Forms of discrimination (Protection against anti-union discrimination)


Description:(CFA: Digest of Decisions 2006)
Subject classification: Freedom of Association
Document:1303
Subject: Freedom of Association, Collective Bargaining, and Industrial Relations
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Document No. (ilolex): 2320061303

Forms of discrimination

A. General principles

(See also paras. 338, 352, 353, 524 and 660)

779. The Committee is not called upon to pronounce upon the question of the breaking of a contract of employment by dismissal except in cases in which the provisions on dismissal imply anti-union discrimination.

(See the 1996 Digest, para. 692.)

780. Protection against anti-union discrimination should apply more particularly in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the employer’s consent, during working hours.

(See the 1996 Digest, para. 694; 304th Report, Case No. 1787, para. 174; 329th Report, Case No. 2172, para. 351, and Case No. 2068, para. 436; and 330th Report, Case No. 2186, para. 379.)

781. Protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker.

(See the 1996 Digest, para. 695; and, for example, 306th Report, Case No. 1867, para. 67; 307th Report, Case No. 1890, para. 372; 311th Report, Case No. 1942, para. 266; 320th Report, Case No. 1998, para. 254; 323rd Report, Case No. 1874, para. 60; 325th Report, Case No. 2087, para. 573; 326th Report, Case No. 2103, para. 295; 328th Report, Case No. 2068, para. 208; 330th Report, Case No. 2200, para. 1101; and 334th Report, Case No. 2222, para. 210.)

B. Discrimination in relation to hiring

782. Workers face many practical difficulties in proving the real nature of their dismissal or denial of employment, especially when seen in the context of blacklisting, which is a practice whose very strength lies in its secrecy. While it is true that it is important for employers to obtain information about prospective employees, it is equally true that employees with past trade union membership or activities should be informed about the information held on them and given a chance to challenge it, especially if it is erroneous and obtained from an unreliable source. Moreover, in these conditions, the employees concerned would be more inclined to institute legal proceedings since they would be in a better position to prove the real nature of their dismissal or denial of employment.

(See the 1996 Digest, paras. 173 and 710; 306th Report, Case No. 1862, para. 105; 330th Report, Case No. 2186, para. 372; and 335th Report, Case No. 2270, para. 1394.)

783. With regard to special committees set up under a law with a view to granting or refusing the “certificates of loyalty” required of certain workers in public utility undertakings if they were to be engaged or retained in service, the Committee recalled the desirability of ensuring that the special committees in question should not be used in such a manner as to give rise to anti-union discrimination.

(See the 1996 Digest, para. 713.)

784. Legislation should allow the possibility to appeal against discrimination in hiring, i.e. even before the workers can be qualified as “employees”.

(See 338th Report, Case No. 2158, para. 186.)

C. Discrimination during employment

(See also paras. 675, 1054 and 1058)

785. The non-renewal of a contract for anti-union reasons constitutes a prejudicial act within the meaning of Article 1 of Convention No. 98.

(See 327th Report, Case No. 2147, para. 866.)

786. Acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize.

(See 302nd Report, Case No. 1826, para. 411.)

787. Granting bonuses to non-union member staff – even if it is not to all nonunion workers – and excluding all workers who are union members from such bonuses during a period of collective confl ict, constitutes an act of anti-union discrimination contrary to Convention No. 98.

(See 307th Report, Case No. 1886, para. 466.)

788. The government’s obligations under Convention No. 98 and the principles on protection against anti-union discrimination cover not only acts of direct discrimination (such as demotion, dismissal, frequent transfer, and so on), but extend to the need to protect unionized employees from more subtle attacks which may be the outcome of omissions. In this respect, proprietorial changes should not remove the right to collective bargaining from employees, or directly or indirectly threaten unionized workers and their organizations.

(See the 1996 Digest, para. 715; and 313th Report, Case No. 1987, para. 115.)

D. Discriminatory dismissal

(See also paras. 268, 269, 408, 661 to 664, 666, 674 and 682)

789. The dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association.

(See the 1996 Digest, para. 702; and, for example, 300th Report, Case No. 1780, para. 142; 306th Report, Case No. 1884, para. 703; 310th Report, Case No. 1888, para. 389; 316th Report, Case No. 1970, para. 555; 321st Report, Case No. 1979, para. 391; 325th Report, Case No. 2068, para. 316; 328th Report, Case No. 2161, para. 674; 333rd Report, Case No. 2087, para. 1010; 336th Report, Case No. 2336, para. 535; and 337th Report, Case No. 2388, para. 1359.)

790. Subcontracting accompanied by dismissals of union leaders can constitute a violation of the principle that no one should be prejudiced in his or her employment on the grounds of union membership or activities.

(See the 1996 Digest, para. 705.)

791. It would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustifi ed dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities.

(See the 1996 Digest, para. 707; and, for example, 308th Report, Case No. 1934, para. 134; 310th Report, Case No. 1773, para. 459; 316th Report, Case No. 1934, para. 211; 318th Report, Case No. 2004, para. 400; 321st Report, Case No. 1978, para. 35; 332nd Report, Case No. 2262, para. 394; 333rd Report, Case No. 2186, para. 351; 335th Report, Case No. 2265, para. 1351; 336th Report, Case No. 2336, para. 535; and 337th Report, Case No. 2262, para. 262.) 792. Where public servants are employed under conditions of free appointment and removal from service, the exercise of the right to freely remove public employees from their posts should in no instance be motivated by the trade union functions or activities of the persons who could be affected by such measures.

(See the 1996 Digest, para. 708; and 332nd Report, Case No. 2187, para. 725.)

793. Not only dismissal, but also compulsory retirement, when imposed as a result of legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities.

(See the 1996 Digest, para. 716.)

794. In certain cases, the Committee has found it difficult to accept as a coincidence unrelated to trade union activity that heads of departments should have decided, immediately after a strike, to convene disciplinary boards which, on the basis of service records, ordered the dismissal not only of a number of strikers, but also of members of their union committee.

(See the 1996 Digest, para. 717; and 333rd Report, Case No. 2186, para. 353.)

795. Acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity.

(See the 1996 Digest, para. 718; 304th Report, Case No. 1853, para. 299; 332nd Report, Case No. 2187, para. 725; and 335th Report, Case No. 2303, para. 1371.)

796. The application of staff reduction programmes musts not be used to carry out acts of anti-union discrimination.

(See 304th Report, Case No. 1796, para. 458; and 305th Report, Case No. 1855, para. 431.)

797. A corporate restructuring should not directly or indirectly threaten unionized workers and their organizations.

(See 320th Report, Case No. 1963, para. 226.)

798. Bipartite talks and the administrative procedure of permission to dismiss do not accord suffi cient protection to workers against acts of anti-union discrimination when the legislation currently in force allows an employer merely to invoke lack of harmony in the working relationship to justify the dismissal of workers who only wish to exercise a fundamental right under the principles of freedom of association.

(See the 1996 Digest, para. 723.)
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