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General principles (Protection against acts of interference (See also para. 1119))Description:(CFA: Digest of Decisions 2006) Subject classification: Freedom of Association Document:1401 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 2320061401 General principles 855. Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities. (See the 1996 Digest, para. 759; 325th Report, Case No. 2068, para. 321; 329th Report, Case No. 2198, para. 683; 330th Report, Case No 2186, para. 379; 331st Report, Case No. 2185, para. 676; 334th Report, Case No. 2316, para. 506; 337th Report, Case No. 2388, para. 1355; and 338th Report, Case No. 2374, para. 509.) 856. The closure of trade union offices, as a consequence of a legitimate strike, constitutes a violation of the principles of freedom of association and, if carried out by management, interference by the employer in the functioning of a workers’ organization, which is prohibited under Article 2 of Convention No. 98.(See 302nd Report, Case No. 1849, para. 215.) 857. The intervention by an employer to promote the constitution of the executive board of a trade union, and interference with its correspondence, are acts which constitute a grave violation of the principles of freedom of association.(See 311th Report, Case No. 1966, para. 360.) 858. As regards allegations of anti-union tactics in the form of bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions, the Committee considers such acts to be contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents in their establishment, functioning or administration.(See the 1996 Digest, para. 760; 324th Report, Case No. 2090, para. 209; 330th Report, Case No. 2090, para. 232, and Case No. 2203, para. 810; and 337th Report, Case No. 2388, para. 1354.) 859. Respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard. They should not, for example, do anything which might seem to favour one group within a union at the expense of another.(See the 1996 Digest, para. 761; 327th Report, Case No. 2118, para. 641; 328th Report, Case No. 2124, para. 460; 329th Report, Case No. 2198, para. 685, and Case No. 2184, para. 828; 330th Report, Case No. 2118, para. 116; and 331st Report, Case No. 2132, para. 589.) 860. Where legislation does not contain specific provisions for the protection of workers’ organizations from acts of interference by employers and their organizations (and provides that any case not provided for by the legislation should be decided, inter alia, in accordance with the provisions laid down in the Conventions and Recommendations adopted by the International Labour Organization, in so far as they are not contrary to laws of the country, and in accordance with Convention No. 98, by virtue of its ratifi cation), it would be appropriate for the government to examine the possibility of adopting clear and precise provisions ensuring the adequate protection of workers’ organizations against these acts of interference.(See the 1996 Digest, para. 762; and 333rd Report, Case No. 2186, para. 358.) 861. The existence of legislative provisions prohibiting acts of interference on the part of the authorities, or by organizations of workers and employers in each other’s affairs, is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice.(See the 1996 Digest, para. 763; and 333rd Report, Case No. 2168, para. 358.) 862. Legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations to ensure the practical application of Articles 1 and 2 of Convention No. 98.(See the 1996 Digest, para. 764; 330th Report, Case No. 2203, para. 810; and 333rd Report, Case No. 2186, para. 358.) 863. Attempts by employers to persuade employees to withdraw authorizations given to a trade union could unduly infl uence the choice of workers and undermine the position of the trade union, thus making it more diffi cult to bargain collectively, which is contrary to the principle that collective bargaining should be promoted.(See the 1996 Digest, para. 766; 304th Report, Case No. 1852, para. 494; and 337th Report, Case No. 2395, para. 1188.) 864. Legal provisions which allow employers to undermine workers’ organizations through artifi cial promotions of workers constitute a violation of the principles of freedom of association.(See the 1996 Digest, para. 767.) 865. In endorsing an observation made by the Committee of Experts on the Application of Conventions and Recommendations concerning a law, the Committee pointed out that it would be extremely diffi cult for a worker who was dismissed by an employer invoking, for example, “neglect of duty”, to prove that the real motive for dismissal was to be found in his or her trade union activities. Further, since lodging an appeal in this case did not suspend the decision taken, the dismissed trade union leader had, by virtue of the law, to resign his or her trade union post when dismissed. The Committee considered that the law therefore made it possible for managements of undertakings to hinder the activities of a trade union, which is contrary to Article 2 of Convention No. 98, according to which workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration.(See the 1996 Digest, para. 768; and 333rd Report, Case No. 2186, para. 357.) 866. The issue of circulars by a company requesting its employees to state to which trade union they belong, even though this is not intended to interfere with the exercise of trade union rights, may not unnaturally be regarded as such an interference.(See the 1996 Digest, para. 769.) 867. The fact that one of the members of a government is at the same time a leader of a trade union which represents several categories of workers employed by the State creates a possibility of interference in violation of Article 2 of Convention No. 98.(See the 1996 Digest, para. 770.) 868. Recalling the importance of the independence of the parties in collective bargaining, negotiations should not be conducted on behalf of employees or their organizations by bargaining representatives appointed by or under the domination of employers or their organizations.(See the 1996 Digest, paras. 771 and 789; 329th Report, Case No. 2198, para. 683; 331st Report, Case No. 2217, para. 205, and Case No. 2185, para. 676; and 337th Report, Case No. 2388, para. 1354.) |
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