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State of emergency and the exercise of trade union rights (Trade union rights and civil liberties)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:0217 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320060217 State of emergency and the exercise of trade union rights 193. The Committee on Freedom of Association has recalled that the Committee of Experts on the Application of Conventions and Recommendations has emphasized that the freedom of association Conventions do not contain any provision permitting derogation from the obligations arising under the Convention, or any suspension of their application, based on a plea that an emergency exists. (See the 1996 Digest, para. 186; 318th Report, Case No. 2006, para. 347; 323rd Report, Case No. 2006, para. 427; and 326th Report, Case no. 2096, para. 428.) 194. In cases of repeated renewals of the state of emergency, the Committee has pointed out that the resolution concerning trade union rights and their relation to civil liberties, adopted by the International Labour Conference in 1970, states that “the rights conferred upon workers’ and employers’ organisations must be based on respect for (...) civil liberties (...) and that the absence of these civil liberties removes all meaning from the concept of trade union rights”. (See the 1996 Digest, para. 187.) 195. When a state of emergency has continued over a period of several years, entailing serious restrictions on trade union rights and civil liberties that are essential for the exercise of such rights, the Committee has considered that it is necessary to safeguard the exercise specifi cally of trade union rights such as the establishment of employers’ and workers’ organizations, the right to hold trade union meetings in trade union premises and the right to strike in non-essential services.(See the 1996 Digest, para. 189.) 196. The enactment of emergency regulations which empower the government to place restrictions on the organization of public meetings and which are applicable not only to public trade union meetings, but also to all public meetings, and which are occasioned by events which the government considered so serious as to call for the declaration of a state of emergency, does not in itself constitute a violation of trade union rights.(See the 1996 Digest, paras. 149 and 190; and 334th Report, Case No. 2279, para. 697.) 197. Where restrictions imposed by a revolutionary government on certain publications during a period of emergency appeared mainly to have been imposed for reasons of a general political character, the Committee, while taking account of the exceptional nature of these measures, drew the attention of the government to the importance of ensuring respect for the freedom of trade union publications.(See the 1996 Digest, para. 191.) 198. Restrictions on the right to strike and on freedom of expression imposed in the context of an attempted coup d’état against the constitutional government, which gave rise to a state of emergency called in accordance with the constitution, do not violate freedom of association on the grounds that such restrictions are justified in the event of an acute national emergency.(See the 1996 Digest, paras. 192 and 529.) 199. Any measures of suspension or dissolution by administrative authority, when taken during an emergency situation, should be accompanied by normal judicial safeguards, including the right of appeal to the courts against such dissolution or suspension.(See the 1996 Digest, para. 193.) 200. In a case in which emergency measures had been extended over many years, the Committee pointed out that martial law was incompatible with the full exercise of trade union rights.(See the 1996 Digest, para. 194.) 201. Emergency legislation aimed at anti-social disruptive elements should not be applied against workers for exercising their legitimate trade union rights.(See the 1996 Digest, para. 196.) 202. As regards countries which are in a state of political crisis or have just undergone grave disturbances (civil war, revolution, etc.), the Committee has considered it necessary, when examining the various measures taken by governments, including some against trade union organizations, to take account of such exceptional circumstances when examining the merits of the allegations.(See the 1996 Digest, para. 197.) 203. In cases in which martial law has been declared and special provisions adopted against terrorism, although the Committee is aware of the serious situation of violence which may affect a country, it has to point out that as far as possible recourse should be made to the provisions of the ordinary law rather than emergency measures which are liable, by their very nature, to involve certain restrictions on fundamental rights.(See the 1996 Digest, paras. 188 and 198.) 204. If a revolutionary government suspends constitutional safeguards, this may constitute serious interference by the authorities in trade union affairs, contrary to Article 3 of Convention No. 87, except where such measures are necessary because the organizations concerned have diverged from their trade union objectives and have defied the law. In any case, such measures should be subject to appropriate judicial guarantees that may be invoked without delay.(See the 1996 Digest, para. 199.) |
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