FREEDOM OF ASSOCIATION AND THE RIGHT TO COLLECTIVE BARGAINING Advocate
Core Labour Standards of the ILO Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) Right to Organize and Collective Bargaining Convention, 1949 (No. 98) Forced labour Convention, 1930 (No. 29) Abolition of Forced Labour Convention, 1957 (No. 105) Minimum Age Convention, 1973 (No. 138) Worst Forms of Child Labour Convention, 1999 (No.182 Equal Remuneration Convention, 1951 (No.100) Discrimination (Employment and Occupation) Convention, 1958 (No. 111)
FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANIZE CONVENTION, 1948 (NO. 87) Art.2 Workers and employers, without distinction whatsoever, shall have the right to establish and subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization. affirms the right of all workers to establish free and independent organizations. without distinction whatsoever indicates the universal scope of the right. All categories of workers are entitled to form and join organizations of their own choosing. Managerial and supervisory employees and public servants would also be entitled to this right. The supervisory bodies have considered that the right to establish and join organizations should be guaranteed for all public servants and officials, whether permanent or temporary.
Only exception- Article 9 of the Convention- States may determine the extent to which the guarantees provided for in the Convention apply to the armed forces and the police. This exception has been made considering their responsibility for the external and internal security of the state. The ILO supervisory bodies have held that the personnel who are placed within the categories of the armed forces and the police must be strictly defined and that civilians working in the services of the armed forces should enjoy the right to form and join trade unions without previous in the same way as other workers. The exception would not cover fire service personnel and the prison staff. without previous authorisation Permission from state authorities should not be necessary for the establishment of organizations. Authorities should not have the discretionary power to refuse the establishment of an organization. of their own choosing indicates that workers are entitled to exercise their free choice in respect of the membership of organizations.
Legislative provisions that prescribe an unreasonably high minimum membership requirement restrict trade union pluralism, would not be compatible with the requirements of Article 2 of Convention No. 87. The supervisory bodies have held that any unequal treatment compromises the right of workers to form and join organizations of their own choosing. Example: premises for holding meetings and activities provided to one organization and not to another. Senior public officials-the ILO supervisory bodies have taken the view that to bar senior public officials from the right to join trade unions which represent other workers is not necessarily incompatible with the principles of freedom of association but on two conditions: Senior public officials should be entitled to establish their own organizations to defend their interests; Legislation should limit this category to persons exercising senior managerial or policy making responsibilities.
Art. 3 1. Workers and employers organizations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. Article 3 guarantees to workers organizations the following four rights: The right to draw up their constitutions and rules National legislation can lay down formal requirements regarding trade union constitutions. Legislative provisions in this regard should not be overly detailed. The right to elect their representatives in full freedom Conditions for the leadership of trade unions and electoral procedures should be left to be determined by trade unions themselves. The right to elect representatives in full freedom would be violated if the law provides for arbitrary interference by the authorities in elections or control by the authorities over the electoral procedure.
The right to organize their administration and activities Organizations should have the greatest possible autonomy for their functioning and administration without the interference or intervention of the public authorities. Applies to financial management as well. The right to organize their activities in full freedom includes the right to hold trade union meetings the right of trade union officers to have access to places of work and to communicate with the management any activity involved in the defence of members rights the right to strike. The right to formulate their programmes Legislative provisions that restrict any of these rights would not be compatible with Article 3 of the Convention.
Right to strike The ILO supervisory bodies have affirmed that The right to strike is one of the essential means available to workers and their organizations for the promotion and protection of their economic and social interests. It is an intrinsic corollary of the right to organize protected by Convention No. 87. The right to strike may be restricted only in the case of Public servants exercising authority in the name of the state; Essential services in the strict sense of the term-that is, those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. Situations of acute national or local crisis The problem lies when the definition of essential services is too broad. Or, if the authorities have too much discretion to determine a service as essential. Services considered not essential: transport, postal services, education sector, municipal services etc.
Services considered essential: air traffic control services, fire fighting services, ambulance and health services, water and electricity services, prison services. In such a case, the concerned workers should be afforded compensatory guaranteesconciliation and mediation procedures and arbitration. The supervisory bodies have considered that in other services of public utility, the authorities could establish a system of minimum service limited to operations that are strictly necessary to meet the basic needs of the population or the minimum requirements of the service while maintaining the effectiveness of the pressure brought to bear. They have also held that workers organizations should be able to participate in defining such a service along with employers and the public authorities. Legislative provisions that make it virtually impossible for workers to exercise their lawful right to strike would not be compatible with Convention No. 87. The legitimate exercise of this right should not result in sanctions of any sort.
