Part I. Freedom of association and protection of the right to organize

Chapter III. Right of workers and employers to establish and join organizations

Introduction

44. The industrial relations systems in certain countries can entail conditions or restrictions which in practice make it very difficult for large numbers of workers and employers in certain categories to establish organizations for furthering and defending their economic and social interests. The Committee considers that the freedom, de facto and de jure, to establish organizations is the foremost among trade union rights and is the essential prerequisite without which the other guarantees enunciated in Conventions Nos. 87 and 98 would remain a dead letter. The free exercise of this right, to which this chapter is devoted, depends on three things, namely the absence of any distinction, in law and in practice, among those entitled to the right of association, the absence of the need for previous authorization to establish organizations, and freedom of choice with regard to membership of such organizations. The rights to which organizations are entitled are examined in the subsequent chapters.

I. Right of workers and employers, without distinction whatsoever, to establish and join organizations

45. Article 2 of Convention No. 87 provides that "Workers and employers, without distinction whatsoever, shall have the right to establish and ... to join organizations of their own choosing ...". In adopting the terms "without distinction whatsoever", which it considered a more suitable way in which to express the universal scope of the principle of freedom of association than a list of prohibited forms of distinction, the International Labour Conference emphasized that the right to organize should be guaranteed without distinction or discrimination of any kind as to occupation, sex, colour, race, creed, nationality or political opinion. (Endnote 1) The right to organize should therefore be considered as the general principle, the only exception to which is that stipulated in Article 9 of the Convention, which permits States to determine the extent to which the guarantees provided for in the Convention apply to the armed forces and the police.

46. The use of the terms "employers" and "workers" in Convention No. 87 underscores the fact that that instrument guarantees the right of association for trade union purposes - a subject which comes directly and unquestionably within the competence of the International Labour Organization - and not the right of association in general, which falls within the competence of other international agencies. (Endnote 2) Consequently, the various terms used in the present survey, which are often based on those used in national legislation, all refer, unless otherwise stated, to the right to organize or associate for occupational purposes with the aim of furthering and defending the interests of workers or employers.

47. Most countries recognize the right of workers and employers to organize as provided for in Article 2. In several countries, however, the law draws a distinction in that regard for certain categories of occupation or persons. The distinctions most frequently encountered concern certain groups of workers such as public servants, executive and managerial staff and agricultural workers. They may also apply to specific categories such as workers in free export zones, seafarers and domestic workers, be based on other factors such as nationality, or refer to the recognition of the right of association of employers.

Public service

48. During the preparatory work on Convention No. 87, it was emphasized that freedom of association was to be guaranteed not only to employers and workers in private industry, but also to public employees. (Endnote 3) Accordingly, the law and practice report prepared by the Office provided that public servants and officials should be covered by that instrument: "The guarantee of the right of association should apply to all employers and workers, public or private, and, therefore, to public servants and officials and to workers in nationalized industries. It has been considered that it would be inequitable to draw any distinction, as regards freedom of association, between wage-earners in private industry and officials in the public services, since persons in either category should be permitted to defend their interests by becoming organized ... However, the recognition of the right of association of public servants in no way prejudges the question of the right of such officials to strike ...". (Endnote 4) The Committee has always considered that the exclusion of public servants from this fundamental right is contrary to the Convention.

49. Given the very broad wording of Article 2 of Convention No. 87, all public servants and officials should have the right to establish occupational organizations, irrespective of whether they are engaged in the state administration at the central, regional or local level, are officials of bodies which provide important public services or are employed in state-owned economic undertakings. However, an examination of the legislation of different countries shows that the terms used to refer to public servants vary a great deal. The same expressions in the legislation of different countries do not necessarily cover the same persons, (Endnote 5) while in some countries the legislation itself draws distinctions as to the status and rights of the various categories of public servant. (Endnote 6) The Committee considers that all workers in this category are covered by the Convention, whatever the terms used.

50. For some countries it is not possible to determine from the substantive law in force the precise extent to which public servants enjoy the right of association in practice. Even if the legislation does not recognize their right to form trade union organizations, associations have in some cases been established under the terms of an act on the right of association in general, (Endnote 7) and there are even cases in which such associations are accorded de facto recognition by the government in its capacity as employer for the purpose of discussing wage claims or other working conditions.

