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FOA PROGRAMME. Turin Training Centre. Training on FOA and organizing in the Informal sector and EPZS 21-25 November 2005, Bangkok. FREEDOM OF ASSOCIATION (FOA): A RIGHT UNIVERSALLY RECOGNIZED. FOA is a human right universally recognized and protected.

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slide1

FOA PROGRAMME

Turin Training Centre

Training on FOA and organizing in the Informal sector and EPZS

21-25 November 2005, Bangkok

slide2

FREEDOM OF ASSOCIATION (FOA):

A RIGHT UNIVERSALLY RECOGNIZED

  • FOA is a human right universally recognized and protected
  • FOA is of particular importance for the ILO in reason of its tripartite structure
  • FOA is a fundamental tool for sustainable progress and social justice
  • FOA for who? All workers and employers without distinction whatsoever (including IE and EPZS)
slide5

ILO FOA INSTRUMENTS

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

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

slide6

ILO FOA INSTRUMENTS

Workers’ Representatives Convention (No. 135), 1971

Rural Workers’ Organizations (No. 141), 1975

Labour Relations (Public Service) (No. 151), 1978

Collective Bargaining Convention (No. 154),1981

slide8

FOA AND RESPECT OF CIVIL LIBERTIES

  • A system of democracy and the respect of fundamental human rights are essential to full and genuine FOA
  • The interdependence of FOA and civil liberties was reiterated in the ILO 1970 Resolution Concerning Trade Union Rights and Their Relation to Civil Liberties
slide9

FOA AND RESPECT OF CIVIL 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
slide10

FOA AND RESPECT OF CIVIL LIBERTIES

  • 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
  • No impunity should prevail. The absence of judgement reinforces the climate of violence and insecurity, extremely damaging to the exercise of trade union rights
slide11

Freedom of association and protection of the right to organize convention, 1948 (no. 87)

  • Aims at protecting the free exercise of the right to organize of workers’ and employers’ organizations vis-à-vis public authorities (independence)
  • Protects in law and in practice the freedom to establish organizations, prerequisite to the other guarantees enunciated in ILO instruments
slide12

Freedom of association and protection of the right to organize convention, 1948 (no. 87)

This right to organize depends on three principles:

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

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

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

slide13

1. Right to establish and join organizations without distinction whatsoever (art. 2)

  • All workers and employers are covered (including workers in the IE and EPZs)
  • 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
slide14

Some cases before the CFA concerning self-employed workers

  • Case 2221 (Argentina): right to organise for

newspapers vendors

  • Case 2347 (Mexico): right to organise for active and retired football players
  • Case 2059 (Peru): right to organise of young persons holding youth training contracts
slide15

Some cases before the CFA concerning self-employed workers

  • The Committee recalled that by virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and police – should have the right to establish and to join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practice liberal professions, who should nevertheless enjoy the right to organize [see Digest of decisions and principles of the Freedom of Association Committee, par. 235].
slide16

Some cases before the CFA concerning EPZs

  • Case 1726 (Pakistan): restrictions to the right to organise and right to strike in EPZs
  • Case 2327 (Bangladesh): restrictions to the right to organise in EPZs

The Committee pointed out that the standards contained in Convention No. 87 apply to all workers, "without distinction whatsoever", and recalled the ILO Tripartite Declaration of Principles concerning Multinational Enterprises which provides that special incentives to attract foreign investment should not include any limitation of the workers‘ freedom of association or the right to organize and bargain collectively.

slide17

2. Right to establish organizations without previous authorization

  • Statutory and by-law formalities are acceptable as long as they ensure the normal functioning and publicity of organizations
  • Would be incompatible:
  • Long and complicated registration procedures
  • Discretionary power granted to public authority
  • Right to appeal to independent courts against refusal of authorization
slide18

3. Right of workers and employers to establish and join organizations 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
slide19

3. Right of workers and employers to establish and join organizations 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
slide20

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

  • The law should only law down formal requirements as regards the organizations’ constitution
  • Would be incompatible:
  • Approvalof by-laws by public authorities or already existing trade union
  • Imposed model Constitution
  • Procedure for appeal to an independent and impartial body
slide21

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

Ex. Case 1777 (Argentina): right for a trade union to affiliate unemployed, retired and self-employed workers

The Committee recalled that organizations of employers and workers should have the right to draw up their constitutions and rules in conformity with Article 3 of Convention No. 87. The Committee therefore considered that the prohibition of the direct affiliation of certain persons to federations and confederations is contrary to freedom of association principles. It is for these organizations themselves to determine what the rules relating to their membership should be.

slide22

Right of workers’ and employers’ organizations to elect their representatives in full freedom (art. 3)

  • No control shall be exercised by public authorities over the election process
  • No arbitrary interference by public authorities in the election process
  • Results should not be subject of approval by public authorities. If contested recourse to independent and impartial judicial body
slide23

Right of workers’ and employers’ organizations to elect their representatives in full freedom (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
slide24

Right of workers’ and employers’ organizations to organize their administration and activities (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
slide25

Right of workers’ and employers’ organizations to formulate their programmes (art. 3)

  • Right of organizations to formulate their programmes include:
  • Right to hold meetings
  • Right to have access to the working place by trade union leaders with due respect for the rights of property and management
  • Right to communicate with management
  • Right to obtain information
  • Political vs trade union activities
slide26

