Chapter I. General introduction

Background

1. In accordance with article 19 of the Constitution of the International Labour Organization, the Governing Body of the International Labour Office decided at its 251st Session (November 1991) to invite those member States which have not yet ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), to submit reports on their legislation and practice in regard to these Conventions. The reports supplied in application of that decision, together with those submitted in accordance with articles 22 and 35 of the Constitution by States which have ratified one or both of these Conventions, have provided an opportunity for the Committee of Experts on the Application of Conventions and Recommendations (hereinafter referred to as "the Committee"), in accordance with its usual practice, to make a general survey of the situation.

2. The present General Survey is the sixth of its kind on Conventions No. 87 and No. 98. Previous surveys on freedom of association and collective bargaining were carried out in 1956, 1957, 1959, 1973 and 1983.

3. In the present survey, the Committee of Experts has endeavoured in particular to respond to questions and concerns expressed in the Conference Committee on the Application of Standards as to the scope of the Conventions considered.

4. In choosing to request reports on freedom of association and collective bargaining, the Worker and Employer members, together with the representatives of several governments in the Governing Body, have emphasized the importance of these Conventions for the ILO. The fundamental nature of these instruments becomes fully apparent in the present year, 1994, in which the 75th anniversary of the founding of the ILO coincides with the 50th anniversary of the Declaration of Philadelphia, as emphasized by the Committee of Experts in its General Report to the International Labour Conference. (Endnote 1)

International sources of law in the field of trade union rights

Principal source: ILO instruments

5. Workers' organizations had been demanding recognition of freedom of association well before the establishment of the ILO. As an integral part of basic human rights and as the cornerstone of provisions intended to ensure the defence of workers, freedom of association is particularly important for the ILO in view of the latter's tripartite structure. It is also of undoubted interest to employers' organizations, which now make greater use of the procedures which have been established for the purpose of ensuring its application. The ILO could therefore not fail to include this principle in its Constitution of 1919 as one of the objectives of its programme of action. The Preamble to Part XIII of the Treaty of Versailles mentioned "recognition of the principle of freedom of association" among the objectives to be promoted by the ILO, and the general principles set forth in Article 427 of the Treaty contained a provision concerning "the right of association for all lawful purposes by the employed as well as by the employers".

6. Freedom of association having thus been proclaimed from the outset as one of the fundamental principles of the Organization, the need was rapidly felt to adopt provisions aimed at defining this general concept more precisely and to set forth its essential elements in a formal ILO instrument in order that its general application could be effectively promoted and supervised. An initial attempt to do this failed in 1927. (Endnote 2)

7. In 1944, the Constitution of the ILO was supplemented by the inclusion of the Declaration of Philadelphia, which reaffirmed "the fundamental principles on which the Organization is based and, in particular, that freedom of expression and of association are essential to sustained progress". (Endnote 3) At the same time, the Declaration recognized the ILO's solemn obligation to further the implementation of programmes which would achieve, among other things "the effective recognition of the right of collective bargaining, the cooperation of management and labour in the continuous improvement of productive efficiency, and the collaboration of workers and employers in the preparation and application of social and economic measures". (Endnote 4) The principles thus enunciated in the Constitution are applicable to all the member States of the Organization.

8. The earliest ILO Convention to deal with the right to organize was the Right of Association (Agriculture) Convention, 1921 (No. 11), (Endnote 5) followed in 1947 by the Right of Association (Non-Metropolitan Territories) Convention (No. 84). However, the project to regulate freedom of association on an international scale only really materialized with the adoption, in 1948, of the Freedom of Association and Protection of the Right to Organize Convention (No. 87) and, the following year, of the Right to Organize and Collective Bargaining Convention (No. 98), which together constitute the basic instruments governing freedom of association. (Endnote 6) The International Labour Conference has since adopted several other instruments concerning trade union rights and collective bargaining.

9. As regards collective bargaining and the settlement of disputes, the following can be singled out for particular attention:

- the Collective Agreements Recommendation, 1951 (No. 91), dealing with collective bargaining machinery, the definition of collective agreements, their effects, their interpretation and the supervision of their application;

- the Voluntary Conciliation and Arbitration Recommendation, 1951 (No. 92), which is aimed at promoting the establishment of conciliation and arbitration machinery with equal representation on both sides; it stresses the voluntary nature of such machinery and specifies that none of its provisions may be interpreted as limiting the right to strike;

- the Collective Bargaining Convention (No. 154) and Recommendation (No. 163), both adopted in 1981 and aimed at promoting free and voluntary collective bargaining.

