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Labour Legialtion Guidelines

List of Hyperlinks
Chapter I. Labour legislation in the contemporary world
Chapter II. Substantive provisions of labour legislation: Freedom of association
Chapter III. Substantive provisions of labour legislation: Effective recognition of the right to collective bargaining
Chapter IV. Substantive provisions of labour legislation: Settlement of collective labour disputes
Chapter V. Substantive provisions of labour legislation: The right to strike 
Chapter VI. Substantive provisions of labour legislation: The elimination of all forms of forced or compulsory labour
Chapter VII. Substantive provisions of labour legislation: The elimination of discrimination in respect of employment and occupation
Chapter VIII. Substantive provisions of labour lech8.htmgislation: The effective abolition of child labour
Chapter IX. The drafting process
Chapter X. Drafting rules
Chapter XI. Drafting practices (applicable mainly to English speaking countries)

Frames version

Substantive provisions of labour legislation:
Freedom of Association1


The fundamental importance of freedom of association

Freedom of association is a universally recognized civil liberty and one of the most fundamental rights of workers and employers. Time and again history has shown that recognition of the basic rights of workers and employers is a prerequisite for the emergence of democracy and for the overall development of national economies. Looked at the other way round, there can be no real democracy and little economic development if the majority of the population are suppressed and denied the right to organize themselves to protect and further their economic and civil interests.

Respect for the principles of freedom of association is vital for the proper functioning of a labour relations system and, more broadly, for any democratic system of governance. In turn, freedom of association has an important role to play in the development and operation of a market economy, which generally functions most efficiently under democracy.

Freedom of association is a fundamental principle for the ILO. It is protected and promoted by a number of ILO Conventions and Recommendations as well as by the ILO Declaration on Fundamental Principles and Rights at Work of 1998.

The principle of freedom of association entails the right of employers and workers to establish, without previous authorization, organizations of their own choosing for the defence of their occupational and industrial interests. It includes the right of these organizations to conduct their internal administration in full freedom. It also comprises the promotion of collective bargaining between workers and employers and the right to strike.

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International protection of freedom of association

The basic ILO instruments dealing with freedom of association and the right to organize are the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The following ILO instruments are also relevant:

As mentioned above, the ILO Declaration of 1998 provides important protection for freedom of association. It lays down that all Members of the ILO, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize (among others) the principles of freedom of association and effective recognition of the right to collective bargaining.

The principles of freedom of association are also protected by United Nations and regional human rights instruments.2

Because of the importance attached to the principles of freedom of association, in addition to its regular system of supervising the implementation of ratified Conventions by member States (the Committee of Experts on the Application of Conventions and Recommendations), the ILO has established special machinery to ensure that these principles are complied with in practice. This consists in particular of the Committee on Freedom of Association, which examines complaints of violations of freedom of association filed by workers’ and employers’ organizations, without the need for the prior consent of the Government concerned and irrespective of whether the country has ratified either Convention No. 87 or No. 98.3

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The role of government in securing freedom of association

Conventions Nos. 87 and 98 spell out the obligations of governments in giving effect to the fundamental principles of freedom of association. These include:

  • providing for a legal right for workers and employers to establish and join organizations of their own choosing without previous authorization;
  • refraining from interfering with the exercise of freedom of association;
  • ensuring that the law of the land does not impair the exercise of freedom of association (although in exercising these rights, workers and employers and their respective organizations must respect the law of the land);
  • taking all necessary and appropriate measures to ensure that workers and employers may exercize freely the right to organise;
  • ensuring that workers have adequate protection against acts of anti-union discrimination; and
  • ensuring that workers' and employers' organizations have adequate protection against interference by each other in their establishment, functioning or administration.