51. In many countries, the right of public servants to organize for the purpose of defending and furthering their occupational interests is guaranteed by the legislation applicable to trade unions in general. (Endnote 8) In others, the right of public servants to organize is governed by a set of provisions contained in public service statutes or regulations or in special legislation. (Endnote 9) Most of these countries have for a long time recognized the right of public servants to organize. In some cases, however, such recognition may have been accorded only more recently (Endnote 10) and may be closely linked to profound changes in the wake of a country's return to democracy following a period of authoritarian government. (Endnote 11) In other countries, the right to organize is granted only to certain categories of public servants, as an exception to the general rule. (Endnote 12)

52. Where legislation recognizes the right of public servants to organize, it does not necessarily follow that they enjoy this right for the purpose of defending their economic and social interests. In this connection, the Committee has emphasized the importance it attaches to the need for clear recognition in the legislation of the right of public servants to associate not only for cultural and social purposes, but also for the purpose of furthering and defending their occupational and economic interests.

53. In a number of countries, the legislation explicitly or indirectly denies public servants the right to organize in trade unions. (Endnote 13) In such cases, this right may be denied to all categories of personnel in the service of the State or to some of them, (Endnote 14) to public servants engaged in the administration of the State and, in certain cases, even to workers in public undertakings and public institutions.

54. In some countries the legislation, although recognizing in principle the right of public servants to organize, may deny this right to certain categories of public servants or subject them to particular restrictions on account of their level of responsibility (senior officials) or the nature of their functions, where these are perceived as being incompatible with the right to organize (for instance fire service personnel and prison staff).

Police and armed forces

55. The only exceptions authorized by Convention No. 87 are the members of the police and armed forces (Article 9), such exceptions being justified on the basis of their responsibility for the external and internal security of the State. Most countries deny the armed forces the right to organize, although in some cases they may have the right to group together, with or without certain restrictions, to defend their occupational interests. (Endnote 15) As regards members of the police and security forces, it is frequently the case that countries which deny this right to members of the armed forces include the police under the same heading and generally apply the same legal provisions in both cases. Sometimes, members of the police are restricted to the right to establish and join their own organizations, (Endnote 16) although in some countries they have the same right to organize as other categories of public servants or are entitled to do so under separate legislation. (Endnote 17) Although Article 9 of Convention No. 87 is quite explicit, it is not always easy in practice to determine whether workers belong to the military or to the police or are simply civilians working in military installations or in the service of the army and who should, as such, have the right to form trade unions. (Endnote 18) In the view of the Committee, since Article 9 of the Convention provides only for exceptions to the general principle, workers should be considered as civilians in case of doubt. (Endnote 19)

Fire service personnel and prison staff

56. While exclusion from the right to organize of the armed forces and the police, as defined above, is not contrary to the provisions of Convention No. 87, the same cannot be said for fire service personnel (Endnote 20) and prison staff, (Endnote 21) to whom a number of countries nevertheless deny the right to organize. The Committee is of the opinion that the functions exercised by these two categories of public servants should not justify their exclusion from the right to organize on the basis of Article 9 of Convention No. 87. However, the restrictions imposed as regards the means of exerting pressure that are allowed to these workers are another matter altogether, dealt with in Chapter V of this Survey.

Senior public officials

57. Some countries draw a distinction between personnel and management in the public service with a view to limiting the right to organize of senior officials and public servants holding managerial or supervisory positions of trust. The right to organize of senior public servants and some of their supporting staff is thus often subject to restriction and in some cases excluded. (Endnote 22) In some countries, the legislation specifies the categories or posts thus excluded. These restrictions do not necessarily constitute an outright denial of the right of these persons to organize. In several countries, for example, they seem to have the right to form associations to protect their occupational interests, provided they do not join associations of public servants of a lower grade or trade unions of other categories of public servants. (Endnote 23) The Committee is of the opinion that to bar these public servants from the right to join trade unions which represent other workers is not necessarily incompatible with freedom of association, but on two conditions, namely that they should be entitled to establish their own organizations, and that the legislation should limit this category to persons exercising senior managerial or policy-making responsibilities.

Agricultural workers (Endnote 24)

58. It is clear from the preparatory work on Convention No. 87 that Article 2, in affirming the right of all workers to establish free and independent organizations, includes workers engaged in agricultural activities. In practice, however, workers in this category have often encountered obstacles in their attempts to organize, and in many countries agricultural workers continue frequently to experience difficulties arising out of legislation or practice when it comes to organizing in trade unions. (Endnote 25) Recognizing the importance of an organized rural sector, the International Labour Conference adopted the Rural Workers' Organizations Convention, 1975 (No. 141), and Recommendation, 1975 (No. 149), with a view to encouraging the establishment of such organizations. The Committee recalls that agricultural workers continue to benefit from the guarantees provided for in freedom of association Conventions, in particular Conventions Nos. 87 and 98.