Art. 4. Workers and employers organizations shall not be liable to be dissolved or suspended by administrative authority. Article 4 affords a guarantee against arbitrary dissolution or suspension by administrative authority. Judicial safeguards need to be in place under the law in order to avoid the risk of arbitrary action. ****** Art. 5. Workers and employers organizations shall have the right to establish and join federations and confederations any such organization, federation or confederation shall have the right to affiliate with international organizations of workers and employers. Article 5 guarantees to workers organizations the right to form and join federations that in turn may form and join confederations. First level organizations as well as federations and confederations have the right to be affiliated to international organizations. As per Article 6, the guarantees afforded under Articles 2, 3 and 4 of the Convention apply to federations and confederations of workers organizations as well, that is, they should enjoy the various rights accorded to first level organizations.
RIGHT TO ORGANIZE AND COLLECTIVE BARGAINING CONVENTION, 1949 (NO. 98) The Convention seeks to Protect workers exercise of their right to organize vis a vis employers; Protect workers and employers organizations against interference by each other Promote collective bargaining. The Convention applies to all workers with the exception of Personnel in the armed forces and the police. Article 5 of the Convention provides that the extent to which the guarantees provided in the Convention shall apply to personnel in the armed forces and the police shall be determined by national laws or regulations. Public servants engaged in the administration of the State. Article 6 of the Convention provides that the Convention does not deal with the position of public servants engaged in the administration of the State nor shall it be construed as prejudicing their rights or status in any way.
Art. 1(1). Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. Examples: Unjust dismissals, suspension, transfer and demotion of workers are examples of such acts. Such acts amount to a denial of the freedom of association in practice. Such protection should be extended to workers both at the time of taking up employment and in the course of employment including the termination of the employment relationship. The ILO supervisory bodies have considered that such protection is particularly desirable in the case of trade union officials in order for them to be able to perform their trade union duties in full independence. In order to ensure adequate protection, legislation should explicitly prohibit all acts of anti-union discrimination at the time of recruitment and during the employment relationship; reinstatement and/or adequate monetary compensation for the affected workers should be provided for under the law; sufficiently dissuasive sanctions against such acts should be provided for under the law; and rapid and effective legal procedures should be in place.
Art. 2(1) Workers and employers organizations shall enjoy adequate protection against any acts of interference by each other or each other s agents or members in their establishment, functioning or administration. Examples: Offering bribes to union members to encourage their withdrawal from union membership and efforts by employers to create yellow unions or puppet unions In order to ensure adequate protection against acts of interference, legislation should explicitly prohibit all acts of interference in the establishment, functioning or administration of workers organizations; sufficiently dissuasive sanctions against such acts should be provided for rapid and effective legal procedures should be in place.
Collective Bargaining Art. 4. Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers organizations and workers organizations, with a view to the regulation of the terms and conditions of employment by means of collective agreements. Collective bargaining-all negotiations between employers/organizations and workers organizations for determining terms and conditions of employment and regulating relations between them. (C 154) Benefits it contributes to the establishment of just and equitable working conditions and other benefits provides a basis for preventing labour disputes it helps determine procedures for the settlement of certain specific problems
Collective bargaining Ways of promoting collective bargaining : Making collective bargaining available to all groups of workers and employers as far as possible National laws and procedures to facilitate collective bargaining recognition of workers organizations, allowing bargaining to take place at any level, providing training on collective bargaining, establishing machinery that facilitates bargaining, access to information for meaningful negotiations. Measures to be taken after prior consultation and where possible, by agreement between public authorities and employers and workers organizations.
Collective bargaining Recognition Recognition by an employer of the main unions represented in the enterprise or bargaining unit or the most representative of these unions constitutes the very basis for any procedure of collective bargaining at the enterprise level. The ILO supervisory bodies have held that determination of the most representative union for collective bargaining purposes should be based on Objective and pre-established criteria; Certification should be made by an independent body.
