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1994, Freedom of association and collective bargaining: Protection against acts of anti-union discriminationDescription:(General Survey) Convention:C087 Convention:C098 Subject classification: Freedom of Association Subject classification: Collective Bargaining and Agreements Document:(Report III Part 4B) Session of the Conference:81 Subject: Freedom of Association, Collective Bargaining, and Industrial Relations Display the document in: French Spanish Document No. (ilolex): 251994G08 Part II. The right to organize and collective bargaining Introduction Chapter VIII. Protection against acts of anti-union discrimination Introduction 199. The Right to Organize and Collective Bargaining Convention, 1949 (No. 98), deals with two different aspects of freedom of association. First, it seeks to protect workers' exercise of their right to organize vis-à-vis employers and to protect workers' and employers' organizations against interference by each other (Articles 1 to 3). Secondly, to ensure the promotion of collective bargaining, the Convention emphasizes the autonomy of the parties and the voluntary nature of negotiation (Article 4). Like Convention No. 87, Convention No. 98 leaves it to national legislation to decide whether it applies to the armed forces and the police (Article 5). On the other hand, unlike Convention No. 87, Convention No. 98 excludes some categories of public servants from its scope, by providing in Article 6 that it "... does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way". 200. Since the concept of public servant may vary considerably under the various national legal systems, the application of Article 6 may pose some problems in practice. The Committee has adopted a restrictive approach concerning this exception by basing itself in particular on the English text of Article 6 of the Convention which refers to "public servants engaged in the administration of the State" (in Spanish "los funcionarios públicos empleados en la administración del Estado" and in French "fonctionnaires publics"). (Endnote 1) The Committee could not allow the exclusion from the terms of the Convention of large categories of workers employed by the State merely on the grounds that they are formally placed on the same footing as public officials engaged in the administration of the State. The distinction must therefore be drawn between, on the one hand, public servants who by their functions are directly employed in the administration of the State (for example, in some countries, civil servants employed in government ministries and other comparable bodies, as well as ancillary staff) who may be excluded from the scope of the Convention and, on the other hand, all other persons employed by the government, by public enterprises or by autonomous public institutions, who should benefit from the guarantees provided for in the Convention. (Endnote 2) In this connection, the Committee emphasizes that the mere fact that public servants are white-collar employees is not in itself conclusive of their qualification as employees "engaged in the administration of the State"; if this were the case, Convention No. 98 could be deprived of much of its scope. (Endnote 3) 201. In order to dissipate a confusion which sometimes appears to arise, the Committee also wishes to emphasize that the right to organize and the right to bargain collectively are two distinct matters. While certain restrictions to collective bargaining are acceptable under Convention No. 98, for instance that minority unions be prevented from bargaining collectively, this should not affect the right to organize, which is a basic feature of workers' rights. Protection against acts of anti-union discrimination Introduction 202. The protection afforded to workers and trade union officials against acts of anti-union discrimination constitutes an essential aspect of freedom of association, since such acts may result in practice in denial of the guarantees laid down in Convention No. 87. This means in particular that anti-union dismissal cannot be treated in the same way as other kinds of dismissal, because freedom of association is a fundamental right. In the view of the Committee, this means that certain distinctions must be made, for example as regards conditions as to proof, sanctions and remedies. 203. Article 1 of Convention No. 98 provides in general terms that "Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment" (paragraph (1)). The scope of this protection is made explicit in paragraph (2). (Endnote 4) Thus, under the terms of this instrument, workers should enjoy adequate protection against any measures of anti-union discrimination both at the time of taking up employment and in the course of employment, with recognition of freedom of association by the other party to the contract of employment being the necessary corollary to recognition of freedom of association by the State. The same guarantees are laid down for public employees by Article 4 of the Labour Relations (Public Service) Convention, 1978 (No. 151). 