Part II. The right to organize and collective bargaining

Chapter IX. Protection against acts of interference

225. Article 2(1) of the Convention provides that "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". Paragraph 2 of the same Article goes on to give the example of particular acts of interference "which are designed to promote the establishment of workers' organizations under the domination of employers or employers' organizations, or to support workers' organizations by financial or other means, with the object of placing such organizations under the control of employers or employers' organizations". The Convention thus completes the trade union rights recognized for individual workers by guaranteeing the free exercise of the right of association of workers' organizations; (Endnote 1) it also affords employers' organizations the same protection as workers' organizations. (Endnote 2)

226. Article 3 of the Convention provides that "Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize as defined in the preceding Articles". This Article covers both the protection of workers against acts of anti-trade union discrimination and the protection of organizations against acts of interference. The principles set forth in Chapter VIII therefore also apply to the protection established in Article 2 of the Convention.

227. Legislative provisions which protect workers' and employers' organizations directly or indirectly against acts of interference by each other are often of a very general nature, either providing for the independence of trade unions vis-à-vis any other organization (Endnote 3) or incorporating the terms used in Article 2 of Convention No. 98. (Endnote 4)

228. Others are more specific and stipulate the measures employers are prohibited from carrying out: interference in the establishment or administration of trade unions; (Endnote 5) activities aimed at restricting the right of workers to join together in trade unions or at exercising control over their organizations; (Endnote 6) becoming a member of a workers' organization; (Endnote 7) or using means of pressure in favour of or against any trade union organization. (Endnote 8) In other countries, legislation stipulates that the competent authorities may cancel the registration of a trade union if it is set up, organized, supported or directed with the objective of opposing or impairing the workers' interests which it is supposed to defend and promote. (Endnote 9)

229. It is fairly common for legislation or practice to allow employers to contribute to the financing of trade unions or to afford them certain advantages, such as premises or facilities, which could involve the risk of interference or favouritism. In the view of the Committee, while there is no objection in principle to an employer expressing its recognition of a trade union as a social partner in this manner, this should not have the effect of allowing the employer control over a trade union, or favouring one trade union over another.

230. Explicit protective provisions in the law are less frequent with regard to acts of interference than to acts of anti-union discrimination. Some governments consider that the trade unions in their countries are sufficiently developed and strong to be protected against any acts of interference or that, because of trade union plurality, no problem arises in this connection. Governments which have ratified the Convention are, however, under the obligation to take specific action, in particular through legislative means, to ensure respect for the guarantees laid down in Article 2. When such protection is non-existent (Endnote 10) or inadequate (Endnote 11) or when acts of interference are committed in practice, (Endnote 12) the Committee therefore requests governments to adopt specific measures, coupled with effective and sufficiently dissuasive sanctions.

231. The specific forms of such acts of interference likely to impair the guarantees established by the Convention are very varied in nature, and it would be futile to attempt to draw up an exhaustive list. The many complaints of this kind examined by the Committee on Freedom of Association are, however, a good illustration of such interference in practice: the existence of two executive committees within a trade union, one of which was allegedly manipulated by the employer; (Endnote 13) the presence of a parallel trade union which had allegedly been set up under pressure from the management; (Endnote 14) dismissal of trade union officers prejudicing the existing trade union and promoting the establishment of another trade union; (Endnote 15) and a member of the government who was also a leader of a trade union representing several categories of workers employed by the State. (Endnote 16)

232. The Committee is of the view that legislation should make express provision for rapid appeal procedures, coupled with effective and dissuasive sanctions against acts of interference in order to ensure the application in practice of Article 2 of the Convention. Moreover, to ensure that these measures receive the necessary publicity and are effective in practice, the relevant legislation should explicitly lay down these substantive provisions, as well as appeals and sanctions in order to guarantee their application.

233. The Committee would like to draw attention to the special problem of the solidarist associations which have been set up in some Central American countries. Solidarist associations are associations of workers which are set up dependent on a financial contribution from the relevant employer and which are financed in accordance with the principles of mutual benefit societies by both workers and employers for economic and social purposes of material welfare (savings, credit, investment, housing and educational programmes, etc.) and of unity and cooperation between workers and employers; their deliberative bodies must be made up of workers, though an employers' representative may be included who may speak but not vote. (Endnote 17) In recent years, the Committee on Freedom of Association has on a number of occasions received allegations concerning interference by solidarist associations in the industrial relations sphere of the trade unions, unequal treatment accorded to trade unions and solidarist associations in legislation and practice, as well as control of the latter by employers; all these measures often result in employer interference in trade union activities and favouritism towards solidarist associations. (Endnote 18) The fact that these associations are partly financed by employers, although their members include workers as well as senior staff and personnel having the employer's confidence, and that they are often set up at the employers' initiative, means that they cannot be independent organizations, and thus often raises problems as regards the application of Article 2 of the Convention. The governments concerned should adopt legislative or other measures to guarantee that solidarist associations do not exercise trade union activities, in particular collective bargaining by means of "direct settlements" between employers and groups of non-unionized workers. Furthermore, these governments should take measures to eliminate any inequality of treatment between solidarist associations and trade unions, (Endnote 19) and to ensure that employers abstain from bargaining with this type of association.

234. Article 2 of Convention No. 98 provides that workers' and employers' organizations shall enjoy adequate protection against any acts of interference by each other. It is important, therefore, that whenever it appears that there is insufficient protection against interference or that such acts do occur in practice, governments take specific action, in particular through legislative means, to ensure that the guarantees provided for in the Convention are respected and to give these provisions the necessary publicity to ensure that they are effective in practice.

Endnotes

Endnote 2

Endnote 3

Endnote 4

Endnote 5

Endnote 6

Endnote 7

Endnote 8

Endnote 9

Endnote 10

Endnote 11

Endnote 12

Endnote 13

Endnote 14

Endnote 15

Endnote 16

Endnote 17

Endnote 18

Endnote 19

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Case reference:0319862461330 Report=246 Case=1330 * Guyana
Case reference:0319882591459 Report=259 Case=1459 * Guatemala
Case reference:0319892621445 Report=262 Case=1445 * Peru
Case reference:0319892681435 Report=268 Case=1435 * Paraguay
Case reference:0319902721483 Report=272 Case=1483 * Costa Rica
Case reference:0319902751483 Report=275 Case=1483 * Costa Rica
Case reference:0319912781483 Report=278 Case=1483 * Costa Rica
Case reference:0319912781571 Report=278 Case=1571 * Romania
Case reference:0319922811568 Report=281 Case=1568 * Honduras
Case reference:0319922831568 Report=283 Case=1568 * Honduras