The "freedom" referred to is freedom from impermissible interference with the exercise of the right to associate, that is with the right to establish and join organizations in full freedom, the right for those organizations to organize their activities freely and to join together with other organizations in federations and confederations, at both the national and international levels. However, this right is not absolute: certain limitations and restrictions may be compatible with the principles of freedom of association, although they must be strictly defined and limited, as indicated by the ILO’s supervisory bodies.

Adoption of legislation is of course the primary means though which States give effect to these principles.

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Legislation on freedom of association

General provisions to secure freedom of association

In a number of countries, the general principles guaranteeing freedom of association to all persons, or specifically to workers and employers, are laid down at the level of the Constitution or general legislation.  Such provisions need not be long and detailed.

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Governments may however find it appropriate to legislate in detail. Indeed, in some national conditions, detailed legislative provisions can provide an important framework for developing the exercise of freedom of association.

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Establishment and membership of workers' and employers' organizations

The rights guaranteed in legislation aimed at protecting the right to organize usually include the right of both workers and employers, without distinction whatsoever, to:

  • establish organizations of their own choosing;
  • join these organizations, subject only to the rules of the organizations concerned; and
  • exercise these rights without previous authorization (Convention No. 87, Article 2).

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The right to establish and join organizations

It is the very basis of freedom of association that all workers and employers enjoy the right and the freedom to establish and join the organizations that they consider will best further their occupational interests. This means that the choice of organization is their own, and must not be imposed upon them (for example, by the law, the government or an employer). This right extends to all workers, including public servants, whether they work at the central, regional or local level, are employed by bodies which provide important public services or by state-owned enterprises (General Survey of the Reports on the Freedom of Association and the Right to Organize Convention (No. 87), 1948, and the Right to Organize and Collective Bargaining Convention (No. 98), 1948, (hereinafter "General Survey") paras. 48, 49). The right to organize may be subject only to very limited exceptions, as indicated by the ILO's supervisory bodies (General Survey, para. 55). The most important of these concern members of the police and armed services (Article 9, paragraph 2, of Convention No. 87 and Article 5, paragraph 2, of Convention No. 98), and senior/managerial employees.

The legislation in some countries sets out for these rights in the context of a comprehensive enumeration of the basic rights of freedom of association of workers and employers.  ILO officials and consultants have drawn up draft provisions based on these texts on a number of occasions.

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Public servants or public employees

In many countries, the right of public servants or public employees to organize is recognized, usually implicitly but sometimes explicitly, in the legislation applicable to trade unions in general. (General Survey, para. 51)

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In other countries, the right of public servants to organize is recognized in special legislation dealing with the public service (General Survey, para. 51 and notes thereto).

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Members of the armed services and the police

Under the ILO's Conventions on freedom of association, member States are authorized to decide to what extent members of the police and the armed services may exercise the right to organize (Convention No. 87, Article 9, and Convention No. 98, Article 5).  Most countries deny the armed services 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.  In some countries, the rights of members of the police in this respect are confined to establishing and joining their own organizations.  Provisions concerning their right to organize may be contained in general legislation, legislation dealing with public servants, or specific legislation (General Survey, para. 55).

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Senior or managerial employees

Member States may also limit the right to organize of senior managerial and executive staff in the private (General Survey, para. 66) and public sectors (General Survey, para. 57).  Limitations are justified, however, only to the extent that these workers occupy senior managerial positions, and provided that they are permitted to establish and join their own specific organizations.

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Trade union security arrangements and the right not to join organizations

Some labour relations systems include trade union security arrangements, which are intended to:

  • strengthen the position of trade unions in a hostile environment; and
  • help trade unions fulfil their role in a labour relations system based on direct discussion and negotiation.

There are three forms of trade union security arrangements (the definition of terms is not always the same in the different countries):

  • closed shop: employers must hire employees from a pool of union members;
  • union shop: workers who are not union members when they are employed must join within a certain period of time; and
  • agency shop: workers must make a payment to a union, but need not necessarily become members. In some cases, the money contributed may be used for a charitable rather than a trade union purpose.