Other categories of workers

59. There are numerous other categories of workers who are denied the right to form trade unions, either because they are excluded from the scope of the labour legislation, or because the latter expressly denies them the right to organize. In particular, the Committee has noted that this is often the case of domestic staff, (Endnote 26) persons working at home or in family workshops, (Endnote 27) workers in the informal sector, persons working in charitable institutions, seafarers (Endnote 28) and workers in export processing zones. Since, however, Convention No. 87 does not exclude any of these categories, they should all be covered by the guarantees it affords and should have the right to establish and join occupational organizations. The Committee has requested those countries whose legislation denies the right to organize to one or more of the above-mentioned categories to take the necessary measures to ensure that they be accorded this right.

Workers in export processing zones

60. As regards more specifically the right to organize of workers in export processing zones, the Committee has on several occasions in recent years looked into the problems posed by the legislation in certain countries within the context of Article 2 of Convention No. 87, (Endnote 29) and has emphasized the importance it attaches to the need for all workers, without distinction whatsoever, fully to enjoy the trade union rights provided for by the Convention. It has also recalled that the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the Governing Body in November 1977, states in paragraph 45 that "where governments of host countries offer special incentives to attract foreign investment, these incentives should not include any limitation of the workers' freedom of association or the right to organize and bargain collectively".

Other forms of discrimination or distinction

61. Problems of recognition of the right to organize may also stem from restrictions relating, for example, to race, nationality, sex, opinion or political affiliation, which limit, in a manner incompatible with Convention No. 87, the right to establish or join occupational organizations. Such restrictions are, moreover, contrary to the principles contained in the resolution of 1952 concerning the independence of the trade union movement, which provides, inter alia, that a condition for the freedom and independence of the trade union movement "is that trade unions be constituted as to membership without regard to race, national origin or political affiliations". (Endnote 30)

(i) Race

62. As far as can be ascertained from the information available to the Committee, there appears to be no ILO member State whose legislation still prohibits or restricts specifically trade union membership on the grounds of race. (Endnote 31) Indeed, in some countries the law expressly prohibits discrimination based on this ground, stipulating, for example, that no employee may be denied trade union membership on the grounds of race, or prohibiting occupational associations whose aim is to restrict rights on such grounds. (Endnote 32) In others, it is unlawful for a trade union to discriminate against members by refusing or deliberately omitting to grant them the same benefits as are accorded to other members, (Endnote 33) or to limit, segregate or classify its membership according to race, colour or national origin. (Endnote 34) Certain laws relating to human rights and equitable employment practices prohibit all racial discrimination in connection with trade union membership. (Endnote 35)

(ii) Nationality

63. Restrictions on the right to organize based on nationality exist in varying degrees in the legislation of several countries. Some countries, for example, make citizenship a precondition for the establishment of trade unions; (Endnote 36) others stipulate that a certain proportion of the members must be nationals; (Endnote 37) and in others, trade union affiliation of non-nationals is subject to conditions of residence (Endnote 38) or reciprocity, (Endnote 39) or both. The Committee considers that such restrictions may, in particular, prevent migrant workers from playing an active role in the defence of their interests, especially in sectors where they are the main source of labour. The right of workers, without distinction whatsoever, to establish and join organizations implies that anyone legally residing in the territory of a given State benefits from the trade union rights provided by the Convention, without any distinction based on nationality. The ILO has also adopted a number of legal standards relating to the special situation of migrant workers, particularly in so far as their right to join trade unions is concerned. (Endnote 40)

(iii) Sex, marital status and age

64. In most countries the trade union legislation normally makes no distinction based on sex; some countries even include provisions which implicitly or explicitly prohibit any discrimination in this respect. (Endnote 41) In several countries where restrictions on the right to organize might result from provisions contained in the civil code, the legislation on occupational organizations provides specifically that a married woman may join a trade union without the authorization of her husband. (Endnote 42) Some countries have legislative provisions concerning union membership of minors. (Endnote 43) The Committee considers that no distinction based on these grounds is authorized by the Convention.

(iv) Political affiliation or activities

65. The political opinions or affiliation of individuals are rarely referred to as a criterion for recognition of their right to organize. In some cases, the law seeks to prevent any discrimination by trade unions against their members on the grounds of their political beliefs. (Endnote 44) There are cases, however, in which the legislation restricts the right of association by reason of subversive opinions or activities of those concerned or of their membership of particular organizations, (Endnote 45) or denies the right to establish a trade union to certain persons by reason of their past political conduct. (Endnote 46) The Committee considers that any legislative or regulatory measure whereby an individual is deprived of his or her right to become or remain a trade union member for professing certain political opinions or having political activities (except those which advocate violence) would constitute an infringement of the right to organize as it is recognized in Article 2 of the Convention. Conversely, the authorities should not practice favouritism toward persons or trade union organizations which share their political views. The Committee recalls in this connection the importance it attaches to the resolution of 1952 concerning the independence of the trade union movement, so that the latter should be in a position to carry forward its economic and social mission irrespective of political changes. (Endnote 47) Furthermore, conviction for a political offence should in no case constitute a valid ground for withdrawal of the right to trade union membership. All workers and employers should therefore have the right, without any discrimination whatsoever on the basis of their political opinions, to join the organizations of their choice.

