 |
Disclaimer webinfo@ilo.org |
Admissible privileges for most representative unions (Right of workers and employers to establish and join organizations of their own choosing)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:0506 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320060506 Admissible privileges for most representative unions (See also paras. 339 and 949 to 980)346. The Committee has pointed out on several occasions, and particularly during discussion on the draft of the Right to Organize and Collective Bargaining Convention, that the International Labour Conference referred to the question of the representative character of trade unions, and, to a certain extent, it agreed to the distinction that is sometimes made between the various unions concerned according to how representative they are. Article 3, paragraph 5, of the Constitution of the ILO includes the concept of “most representative” organizations. Accordingly, the Committee felt that the mere fact that the law of a country draws a distinction between the most representative trade union organizations and other trade union organizations is not in itself a matter for criticism. Such a distinction, however, should not result in the most representative organizations being granted privileges extending beyond that of priority in representation, on the ground of their having the largest membership, for such purposes as collective bargaining or consultation by governments, or for the purpose of nominating delegates to international bodies. In other words, this distinction should not have the effect of depriving trade union organizations that are not recognized as being among the most representative of the essential means for defending the occupational interests of their members, for organizing their administration and activities and formulating their programmes, as provided for in Convention No. 87. (See the 1996 Digest, para. 309; 332nd Report, Case No. 2216, para. 908; and 337th Report, Case No. 2334, para. 1219.) 347. The determination of the most representative trade union should always be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse.(See the 1996 Digest, para. 314; 305th Report, Case No. 1871, para. 79, and Case No. 1765, para. 98; 327th Report, Case No. 2132, para. 661; 331st Report, Case No. 2132, para. 588; and 333rd Report, Case No. 2288, para. 827.) 348. Pre-established, precise and objective criteria for the determination of the representativity of workers’ and employers’ organizations should exist in the legislation and such a determination should not be left to the discretion of governments.(See the 1996 Digest, para. 315; 302nd Report, Case No. 1817, para. 325; 331st Report, Case No. 2132, para. 588; 333rd Report, Case No. 2288, para. 827; and 337th Report, Case No. 2334, para. 1220.) 349. Conventions Nos. 87 and 98 are compatible with systems which envisage union representation for the exercise of collective trade union rights based on the degree of actual union membership, as well as those envisaging union representation on the basis of general ballots of workers or offi cials, or a combination of both systems.(See 320th Report, Case No. 2040, para. 669.) 350. A system under which the apportioning of the number of union stewards for joint organizations is determined by a committee responsible for verifying the trade union membership of the different organizations is compatible with the principles of freedom of association, as long as it offers certain guarantees. Clearly, the protection of data regarding union membership is a fundamental aspect of human rights and, in particular, with regard to the right to privacy; however, inasmuch as the verification of union membership is subject to strict guarantees, there is no reason why it should not be compatible with the observance of such rights or guarantee confi dentiality in respect of members’ identities. It is also important for the bodies responsible for verifying the membership levels of union organizations to enjoy the confi dence of all such organizations.(See 320th Report, Case No. 2040, para. 669.) 351. The determination to ascertain or verify the representative character of trade unions can best be ensured when strong guarantees of secrecy and impartiality are offered. Thus, verification of the representative character of a union should a priori be carried out by an independent and impartial body.(See 302nd Report, Case No. 1817, para. 325.) 352. It is unnecessary to draw up a list of trade union members in order to determine the number of members; this will be evident from the record of trade union membership dues, and there is no need for a list of names which could make acts of anti-union discrimination easier.(See 327th Report, Case No. 2132, para. 661.) 353. The requirement that the authorities make in practice of obtaining a list of the names of all the members of an organization and a copy of their membership card to determine the most representative organization poses a problem with regard to the principles of freedom of association. There is a risk of reprisals and anti-union discrimination inherent in this type of requirement.(See 336th Report, Case No. 2153, para. 166.) 354. Recognizing the possibility of trade union pluralism does not preclude granting certain rights and advantages to the most representative organizations. However, the determination of the most representative organization must be based on objective, pre-established and precise criteria so as to avoid any possibility of bias or abuse, and the distinction should generally be limited to the recognition of certain preferential rights, for example for such purposes as collective bargaining, consultation by the authorities or the designation of delegates to international organizations.(See 300th Report, Case No. 1844, para. 241.) 355. The Committee has considered that certain advantages, especially with regard to representation, might be accorded to trade unions by reason of the extent of their representativeness. But it has taken the view that the intervention of the public authorities as regards such advantages should not be of such a nature as to infl uence unduly the choice of the workers in respect of the organization to which they wish to belong.(See the 1996 Digest, para. 311; 327th Report, Case No. 2132, para. 661; and 335th Report, Case No. 2317, para. 1083.) 356. The fact of establishing in the legislation a percentage in order to determine the threshold for the representativeness of organizations and grant certain privileges to the most representative organizations (in particular for collective bargaining purposes) does not raise any diffi culty provided that the criteria are objective, precise and pre-established, in order to avoid any possibility of bias or abuse.(See 336th Report, Case No. 2153, para. 166.) 357. The Committee has considered, with regard to legislation establishing a system for determining representitivity, that granting the right to sit on the Economic and Social Council only to those trade union organizations deemed to be the most representative would not appear to influence workers unduly in the choice of organization that they wish to join, nor to prevent less representative organizations from defending the interests of their members, organizing their activities and formulating their programmes.(See 311th Report, Case No. 1968, para. 502.) 358. The Committee has considered that a registration system set up by law which grants exclusive negotiation rights to registered unions would not be incompatible with the principles of freedom of association provided that the registration is based on objective and predetermined criteria. However, the granting of exclusive rights to the most representative organization should not mean that the existence of other unions to which certain involved workers might wish to belong is prohibited.(See the 1996 Digest, para. 312.) 359. Minority trade unions that have been denied the right to negotiate collectively should be permitted to perform their activities and at least to speak on behalf of their members and represent them in the case of an individual claim.(See the 1996 Digest, para. 313; and 336th Report, Case No. 2153, para. 168.) |
| ILO Home | NORMES home | ILOLEX home | Universal Query | NATLEX |
|
Disclaimer webinfo@ilo.org |