Certain of these arrangements run the evident risk of workers being compelled to join organizations if they wish to obtain employment in an enterprise covered by such arrangements. According to the Committee of Experts, Article 2 of Convention No. 87, (General Survey, para. 100) allows member States either:

  • to guarantee the right of workers not to join an occupational organization; or
  • to authorize and, where necessary, to regulate the use of union security clauses in practice.

Where union security arrangements are permitted, they are only acceptable if they are concluded by free agreement between workers' organizations and employers. They must not be imposed by law. (General Survey, paras. 102-103)

In some countries the law guarantees, either 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 (General Survey, para. 101).

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In some countries, the law allows the inclusion of trade union security clauses in collective agreements or arbitration awards.

> Example

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The importance of non-discrimination

The principle of non-discrimination is one of the most basic tenets of any democratic society, as the concept of the equality of all individuals is the essence of democracy. Clearly, if it were subject to any form of discrimination, observance of such a fundamentally democratic principle as freedom of association would be severely curtailed.

The prohibition of discrimination on such grounds as sex, race, colour, national extraction, social origin, marital status and political opinion are the hallmarks of many international legal instruments protecting human rights in general, and freedom of association in particular. The principle of non-discrimination is specifically incorporated into Convention No. 87 through the use of the expression "without distinction whatsoever" (Convention No. 87, Article 2). 

In many countries, legislative  provisions protecting workers against discrimination in employment and access to employment in principle extend to trade union rights.  However, in some cases, provisions on trade union rights include explicit protection against discrimination.

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The ILO's supervisory bodies have repeatedly found that any discriminatory distinctions in national legislation or practice are incompatible with Convention No. 87.  Distinctions based on race, nationality, marital status, sex, age and political affiliation and activities are all incompatible with the Convention, with the exception of cases where political affiliation or activities involve advocacy of violence (General Survey, paras. 61 to 65).

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Formal requirements for the establishment of organizations

Member States may include in their legislation any formalities which appear appropriate to ensure the normal functioning of organizations. Compliance with these formalities, such as registration, often confers considerable benefits on the organizations concerned, while also allowing governments to ensure that only organizations established for “furthering and defending the interests of workers or of employers” enjoy these privileges.

The danger is that such formalities mayhave the effect of limiting the guarantees contained in Convention No. 87. It is therefore important to ensure that any formal requirements respecting the establishment of organizations:

  • are not equivalent to a requirement for previous authorization, contrary to Article 2 of Convention No. 87; and
  • that they can easily be satisfied and do not amount in practice to a prohibition of freedom of association.

In some countries, no specific formalities have been established. However, in most certain formalities must be observed, such as depositing the statutes or by-laws of the organization or registration with the appropriate authorities (General Survey, paras. 68, 69). In many countries, workers' and employers' organizations can operate even without fulfilling these formalities, although they cannot avail themselves of certain rights provided by statute for organizations which do register.

Determination of the specific formal requirements that are considered appropriate in each case and of whether they should be compulsory depends largely on the specific labour relations system and the benefits which flow to organizations from being registered. However, certain general principles have to be observed. Any formal requirements for registration should:

  • be clearly prescribed in law;
  • not establish discretionary powers to refuse registration;
  • be reasonable;
  • be uncomplicated and expeditious; and
  • be administered promptly.

Legislation that fails to respect these principles may amount to a denial of the right of workers and employers to establish organizations without previous authorization (General Survey, paras. 71-75 and Digest of Decisions of the Committee on Freedom of Association (hereinafter "Digest"), paras. 251, 260, 266).

In devising the appropriate formalities, it may be recalled that only organizations for "furthering and defending the interests of workers or of employers" constitute organizations within the meaning of Convention No. 87. Formal requirements may therefore be used to ensure that:

  • the applicant organization actually exists;
  • the applicant organization is in fact a trade union or employers' organization; and
  • the applicant organization's expressed purposes are consistent with its occupational status.