204. Legislation in most countries contains general or detailed provisions protecting workers against acts of anti-union discrimination. However, the degree of protection varies according to the period covered, the persons protected, the measures referred to, as well as the procedures and sanctions for ensuring compliance with protective provisions. "Trade union security" clauses 205. Special difficulties have arisen in this connection because of the existence, in some countries, of trade union security systems making union membership or payment of union contributions compulsory, or making provision for the recruitment of workers through trade union organizations which are signatories to a collective agreement and requiring payment of contributions by workers who are not members of these trade unions. The Committee has taken into account the view expressed by the Committee on Industrial Relations of the International Labour Conference during the adoption of Convention No. 98, that this instrument should not in any way be interpreted as authorizing or prohibiting trade union security clauses and that such questions are matters for regulation in accordance with national law and practice. (Endnote 5) The problems related to union security clauses should therefore be resolved at the national level, in accordance with the practice and industrial relations system of each country. (Endnote 6) Persons protected 206. In several countries, workers covered by general labour law are protected against acts of anti-union discrimination; (Endnote 7) in others, however, legislation provides no general protection in this respect, (Endnote 8) or denies it directly or indirectly to certain categories of workers. (Endnote 9) 207. On the other hand, some legislation grants special protection to certain persons, for example, to the members of a trade union which has applied for registration or which is in the process of being established, (Endnote 10) or to the founding members of a trade union, (Endnote 11) or to trade union officers and leaders. (Endnote 12) Such protection is particularly desirable for trade union officers and representatives, because in order to be able to perform their trade union duties in full independence they must have the guarantee that they will not be prejudiced on account of their trade union office; one of the ways of ensuring the protection of representatives is to provide that they may not be dismissed or otherwise prejudiced either during their term of office or for a specified period following its expiry. While certain exceptions may be made in the event of a serious offence, the importance and nature of duties performed by a trade union representative and the demands made by this kind of office should be taken into account when deciding whether an offence was actually committed and assessing its seriousness. 208. Such guarantees for trade union officers are also necessary to ensure the respect of the principle whereby workers' organizations have the right to elect their representatives in full freedom. The Workers' Representatives Convention (No. 135) and Recommendation (No. 143) contain a number of provisions which effectively supplement the principles of Convention No. 98 in this respect, in particular Paragraph 6(2)(d) of Recommendation No. 143 which mentions, among effective remedies in the case of unjustified dismissals, reinstatement with payment of unpaid wages and maintenance of acquired rights. 209. The Committee also draws attention to the possible repercussions of a recent tendency, seen in some industrialized countries in particular, to appoint public servants for a fixed term. Should they wish to carry out trade union activities, these workers could find themselves in a more vulnerable position than others by reason of their precarious status. Period covered 210. The legislation in several countries guarantees protection at all times against acts of anti-union discrimination: at recruitment and during employment, including at the time of work termination. (Endnote 13) In other countries such protection is afforded at the time of recruitment and during employment, (Endnote 14) and in others, workers are protected only during the period of employment. (Endnote 15) Furthermore, trade union officers are sometimes granted special protection for a certain period when they resume their occupational activities in the enterprise at the end of the term of trade union office to which they have been elected. Provisions of this kind ensure that trade union officers do not find themselves in an excessively vulnerable position at the end of their term of office. The Committee considers that the protection provided for in the Convention covers both the time of recruitment and the period of employment, including the time of work termination. Acts covered 211. A worker who is the victim of anti-union discrimination at the hiring stage may face insurmountable difficulties because it will often be virtually impossible to prove that his union membership or trade union activities were the real reason for the refusal to employ him. A particularly serious problem arises concerning the establishment and use of "blacklists", the secret nature of which often makes a dead letter of the remedies laid down by ordinary legislation on the protection of privacy and confidential information - even assuming that such legislation exists. Some legislation expressly prohibits such blacklists, treating them as unfair labour practices. (Endnote 16) The Committee is of the view that practices involving the "blacklisting" of trade union officials constitute a serious threat to the free exercise of trade union rights and that governments should take stringent measures to combat such practices. (Endnote 17) 212. Of all forms of anti-union discrimination, dismissal is both the most obvious and the one with the most serious consequences. However, other measures may also cause serious prejudice to the worker concerned: transfer, relocation, demotion, deprivation or restrictions of all kinds (remuneration, social benefits, vocational training). In order to prevent such situations Article 1(2)(b) of the Convention covers, in addition to dismissal, acts which "otherwise" prejudice a worker by reason of union membership or because of participation