Right to organize of managerial and executive staff in the private sector

66. Article 2 of Convention No. 87 makes no distinction based on the nature of the functions or the hierarchical level of workers, who should all enjoy the right to organize, including managerial and executive staff. In many countries, managerial and executive staff in the private sector have the right to establish trade unions. The Committee considers that provisions which prohibit workers in this category from joining trade unions in which other workers are represented are not necessarily incompatible with the Convention, provided they had the right to establish their own organizations and that the right to belong to those organizations was restricted to persons performing senior managerial or decision-making functions. By contrast, legislation which allows for the granting of fictitious promotions to unionized workers without actually according them management responsibilities, thereby effectively placing them in the category of so-called "employers" to whom the right to organize is not permitted, is not in accord with the Convention, since in end effect it denies the right of association and artificially reduces the size of the bargaining unit. (Endnote 48)

Right to organize of employers

67. In the legislation of some countries, the provisions governing the right to organize are the same for employers and workers. (Endnote 49) In certain countries, however, employers are excluded from the general trade union law or are governed by special regulations. (Endnote 50) It should be noted that significant developments with regard to the right to organize of employers are currently taking place in the countries of Central and Eastern Europe. Following the changes that have occurred in those countries, in the course of which most undertakings have been freed from state control, many new laws have appeared relating to the right to organize and applying both to workers and employers, (Endnote 51) or containing specific provisions relating to the latter. (Endnote 52) The Committee recalls in this respect that Convention No. 87 covers employers as well as workers.

II. Right to establish organizations without previous authorization

Introduction

68. Article 2 of Convention No. 87 guarantees the right of workers and employers to establish organizations "without previous authorization" from the public authorities. During the preparatory work on the Convention, it was stated that States would remain free to provide such formalities in their legislation as appeared appropriate to ensure the normal functioning of organizations. National regulations governing the constitution of organizations are therefore not in themselves incompatible with the provisions of the Convention, provided that they do not impair the guarantees granted by that Convention. (Endnote 53)

69. In many countries, legislation expressly provides that organizations may be established without previous authorization or specific formalities. In most countries, however, certain formalities must be observed when occupational organizations are established, for example, depositing by-laws or registering the organization in question. However, national regulations in this respect must not be equivalent to a requirement for "previous authorization", in violation of Article 2 of the Convention, nor must they constitute such an obstacle that they amount in practice to a prohibition.

Filing an organization's rules

70. National legislation providing that an organization must deposit its rules is compatible with Article 2 of the Convention if this is merely a formality to ensure that those rules are made public. (Endnote 54) However, problems may arise when the competent authorities are obliged by law to request the founders of organizations to incorporate in their constitution certain provisions which are not in accord with the principles of freedom of association. (Endnote 55)

Registration

71. In many countries, organizations are required to register with a judicial body or with the competent administrative authority. Registration may also be optional; depending on the case, it may be merely a formality akin to depositing the by-laws, or a genuine registration subject to more or less stringent conditions and having different implications for the operation of the organization.

72. In countries where registration is optional, (Endnote 56) failure to register does not prevent organizations from existing or functioning. In most cases, however, registration confers significant advantages such as special immunities, tax exemptions, the right to have recourse to the dispute settlement machinery or to the procedure for dealing with unfair labour practices, or the right to be recognized as sole bargaining agent for a given category of workers. Such legislation is not in principle incompatible with the Convention. (Endnote 57) However, in this type of system the benefits of registration sometimes include the fundamental rights necessary to defend and further the interests of members; if the competent authority has the discretionary power to refuse registration, this can in practice amount to a system of previous authorization, contrary to the principles of Convention No. 87.

73. In many countries, registration is compulsory and is a prerequisite for the normal functioning of an organization. (Endnote 58) The formalities covered by the concept of "registration" vary according to national legislation. In some cases, all that is required is to deposit the organization's by-laws, possibly with details of the officers and constituent meeting, to satisfy the registration authority that the organization has complied with trade union legislation; in such cases, the competent authority does not normally have discretionary power. (Endnote 59) In some other countries, however, legislation does not clearly define the procedures of the formalities which must be observed or the reasons which the competent authority may give for refusal, which may be tantamount to requiring previous authorization. (Endnote 60)

74. In some countries, legislation confers on the competent authority a genuinely discretionary power to grant or reject a registration request or to grant or withhold the approval required for the establishment and functioning of an organization. In the Committee's view, such provisions are tantamount to a requirement for previous authorization which is not compatible with Article 2 of the Convention. (Endnote 61) However, member States remain free "... to provide such formalities in their legislation as appeared appropriate to ensure the normal functioning of occupational organizations". (Endnote 62) Consequently, the formalities prescribed by national regulations concerning the constitution and functioning of workers' and employers' organizations are compatible with the provisions of Convention No. 87, provided, of course, that these regulations do not impair the guarantees laid down in the Convention.