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The registration of organizations and the filing of statutes or by-laws

Although optional in some countries, the registration of organizations or the filing of their statutes, rules or by-laws is one of the most frequent formalities required.  It often offers significant legal and/or practical benefits for the organizations concerned, including conferring upon them:

  • legal personality;
  • special immunities (for example from civil liability for any economic harm caused during industrial action);
  • tax exemptions;
  • access to dispute settlement procedures;
  • the right to be recognized as a sole bargaining agent for a group of workers; or
  • some combination of all these (General Survey, para. 72).

Both registration and the filing of statutes or by-laws are compatible with Convention No. 87, provided that the formalities involved can be easily satisfied (General Survey, paras. 69, and 73 to 75).

In most cases, workers' and employers' organizations acquire legal personality as a consequence of registration or filing of their constitutions, statutes or by-laws. This usually enables them to operate without exposing their individual members or elected leaders to personal legal liability for their organization's lawful activities. It also enables them to own property and perform legal acts in their own name.  In cases where the acquisition of legal personality is subject to separate formalities, these should be easy to satisfy and should not be so onerous as to prejudice the guarantees provided for in Articles 2, 3 and 4 of Convention No. 87.

To ensure that these formalities do not in practice amount to a requirement for previous authorization for the establishment of organizations, in violation of Article 2 of Convention No. 87, it is necessary to ensure that legislation does not give discretionary power to administrative authorities to determine:

  • whether to accept an application for registration; or
  • whether an organization is likely to fulfil its stated objectives and functions.

If there is any administrative discretion in the registration system, its exercise should be based on clear statutory criteria of a formal nature.

It is particularly important that unsuccessful applicants for registration have the right to appeal to an independent court against the refusal of their application, and that any appeal is heard promptly. (General Survey, paras. 77, 78)

Most laws regulating the registration of workers' and employers' organizations include provisions on:

  • the information that must be supplied with the application for registration (including, usually, the name of the organization, the officers, the members, the constitution or statutes, with a list of the matters that must be regulated therein);
  • the right of the registrar to request additional information;
  • rules governing the registrar's decision;
  • time-limits for that decision;
  • the right of appeal to a court against the decision.
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Cancellation of registration

For the same reasons as in the case of refusal to register an organization, safeguards are required concerning cancellation of the registration of any organization. Any legislative provisions regarding cancellation of the registration of a workers' or an employers' organization therefore have to be based on acceptable criteria, such as evidence that the organization no longer meets the requirements for registration. Such cancellation should  preferably be upon application to a judicial authority. In cases where the registrar is entitled to cancel registration this should be subject to appeal to a judicial authority.

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Structure and governance of workers' and employers' organizations

It is another of the basic components of freedom of association that once workers’ and employers’ organizations have been established in full freedom and without previous authorization, they must be able to function freely.  In particular, the administrative authorities must not interfere with their efforts to:

  • draw up their own constitutions and rules;
  • elect their representatives in full freedom;
  • organize their administration and activities; and
  • formulate their programmes (Convention No. 87, Article 3; General Survey, para. 108).

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Structure and composition of organizations

The structure and composition of trade union movements vary considerably between countries, in accordance with trade union history and tradition and the extent to which the national legislation has established criteria relating to these matters.

Trade unions tend to organize according to craft, industry, enterprise or general membership criteria. Their structures commonly include local, regional and/or national organizations. Employers' organizations tend to organize around either economic or labour relations issues, or a combination of both.  Their central organizations are often composed of first-level employers' organizations structured by industrial branch.