10. The Conference has also adopted various instruments in order:

- to take account of the particular difficulties encountered by workers in certain sectors in the exercise of their trade union rights, such as the Rural Workers' Organizations Convention (No. 141) and Recommendation (No. 149), adopted in 1975;

- to adapt the existing instruments to the particular status of certain categories of worker, for example the Labour Relations (Public Service) Convention (No. 151) and Recommendation (No. 159), adopted in 1978;

- to strengthen the protection of workers' representatives and to ensure that they are afforded facilities in order to enable them to carry out their functions promptly and efficiently, through the Workers' Representatives Convention, 1971 (No. 135), and the accompanying Recommendation (No. 143).

11. In order to promote mutual understanding and good relations between the authorities and employers' and workers' organizations, as well as between these organizations themselves, other instruments are aimed at institutionalizing consultation in the field of industrial relations:

- at the workplace, the Cooperation at the Level of the Undertaking Recommendation, 1952 (No. 94); and

- at higher levels, the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113).

12. In addition to Conventions and Recommendations, the International Labour Conference has adopted a number of resolutions relating to freedom of association, two of which, in the view of the Committee, are of particular interest. The first of these is the 1952 resolution concerning the independence of the trade union movement, which lays down several principles with regard to the relations between workers' organizations, governments and political parties; it states that it is essential for the trade union movement in each country to preserve its freedom and independence so as to be in a position to carry forward its economic and social mission, irrespective of political changes. This resolution finds a particular echo within the context of the recent democratization process and remains altogether relevant. (Endnote 7) The same is true of the 1970 resolution concerning trade union rights and their relation to civil liberties, which recognizes that the rights conferred upon workers' and employers' organizations must be based on respect for those civil and political freedoms which have been enunciated in particular in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights; the resolution adds that the absence of these liberties removes all meaning from the concept of trade union rights, and places special emphasis on civil liberties which are essential for the normal exercise of trade union rights. (Endnote 8) Finally, it should be pointed out that the promotion and defence of freedom of association occupy a prominent position in most of the resolutions adopted since 1983 by the International Labour Conference or the Regional Conferences.

Principles and practices

13. The ILO standards on trade union matters have been supplemented and developed by the principles enunciated by the supervisory bodies, in particular the Governing Body Committee on Freedom of Association and the Fact-Finding and Conciliation Commission on Freedom of Association set up to examine complaints of violation of trade union rights. These decisions, which are not limited to the basic rules laid down by the Conventions on freedom of association - despite the significance which the latter have acquired in substantive law, owing in particular to the large number of ratifications obtained - have progressively become a set of principles which, together with the observations formulated by the Committee of Experts concerning those same instruments, constitutes a veritable international law of freedom of association.

Other international sources

14. The United Nations does not deal with labour issues as such, and in an agreement concluded in 1946 with the ILO it recognized that body as the specialized agency with responsibility for taking appropriate measures to achieve the objectives laid down in its Constitution. The United Nations has, however, adopted - essentially within the framework of instruments relating to human rights - standards and principles also concerning labour matters, including trade union rights. Thus, the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Economic, Social and Cultural Rights and the 1966 International Covenant on Civil and Political Rights set forth rights and freedoms which are essential to the free exercise of trade union rights. The Declaration, the moral influence of which is indisputable, provides, inter alia, that everyone has the right to freedom of peaceful assembly and association (article 20.1) and the right to form and to join trade unions for the protection of his interests (article 23.4). The Covenants, which entered into force in 1976, contain provisions concerning the right of association, in particular the right to form trade unions and the right to strike. In accordance with article 18 of the International Covenant on Economic, Social and Cultural Rights, the ILO reports to the Economic and Social Council of the United Nations (ECOSOC) on the progress made in ensuring observation of those provisions of the Covenant which lie within the competence of the Organization. The Governing Body entrusted this task to the Committee of Experts, which has examined the position in a number of States party, particularly with regard to the implementation of the relevant articles of the Covenant. (Endnote 9)

