Distinctions based on occupational category (Right of workers and employers,without distinction whatsoever, to establish and to join organizations)


Description:(CFA: Digest of Decisions 2006)
Subject classification: Freedom of Association
Document:0303
Subject: Freedom of Association, Collective Bargaining, and Industrial Relations
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Document No. (ilolex): 2320060303

Distinctions based on occupational category

A. General principles

216. All workers, without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing.

(See 326th Report, Case No. 2113, para. 372.)

217. To establish a limited list of occupations with a view to recognizing the right to associate would be contrary to the principle that workers, without distinction whatsoever, should have the right to establish and join organizations of their own choosing.

(See the 1996 Digest, para. 278.)

B. Public servants

218. The standards contained in Convention No. 87 apply to all workers “without distinction whatsoever”, and are therefore applicable to employees of the State. It was indeed considered inequitable to draw any distinction in trade union matters between workers in the private sector and public servants, since workers in both categories should have the right to organize for the defence of their interests.

(See the 1996 Digest, para. 212; 300th Report, Case No. 1844, para. 240; and 334th Report, Case No. 2222, para. 206.)

219. Public servants, like all other workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests.

(See the 1996 Digest, para. 213; 300th Report, Case No. 1823, para. 438; 307th Report, Case No. 1865, para. 212; 316th Report, Case No. 1773, para. 616; 334th Report, Case No. 2222, para. 204; 335th Report, Case No. 1865, para. 816; and 338th Report, Case No. 2364, para. 979.)

220. Public employees (with the sole possible exception of the armed forces and the police, by virtue of Article 9 of Convention No. 87) should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members.

(See the 1996 Digest, paras. 206 and 214; 308th Report, Case No. 1902, para. 701; 309th Report, Case No. 1865, para. 144; 320th Report, Case No. 1865, para. 509; 321st Report, Case No. 2066, para. 332; 323rd Report, Case No. 1874, para. 60; 327th Report, Case No. 1865, para. 484; 329th Report, Case No. 2177/2183, para. 633; 330th Report, Case No. 2200, para. 1096; 333rd Report, Case No. 2229, para. 108; and 338th Report, Case No. 2364, para. 979.)

221. In view of the importance of the right of employees of the State and local authorities to constitute and register trade unions, the prohibition of the right of association for workers in the service of the State is incompatible with the generally accepted principle that workers, without distinction whatsoever, should have the right to establish organizations of their own choosing without previous authorization.

(See the 1996 Digest, para. 215; and 328th Report, Case No. 1987/2085, para. 47.)

222. The denial of the right of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their “associations” do not enjoy the same advantages and privileges as “trade unions”, involves discrimination as regards government-employed workers and their organizations as compared with private sector workers and their organizations. Such a situation gives rise to the question of compatibility of these distinctions with Article 2 of Convention No. 87, according to which workers “without distinction whatsoever” shall have the right to establish and join organizations of their own choosing without previous authorization, as well as with Articles 3 and 8, paragraph 2, of the Convention.

(See the 1996 Digest, para. 216; 307th Report, Case No. 1865, para. 212; 324th Report, Case No. 2083, para. 253; and 327th Report, Case No. 1865, para. 485.) (a) Members of the armed forces and the police

223. The members of the armed forces who can be excluded from the application of Convention No. 87 should be defined in a restrictive manner.

(See the 1996 Digest, para. 219; 330th Report, Case No. 2229, para. 941; and 335th Report, Case No. 2257, para. 459.)

224. Article 9, paragraph 1, of Convention No. 87 provides that “the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations”; under this provision, it is clear that the International Labour Conference intended to leave it to each State to decide on the extent to which it was desirable to grant members of the armed forces and of the police the rights covered by the Convention, which means that States having ratified the Convention are not required to grant these rights to the said categories of persons.

(See the 1996 Digest, para. 220; 332nd Report, Case No. 2240, para. 264; and 335th Report, Case No. 2325, para. 1257.)

225. The fact that Article 9, paragraph 1, of Convention No. 87 stipulates that the extent to which the guarantees provided for in the Convention shall apply to the armed forces and the police shall be determined by national laws and regulations cannot warrant the assumption that any limitations or exclusions imposed by the legislation of a State as regards the trade union rights of the armed forces and the police are contrary to the Convention; this is a matter which has been left to the discretion of the States Members of the ILO.