75. Problems of compatibility with the Convention also arise where the registration procedure is long and complicated (Endnote 63) or when registration regulations are applied in a manner inconsistent with their purpose and the competent administrative authorities make excessive use of their discretionary powers and are encouraged to do so by the vagueness of the relevant legislation. These factors may be a serious obstacle to the establishment of organizations and may amount to a denial of the right of workers and employers to establish organizations without previous authorization.

Recognition of legal personality

76. Article 7 of Convention No. 87 provides that "The acquisition of legal personality by workers' and employers' organizations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 thereof". Legislation is thus compatible with the terms of the Convention if it automatically confers legal personality on the organization in question at the time of establishment, be it without any formalities being observed, (Endnote 64) when the by-laws are deposited, (Endnote 65) or following a registration procedure or other formalities (Endnote 66) which are compatible with the Convention. However, when legislation makes the acquisition of legal personality a prerequisite for the existence and functioning of organizations, the conditions for acquiring legal personality must not be such that they amount to a de facto requirement for previous authorization to establish an organization, which would be tantamount to calling into question the application of Article 2 of the Convention. Legal personality should not be denied to organizations once they have met legal requirements.

Appeal to the courts

77. Trade unions should have the right to appeal to independent courts against any administrative decision regarding their registration; this is a necessary safeguard against unlawful or ill-founded decisions by the registration authorities. In many countries, legislation provides for appeals to a court. (Endnote 67) In other countries, such appeals may be lodged only with the competent minister or labour authorities: (Endnote 68) such appeals, however, are liable to lack the necessary conditions of objectivity. Moreover, the existence of the right to appeal to a court is not in itself an adequate safeguard; the competent judges should be able, on the basis of the record, to review the grounds for refusal given by the administrative authorities, which grounds should not be contrary to the principles of freedom of association. They should also be empowered to give a ruling rapidly and, where necessary, order appropriate remedies. (Endnote 69)

78. The principle that organizations should be established freely may also be jeopardized where legislation on public and private meetings stipulates that previous authorization by the government or administrative authorities is required for all meetings. As the Committee has indicated in previous general surveys, (Endnote 70) such a requirement is equivalent to a prior control by the State on the constitution of trade union organizations.

III. Right of workers and employers to establish and join organizations of their own choosing

Introduction

79. Under Article 2 of Convention No. 87, workers and employers have the right to establish organizations and to join them, subject only to the rules of the organization concerned. This right, which is essential if there is to be genuine freedom of association, has significant implications as regards free determination of the structure and membership of trade unions. The various restrictions to which this right is subjected in many countries give rise to several problems, in particular as regards the structure and composition of organizations, the question of trade union unity or pluralism and clauses respecting trade union security.

Structure and composition of organizations

80. Sometimes workers' and employers' choices as to the structure and composition of the organizations they wish to set up or join are limited by legal or statutory restrictions. Such restrictions may take the form of a required minimum number of members or may limit membership to certain workers on the basis of criteria such as occupation, branch of activity, enterprise, hierarchical ranking, public or private sector, etc.

(i) Minimum membership

81. In many countries an organization may not be established unless it has a minimum number of members. Although this requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered; it may vary according to the particular conditions in which a restriction is imposed. In cases in which it has considered that the minimum number fixed by national legislation is too high, (Endnote 71) the Committee has requested that it be reduced to a reasonable level. (Endnote 72)

82. Similar problems arise when legislation stipulates that an organization may be set up only if it has a certain number of members in the same occupation or enterprise, or when it requires a high minimum proportion (sometimes even more than 50 per cent) of workers which, in the latter case, in practice precludes the establishment of more than one trade union in each occupation or enterprise. (Endnote 73)

83. The legislation in some countries, while not requiring a minimum number of workers for the establishment of a trade union, does lay down this kind of condition for their registration, which may considerably restrict their scope of activities. (Endnote 74) The Committee considers that such requirements are contrary to the Convention.

(ii) Membership limited to workers in the same occupation or branch of activity

84. The legislation in some countries stipulates that members of a trade union must belong to the same or a similar profession, occupation or branch of activity. (Endnote 75) In some of these, the law also fixes the general structure of the trade union movement according to the same criteria. (Endnote 76) In the view of the Committee, such restrictions may be applied to first-level organizations, on condition that these organizations be free to establish inter-professional organizations, and to join federations and confederations in the form and manner deemed most appropriate by the workers or employers concerned. (Endnote 77)

(iii) Special categories of workers

85. The legislation of some countries restricts the free choice of certain categories of workers, in particular public servants, executive and managerial staff, confidential employees, agricultural workers and domestic staff.