New developments since 1983 (Endnote 10)

15. Over the past decade there has been a spectacular change in the world political climate which has resulted, among other things, in profound changes in the legislation and practice of many States. Although the most striking symbol of these changes was the dismantling of the Berlin Wall in late 1989, together with the trend towards a generalization of a market economy in the countries of Central and Eastern Europe, this evolution was not restricted to Europe alone, many African, Latin American and Asian countries having also opted for, or returned to, political and trade union pluralism. (Endnote 11) All of this has had at least three direct consequences for the ILO and international labour standards. First, there has been a rapid increase in the number of member States, which has risen from 150 in 1983 to 170 in January 1994. Second, the number of ratifications of the Conventions covered in the present survey has also increased, from 96 to 109 in the case of Convention No. 87, and from 112 to 123 in the case of Convention No. 98. (Endnote 12) And third, the consequence which perhaps has the greatest practical significance is that certain issues relating to respect for fundamental human rights instruments, including Conventions Nos. 87 and 98, which for many years had been the subject of observations by the ILO's supervisory bodies, have been - or are currently in the process of being - resolved. While hoping that this evolution will continue and increase, the Committee remains aware that numerous difficulties still exist. (Endnote 13)

Promotion and supervision machinery

16. Although during this period the ILO somewhat relaxed the pace of its standard-setting activities in relation to freedom of association, it continued and stepped up its efforts to promote and supervise the application of the Conventions. The Committee refers to the description given in the General Survey of 1983 as regards the general supervision procedures applicable to all international labour Conventions, (Endnote 14) and to its annual reports to the Conference with regard to promotional activities relating to freedom of association and collective bargaining.

Special procedures

17. Special procedures for the protection of freedom of association were envisaged during the discussion of Conventions Nos. 87 and 98 by the International Labour Conference, since the failure by a State to ratify those Conventions made it impossible to supervise their application under the general supervision procedures, despite the fundamental importance attached to respect for the standards and principles relating to trade union rights. It was for this reason that the Fact-Finding and Conciliation Commission on Freedom of Association was set up in 1950, followed by the Committee on Freedom of Association in 1951.

Fact-Finding and Conciliation Commission on Freedom of Association

18. Established in agreement with the Economic and Social Council of the United Nations, (Endnote 15) this Commission examines complaints of violations of trade union rights referred to it by the Governing Body and concerning ILO member countries which may or may not have ratified the Conventions on freedom of association; if, however, the country concerned has not ratified them, the complaint may only be referred with its consent. (Endnote 16) Functioning as a general rule as a panel of three members and composed of independent persons appointed by the Governing Body, this Commission, while essentially an investigatory body, may also examine, together with the government concerned, the possibilities of settling the difficulties involved by agreement. The Commission has been convened only rarely, mainly because prior to 1964 no government that had been requested to do so had given its consent. Complaints submitted against States which are Members of the United Nations but not members of the ILO are referred to the Commission in accordance with a special procedure and if the government concerned so agrees. Thus, a complaint presented by the Congress of South African Trade Unions against the Government of South Africa was referred to the ILO in 1988; in 1991, the Government gave its consent to the referral of the complaint to the Commission, which issued a very detailed report containing its conclusions on the situation in law and in practice with regard to labour relations in that country, at the same time formulating numerous recommendations relating in particular to freedom of association and collective bargaining. (Endnote 17)

Committee on Freedom of Association

19. Established in 1951 as a tripartite body comprising nine members of the Governing Body, and chaired since 1978 by an independent personality, the Committee on Freedom of Association examines complaints containing allegations of violations of the Conventions on freedom of association, regardless of whether or not the countries concerned have ratified those instruments. The consent of the governments concerned is not necessary in order for these complaints to be examined: the legal basis for this concept resides in the Constitution of the ILO and the Declaration of Philadelphia, according to which member States, by virtue of their membership of the Organization, are bound to respect the fundamental principles contained in its Constitution, particularly those concerning freedom of association even though they have not ratified the Conventions on this subject. The Committee on Freedom of Association systematically examines the substance of the cases submitted to it and presents conclusions thereon, unanimously adopted, to the Governing Body, recommending, where appropriate, that it draw the attention of the governments concerned to any principles called into question, and in particular to any recommendations made with a view to settling the difficulties raised in the complaint. The Committee meets three times a year and has, since its establishment, examined nearly 1,800 cases, which are often of a very serious nature. In so doing, it has established a series of principles (Endnote 18) which constitutes a veritable international law on freedom of association. (Endnote 19) The upward trend in the number of cases submitted to the Committee on Freedom of Association, already noted in the previous General Survey, has continued.

