ILO Helpdesk: Questions and answers on business and freedom of association

The supervisory bodies have not dealt specifically with this matter; but they have always taken a very broad reading of the meaning of workers regarding freedom of association, and have, for example, included undocumented/irregular workers.

Such prisoners should be working for a private employer only voluntarily, with conditions similar to those in the free labour market, including the right of association. Consideration could be given to their having freely chosen representation in respect of their conditions and that they should be able to express their demands. As for the right to strike, if it is voluntary work, then the right to withdraw that work could also be considered acceptable.

The fundamental international standards on freedom of association and collective bargaining are the Freedom of Association and Protection of the Right to Organise Convention (No. 87) and the Right to Organise and Collective Bargaining Convention (No. 98) . Other international standards concerning these rights and freedoms include the Protection and Facilities to be Afforded to Workers’ Representatives in the Undertaking Convention (No. 135); the Recommendation on Workers’ Representatives (No. 143) ; and the Collective Bargaining Recommendation (No. 163).

International standards concerning social dialogue include the Consultation and Co-operation between Employers and Workers at the Level of the Undertaking Recommendation (No. 94) and the Communications between Management and Workers within the Undertaking Recommendation (No. 129) . Moreover, a majority of ILO Conventions and Recommendations include provisions that support social dialogue by requiring consultation with representative employers’ and workers’ organisations.

In addition to being a right, freedom of association enables workers and employers to join together to protect better not only their own economic interests but also their civil freedoms such as the right to life, to security, to integrity, and to personal and collective freedom. As an integral part of democracy, this principle is crucial in order to realize all other fundamental principles and rights at work.

Businesses face many uncertainties in this rapidly changing global market. Establishing genuine dialogue with freely chosen workers’ representatives enables both workers and employers to understand each other’s problems better and find ways to resolve them. Security of representation is a foundation for building trust on both sides. Freedom of association and the exercise of collective bargaining provide opportunities for constructive dialogue and resolution of conflict, and this harnesses energy to focus on solutions that result in benefits to the enterprise and to society at large. The meaning of freedom of association has been defined to a greater extent than any other right by the ILO supervisory machinery. In many, but not all cases, these decisions are useful to employers in order to understand them.

International instruments identify a number of things that companies can do to respect freedom of association and the right to collective bargaining:

• Do not interfere with an employee’s decision to associate. Recognise that all workers are free to form and/or join a trade union of their choice.
• No anti-union discrimination. Ensure that company policies, procedures and practices do not discriminate against individuals because of their views on trade unions or for their trade union activities.
• Do not interfere with the activities of workers’ representatives while they carry out their functions in ways that are not disruptive to regular company operations.

Companies can take action at different levels:

In the workplace:

• Respect the right of all workers to form and join a trade union of their choice without fear of intimidation or reprisal, in accordance with national law.
• Put in place non-discriminatory policies and procedures with respect to trade union organization, union membership and activity in such areas as applications for employment and decisions on advancement, dismissal or transfer.
• Provide worker representatives with appropriate facilities to assist in the development of effective collective agreement.

In the community of operation:

• Take into account the role and function of the representative national employers’ organizations.
• Take steps to improve the climate in labour-management relations, especially in those countries without an adequate institutional and legal framework for recognizing trade unions and for collective bargaining.

A worker should be free to establish and join the workers’ organisation of his or her own choosing without previous authorisation. [1] This right is not incompatible with the reasonable exercise by the employer of the right of expression.

While employers and workers enjoy the right to freedom of opinion and expression, as important corollaries to freedom of association, they must not become competing rights, one aimed at eliminating the other [2] . As a result, while employers may express their views on whether workers should organize, this must not interfere in the decision of workers to associate or not; or restrain, intimidate, threaten, or coerce an employee into making a decision in this regard [3] .

The employer should not prevent, prohibit or interfere in the exercise of workers’ right to organize; nor should he or her make any direct or indirect threat, create an atmosphere of intimidation or fear or adopt reprisals linked with it. “Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment (…);” [4] “workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment (…)”.[5]

The ILO Committee on Freedom of Association has indicated that “acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize.”[6]

[1] Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), Article 2.
[2] See case No 2683 of the Committee on Freedom of Association 357th Report , para 584.
[3] See also 356th Report of the Committee on Freedom of Association , GB.307/7, paras. 380-381.
[4] Right to Organize and Collective Bargaining Convention, 1949 (No. 98), Article 1(1).
[5] Convention No. 98, Article 2, 1.
[6] Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, Fifth (revised) edition, 2006, ILO, par. 786.

Freedom of association is a fundamental human right. It implies a respect for the right of employers and workers to freely and voluntarily establish and join organisations of their own choice and means that these organisations have the right to carry out their activities in full freedom and without interference. Employers should not interfere in the workers' decision to associate, or discriminate against the workers or their representative. The government should not interfere in the right of either workers or employers to form associations. Workers and employers have the right to join organizations at the national, sectoral and international levels, and their organizations have the right to affiliate at any level. Workers and employers organizations should be permanent, without requirements for periodic renewal or other conditions for their continued existence.