Public servants

86. The guarantees contained in Convention No. 87 apply to workers in the public sector as well as those in the private sector. It was also pointed out that some legal systems deny the right of public servants to associate, while others, although recognizing this right, restrict their right to join trade unions, for instance, the free choice of public servants may be restricted when legislation forbids them to establish mixed trade unions, i.e. organizations which accept workers from other sectors, or prohibits them from joining such organizations. (Endnote 78) Provisions of this kind are often intended to prevent any form of political involvement by trade union members in the public sector or to deter them from taking strike action. The Committee considers that it is admissible for first-level organizations of public servants to be limited to that category of workers, subject to two conditions: firstly, that their organizations are not also restricted to employees of any particular ministry, department or service, and secondly, that they may freely join federations and confederations of their own choosing, like organizations of workers in the private sector. However, provisions stipulating that different organizations must be established for each category of public servants are incompatible with the right of workers to establish and join organizations of their own choosing. (Endnote 79)

Executive and managerial staff

87. Some legislation, citing the need to prevent interference by employers in trade union activities and to avoid any conflicts of interest involving managerial staff, restrict their right to establish and join organizations of their own choosing. Thus, these persons may sometimes be prohibited from joining or belonging to trade unions which are open to lower-grade employees or from joining workers' unions. (Endnote 80) Legislation sometimes does not allow workers' unions to represent managerial staff (Endnote 81) or authorizes an employer to require a person appointed or promoted to a managerial position to withdraw from, or refrain from joining, a workers' union; (Endnote 82) provisions of this kind are found both in the private and public sectors. (Endnote 83) Such restrictions are compatible with freedom of association provided that two conditions are met: first, that the persons concerned have the right to form their own organizations to defend their interests; and second, that the category of executive and managerial staff is not so broadly defined as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their actual or potential membership. (Endnote 84)

Managerial and confidential exclusions

88. The legislation in certain countries denies staff "in positions of trust" the right to join trade unions. Generally speaking, this category concerns very senior staff who play a decisive role in determining and implementing commercial strategies and options (in the private sector) or major policies and guidelines (in the public sector). Sometimes these restrictions extend to their direct collaborators who, by virtue of their post, have access to confidential information. This category may also include executives or workers representing the employer in collective bargaining. In the opinion of the Committee, the criteria set out in the preceding paragraph apply equally to these cases.

Agricultural workers

89. Because of the nature of their work and the conditions in which they carry it out, rural workers are in something of a special category. In the opinion of the Committee, while restrictions can be imposed on first-level organizations of rural workers, they should nevertheless be entitled to affiliate to the federations and confederations of their own choosing, in whatever way they deem appropriate. (Endnote 85)

Domestic staff

90. The personal nature of the services rendered by domestic staff and the isolation in which they work add to the peculiarity of their situation. The Convention does not provide for any exception in their case, however, and they should normally be entitled to join trade unions, in accordance with the criteria set out in the preceding paragraph. (Endnote 86)

Trade union monopoly/trade union diversity

91. The right of workers and employers to establish and join organizations of their own choosing raises the problem of trade union monopoly. The difficulty arises where the legislation provides, directly or indirectly, that only one trade union may be established for a given category of workers. Although it was clearly not the purpose of the Convention to make trade union diversity an obligation, it does at the very least require this diversity to remain possible in all cases. There is a fundamental difference between, on the one hand, a trade union monopoly established or maintained by law and, on the other hand, voluntary groupings of workers or unions which occur (without pressure from the public authorities, or due to the law) because they wish, for instance, to strengthen their bargaining position, coordinate their efforts to tackle ad hoc difficulties which affect all their organizations, etc. It is generally to the advantage of workers and employers to avoid proliferation of competing organizations, but trade union unity directly or indirectly imposed by law runs counter to the standards expressly laid in the Convention.

(i) Trade union monopoly imposed directly by law

92. Certain legislations explicitly prescribe a single-trade-union system for first-level organizations by allowing the establishment of only one such organization for all the workers in an enterprise, (Endnote 87) a public body, (Endnote 88) an occupation or branch of activity; (Endnote 89) in other countries, unity is imposed at all levels of trade union organization. In such cases, generally speaking, only one first-level organization and one national trade union may be established for a given category of workers, or only one federation for each category or region. These organizations in turn may or must join a single national confederation or central organization which is sometimes specifically designated in the law. (Endnote 90)

93. In recent years the Committee has been able to note positive developments in a relatively large number of countries in which, following the advent of a pluralistic and democratic political system, the trade union unity previously established by law, and often controlled by an organization closely linked to the single party in power, has been abolished and replaced by a system allowing trade union pluralism. As a result of these changes, many first-level trade unions and central organizations have been freely set up, (Endnote 91) which does not mean that all difficulties concerning freedom of association are solved.

