manner in which the strike was carried out made the strike illegitimate, proportionate disciplinary sanctions may be imposed against strikers. All penalties linked to illegitimate strikes should be proportionate to the offence or fault committed.146

4. Failure to reinstate all eligible workers after a strike

136

CFA Digest, paras. 654, 655

137 General Survey, para. 179; CFA Digest, para. 661-663

138 CFA Digest, para. 785 (non-renewal of contract for anti-union reasons constitutes a violation of C 98)



141 CFA Digest, paras. 660, 665 (requiring overtime to compensate for a strike)


143 General Survey, para. 178 (sanctions should be proportionate to the seriousness of the wrongdoing); CFA

Digest, para. 667 (freedom of association principles do not protect criminal acts while exercising the right to strike)

144 CEACR Direct Request, C 87, Congo (2010). It is acceptable for strikers to firmly but peacefully incite other

workers to keep away from their workplace. However, violence or coercion of non- strikers is not acceptable.


146 The Committee of experts has underlined these principles on several occasions in the past decade (see for

example: CEACR Direct Request, C87, Democratic Republic of the Congo (2010); CEACR Observation, C87, Nigeria (2010); and CEACR Observation, C87, Syrian Arab Republic (2010)

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Refusal to re-employ workers who were dismissed because they went on strike runs counter to the right to freedom of association.147 It does not matter whether the dismissals occurred before, during or after the strike, so long as the purpose was to impede or penalize workers exercising their right to strike.148 However, as mentioned above, termination of employment may be justified if the striking worker engaged in serious misconduct or criminal acts.149 Workers should have the right to challenge the fairness of a dismissal before an independent court or tribunal.150

5. Calling in security guards, the police or armed forces to break up a non-violent strike or arrest striking workers

The police may be called upon to maintain public order during a strike, but they should not be used to restrict the legitimate exercise of the right to strike.151 The use of force should only be used in grave situations where law and order is seriously threatened.152

147



149 General Survey, para. 178 (sanctions should be proportionate to the seriousness of the wrongdoing); CFA

Digest, para. 667 (freedom of association principles do not protect criminal acts while exercising the right to strike)




legal brief underlying better work’s compliance ... for them to carry out their representation...

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