A worker should be free to establish and join the workers’ organisation of his or her own choosing without previous authorisation.[1] This right is not incompatible with the reasonable exercise by the employer of the right of expression.

Both employers and workers enjoy the right to freedom of opinion and expression, as important corollaries to freedom of association. This includes the right of the employer to express their views on whether workers should organize. However, exercising this right must not interfere in the decision of workers to associate or not; or restrain, intimidate, threaten, or coerce an employee into making a decision in this regard.[2]

The employer should not prevent, prohibit, or interfere in the exercise of workers’ right to organize; nor should he or her make any direct or indirect threat, create an atmosphere of intimidation or fear or adopt reprisals linked with it. “Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment (…);”[3] “workers' and employers' organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment (…)”.[4]

The ILO Committee on Freedom of Association has indicated that acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize[5].

The Committee on Freedom of Association has more recently stated:[6]

584. While having stressed the importance which it attaches to freedom of expression as a fundamental corollary to freedom of association and the exercise of trade union rights on numerous occasions, the Committee also considers that they must not become competing rights, one aimed at eliminating the other. While noting that the national process did not find interference with freedom of association, the Committee expresses a general concern at the use of “shred it” buttons[to urge workers to shred their ballot instructions] in this regard. While providing all relevant ballot information, including how to vote against a union, would be acceptable as part of the process of a certification election, the Committee considers that the active participation by an employer in a way that interferes in any way with an employee exercising his or her free choice would be a violation of freedom of association and disrespect for workers fundamental right to organize.

585. In this regard, the Committee wishes to recall that it has had the opportunity to review the question of employers’ freedom of expression in a recent case where, observing that the protection afforded by unfair labour practices in the country included protection against freedom of speech that would interfere with the formation of any labour organization or with the selection of a trade union as a representative for the purpose of bargaining collectively, found that the principles of freedom of association did not appear to be violated (see Case No. 2654, 356th Report, para. 381.) In addition, it has requested a Government in another case to ensure that employers do not express opinions which would intimidate workers in the exercise of their organizational rights, such as claiming that the establishment of an association is unlawful, or warning against affiliation with a higher-level organization, or encouraging workers to withdraw their membership (see Case No. 2301, 356th Report, para. 80).

The ILO Declaration of Tripartite Principles concerning Multinational Enterprises and Social Policy [MNE Declaration] states that “[o]rganizations representing multinational enterprises or the workers in their employment should enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration.” [7] Therefore, any agent engaged by an MNE also is encouraged to refrain from interference with the workers’ right to organize.

[1] Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), Article 2.

[2]See, 356th Report of the Committee on Freedom of Association, GB.307/7, paras. 380-381.

[3] Right to Organize and Collective Bargaining Convention, 1949 (No. 98), Article 1(1).

[4] Convention No. 98, Article 2, 1.

[5] Digest of Decisions of the Committee on Freedom of Association, 6th edition, 2006, ILO, par. 786.

[6] See, Committee on Freedom of Association, Case No. 2683, paragraphs 584-585. Text available at: http://www.ilo.org/wcmsp5/groups/public/---ed_norm/---relconf/documents…

[7]See paragraph 49. Text available at: http://www.ilo.org/wcmsp5/groups/public/---ed_emp/---emp_ent/---multi/d…

Interference is any act designed to promote the establishment of workers' organizations under the domination of employers or employers' organizations, or to support workers' organizations by financial or other means, with the object of placing them under the control of employers or their organizations. ILO Convention No. 98 concerning the Right to Organize and Collective Bargaining includes protection against anti-union discrimination and interference. Protection from employers’ interference includes all stages of the employment relationship, from hiring to termination.

ILO Convention No. 98 includes protection against anti-union discrimination. Anti-union discrimination includes any action that makes a worker’s employment dependent on giving up union membership or not joining a union. It also includes actions that cause the dismissal or prejudice a worker because of union membership or participation in union activities.

A worker cannot be fired for his or her trade union or worker representative activities carried out in accordance with the law or in conformity with collective agreements or other jointly agreed arrangements. However a worker’s representative may be fired on other grounds, where justified, provided procedural safeguards are in place to protect against wrongful dismissal based on trade union activities. In some countries, it is necessary to get permission from the labour ministry before dismissing union leaders or candidates for union leadership.

The Committee of Experts on the Application of Conventions and Recommendations has explained the following:[1]

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). 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), 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. These clauses are compatible with the Convention provided, however, that they are the result of free negotiation between workers' organizations and employers.

In the case of multiple trade unions there is no requirement that the mechanism for enrolment be the same for all unions. Therefore it is not considered unequal treatment to have a union shop for junior staff and not for senior staff.

[1] General Survey on Freedom of association and collective bargaining: Right of workers and employers to establish and join organizations ,1994, para. 102.

The International Labour Standards do encourage employers to make facilities available for workers to meet. Such meetings should not disrupt regular company operations, and management may require that the meetings are held outside of working hours.