in union activities. However, as in the case of discrimination in hiring, the main difficulty often concerns the possibility of proving the discriminatory nature of the measure in question. (Endnote 18) Dismissal for economic reasons 213. A special problem arises in connection with dismissals for economic reasons, which may have negative repercussions on unionized workers, and in particular on union officers, if they are used as an indirect means of subjecting them to acts of anti-union discrimination, under the guise of dismissal on economic grounds. (Endnote 19) Amongst other measures, the Workers' Representatives Recommendation, 1971 (No. 143) includes in Paragraph 6(2)(f) a provision which is likely to strengthen protection in this sphere, namely recognition of a priority to be given to workers' representatives with regard to their retention in employment in case of reduction of the workforce. Furthermore, the Termination of Employment Convention, 1982 (No. 158), stipulates that when the employer contemplates terminations for reasons of an economic, technological, structural or similar nature, provisions must be made for consultation with workers' representatives (Article 13) and notification of the competent authority (Article 14). Although these two provisions do not provide specific protection for unionized workers and trade union officers in the event of dismissal for economic reasons, they may help protect them against acts of anti-union discrimination. (Endnote 20) Procedures and sanctions 214. The existence of general legal provisions prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective and rapid procedures to ensure their application in practice. Hence the importance of Article 3 of Convention No. 98, which provides that "Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organize ..." as defined in Articles 1 and 2 of the Convention. Such protection against acts of anti-union discrimination may thus take various forms adapted to national legislation and practice, provided that they prevent or effectively redress anti-union discrimination, (Endnote 21) and allow union representatives to be reinstated in their posts and continue to hold their trade union office according to their constituents' wishes. 215. In some cases legislation establishes preventive machinery by requiring that certain measures taken against trade union representatives or officers must first be authorized by an independent body or public authority (labour inspectorate or industrial tribunals), (Endnote 22) a trade union body or the works council. (Endnote 23) In most legislation, however, the emphasis is laid on compensation for the prejudice suffered. (Endnote 24) The bodies authorized to rule on such cases are the ordinary courts (Endnote 25) or specialized bodies hearing cases dealing with industrial relations. (Endnote 26) Sometimes the measure taken by the employer against the worker is suspended until the competent authority has ruled on the matter. (Endnote 27) 216. Whether the machinery is based on prevention or compensation, experience has shown that similar problems arise in practice and concern in particular the slowness of the proceedings, the difficulties relating to the burden of proof and the possibility for the employer to acquit himself by paying compensation which bears no proportion to the seriousness of the prejudice suffered by the worker. The Committee therefore emphasizes the necessity of providing expeditious, inexpensive and impartial means of preventing acts of anti-union discrimination or reducing them as quickly as possible. Evidence 217. One of the main difficulties results from placing on workers the burden of proving that the act in question occurred as a result of anti-union discrimination, which may constitute an insurmountable obstacle to compensation for the prejudice suffered. Legislation in several countries has therefore strengthened the protection of workers by placing on the employer the onus of proving that the act of alleged anti-union discrimination was connected with questions other than trade union matters, (Endnote 28) and some texts expressly establish a presumption in the worker's favour. (Endnote 29) Since it may often be difficult, if not impossible, for a worker to prove that he has been the victim of an act of anti-union discrimination, legislation or practice should provide ways to remedy these difficulties, for instance by using the methods mentioned above. 218. The Committee draws attention to the relevance of certain provisions of other ILO instruments. Thus, Article 9(2) of the Termination of Employment Convention, 1982 (No. 158), provides as follows: "In order for the worker not to have to bear alone the burden of proving that the termination was not justified, the methods of implementation referred to in Article 1 of this Convention shall provide for one or the other or both of the following possibilities: (a) the burden of proving the existence of a valid reason for the termination as defined in Article 4 of this Convention shall rest on the employer; ...". Paragraphs (a) and (b) of Article 5 of the Convention provide further that union membership or participation in union activities, including acting as union representative, do not constitute valid reasons for termination. Moreover, Paragraph 6(2)(e) of the Workers' Representatives Recommendation, 1971 (No. 143), provides that "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 justified." Compensation 219. As regards the form of compensation, the Committee is of the view that its purpose must be to compensate fully, both in financial and in occupational terms, the prejudice suffered by a worker as a result of an act