(ii) Indirect trade union monopoly

94. An indirect result of some legislative provisions is that it is impossible to establish a second organization representing workers' interests, for example when legislation attributes trade union functions to a specifically designated trade union committee or fixes a percentage for membership which makes it impossible to establish several organizations, by requiring the participation of at least 50 per cent of the workers. (Endnote 92) This is also the case when provisions expressly stipulate that trade unions are to be grouped together in a single federation or confederation, when the establishment of a new trade union is subject to the approval of the trade union which already exists in the occupation concerned, when first-level organizations must conform to the constitutions of the single existing central organization, when an organization is obliged to affiliate to the single central organization on penalty of remaining illegal, or when there is an obligation to pay contributions to a single national trade union whose establishment has been authorized.

95. Some provisions regulating the registration of trade unions may in practice lead to the same result as those establishing a single trade union organization. (Endnote 93) This is the case if the competent authorities have discretionary power to refuse the registration of a trade union when they believe that an already registered union adequately represents the workers concerned, or if they consider that is not in the interests of the workers concerned to register a new trade union. (Endnote 94) Even if they do not expressly prohibit the establishment of more than one trade union for a given category of workers or employers, provisions of this kind may be used to impose trade union unity or maintain a monopoly, thus suppressing any freedom of choice.

(iii) Factual monopoly

96. Movements to group together may also occur among trade unions, independently of legislation or any pressure by the public authorities, when the workers or their unions join voluntarily in a single organization, for example in order to strengthen their position at the bargaining table or to better deal with structural reform or changes affecting their activities. In these circumstances, the Committee believes that the same basic principle is applicable: Convention No. 87 implies that pluralism should remain possible in all cases. Therefore, the law should not institutionalize a factual monopoly; even in a situation where at some point all workers have preferred to unify the trade union movement, they should still remain free to choose to set up unions outside the established structures should they so wish. (Endnote 95) Furthermore, the rights of workers or employers who do not wish to join the existing trade unions or central organization should also be protected.

Recognition of the most representative trade unions

97. Although trade union unity imposed directly or indirectly by law is incompatible with the Convention, an excessive proliferation of trade union organizations may weaken the trade union movement and ultimately prejudice the interests of workers. In some countries, in an attempt to establish a proper balance between imposed trade union unity and the fragmentation of organizations, legislation establishes the concept of the most representative trade unions, which are generally granted a variety of rights and advantages. The Committee believes that this type of provision is not in itself contrary to the principle of freedom of association, (Endnote 96) provided that certain conditions are met. First, 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. (Endnote 97) Furthermore, 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.

98. However, the workers' freedom of choice would be jeopardized if the distinction between most representative and minority unions results, in law or in practice, in the prohibition of other trade unions which workers would like to join, or in the granting of privileges such as to influence unduly the choice of organization by workers. Therefore, this distinction should not have the effect of depriving those trade unions that are not recognized as being amongst the most representative of the essential means for defending the occupational interests of their members (for instance, making representations on their behalf, including representing them in case of individual grievances), (Endnote 98) for organizing their administration and activities, and formulating their programmes, as provided for in Convention No. 87.

99. The situation is different in some industrial relations systems where only one bargaining agent may be certified to represent the workers of any given bargaining unit, which gives it the exclusive right to negotiate the collective agreement and to monitor its implementation, usually through the grievance procedure negotiated in the collective agreement, or under a subsidiary procedure established in legislation. In the Committee's opinion, this type of system does not raise difficulties under the Convention, provided that legislation or practice impose on the exclusive bargaining agent an obligation to represent fairly and equally all workers in the bargaining unit, whether or not they are members of the trade union.

Trade union security

100. On the basis of the preparatory work on Convention No. 87 and taking account of the rejection by the International Labour Conference of an amendment to grant workers the right not to join an organization, (Endnote 99) the Committee recognized that Article 2 of the Convention "leaves it to the practice and regulations of each State to decide whether it is appropriate to guarantee the right of workers not to join an occupational organization, or on the other hand, to authorize and, where necessary, to regulate the use of union security clauses in practice". (Endnote 100) Thus, systems which prohibit union security practices in order to guarantee the right not to join an organization, as well as systems which authorize such practices, are compatible with the Convention.