Links between the Committee on Freedom of Association and the Committee of Experts

20. When a legislative problem arises and the country concerned has ratified the Conventions to which the complaint refers, the Committee on Freedom of Association can - and, in fact, often does - draw the attention of the Committee of Experts to these aspects of the case, thus enabling the latter to follow the development of the situation during the regular examination of the reports submitted by the government concerned in relation to the Convention in question. Thus, when considering the practice and legislation of a country as part of the regular examination of the application of Conventions under article 22 of the ILO Constitution, the Committee of Experts may be called upon to take account of the unanimous recommendations of the Committee on Freedom of Association approved by the Governing Body, in addition to the information provided by the government and by employers' and workers' organizations. While the Committee on Freedom of Association and the Committee of Experts differ in terms of their composition, the nature of their functions and their procedure, they apply the same principles, which are universal and cannot be applied selectively. The Committee of Experts does take into consideration particular facts when applying these principles which it tends to view as guidelines from which governments and the social partners might draw inspiration with a view to promoting harmonious labour relations.

Available information

21. The present survey is based, on the one hand, on the reports communicated under article 19 of the ILO Constitution by countries which have not ratified the Conventions under consideration and, on the other hand, on the reports furnished under articles 22 and 35 by governments which have ratified those instruments. The number of reports supplied under article 19 is 31 and 23 respectively, for Conventions Nos. 87 and 98. Appendix IV contains the list of countries which have presented a report under article 19 and those for which information drawn from the reports communicated under article 22 is available. In addition, the Committee received information and comments from workers' (Endnote 20) and employers' (Endnote 21) organizations concerning unratified Conventions. In examining the information contained in the reports, the Committee of Experts has also sought to take account of the corresponding legislation and practice. The Committee stresses the crucial importance it attaches to the latter, since a purely formal compatibility of national legislations with ILO instruments on freedom of association has no real meaning for workers and employers. The Committee feels bound to point out that it has sometimes been difficult to gather information on the practical application of the Conventions, and even, in some cases, to obtain all of the national legislation concerning the subjects dealt with in this survey. (Endnote 22)

Arrangement of the survey

22. The present General Survey is divided into three parts dealing, respectively, with the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and finally the highlights of the last decade and the difficulties and prospects with regard to ratification. However, before examining each of the aspects of freedom of association covered by Conventions Nos. 87 and 98, the Committee of Experts considered it worthwhile to recall briefly in a preliminary chapter the relationship between trade union rights and civil and political liberties, since respect for these fundamental rights is the essential prerequisite to the genuine and sustained development of the rights of workers' and employers' organizations.

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

Endnote 20

Endnote 21

Endnote 22

Cross references
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C011 Right of Association (Agriculture) Convention, 1921
Conventions: C084 Right of Association (Non-Metropolitan Territories) Convention, 1947
Conventions: C135 Workers' Representatives Convention, 1971
Conventions: C141 Rural Workers' Organizations Convention, 1975
Conventions: C151 Labour Relations Public Service) Convention, 1978
Conventions: C154 Collective Bargaining Convention, 1981
Recommendations:R091 Collective Agreements Recommendation, 1951
Recommendations:R092 Voluntary Conciliation and Arbitration Recommendation, 1951
Recommendations:R094 Cooperation at the Level of the Undertaking Recommendation, 1952
Recommendations:R113 Consultation (Industrial and National Levels) Recommendation, 1960
Recommendations:R143 Workers' Representatives Recommendation, 1971
Recommendations:R149 Rural Workers' Organizations Recommendation, 1975
Recommendations:R159 Labour Relations (Public Service) Recommendation, 1978
Recommendations:R163 Collective Bargaining Recommendation, 1981
Survey reference:251994G11 General Survey 1994
Not in ILOLEX: General Survey 1983, para. 21-37
Digest reference:1985_