The right to strike

  • Most visible form of collective action in the context of a labour dispute
  • 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
slide27

The law may subordinate the exercise of the right to strike to certain prerequisites (reasonable criteria)

  • Prerequisites found to be acceptable:
  • 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
  • Prerequisite not acceptable:
  • Decision by over half of all the workers involved
  • A quorum requirement of two-thirds
  • Compulsory arbitration before calling strike
slide28

Workers covered

  • 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
  • acute national crisis (limited period of time)
  • 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
slide29

Abuse of the right to strike

  • FOA principles do not protect against abuse
  • Sanctions provided in national legislation in case of abuse are acceptable
  • May take various forms
  • All penalties should be proportionate to the offence or fault committed. No imprisonment for organizing or participating in a peaceful strike
slide30

Protection against dissolution or suspension of 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
slide31

Right to establish federations and confederations and to affiliate with international organizations (art. 5)

  • Right to organize at higher level
  • Should enjoy the various rights accorded to first-level organizations
  • At the national level, would be incompatible:
  • Requirement of an excessively large number of member organizations
  • Prohibition imposed on setting up more than one confederation per occupation, branch of activity or region
  • Imposed monopoly at the federal or confederal levels
slide32

The legality and the workers’ and employers’ organizations rights (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
slide33

Right to organize and collective bargaining convention, 1949 (no. 98)

  • Protection of workers against acts of anti-union discrimination from employers
  • Protection of workers’ and employers’ organizations against acts of interference by each other
  • Promotion of collective bargaining
slide34

Right to organize and collective bargaining convention, 1949 (no. 98)

  • All workers are covered
  • Only exceptions:
  • 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)

slide35

Protection against acts of anti-union discrimination (art. 1)

  • No person shall be prejudiced in his employment by reason of his/her trade union membership or legitimate trade union activities
  • This protection is particularly necessary for trade union officials
  • Protection against acts of anti-union discrimination requires to be effective:
  • Existence of broad enough protective provisions in legislation
  • Existence of procedures able to ensure that complaints are examined promptly, impartially, inexpensively and effectively
slide36

Protection against acts of anti-union discrimination (art. 1)

  • Period covered:
  • In taken up the employment
  • In the course of employment
  • At the time of termination
  • The law should provide for effective and dissuasive sanctions
  • Preventive or reparatory mechanisms
  • Inversion of the burden of proof
  • Compensation is not enough
slide37

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
  • Rapid appeal procedure
  • Effective and dissuasive sanctions
slide38

Promotion of Collective Bargaining (art. 4)

  • Process to create standards to govern labour relations
  • Fundamental right endorsed by Member States by the very fact of their membership to the ILO
  • 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
slide39

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
slide40

Restrictions on the principle of free and voluntary negotiations

  • Compulsory arbitration
  • Intervention of public authorities
  • 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
slide41

Obligation to negotiate in good faith:

  • 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)
slide42

Topics to be covered:

  • 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
  • Levels of negotiation:
  • Should be possible at any level (in law and in practice)
  • Should be left to the choice of the parties concerned
  • Agreements reached:
  • Collective agreements
  • Other forms of agreements

* * *

the committee on freedom of association
The Committee on Freedom of Association
  • Established in 1951
  • Tripartite committee of the GB, comprised of three representatives for each group and chaired by an independent person
    • the representatives of a State which is concerned by the case, must leave the room
    • participation on an individual basis
  • Meets three times a year (March, May and November)
    • private session
the committee on freedom of association mandate
The Committee on Freedom of AssociationMandate
  • Deals with the complaints filed against the government for violation of the conventions and principles on FOA
    • Focus on specific situation
    • Legislative as well as factual examination even without ratification or consent
    • Decisions adopted unanimously
    • Digest (jurisprudence)
the committee on freedom of association1
The Committee on Freedom of Association
  • Complaints must emanate from:
      • National organization having direct interest in the matter
      • International organization having consultative status with ILO (ICFTU, IOE)
      • International organization where allegations relate to matters directly affecting their affiliated organizations
      • A government
    • Exiled or dissolved organizations may lodge complaints
slide46

COMPLAINT PRESENTED TO ILO AND TRANSMITTED TO GOVERNMENTS

FOR OBSERVATIONS

POSSIBLE INTERVENTION

WORKERS

EMPLOYERS

GOVERNMENTS

COMMITTEE ON FREEDOM OF ASSOCIATION (CFA)

POSSIBLE DIRECT CONTACTS

DECISIONS BY CONSENSUS

IF ILO CONVENTION IS RATIFIED

IF ILO CONVENTION IS NOTRATIFIED

COMMITTEE OF EXPERTS ON THE APPLICATION OF CONVENTIONS AND RECOMMENDATIONS (CEACR)

FOLLOW-UP BY THE CFA

The Committee on Freedom of Association Procedure

ADOPTION BY GOVERNING BODY

the committee on freedom of association2
The Committee on Freedom of Association
  • Types of reports:
  • final;
  • interim;
  • « follow up » (the Committee requests to be kept informed of developments)
the committee on freedom of association special characteristics
The Committee on Freedom of Association Special characteristics
  • Quasi-judicial body
  • Not subject to the prior exhaustion of national remedies
  • Examination even without the government’s replay
  • Not bound by national judicial decision

***

  • The Committee has dealt with nearly 2400 cases