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Reinstatement of trade unionists in their jobs (Protection against anti-union discrimination)Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:1306 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320061306 Reinstatement of trade unionists in their jobs (See also para. 682)837. No one should be subjected to anti-union discrimination because of legitimate trade union activities and the remedy of reinstatement should be available to those who are victims of anti-union discrimination. (See the 1996 Digest, para. 755; 306th Report, Case No. 1867, para. 67; 316th Report, Case No. 1970, para. 555; 327th Report, Case No. 2046, para. 433; and 330th Report, Case No. 2186, para. 374.) 838. In the case of a country in which there was no legislation providing for the reinstatement of workers who had been dismissed without justifi cation, the Committee requested the government to take measures to amend the legislation so that workers dismissed for the exercise of their trade union rights can be reinstated in their posts.(See 332nd Report, Case No. 2201, para. 548. )839. In cases of the dismissal of trade unionists on the grounds of their trade union membership or activities, the Committee has requested the government to take the necessary measures to enable trade union leaders and members who had been dismissed due to their legitimate trade union activities to secure reinstatement in their jobs and to ensure the application against the enterprises concerned of the corresponding legal sanctions.(See the 1996 Digest, para. 756; 320th Report, Case No. 1995, para. 372; and 323rd Report, Case No. 2034, para. 403.) 840. In many cases, the Committee has requested the government to ensure that the persons in question are reinstated in their jobs without loss of pay.(See, for example, 318th Report, Case No. 1974, para. 306, and Case No. 2004, para. 401; 319th Report, Case No. 1962, para. 152; 320th Report, Case No. 1989, para. 325; 323rd Report, Case No. 2034, para. 406; 324th Report, Case No. 2090, para. 212; 326th Report, Case No. 2103, para. 296; 327th Report, Case No. 2125, para. 778; and 328th Report, Case No. 2068, para. 206.) 841. If, given the considerable time that has elapsed since the dismissals, in violation of the principles of freedom of association, it is not practicable to reinstate the workers concerned, the Committee has requested the government to take steps to ensure that the workers receive full compensation without delay.(See 319th Report, Case No. 1962, paras. 152 and 153.) 842. In certain cases of dismissals in which judicial proceedings were ongoing, if the decision concludes that there have been acts of anti-union discrimination, the Committee has requested the reinstatement of the workers concerned.(See 324th Report, Case No. 1880, para. 853; 328th Report, Case No. 2158; para. 320; 329th Report, Case No. 2188, para. 214; 330th Report, Case No. 2186, para. 374, Case No. 2208, para. 600, and Case No. 2192, para. 1072; 332nd Report, Case No. 2187, para. 724; 333rd Report, Case No. 2286, para. 874; and 335th Report, Case No. 2283, para. 225.) 843. If the judicial authority determines that reinstatement of workers dismissed in violation of freedom of association is not possible, measures should be taken so that they are fully compensated.(See 335th Report, Case No. 2274, para. 1118.) 844. The compensation should be adequate, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future.(See 336th Report, Case No. 2336, para. 537; 338th Report, Case No. 2404, para. 1053, and Case No. 2248, para. 1200.) 845. If reinstatement is not possible, the government should ensure that the workers concerned are paid adequate compensation which would represent a suffi cient dissuasive sanction for anti-trade union dismissals.(See 336th Report, Case No. 2380, para. 795; 337th Report, Case No. 2371, para. 239, Case No. 2262, para. 260, and Case No. 2268, paras. 1104, 1107 and 1109; 338th Report, Case No. 2228, para. 195, and Case No. 2399, para. 1172.) 846. In certain cases, the Committee has requested the government to carry out independent investigations of dismissals and, if it fi nds that they constitute anti-trade union acts, to take measures to ensure the reinstatement of the workers concerned.(See, for example, 327th Report, Case No. 2098, para. 757, and Case No. 2126, para. 845; 329th Report, Case No. 2098, para. 125; 330th Report, Case No. 2103, para. 766; 331st Report, Case No. 2169, para. 639; 332nd Report, Case No. 2187, para. 725; 333rd Report, Case No. 2286, para. 876; 334th Report, Case No. 2239, para. 394; 337th Report, Case No. 2371, para. 239; 338th Report, Case No. 2096, para. 274, and Case No. 2303, para. 334.) 847. If the post occupied by the worker has been eliminated, she or he should be reinstated in a comparable post if the dismissal constituted an act of anti-union discrimination.(See 329th Report, Case No. 2150, para. 314.) 848. Where the enterprise no longer exists, measures should be taken to ensure that workers dismissed for trade union activities are fully compensated.(See 329th Report, Case No. 2097, para. 470.) 849. Declarations of loyalty or other similar commitment should not be imposed as a condition for reinstatement.(See 309th Report, Case No. 1851/1922, para. 237.) 850. In a case of a strike by air traffic controllers in which public safety was endangered, the Committee considered that it could not ask the Government to allow the request for a return to work of those who were dismissed, as claimed by the complainant.(See 309th Report, Case No. 1913, para. 305.) 851. In a case in which a trade union official had been dismissed for alleged robbery, and where the case against the offi cial had not been upheld by the courts, the Committee considered that the person concerned should be reinstated without loss of pay and be authorized to exercise trade union activities.(See 333rd Report, Case No. 2299, para. 560.) 852. The necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish.(See the 1996 Digest, paras. 302, 703 and 757; 304th Report, Case No. 1787, para. 174; 328th Report, Case No. 2160, para. 658; 335th Report, Case No 2283, para. 225, and Case No. 2265, para. 1351; 336th Report, Case No. 2336, para. 535, and Case No. 2380, para. 794; and 337th Report, Case No. 2262, para. 260.) 853. It is inconsistent with the right to strike for an employer to be permitted to refuse to reinstate some or all of the employees at the conclusion of the strike, lock-out or other industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal.(See the 1996 Digest, para. 722; and 333rd Report, Case No. 2281, para. 633.) |
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