of anti-union discrimination, since this is a violation of a fundamental right. The best solution is generally the reinstatement of the worker in his post with payment of unpaid wages and maintenance of acquired rights. For this to be done, the authorities responsible for examining such cases, the ordinary courts or specialized bodies, should have all the necessary powers to rule rapidly, completely and in full independence and in particular to decide the most appropriate form of redress in the light of the circumstances, including reinstatement if it is requested by the worker. (Endnote 30) 220. The Committee considers that legislation which allows the employer in practice to terminate the employment of a worker on condition that he pay the compensation provided for by law in all cases of unjustified dismissal, when the real motive is his trade union membership or activity, is inadequate under the terms of Article 1 of the Convention, the most appropriate measure being reinstatement. (Endnote 31) 221. Where reinstatement is impossible, compensation for anti-union dismissal should be higher than that prescribed for other kinds of dismissal. The amount should be reviewed periodically, in particular in countries with galloping inflation where the compensation soon becomes merely symbolic. In order to avoid this problem, the compensation established by the law in the event of anti-union discrimination should not be expressed in absolute figures; rather, the relevant provisions should be drafted in such a way as to retain their dissuasive effect. (Endnote 32) Penalties 222. In some countries the law provides for penal sanctions such as fines or imprisonment or both, to be imposed on employers found guilty of anti-union discrimination. (Endnote 33) Such sanctions, which have the dual purpose of punishing those responsible for violating a fundamental right and of acting as a deterrent, are likely to strengthen protection against anti-union discrimination. 223. Article 1 of Convention No. 98 guarantees workers adequate protection against acts of anti-union discrimination, in taking up employment and in the course of employment including at the time of termination, and covers all measures of anti-union discrimination (dismissals, transfers, demotions and any other prejudicial acts). The protection provided in the Convention is particularly important in the case of trade union representatives and officers, as these must have the guarantee that they will not be prejudiced on account of the union office which they hold. 224. The effectiveness of legal provisions, however, depends to a large extent on the way in which they are applied in practice and on the forms of compensation and sanctions provided. Legal standards are inadequate if they are not coupled with effective and expeditious procedures and with sufficiently dissuasive sanctions to ensure their application. Machinery for preventive protection (for example, prior authorization of the labour inspectorate in the event of dismissal) is particularly useful in this respect. The onus placed on the employer to prove that alleged anti-union discrimination measures are connected with questions other than trade union matters, or presumptions established in the worker's favour are additional means of ensuring effective protection of the right to organize guaranteed by the Convention. Legislation which allows the employer in practice to terminate the employment of a worker on condition that he pay the compensation provided for by law in any case of unjustified dismissal, when the real motive is the worker's union membership or activity, is inadequate under the terms of Article 1 of the Convention. Legislation should also provide effective means for implementing means of compensation, with the reinstatement of the dismissed worker, including retroactive compensation, being the most appropriate remedy in such cases of anti-union discrimination.
EndnotesEndnote 1General Surveys: 1983, para. 255; 1973, para. 138. Digest, paras. 597 to 606. Legislation in many countries grants these rights to public servants other than those engaged in the administration of the State, for example: Cameroon, Poland. However, in other countries, legislation denies them the right to collective bargaining, for example: Colombia: s. 416 of the Labour Code; Malaysia: s. 52 of the Industrial Relations Act; Pakistan: s. 38A-38I of the Industrial Relations Ordinance of 1969; Panama: s. 2 of the Labour Code. CFA, 291st Report, Case No. 1557 (United States), para. 278. "Such protection shall apply more particularly in respect of acts calculated to (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) 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 consent of the employer, within working hours." ILC, 32nd Session, 1949, Record of Proceedings, p. 468. See also Ch. III, paras. 