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1994, Freedom of association and collective bargaining: Highlights of the last decade

Description:(General Survey)
Convention:C087
Convention:C098
Subject classification: Freedom of Association
Subject classification: Collective Bargaining and Agreements
Document:(Report III Part 4B)
Session of the Conference:81
Subject: Freedom of Association, Collective Bargaining, and Industrial Relations
Display the document in: French Spanish
Document No. (ilolex): 251994G11

Part III. Highlights of the last decade. Ratification of Conventions: Difficulties and prospects

Chapter XI. Highlights of the last decade

I. Implementation of Convention No. 87

Major cases of progress

266. Since 1983, the Committee has been able to express satisfaction in about 50 cases regarding amendments introduced by various member States in legislation or practice in order to give effect to its comments and observations, supported or taken up in some cases by the conclusions and recommendations of the Committee on Freedom of Association, the Conference Committee on the Application of Standards, or both. Such changes have been noted in the following countries: Algeria, Argentina, Bangladesh, Belarus, Bulgaria, Burkina Faso, Cameroon, Canada, Colombia, Congo, Costa Rica, Cyprus, Dominican Republic, Egypt, Ethiopia, Finland, France (French Polynesia), Greece, Guatemala, Guinea, Hungary, Iceland, Lesotho, Madagascar, Mali, Mauritania, Mongolia, Netherlands, Nicaragua, Nigeria, Paraguay, Peru, Philippines, Poland, Romania, Russian Federation, Rwanda, Ukraine, Uruguay, Venezuela. (Endnote 1) These improvements, which are substantial both in number and in importance, bear witness to the vitality and relevance of the ILO's system of supervision of the application of standards; they also reflect the essential contribution of tripartism in this process.

267. The key landmark in the last decade in this area has undoubtedly been the transition in many countries from a situation of trade union monopoly, most often enshrined in legislation, to a system allowing trade union pluralism. (Endnote 2) While this change took place in the Central and Eastern European countries in particular, (Endnote 3) substantial developments have also been seen in this area in several African countries (Endnote 4) and in Latin America. (Endnote 5) This movement towards trade union pluralism, which reflects political democratization, was in most cases accompanied by the dissolution of links between the political party in power and workers' organizations and was manifested in an increased autonomy of the latter with respect to the authorities. Nevertheless, the Committee intends to carefully monitor the measures which will be taken in these countries to guarantee a genuine opportunity for pluralism of workers' and employers' organizations, since laying down this principle in the statutes is not always enough to ensure that it is applied in practice.

268. Significant improvements have also been achieved in other areas: extension of the right of association to certain categories of workers; (Endnote 6) establishment of organizations without prior authorization; (Endnote 7) right of organizations to elect their representatives in full freedom, (Endnote 8) to organize their administration (Endnote 9) and their meetings freely; (Endnote 10) increased autonomy of trade union organizations with respect to the public authorities; (Endnote 11) and the possibility for organizations to become involved in certain political matters. (Endnote 12) As regards the right to strike, several improvements have been noted in the general recognition of this right, (Endnote 13) its extension to certain categories of workers, (Endnote 14) the legality of certain types of strike or industrial action (Endnote 15) or more flexible procedures leading up to the launching of a strike. (Endnote 16) Lastly, mention should also be made of significant improvements as regards the right of organizations to establish federations and confederations (Endnote 17) and to affiliate to international organizations. (Endnote 18)

Major difficulties

269. In spite of these numerous and substantial improvements, the Committee cannot but note, both on the basis of reports submitted by Governments under articles 19 and 22 of the Constitution, and other information at its disposal (reports of the Committee on Freedom of Association, reports of direct contacts missions, debates at the Conference Committee on the Application of Standards) that serious, and sometimes persistent, difficulties still arise as regards compliance with fundamental rights guaranteed by Convention No. 87.

270. One of the main difficulties concerns the maintaining of trade union monopoly (Endnote 19) but problems also persist in countries where a system of single trade union is imposed in the form of a single central trade union organization, (Endnote 20) or when legislation prohibits the coexistence of more than one trade union in the same branch of activity, establishment, region, etc. (Endnote 21)

271. In other countries, certain categories of workers who should enjoy the right of association under the terms of the Convention are still denied this right: public servants, (Endnote 22) agricultural workers, (Endnote 23) seafarers, (Endnote 24) firefighting personnel, (Endnote 25) prison staff, (Endnote 26) workers in export processing zones, (Endnote 27) and employees in the customs service, in mints, in the central bank and in external telecommunications. (Endnote 28)

272. The legislation in some countries continues to impose excessive restrictions on eligibility or re-election to trade union office, in particular as regards the obligation to belong to the occupation, (Endnote 29) and nationality. (Endnote 30)