Practices such as allowing the collection of union dues on company premises, posting of trade union notices, distribution of union documents, and provision of office space, have proven to help build good relations between management and workers, provided that they are not used as a way for the company to exercise indirect control.

The ILO has noted that the “restrictions on the right to organize of certain categories of workers, such as migrant workers…. , domestic workers …., workers in export processing zones (EPZs) ……., workers in the public service ….., agricultural workers ….. , or workers in the informal economy …. are not compatible with the realization of [the] principle and right” [of freedom of association].[1]

There are two possible levels from which the company in this situation might choose to take action:

1. encouraging and supporting suppliers to respect workers’ rights to the fullest extent permitted under national law;

2. in association with other employers, encouraging the Government to amend the law to bring it into line with the relevant international labour standards.[2]

1. Encouraging and supporting suppliers

The company could have a dialogue with the supplier about why the company values respect for the right of freedom of association; and why it is also important and beneficial for the supplier to respect the right of workers to organize to the full extent permitted by law. The company could provide assistance to the supplier to find ways to allow the migrant workers to collectively express their concerns and have a dialogue with the supplier at the enterprise level which is at the same time consistent with national law.

For instance, collective bargaining does not necessarily require a trade union representative, only that the appointed representatives be genuinely representative of the workers and their interests. The supplier might under national law still be able to bargain collectively with workers’ representatives even if there is no trade union representation of migrant workers allowed under national law. A local industrial relations specialist who knows the national labour law may be able to provide more specific advice.

2. Encouraging the Government to amend the law

Effective and respectful dialogue at the workplace is often a valuable practice for everybody concerned and may lead to mutually agreed solutions. Such dialogue normally does not violate any law. However, it does not in itself satisfy the requirement to respect the right to freedom of association. Forming and belonging to their own independent organizations are core to the fundamental right to freedom of association of workers and employers, and the ILO promotes respect for this in all member States. The ILO also promotes compliance with national law. When there is a conflict, ILO encourages employer and worker organizations to engage in dialogue with the Government on how to bring the law into conformity with the fundamental principles and rights at work. Not being allowed to form unions would be a serious breach of freedom of association, and the ILO would encourage States with legislation preventing workers from enjoying that right to change the law.

The company subsidiary operating in the country in question may wish to consider becoming involved with the local employers’ organization, to engage in dialogue with the Government about why, from an employer’s perspective, it is important to respect freedom of association for all workers, including migrant workers. This process could help substantially to further encourage the Government to bring the law into line with international labour standards concerning freedom of association.

[1] Review of annual report under the follow-up to the ILO Declaration on Fundamental Principles and Rights at Work, 2008 , GB.301/3, paragraph 36.
[2] Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) , Article 2.

The Committee on Freedom of Association has specifically stated that access of “trade union representatives to workplaces should be guaranteed, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization.” (§199 (a), affaire No. 1523 (Etats-Unis), 284ème rapport du Comité) Furthermore, “[t]rade union representatives who are not employed in the undertaking but whose trade union has members employed therein should be granted access to the undertaking. The granting of such facilities should not impair the efficient operation of the undertaking concerned.” [See, Freedom of Association, Digest of Decisions, 5th ed., 2006, paras. 1102 -1103 and 1106; 336th Report of the Committee on Freedom of Association, 2005, para. 58; Workers’ Representatives Recommendation, 1971 (no. 143) , Part IV, paragraphs 9.3 et 17].

Article 3 of the Workers' Representatives Convention, 1971 (No. 135) defines workers’ representatives as “persons who are recognised as such under national law or practice, whether they are:

(a) Trade union representatives, namely, representatives designated or elected by trade unions or by members of such unions; or
(b) Elected representatives, namely, representatives who are freely elected by the workers of the undertaking in accordance with provisions of national laws or regulations or of collective agreements and whose functions do not include activities which are recognised as the exclusive prerogative of trade unions in the country concerned.”

To fully respect the right to collective bargaining, enterprises should provide facilities to workers’ representatives as may be necessary to assist in the development of effective collective agreements. This may include affording workers’ representatives the necessary time off work, without loss of pay or social and fringe benefits, for carrying out their representative functions or for attending trade union meetings, training courses, and congresses. See, Workers' Representatives Recommendation, 1971 (No. 143) .

To realise the principle of freedom of association and the right to collective bargaining in practice requires a legal basis which guarantees that these rights are enforced. It also requires an enabling institutional framework, which can be tripartite, between the employers’ and workers’ organizations, or combinations of both. Individuals who wish to exercise their rights to have their voice heard also must be protected from discrimination. And employers’ and workers’ organizations must accept each other as partners for solving joint problems and dealing with mutual challenges.

Governments have the responsibility for ensuring that the legal and institutional frameworks exist and function properly. They should also help to promote a culture of mutual acceptance and cooperation.

Where governments do not honour their international obligations, efforts should be made to improve legislation and governance. In the absence of legislation that conforms to international labour standards, employers and trade unions should make every effort to respect the principles, at least in countries where honouring them is not specifically prohibited. In countries in which legislation protects rights, but implementation is poor due to inadequate enforcement, employers should, nevertheless, obey the law.