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Minimum membership requirements

Legislation frequently establishes minimum membership requirements for the formal establishment of employers’ or workers’ organizations.  Such requirements are compatible with the principles of freedom of association if the specified minimum is realistically attainable in all the relevant circumstances.  However, minimum membership requirements must not act as a deterrent to the establishment of organizations in practice.  For example, the Committee on Freedom of Association has found that a minimum requirement of 20 members to establish a trade union (30 for a sectoral trade union) is compatible with the principles of freedom of association.  The Committee on Freedom of Association has also found that a minimum membership requirement of 10 employers in the same or related activities to establish an employers’ organization is too high and violates the right of employers to establish organizations of their own choosing (General Survey, paras. 81 to 83; Digest, paras. 257, 258).

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Requirements relating to the membership of first-level organizations

Legislation sometimes imposes certain limitations on the membership of first-level organizations., such as that:

  • members of first-level organizations have to be from the same (or a similar) profession or occupation;
  • members of first-level organizations have to be from the same enterprise; or
  • primary level organizations of public servants or employees have to be composed only of public servants or employees.

These limitations on the membership of first-level organizations are compatible with the principles of freedom of association only if:

  • first-level organizations are free to join (or federate with) organizations of other professions at the secondary and/or national level; and
  • first-level organizations of public servants are free to join (or federate with) organizations at the secondary and/or national level (General Survey, para. 84).

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Trade union monopoly and trade union diversity

According to the principles of freedom of association, workers and employers have the right to establish and join organizations "of their own choosing". To be able to exercise this right in full, they have to be able to form new organizations if and when they so choose (Convention No. 87, Article 2). This raises the problem of trade union monopoly.

While it was clearly not the purpose of Convention No. 87 to make trade union diversity an obligation, it does at the very least require this diversity to remain possible in all cases.  In practice, it is generally to the advantage of both workers and employers to avoid any undue proliferation of competing organizations. This can weaken their movements, prejudice their interests and ultimately threaten their continued independence. Indeed, if groups of workers' or employers' organizations choose to combine in ways that effectively give them a monopoly, this presents no problem in relation to the principles of freedom of association, provided that the monopoly structure is not imposed by legislation and that the establishment of new organizations outside the existing structure remains legally possible. (General Survey, para. 91)

This issue is addressed in some labour relations systems by reserving certain rights only for the "most representative" organizations (ILO Constitution, Article 3, paragraph 5). This approach is compatible with the principles of freedom of association, provided that:

  • the determination of the most representative organizations must be based on objective, precise, and pre-established criteria; and
  • the rights afforded to the most representative organizations should only be preferential rights, and should not be such as to deprive other organizations of the essential means for defending the occupational interests of their members: examples of preferential rights include:
    • the right to represent workers in collective bargaining;
    • the right to be consulted by the authorities; and
    • the right to designate delegates to international organizations.

Some systems give the exclusive right to engage in collective bargaining to one certified bargaining agent. In such systems, an obligation should be placed on the exclusive bargaining agent, either in law or in practice, to represent fairly and equally all workers in the bargaining unit, whether or not they are members of the trade union (General Survey, paras 97 to 99). 

These systems are covered more fully in Chapter III in relation with collective bargaining.

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Federations and confederations of workers' and employers' organizations

Rather than operating in isolation, workers’ and employers’ organizations, particularly if they are small, can defend the interests of their members much more effectively if they join together in federations or confederations of their own choosing at the national or inter-occupational level. The international solidarity of workers and employers also requires that their national federations and confederations be able to group together and act freely at the international level.

The right of federations and confederations to enjoy the same guarantees as first-level organizations, particularly as regards their freedom of operation, activities and programmes, and their right to affiliate with international organizations, are set out in Articles 5 and 6 of Convention No. 87. The principles developed by the ILO’s supervisory bodies relating to first-level organizations therefore also apply, with appropriate adjustments, to federations and confederations (General Survey, para. 195).

With regard to international relations between employers’ and workers’ organizations, the principles of freedom of association require governments to respect:

  • the right of workers' and employers' organizations to affiliate with international organizations;
  • the right of members of workers' and employers' organizations to participate in the international activities of their organizations as and when they so choose; and
  • the right of workers and employers to receive assistance and support from international level organizations for the establishment of national level organizations, regardless of the political or ideological tendencies of the international body.