(See the 1996 Digest, para. 221; and 307th Report, Case No. 1898, para. 323.)

226. Article 2 of Convention No. 87 provides that workers and employers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing. While Article 9 of the Convention does authorize exceptions to the scope of its provisions for the police and the armed forces, the Committee would recall that the members of the armed forces who can be excluded should be defined in a restrictive manner. Furthermore, the Committee of Experts on the Application of Conventions and Recommendations has observed that, since this Article of the Convention provides only for exceptions to the general principle, workers should be considered as civilians in case of doubt.

(See the 1996 Digest, para. 222; 321st Report, Case No. 2066, para. 332; and 333rd Report, Case No. 2288, para. 829.)

(b) Civilian staff in the armed forces

227. Civilian workers in the manufacturing establishments of the armed forces should have the right to establish organizations of their own choosing without previous authorization, in conformity with Convention No. 87.

(See the 1996 Digest, para. 223; and 330th Report, Case No. 2229, para. 941.)

228. The civilian staff working at the Army Bank should enjoy the right to establish and join trade union organizations, and adequate protection against acts of anti-union discrimination, in the same way as other trade union members and leaders in the country.

(See the 1996 Digest, para. 224.)

229. Civilians working in the services of the army should have the right to form trade unions.

(See 338th Report, Case No. 2387, para. 868.)

(c) Local public service employees

230. Local public service employees should be able effectively to establish organizations of their own choosing, and these organizations should enjoy the full right to further and defend the interests of the workers whom they represent.

(See the 1996 Digest, para. 217.)

(d) Firefighters

231. The functions exercised by firefighters do not justify their exclusion from the right to organize. They should therefore enjoy the right to organize.

(See 308th Report, Case No. 1902, para. 701; 329th Report, Case No. 2177/2183, para. 633; and 338th Report, Case No. 2187, para. 170.)

(e) Prison staff

232. Prison staff should enjoy the right to organize.

(See 329th Report, Case No. 2177/2183, para. 633.)

(f) Customs officials

233. Customs officials are covered by Convention No. 87 and therefore have the right to organize.

(See 333rd Report, Case no. 2288, para. 829.)

(g) Employees in the labour inspectorate

234. The denial of the right to organize to workers in the labour inspectorate constitutes a violation of Article 2 of Convention No. 87.

(See 302nd Report, Case No. 1823, para. 444.)

(h) Teachers

235. Teachers should have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests.

(See 309th Report, Case No. 1865, para. 143.)

236. Instructors governed by contracts for the provision of services should be able to establish and join organizations of their own choosing.

(See 326th Report, Case No. 2013, para. 416.)

237. The Committee requested a government to take measures to repeal a provision of the Universities Act which empowered the employer to determine the persons who could be members of academic staff associations. The Committee also recommended that consideration be given to the possibility of introducing an independent system for the designation, where necessary, of academic staff members, either through third party arbitration or some form of informal machinery.

(See the 1996 Digest, para. 242.)

(i) Locally recruited personnel in embassies

238. Convention No. 87 is applicable to locally recruited personnel in embassies.

(See 334th Report, Case No. 2197, para. 130.)

C. Security agents

239. Private security agents should freely be able to establish trade union organizations of their own choosing.

(See 333rd Report, Case No. 2299, para. 562.)

240. A national constitution should not have the effect of denying the right to organize of workers who need to carry arms because of the nature of their work.

(See 333rd Report, Case No. 2299, para. 561.)

D. Agricultural workers

241. Agricultural workers should enjoy the right to organize.

(See the 1996 Digest, para. 225.)

242. Legislation which lays down that not less than 60 per cent of the members of a trade union must be literate is incompatible with the principle established in Convention No. 87 that workers, without distinction whatsoever, shall have the right to establish organizations of their choosing. Article 1 of Convention No. 11 confirms this principle and lays down that each Member of the International Labour Organization which ratifies this Convention undertakes to secure to all those engaged in agriculture the same rights of association and combination as to industrial workers.

(See the 1996 Digest, para. 226.)

51 E. Plantation workers

243. In the resolution adopted by the Plantations Committee at its First Session in 1950, it is provided that employers should remove existing hindrances, if any, in the way of the organization of free, independent and democratically controlled trade unions by plantation workers.

(See the 1996 Digest, para. 227.)

F. Employees of airlines

244. The prohibition of trade union activities in international airlines constitutes a serious violation of freedom of association.