273. In several countries, trade unions come up against various obstacles when they wish to obtain registration, in particular when the legislation requires prior authorization of the executive or administrative authorities. (Endnote 31)

274. The legislation in several countries allows the authorities to intervene or even interfere in the functioning of organizations, either by granting them discretionary power to inspect trade union documents, (Endnote 32) sweeping powers to control trade union activities or to restrict the administration of trade union property. Some difficulties also persist as regards the suspension and dissolution of organizations by administrative authority. (Endnote 33)

275. Lastly, substantial and persistent problems arise as regards the recognition or the exercise of the right to strike: general prohibition or prohibition in certain non-essential sectors, mandatory arbitration, excessive conditions making strikes impossible, absence of adequate guarantees as regards discriminatory measures against strikers, or sanctions for holding a strike. (Endnote 34)

276. Recalling its comments in Part I on these matters, the Committee considers that several minor difficulties could be smoothed out or even resolved by means of provisions allowing a certain amount of flexibility. As regards more fundamental problems arising out of the philosophy itself of a given legal system, the Committee would remind those governments which have expressed their intention of bringing their legislation into conformity with the Convention that they may avail themselves of the technical assistance of the ILO, initially to identify those problems - real or assumed - deterring them from ratifying this Convention, and then to explore possible solutions.

II. Implementation of Convention No. 98

Major cases of progress

277. Since 1983, the Committee has expressed satisfaction in about 20 cases regarding measures taken by various member States, following the Committee's observations, to bring their legislation and practice into conformity with the provisions of Convention No. 98. Such changes have been noted in the following countries: Bangladesh, Belgium, Brazil, Cape Verde, Colombia, Costa Rica, Dominican Republic, Ethiopia, Finland, Guatemala, Guinea-Bissau, Malta, Panama, Paraguay, Poland, Portugal, Uganda, Uruguay. (Endnote 35) As in the case of Convention No. 87, the Committee on Freedom of Association and the Conference Committee on the Application of Standards have contributed substantially to the search for a positive outcome to serious and sometimes persistent problems. The Committee views this as additional proof of the virtue of tripartite dialogue.

278. These cases of progress mainly concern measures strengthening the protection against anti-union discrimination (Endnote 36) and introducing various improvements in collective bargaining: restoring the autonomy of the parties (Endnote 37) or granting the right to bargain collectively to state employees. (Endnote 38)

Major difficulties

279. The Committee must, however, point out that there remain a fair number of problems, some of them persistent, as regards the application of Convention No. 98.

280. As regards measures of protection against anti-union discrimination, the legislation of several countries fails to ensure satisfactorily the guarantees laid down in the Convention, in particular because provisions are non-existent or not sufficiently dissuasive, (Endnote 39) or because they exclude certain categories of workers. (Endnote 40) Much of this legislation also lacks provisions, or makes inadequate provision, for protection against acts of interference.

281. Intervention by the authorities in the collective bargaining process also remains a matter of concern for the Committee, whether in the form of denial of the right to bargain collectively to certain categories of workers (domestic personnel, agricultural workers, public servants), approval of collective agreements by the authorities, restrictions on subjects for bargaining, or repeated intervention by government in the bargaining process. (Endnote 41)

282. Referring to its comments on these subjects in Part II, the Committee emphasizes that systems allowing a certain flexibility are helpful in settling minor difficulties; as regards the other problems, it would remind in particular those governments which have expressed an intention to bring their legislation into conformity with the Convention that they may avail themselves of ILO technical assistance, initially to identify those problems constituting a real or assumed obstacle to ratification, and then to explore possible solutions.

283. While the Committee has been able to note significant positive changes since the last General Survey as regards the right of association and collective bargaining, it cannot but note that in some countries, serious - and sometimes persistent - difficulties still remain with respect to the fundamental rights guaranteed by Conventions Nos. 87 and 98. However, to conclude that these problems are widespread or that the situation is worsening would be to overlook the fact that, for a good many countries, the Committee has not made observations on these instruments during this period in its annual reports under article 22 of the Constitution. However, any supervisory system, by its very nature, tends to draw attention to difficulties, which are likely to be highlighted as long as a satisfactory solution has not been found. The Committee emphasizes that, far from trying to impose a uniform model of labour relations legislation, it endeavours, in cooperation with the other supervisory bodies, to open up a dialogue with member States with the aim of bringing national legislation into conformity with the Conventions. It recalls that member States may avail themselves of ILO technical assistance if they experience problems of implementation of the Conventions.

Endnotes

Endnote 1

Several cases of progress have been noted for some of these countries.

Endnote 2