100-103 (trade union security). For example: Cape Verde, Côte d'Ivoire, France, Haiti, Ireland, Italy, Luxembourg. In the Dominican Republic the Labour Code now applies to categories of workers who previously did not benefit from such protection and in particular all workers in agricultural, agro-industrial, stock raising or forestry enterprises. For example: Iraq, Sri Lanka (RCE, 1994 observations on C.98). For example: Libyan Arab Jamahiriya, agricultural workers and seafarers (RCE, 1994 observation on C.98). Jordan: agricultural and domestic workers (RCE, 1994 observation on C.98). Nigeria: persons exercising managerial, technical or administrative functions, commercial travellers and other commercial agents, homeworkers, persons employed on board ships and planes. For example: Australia, s. 334 of the Industrial Relations Act. Ecuador: the Committee noted with interest that Act No. 133 to reform the Labour Code provides that employers may not dismiss any of their workers from the time that they notify the respective labour inspector that they have met in a general assembly in order to establish a workers' association until the first meeting of the executive committee (RCE 1992, p. 267). For example: Honduras, s. 517 of the Labour Code. For example: Algeria, Egypt, Finland, Hungary, India, Spain, Romania, Trinidad and Tobago. For example: Belgium, Congo, Germany, Madagascar, Mauritania, Panama. For example: Comoros, Finland, Guinea-Bissau, Hungary, Poland, Togo. For example: Ecuador, Lebanon, Libyan Arab Jamahiriya. For example: Panama, s. 388(1) of the Labour Code. Digest, para. 564. CFA, Case No. 1618 (United Kingdom), 283rd Report, para. 448, and 287th Report, para. 267. See also 286th Report, Case No. 1658 (Dominican Republic), para. 735. The Committee recently noted with satisfaction that art. 63 of the 1993 Labour Code of the Dominican Republic now expressly prohibits the use of "blacklists" to prevent workers from finding a job (RCE, 1994 observation on C.98). See below, paras. 217-218. For example, Brazil: the Committee considered that a directive from the President of the Bank of Brazil to compile a register of employees likely to be dismissed as part of the staff restructuring policy and drawing attention to the employees who "worked the least and demanded the most" is based on selection criteria likely to impair the employees' right to organize which is guaranteed by the Constitution and national legislation (RCE 1991, p. 251). Convention No. 158, which came into force in 1985, had received 20 ratifications as of 31 December 1993. For example: Gabon, the Committee considers that legislative provisions accompanied by sufficiently effective and dissuasive sanctions need to be adopted in order to give workers adequate protection in this respect (RCE 1991, p. 264). Morocco: for a number of years the Committee has stressed the need to adopt specific measures to provide effective protection to workers against acts of anti-union discrimination (RCE 1992, p. 276). Venezuela: noting that the new Organic Labour Act of 1990 merely prescribes fines only of a sum between one-quarter and twice the minimum wage, the Committee asked the Government to consider the adoption of sufficiently effective and dissuasive sanctions (RCE 1991, p. 292). By contrast, as regards Uruguay, the Committee noted with interest that Act No. 15903 of 1987 allows the administrative labour authority to impose sanctions (fines, warnings or closures of establishments) in the event of the infringement of international labour Conventions, laws, resolutions, arbitration awards or collective agreements which regulate labour relations (RCE 1989, pp. 303-304). For example: Brazil, Dominican Republic, France, India, Venezuela. For example: Afghanistan, Finland, Lithuania, Romania, Russian Federation. For example: Finland, the Committee noted with interest that the compensation to be paid by an employer for illegal dismissals of shop stewards or of employees having participated in industrial action was raised to a minimum of three months' and a maximum of 24 months' wages (RCE 1992, p. 268). Endnote 25 For example: Italy, Switzerland. For example: Belgium, Pakistan, Trinidad and Tobago. For example: Italy, Japan. For example: Finland, when a worker alleges that he has been dismissed for trade union activities, the employer must prove that he had sufficiently serious reasons for dismissing the worker (RCE 1991, p. 263). Hungary, art. 5(2) of the Labour Code of 1992. For example: Canada (Quebec) art. 17 of the Labour Code. See also the many decisions of the Committee on Freedom of Association in this respect: 281st Report, Case No. 1510 (Paraguay), paras. 94 and 95; 283rd Report, Case No. 1589 (Morocco), para. 314; 284th Report, Case No. 1549 (Dominican Republic), para. 753, Cases Nos. 1588 and 1595 (Guatemala), para. 734; 285th Report, Case No. 1594 (Côte d'Ivoire), para. 50; 286th Report, Case No. 1629 (Korea), para. 569, and Case No. 1655 (Nicaragua), para. 275. In France, according to a well-established jurisprudence of the "Cour de cassation", the court must order the reinstatement of workers dismissed for anti-trade union reasons, if they so request. For example: Costa Rica: fine up to 23 times the monthly minimum wage. Dominican Republic: fine 7-12 times monthly minimum wage. See also RCE 1993, para. 111. For example: Colombia: the Committee noted with satisfaction that s. 39 of Act No. 50 of 1990 increased the amount of sanctions applicable in the event of acts that interfere with the right of association (from five to 100 times the highest minimum monthly wage), without prejudice of penal sanctions under s. 292 of the Penal Code (imprisonment of one to five years) (RCE 1991, pp. 253-254). Romania: s. 48 of Act No. 54 of 1991 respecting trade unions: fine or sentence of imprisonment of six months to two years. Swaziland: ss. 35, 10 and 76 of the Industrial Relations Act of 1980: fine or 30 days' imprisonment.
Australia: Industrial Relations Act Brazil: Constitution Canada: Labour Code Colombia: Labour Code, Act No. 50 of 1990, Penal Code Dominican Republic: Labour Code Ecuador: Act No. 133 to reform the Labour Code Honduras: Labour Code of 1993 Hungary: Labour Code of 1992 Malaysia: Industrial Relations Act Pakistan: Industrial Relations Ordinance of 1969 Panama: Labour Code Romania: Act No. 54 of 1991 respecting trade unions Swaziland: Industrial Relations Act of 1980 Venezuela: Organic Labour Act of 1990 Uruguay: Act No. 15903 of 1987
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