(See the 1996 Digest, para. 228.)

G. Port workers

245. In one case where the port employees of a country were, by custom and agreement, classifi ed as government offi cials and were therefore outside the coverage of the Trade Unions Act, and the government had considered that Convention No. 87 (ratifi ed by the country concerned) did not apply to them, the Committee pointed out that the government had assumed an international obligation to apply the Convention to workers “without distinction whatsoever”, and that in these circumstances the provisions of the Convention could not be modifi ed as regards particular categories of workers because of any private or national agreement, custom or other arrangement between such categories of workers and the government.

(See the 1996 Digest, para. 218.)

H. Hospital personnel

246. The right to establish and to join organizations for the promotion and defence of workers’ interests without previous authorization is a fundamental right which should be enjoyed by all workers without distinction whatsoever, including hospital personnel.

(See the 1996 Digest, para. 229.)

I. Managerial and supervisory staff

247. It is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that such workers have the right to establish their own associations to defend their interests and, second, that the categories of such staff are not defi ned so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership.

(See the 1996 Digest, para. 231; 307th Report, Case No. 1878, para. 453; 311th Report, Case No. 1951, para. 222; 313th Report, Case No. 1959, para. 217; 325th Report, Case No. 1951, para. 210; 329th Report, Case No. 2177/2183, para. 638; 330th Report, Case No. 2200, para. 1096; 332nd Report, Case No. 2242, para. 823; 335th Report, Case No. 2257, para. 460, and Case No. 1865, para. 816.)

248. As regards provisions which prohibit supervisory employees from joining workers’ organizations, the Committee has taken the view that the expression “supervisors” should be limited to cover only those persons who genuinely represent the interests of employers.

(See the 1996 Digest, para. 232; 311th Report, Case No. 1951, para. 222; and 325th Report, Case No. 1951, para. 210.)

249. Limiting the definition of managerial staff to persons who have the authority to appoint or dismiss is sufficiently restrictive to meet the condition that these categories of staff are not defined too broadly.

(See 313th Report, Case No. 1959, para. 217.)

250. A reference in the definition of managerial staff to the exercise of disciplinary control over workers could give rise to an expansive interpretation which would exclude large numbers of workers from workers’ rights.

(See 313th Report, Case No. 1959, para. 217.)

251. An excessively broad interpretation of the concept of “worker of confidence”, which denies such workers their right of association, may seriously limit trade union rights and even, in small enterprises, prevent the establishment of trade unions, which is contrary to the principle of freedom of association.

(See the 1996 Digest, para. 233; 307th Report, Case No. 1878, para. 453; and 324th Report, Case No. 1880, para. 859.)

252. Legal provisions which permit employers to undermine workers’ organizations through artificial promotions of workers constitute a violation of the principles of freedom of association.

(See the 1996 Digest, para. 234; 307th Report, Case No. 1878, para. 453; and 329th Report, Case No. 2177/2183, para. 638.)

253. As concerns persons exercising senior managerial or policy-making responsibilities, the Committee is of the opinion that while these public servants may be barred from joining trade unions which represent other workers, such restrictions should be strictly limited to this category of workers and they should be entitled to establish their own organizations.

(See the 1996 Digest, para. 230; and 327th Report, Case No. 1865, para. 484.)

J. Self-employed workers and the liberal professions

254. By virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and the police – should have the right to establish and 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 practise liberal professions, who should nevertheless enjoy the right to organize.

(See the 1996 Digest, para. 235; 304th Report, Case No. 1796, para. 464; 323rd Report, Case No. 2059, para. 475; 326th Report, Case No. 2013, para. 416; 332nd Report, Case No. 2221, para. 222; and 336th Report, Case No. 2347, para. 628.)

K. Temporary workers

255. All workers, without distinction whatsoever, whether they are employed on a permanent basis, for a fixed term or as contract employees, should have the right to establish and join organizations of their own choosing.

(See the 1996 Digest, para. 236; 324th Report, Case No. 2083, para. 253; and 330th Report, Case No. 2158, para. 846.)

L. Workers undergoing a period of work probation

256. Workers undergoing a period of work probation should be able to establish and join organizations of their choosing, if they so wish.

(See the 1996 Digest, para. 237; 304th Report, Case No. 1796, para. 467; 327th Report, Case No. 2138, para. 544; and 330th Report, Case No. 2158, para. 846.) 257. The denial of the right to organize to workers undergoing a period of work probation could raise problems with regard to the application of Convention No. 87.

