Need for rapid and effective protection (Protection against anti-union discrimination)


Description:(CFA: Digest of Decisions 2006)
Subject classification: Freedom of Association
Document:1305
Subject: Freedom of Association, Collective Bargaining, and Industrial Relations
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Document No. (ilolex): 2320061305

Need for rapid and effective protection

813. Legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination in order to ensure the effective application of Article 1 of Convention No. 98.

(See the 1996 Digest, para. 697; 300th Report, Case No. 1799, para. 209; 329th Report, Case No. 2172, para. 351, and Case No. 2068, para. 436; 334th Report, Case No. 2222, para. 210; and 335th Report, Case No. 2265, para. 1347.)

814. Where a government has undertaken to ensure that the right to associate shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment.

(See the 1996 Digest, para. 698; and 329th Report, Case No. 2154, para. 813.)

815. In accordance with Convention No. 98, a government should take measures, whenever necessary, to ensure that protection of workers is effective, which implies that the authorities should refrain from any act likely to provoke, or have as its object, anti-union discrimination against workers in respect of their employment.

(See the 1996 Digest, para. 699.)

816. As long as protection against anti-union discrimination is in fact ensured, the methods adopted to safeguard workers against such practices may vary from one State to another; but if there is discrimination, the government concerned should take all necessary steps to eliminate it, irrespective of the methods normally used.

(See the 1996 Digest, para. 737; 307th Report, Case No. 1877, para. 403; and 330th Report, Case No. 2229, para. 950.)

817. The government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned.

(See the 1996 Digest, para. 738; and, for example, 307th Report, Case No. 1877, para. 403; 310th Report, Case No. 1880, para. 539; 321st Report, Case No. 1972, para. 77; 327th Report, Case No. 1995, para. 211; 330th Report, Case No. 2126, para. 152; 334th Report, Case No. 2126, para. 73; 335th Report, Case No. 2228, para. 897; 336th Report, Case No. 2336, para. 536; 337th Report, Case No. 2395, para. 1200; and 338th Report, Case No. 2402, para. 467.)

818. The basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed.

(See the 1996 Digest, paras. 739, 740 and 742; and, for example, 320th Report, Case No. 2034, para. 745; 324th Report, Case No. 2035, para. 574; 330th Report, Case No. 2186, para. 372; 331st Report, Case No. 2215, para. 178; 332nd Report, Case No. 2227, para. 608; 333rd Report, Case No. 2186, para. 350; 334th Report, Case No. 2222, para. 210, and Case No. 2215, para. 236; 335th Report, Case No. 2236, para. 967; 337th Report, Case No. 2395, para. 1200; and 338th Report, Case No. 2186, para. 53.)

819. It may often be difficult, if not impossible, for workers to furnish proof of an act of anti-union discrimination of which they have been the victim. This shows the full importance of Article 3 of Convention No. 98, which provides that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organize.

(See the 1996 Digest, para. 740; 310th Report, Case No. 1867, para. 88; 311th Report, Case No. 1934, para. 127; 316th Report, Case No. 1970, para. 556; 330th Report, Case No. 2186, para. 372; 333rd Report, Case No. 2186, para. 354; and 335th Report, Case No. 2265, para. 1348.)

820. Respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial.

(See the 1996 Digest, para. 741; and, for example, 310th Report, Case No. 1880, para. 539; 327th Report, Case No. 2098, para. 757; 328th Report, Case No. 2158, para. 319; 329th Report, Case No. 2172, para. 351, and Case No. 2176, para. 565; 330th Report, Case No. 2186, para. 372; 333rd Report, Case No. 2281, para. 633; 335th Report, Case No. 2236, para. 967; and 338th Report, Case No. 2378, para. 1145.)

821. The longer it takes for such a procedure to be completed, the more difficult it becomes for the competent body to issue a fair and proper relief, since the situation complained of has often been changed irreversibly, people may have been transferred, etc, to a point where it becomes impossible to order adequate redress or to come back to the status quo ante.

(See 329th Report, Case No. 2176, para. 565.)

822. Legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of anti-union discrimination to ensure the practical application of Articles 1 and 2 of Convention No. 98.

(See the 1996 Digest, paras. 743 and 745; 299th Report, Case No. 1687, para. 455; 307th Report, Case No. 1877, para. 401; 316th Report, Case No. 1934, para. 211; 330th Report, Case No. 2203, para. 808; 335th Report, Case No. 2236, para. 967, and Case No. 2265, para. 1315.)

823. Where a government has undertaken to ensure that the free exercise of trade union rights shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should when necessary be accompanied by measures which include the protection of workers against anti-union discrimination in their employment.

(See the 1996 Digest, para. 744.)

824. The Committee has recalled the need to ensure by specifi c provisions accompanied by civil remedies and penal sanctions the protection of workers against acts of anti-union discrimination at the hands of employers.

(See the 1996 Digest, para. 746; 329th Report, Case No. 2154, para. 815; and 330th Report, Case No. 2186, para. 374.)

825. A system of protection against anti-union practices which includes severe fi nes in the case of anti-union dismissals, administrative orders to reinstate workers so dismissed and the possibility of closing down the enterprise does not infringe Convention No. 98.