Exceptions: Article 5: Police and armed forces-extent to which the guarantees of the Convention will apply will be determined by national laws and regulations. Article 6: This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way. Applies only to public servants who by their functions are directly employed in the administration of the state (for example, civil servants employed in government ministries and other comparable bodies as well as ancillary staff)
Related Conventions Labour Relations (Public Service) Convention, 1978 (No.151)-requires ratifying States to promote machinery for negotiation or such other methods as will allow representatives of public employees to participate in the determination of the terms and conditions of employment in the public service. Only high-level employees whose functions are normally considered as policy making or managerial and employees whose duties are of a highly confidential nature and armed forces and the police may stand excluded from the scope of the Convention. Article 8 of the Convention provides for the settlement of disputes arising in connection with the determination of the terms and conditions of employment. Collective Bargaining Convention, 1981 (No. 154) It is applicable to all branches of economic activity. As regards the public service, it is provided that special modalities of application of the Convention may be fixed by national laws or regulations or national practice.
Collective bargaining Special modalities for the public service Upper or lower limits for wage negotiations could be set or overall budgetary package within which parties may negotiate Financial authorities could be given the right to participate in bargaining alongside the direct employer Directives framed after consultation with organizations of public employees regarding the subjects that can be negotiated, the levels at which bargaining should take place and who the negotiating parties should be.
ILO Declaration on Fundamental Principles and Rights at Work All states irrespective of whether or not they have ratified C 87 and C 98 have an obligation to respect, promote and realize the rights contained in C87 & 98.
Supervisory Mechanisms of the ILO
Main Supervisory Body of the ILO Committee on Application of Conventions and Recommendations (CEACR); Special Supervisory Mechanism / Complaints Mechanism; Committee on Freedom of Association (CFA)
ILO Supervisory Mechanisms Committee on Application of Conventions and Recommendations (CEACR) a 20 Member body consisting of eminent jurists. Monitors compliance with international labor standards on the basis of reports submitted by member states on the application of ratified conventions ( in law and in practice) and observations made by representative workers and employers organisations such reports to be submitted once every two years i.r.o fundamental Conventions and every five years i.r.o. other Conventions makes observations thereon. Conference Committee on the Application Of Standards tripartite body appointed by the Governing Body of the ILO
FREEDOM OF ASSOCIATION AND THE RIGHT TO COLLECTIVE BARGAINING ILO Supervisory Mechanisms Examines the report of the CEACR identifies issues of concern and asks representatives of the concerned Governments to respond to such issues draws conclusions and makes recommendations. Special Supervisory Mechanism / Complaints Mechanism; Fact finding and Conciliation Commission on Freedom of Association Set up in 1950-Panel of 3 members Examines complaints of violation of trade union rights referred by the Governing Body If the country concerned has not ratified the Conventions, the complaint may be examined only with its consent. Convened very rarely. Committee on Freedom of Association (CFA)
ILO Supervisory Mechanisms Commission of Inquiry A Commission of Inquiry is generally set up when a member state is accused of committing persistent and serious violations and has repeatedly refused to address them.
ILO Supervisory Mechanisms The CFA Established In 1951 Composition Mandate Competence-ratification, consent, exhaustion of local remedies Admissibility of complaints Procedure Hearings Impartiality Decisions Conclusions and recommendations Follow up Reports Value
ILO Supervisory Mechanisms Complaints from Bangladesh Examples of CFA cases from Bangladesh Case No. 2765 2010-Bangladesh Cha Shramik Union-complaint of interference in the internal affairs of the union by the Government-approved of an adhoc Committee that replaced the central executive committee Case No. 2371 2004 International Garment and Leather Workers Federation (a) Incompatibility of the provisions of the IRO with principles of freedom of association (b) Unreasonable refusal to register a union (c) anti-union dismissals of members of the union
ILO Supervisory Mechanisms Complaints from Bangladesh-examples Case No. 2327 2004-ITGLWF-denial of freedom of association to workers in EPZsprovisions of the 2004 EWAIRA examined. Case No.2188 2002-PSI on behalf of BDNA-harassment of the President and 10 members on account of their trade union activities Case No.1998 2000-Bangladesh Jatiyabadi Samiti Dal-denial of permission to a union leader to attend meetings of the PSI Case No.2402 2004-PSI-BDNA-transfer orders issued to senior trade union leaders to disrupt trade union activities
Thank You Advocate