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Internal functioning of organizations

Legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference by the public authorities in their activities. Where such provisions are deemed necessary, they should simply establish an overall framework in which the greatest possible autonomy is left to the organizations for their functioning and administration. Any restrictions placed on this autonomy should have the sole objective of protecting the interests of members and guaranteeing the democratic functioning of the organizations.

Any provisions that are adopted on the internal function of organizations therefore have to respect  the spirit of  Article 3 of Convention No. 87, which is that workers' and employers' organizations may decide for themselves the rules governing the administration of their organizations and the elections held therein (Digest, para. 417). To be compatible with the principles of freedom of association, any such legislation should adhere to the following general rules:

  • formal requirements should be easily satisfied;
  • any discretion granted to a public authority to approve the constitution or rules of an organization should be limited to confirming their compliance with legal requirements, which must themselves be compatible with the principles of freedom of association; and
  • any legislative provisions designed to promote non-discrimination in workers' and employers' organizations should be compatible with the principles of freedom of association (General Survey, paras. 109 to 111).

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Constitutions, statutes or rules

In some cases national legislation contains no provisions respecting the content or approval of the constitutions, statutes or rules of organizations, and imposes only a general requirement to lodge copies of the rules with the competent authorities. In other cases, it may contain a general statement of principle conferring rights on workers’ and employers’ organizations regarding their internal administration.

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National legislation often lists particular points of a formal nature which should appear in the constitutions, statutes or rules of organizations in order to ensure  their sound administration and to avoid difficulties arising from the absence of sufficient detail.  Such legislation may be compatible with the principles of freedom of association, as may model constitutions or rules which are intended to serve as guidelines, provided there is no legal obligation to accept them or any pressure exerted for this purpose (General Survey, para. 110).

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The autonomy of workers’ and employers’ organizations can only be effectively guaranteed where their members have the right to elect their representatives in full freedom. The public authorities should therefore refrain from any interference which might restrict the exercise of this right, particularly with regard to the holding of trade union elections, conditions of eligibility or the re-election or removal of elected representatives.

In some countries, the legislation contains no rules on elections in organizations apart from requiring that appropriate provision should be made for the respective procedures in their constitutions or statutes. In others, the law contains provisions intended to guarantee that elections are conducted fairly.  But, such rules should not be such as to allow any arbitrary interference in the election processes of workers’ or employers’ organizations.

In particular, such provisions must not:

  • require that all officers be members of the organization concerned - a reasonable proportion of the officers of an organization should be exempt from such a requirement (General Survey, para. 117 and Report of the Committee of Experts, 1994, observation concerning Bangladesh);
  • require all officers to be employed in the same occupation as the members of the organization (General Survey, para. 117);
  • prevent persons from holding office on the grounds of political belief or affiliation (General Survey, para. 119);
  • prohibit re-election of officials, or stipulate the maximum length of terms of trade union office; (General Survey, para. 121)
  • enable the public authorities to intervene in the holding of elections in organizations,  maintain an official presence during elections (if supervision is considered necessary to protect the democratic process it should be independent and impartial), or remove elected leaders from office (General Survey, para. 115).

On the other hand, provisions regulating the holding of elections in organizations may:

  • require that elections be conducted by means of a secret, direct and universal vote (Digest, para. 360); or
  • limit the eligibility of candidates with a criminal record, where the crime for which they have been convicted calls into question:
    • their personal integrity; or
    • their ability to administer an organization (General Survey, para. 120); or
  • authorize a judicial authority to remove or suspend an official on the basis of precise criteria allowing the authority to determine whether the officer has committed acts warranting removal or suspension (General Survey, paras. 122, 123).

These types of legislative provisions are sometimes limited to laying down basic principles, and are sometimes more detailed.