(See the 1996 Digest, para. 747.)

826. Cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned.

(See the 1996 Digest, para. 749; and, for example, 304th Report, Case No. 1719, para. 415; 309th Report, Case No. 1945, para. 66; 320th Report, Case No. 1937, para. 95; 329th Report, Case No. 1948/1955, para. 396; 331st Report, Case No. 1955, para. 18; 333rd Report, Case No. 2291, para. 915; 335th Report, Case No. 2228, para. 897; 336th Report, Case No. 2203, para. 428; 337th Report, Case No. 2395, para. 1194; and 338th Report, Case No. 1890, para. 179.)

827. In a case in which proceedings concerning dismissals had already taken 14 months, the Committee requested the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and emphasized that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts.

(See 323rd Report, Case No. 2059, para. 476.)

828. Complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner.

(See the 1996 Digest, para. 750; 330th Report, Case No. 2158, para. 853; 331st Report, Case No. 2187, para. 443; 332nd Report, Case No. 2262, para. 397; and 334th Report, Case No. 2126, para. 73.)

829. The Committee has recalled that the Fact-Finding and Conciliation Commission on Freedom of Association had stressed the importance of providing expeditious, inexpensive and wholly impartial means of redressing grievances caused by acts of anti-union discrimination; it has drawn attention to the desirability of settling grievances wherever possible by discussion without treating the process of determining grievances as a form of litigation, but the Commission has concluded, in cases where honest differences of opinion or viewpoint exist, that resort should be had to impartial tribunals or individuals as the fi nal step in the grievance procedure.

(See the 1996 Digest, para. 751.)

830. The Committee has drawn attention to the Workers’ Representatives Recommendation, 1971 (No. 143), which recommends, as one of the measures that should be taken to ensure the effective protection of workers’ representatives, the adoption of provision for laying upon the employer, in the case of any alleged discriminatory dismissal or unfavourable change in the conditions of employment of a workers’ representative, the burden of proving that such action was in fact justified.

(See the 1996 Digest, para. 736.)

831. Besides preventive machinery to forestall anti-union discrimination (such as, for example, a request for the prior authorization of the labour inspectorate before dismissing a trade union leader), a further means of ensuring effective protection could be to make it compulsory for each employer to prove that the motive for the decision to dismiss a worker has no connection with the worker’s union activities.

(See the 1996 Digest, para. 752; and 335th Report, Case No. 2265, para. 1348.) 832. In cases of staff reductions, the Committee has drawn attention to the principle contained in the Workers’ Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers’ representatives with regard to their retention in employment in case of reduction of the workforce.

(See the 1996 Digest, para. 960; 302nd Report, Case No. 1838, para. 121; 311th Report, Case No. 1865, para. 334; 313th Report, Case No. 1987, para. 115; 328th Report, Case No. 2165, para. 246; 330th Report, Case No. 2142, para. 58, and Case No. 2151, para. 536; 337th Report, Case No. 2356, para. 700; and 338th Report, Case No. 2226, para. 132.)

833. The Committee has emphasized the advisability of giving priority to workers’ representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection.

(See the 1996 Digest, para. 961; 305th Report, Case No. 1875, para. 180; 313th Report, Case No. 1987, para. 115; 322nd Report, Case No. 1962, para. 66; 325th Report, Case No. 2068, para. 334; 328th Report, Case No. 2068, para. 207; 331st Report, Case No. 2226, para. 302; and 337th Report, Case No. 2356, para. 700.)

834. The Committee has considered that governments should take the necessary measures to enable labour inspectors to enter freely and without previous notice any workplace liable to inspection, and to carry out any examination, test or inquiry which they may consider necessary in order to satisfy themselves that the legal provisions – including those relating to anti-union discrimination – are being strictly observed.

(See the 1996 Digest, para. 753; and 336th Report, Case No. 2316. para. 55.)

835. Where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention.

(See the 1996 Digest, para. 754; and, for example, 308th Report, Case No. 1897, para. 476; 309th Report, Case No. 1852, para. 335; 310th Report, Case No. 1880, para. 539; 318th Report, Case No. 1987, para. 56; 320th Report, Case No. 1989, para. 327; 328th Report, Case No. 2116, para. 364; 331st Report, Case No. 2068, para. 265; 334th Report, Case No. 2200, para. 757; 337th Report, Case No. 2371, para. 238; and 338th Report, Case No. 2407, para. 492.) 836. In a case in which the remedies available to undocumented workers dismissed for attempting to exercise their trade union rights included: (1) a cease and desist order in respect of violations of the law; and (2) the conspicuous posting of a notice to employees setting forth their rights under the law and detailing the prior unfair practices, the Committee considered that such remedies in no way sanctioned the act of anti-union discrimination already committed, but only acted as possible deterrents for future acts. Such an approach is likely to afford little protection to undocumented workers who can be indiscriminately dismissed for exercising freedom of association. The remedial measures in question are therefore inadequate to ensure effective protection against acts of anti-union discrimination.

(See 332nd Report, Case No. 2227, paras. 609 and 610.)
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