101. In several countries, the law guarantees directly or indirectly the right not to join a trade union organization and forbids the exercise of any constraint which would oblige a person to join or support a trade union. (Endnote 101)

102. In other countries, the law allows "union security" clauses in collective agreements or arbitration awards which make trade union membership or payment of union dues compulsory, sometimes by making them subject to certain conditions or prohibiting certain types of arrangements. These clauses may specify that an employer can recruit only workers who are members of trade unions and who must remain union members in order to keep their job (closed shop). (Endnote 102) In other cases the employer may recruit the workers he chooses, but these must then join a trade union within a specified period (union shop). They may also require all workers, whether or not they are members of trade unions, to pay union dues or contributions, without making union membership a condition of employment (agency shop), (Endnote 103) or oblige the employer, in accordance with the principle of preferential treatment, to give preference to unionized workers in respect of recruitment and other matters. (Endnote 104) These clauses are compatible with the Convention provided, however, that they are the result of free negotiation between workers' organizations and employers.

103. However, when union security clauses are imposed by the law itself, the right of workers to set up and join organizations of their own choosing is compromised. Legislation which makes it compulsory to join a union or which designates a specific trade union as the recipient of union dues, (Endnote 105) or which achieves the same aim through regulation of the system of compulsory union dues, has a similar effect to provisions establishing a trade union monopoly and is not compatible with the Convention. (Endnote 106) However, provisions which require the deduction at source of contributions by all workers, whether or not they are union members, to a majority union, without mentioning a specific trade union, (Endnote 107) are, in the view of the Committee, compatible with the Convention.

Coercion or favouritism by the government

104. When governments place one occupational organization at an advantage or disadvantage in relation to the others, the choice of workers regarding the organization to which they intend to belong may be influenced. Such favouritism or discrimination may take various forms and relate to different aspects of labour relations: pressure exerted on organizations in public statements by the authorities; unequally distributed aid; premises provided for holding meetings or activities to one organization but not to another; refusal to recognize the officers of some organizations in the exercise of their legitimate activities, etc. Any unequal treatment of this kind compromises the right of workers or employers to establish and join organizations of their choosing and gives rise to difficulties with regard to the Convention. (Endnote 108)

105. The guarantees of Convention No. 87 should apply to all workers and employers (without any distinction whatsoever), the only exceptions provided by the Convention being the armed forces and the police. Provisions prohibiting the right to organize for specific categories of workers, such as public servants, managerial staff, domestic staff or agricultural workers, are incompatible with the express provisions of the Convention.

106. Although the right of workers and employers to establish organizations (without previous authorization) does not imply absolute freedom, the formalities required, such as those intended to ensure publicity, must not be so complex or lengthy as to give the authorities in practice discretionary power to refuse the establishment of organizations. Provision should be made for the possibility of a judicial appeal against any administrative decision of this kind to an independent and impartial body which would re-examine the substance of the case.

107. The right of workers and employers to establish organizations (of their own choosing) is one of the fundamental aspects of freedom of association. It implies in particular the right to take freely the following decisions: choice of the structure and composition of organizations; the establishment of one or more organizations in any one enterprise, occupation or branch of activity; and the establishment of federations and confederations. Excessive restrictions, for example as regards the minimum number of members, systems of trade union unity or trade union monopoly imposed by law are incompatible with Article 2 of the Convention; however, when moves towards unification of the trade union movement are made at the initiative of the workers themselves, they are in conformity with the Convention. Finally, although the Convention clearly does not aim to make trade union pluralism compulsory, pluralism must be possible in every case, even if trade union unity was once adopted by the trade union movement.

Endnotes

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Cross references
Constitution: Article 3
Constitution: Article 19
Constitution: Article 22
Constitution: Article 35
Conventions: C097 Migration for Employment Revised) Convention, 1949
Conventions: C141 Rural Workers' Organizations Convention, 1975
Conventions: C143 Migrant Workers (Supplementary Provisions) Convention, 1975
Recommendations:R149 Rural Workers' Organizations Recommendation, 1975
Recommendations:R151 Migrant Workers Recommendation, 1975
Case reference:0319852381279 Report=238 Case=1279 * Portugal
Case reference:0319852381289 Report=238 Case=1289 * Peru
Case reference:0319922811534 Report=281 Case=1534 * Pakistan
Case reference:0319922811580 Report=281 Case=1580 * Panama
Case reference:0319922841508 Report=284 Case=1508 * Sudan
Case reference:0319922841591 Report=284 Case=1591 * India
Case reference:0319922841633 Report=284 Case=1633 * United Kingdom
Case reference:0319932861664 Report=286 Case=1664 * Ecuador
Survey reference:251994G04 General Survey 1994, para. 109-111
Survey reference:251994G07 General Survey 1994
Not in ILOLEX: General Survey 1983, para. 118
Digest reference:1985_03_06