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Finances of workers' and employers' organizations

Financial independence and the protection of their assets and property is an essential aspect of the right of workers’ and employers’ organizations to organize their administration without interference from the public authorities. The acquisition, use and disposal of the property and finances of workers' and employers' organizations should therefore be left in the autonomous control of their elected representatives (General Survey, para. 124).

Legislation may however be adopted to protect the rights of members of such organizations. It may require financial transparency and accountability to the members of an organization concerning:

  • the sources and use of funds;
  • internal financial administration; and
  • the distribution of assets in the event that the organization is dissolved, merged, or liquidated.

To this end, national legislation often requires organizations to ensure financial transparency  by keeping appropriate accounts, preparing annual financial statements, having their accounts properly audited, making the audited accounts available to members and submitting the audited accounts to the registrar. Such legislation is in general compatible with the principles of freedom of association.

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Supervision of the financial affairs of organizations.  With a view to reducing the risk of interference by the administrative authorities as much as possible, any legislation empowering the administrative authorities to supervise the financial affairs of organizations should be kept to an absolute minimum. Its sole aim should be to ensure the sound financial management of the organizations. Power to intervene should be resorted to only:

  • where necessary to protect the rights of members, including their interest in the administration of their funds, for example in the case of allegations that the law and/or the organization's rules, have been breached;
  • in accordance with pre-existing statutory criteria (which should not themselves infringe the principles of freedom of association); and
  • provided that it is subject to a right of appeal to independent judicial authorities (General Survey, paras. 125, 126).

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Dissolution and suspension of organizations

Unless accompanied by all the necessary safeguards, the dissolution and suspension of workers’ and employers’ organizations can constitute extreme forms of interference by the authorities in their activities, effectively putting an end to the right to organize of their members. The necessary guarantees can only be ensured through a normal judicial procedure, which should also have the effect of a stay of execution (General Survey, para. 188).

Frequently the sole legislative provision regarding the dissolution of workers' and employers' organizations is a clause requiring them to include provisions on their dissolution and the disposal of their assets in their constitutions, statutes or rules (see example above).     

If it is deemed necessary to authorize the dissolution or suspension of an organization, such powers should only be granted to the judicial authorities. Because of the extreme risk of interference that this involves, administrative authorities should not be granted powers of this kind (Convention No. 87, Articles 4, 6; General Survey, paras. 182). Governments should also refrain from taking legislative measures to suspend or dissolve workers' or employers' organizations in specific cases. (General Survey, paras. 180, 181, 183)

Certain measures which cannot be described as dissolution or suspension by administrative authority in the strict sense of the term, nevertheless have a similar effect on the organizations concerned. Organizations should therefore also be protected against the arbitrary suspension or cancellation of registration, or the suspension or annulment of their legal personality (General Survey, para. 184).

Any legislation which does authorize the suspension or dissolution of workers’ or employers’ organizations should therefore be strictly circumscribed and:

  • limited to cases in which the organization itself applies, in accordance with its statutes, for its dissolutiont;
  • accompanied by all the necessary guarantees in all cases, including the right to appeal to an independent judicial authority, which should have the effect of staying the effect of the dissolution or suspension; and
  • require that the assets of a dissolved organization be distributed according to the provisions of the organization's statutes or, if they are silent on this point, for the purpose for which they were acquired, or perhaps among the members of the organization.

Frequently, the relevant legislation makes no specific provision for the dissolution or suspension of workers'  and employers' organizations (other then self-dissolution under the organization's rules), but envisages the cancellation of its registration in certain circumstances and in accordance with  a defined procedure.  An organization whose registration has been cancelled can in many cases continue to exist and function under the general law governing civil associations (although without the rights attaching to registration).

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Workers’ and employers’ organizations are not, of course, granted complete immunity. They must respect the law of the land (Convention No. 87, Article 8 para. 1). However, the law of the land, however, must not be such as to impair the rights and freedoms guaranteed by Convention No. 87 (Article 8 para. 2 and General Survey, para. 181).