(See the 1996 Digest, para. 238.)

M. Workers hired under training contracts

258. Persons hired under training agreements should have the right to organize.

(See 304th Report, Case No. 1796, para. 464; and 323rd Report, Case No. 2059, para. 475.)

259. The status under which workers are engaged with the employer, as apprentices or otherwise, should not have any effect on their right to join workers’ organizations and participate in their activities.

(See 330th Report, Case No. 2158, para. 846.)

N. Persons working under community participation programmes intended to combat unemployment

260. Persons working under community participation programmes intended to combat unemployment are workers within the meaning of Convention No. 87 and they must have the right to organize, given that they undeniably have collective interests which must be promoted and defended.

(See 316th Report, Case No. 1975, para. 270; and 324th Report, Case No. 2022, para. 765.)

O. Workers in cooperatives

261. The Promotion of Cooperatives Recommendation, 2002 (No. 193), calls on governments to ensure that cooperatives are not set up or used for non-compliance with labour law or used to establish disguised employment relationships.

(See 338th Report, Case No. 2239, para. 144.)

262. Mindful of the particular characteristics of cooperatives, the Committee considers that associated labour cooperatives (whose members are their own bosses) cannot be considered, in law or in fact, as “workers’ organizations” within the meaning of Convention No. 87, that is organizations that have as their objective to promote and defend workers’ interests. That being so, referring to Article 2 of Convention No. 87 and recalling that the concept of worker means not only salaried worker, but also independent or autonomous worker, the Committee has considered that workers associated in cooperatives should have the right to establish and join organizations of their own choosing.

(See 335th Report, Case No. 2237, para. 72; 336th Report, Case No. 2239, para. 353; 337th Report, Case No. 2362, para. 757; and 338th Report, Case No. 2239, para. 144.)

P. Distributors and sales agents

263. The Committee does not have the competence to express an opinion concerning the legal relationship (labour or commercial) of certain distributors and sales agents of an enterprise including on the question of whether the absence of a recognized employment relationship implies that they are not covered by the Labour Act. Nevertheless, in view of the fact that Convention No. 87 permits the exclusion only of the armed forces and the police, the sales agents in question should be able to establish organizations of their own choosing (Convention No. 87, Article 2).

(See the 1996 Digest, para. 239.)

Q. Workers in export processing zones

264. Workers in export processing zones – despite the economic arguments often put forward – like other workers, without distinction whatsoever, should enjoy the trade union rights provided for by the freedom of association Conventions.

(See the 1996 Digest, para. 240; 302nd Report, Case No. 1826, para. 411; and 337th Report, Case No. 2327, para. 195.)

265. In a case relating to violations of trade union rights in export processing zones, the Committee recalled that the standards contained in Convention No. 87 apply to all workers “without distinction whatsoever” and requested the government to amend the legislation in order to guarantee the workers concerned the right of association and collective bargaining in accordance with Conventions Nos. 87 and 98.

(See the 1996 Digest, para. 241; and 335th Report, Case No. 2228, para. 905.)

266. The ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy 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. The Committee considers that legal provisions on export processing zones should ensure the right to organize and bargain collectively for workers.

(See the 1996 Digest, para. 801; and 333rd Report, Case No. 2281, para. 636.)

R. Domestic workers

267. Domestic workers are not excluded from the application of Convention No. 87 and should therefore be governed by the guarantees it affords and have the right to establish and join occupational organizations.

(See 308th Report, Case No. 1900, para. 182.)

S. Workers who have been dismissed

268. A provision depriving dismissed workers of the right to union membership is incompatible with the principles of freedom of association since it deprives the persons concerned of joining the organization of their choice. Such a provision entails the risk of acts of anti-union discrimination being carried out to the extent that the dismissal of trade union activists would prevent them from continuing their trade union activities within their organization.

(See 336th Report, Case No. 1865, para. 333.)

269. The loss of a person’s trade union status as a result of dismissal for strike activities is contrary to the principles of freedom of association.

(See 309th Report, Case No. 1851/1922, para. 238.)

T. Retired workers

270. The right to decide whether or not a trade union should represent retired workers for the defence of their specific interests is a question pertaining to the internal autonomy of all trade unions.

(See 336th Report, Case No. 2347, para. 627.)
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