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Activities of workers' and employers' organizations

It is one of the most fundamental aspects of freedom of association that workers' and employers' organizations must have full freedom to formulate their own programmes of activities to defend the occupational interests of their members, while respecting the law of the land. (Convention No. 87, Article 3, paragraph (1)). This includes, in particular, the right to hold trade union meetings, the right of trade union officers to have access to places of work and to communicate with management, certain policital activities of organizations, the right to strike and, in general, any activity involved in the defence of members’ rights (General Survey, para. 128).

It should be recalled in this respect that the activities of workers' and employers' organizations cannot be completely separated from political activities. A government’s choice of economic and social policy inevitably has an impact on workers and employers, and their organizations must be free to express their members' views about these policies by appropriate means. This raises the issue of the relations between workers’ and employers’ organizations and political parties. A general principle in this respect is that when trade unions decide to establish relations with a political party or to undertake constitutional political action as a means towards the advancement of their economic and social objectives, such political relations or actions should not be of such a nature as to compromise the continuance of the trade union movement or its social and economic functions, irrespective of political changes in the country (General Survey, para. 132).

With regard to legislation covering this aspect of the activities of workers’ and employers’ organizations, both legislative provisions which establish a close relationship between trade union organizations and political parties and those which prohibit all political activities by trade unions are contrary to the principles of freedom of association.

Some national legislation seeks to preserve the independence of trade unions from political parties.

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Protection against discrimination or victimization on the grounds of trade union membership or activities

Acts of anti-union discrimination, such as the dismissal of trade union members or officials for their trade union activities, can in practice amount to a denial of the guarantees afforded by the instruments of freedom of association. The protection of workers and trade union officials against such acts of discrimination therefore constitutes an essential aspect of freedom of association. In accordance with Articles 1 to 3 of Convention No. 98,4 many countries have enacted statutory provisions prohibiting conduct of this nature.

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Additional safeguards against anti-union discrimination include preventive measures, such as a statutory requirement for prior authorisation from an independent body before trade union officials can be dismissed,5 and remedial measures, including reinstatement and sufficiently dissuasive compensation.6 It is important to note that, to be effective, such measures have to expeditious, low-cost and impartial.7

1. In addition to legislative texts and ILO instruments, the sources used in the preparation of this text include: Freedom of association and procedures for determining conditions of employment in the public service, International Labour Conference, 63rd Session 1977, Report VII (1) (Geneva, ILO, 1976);Freedom of association and collective bargaining, General Survey of the Committee of Experts on the Application of Conventions and Recommendations (Geneva, ILO, 1994);Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 4th (revised) ed. (ILO, Geneva, 1996); G. Casale, Guide to International Labour Standards on Industrial Relations (Geneva, ILO, 1998); Labour relations in industrialized market economy countries - An introduction (ILO, Geneva); Bartolomei de la Cruz, von Potobsky and Swepston, The International Labor Organization - The international standards system and basic human rights, (Westview, Colorado, United States, 1996); Swepston, "Human rights law and freedom of association: Development through ILO supervision" in International Labour Review, Vol. 137 (1998), No. 2, p. 169; Pankert, "Freedom of association", in Blanpain (ed.) Comparative labour law and industrial relations in industrialized market economies, 3rd Ed., (Kluwer, 1987); Lawyers Committee for Human Rights, The neglected right: Freedom of association in international human rights law, (Lawyers Committee for Human Rights, New York, 1997); Lawyers Committee for Human Rights, The World Bank, NGOs, and freedom of association: A critique of the world bank's draft "Handbook on good practices for law relating to non-governmental organizations" (Lawyers Committee for Human Rights, New York, 1997).

2. These instruments include:

3. These are the Fact-Finding and Conciliation Commission on Freedom of Association which requires the consent of the member State concerned before it may start its work, and which also examines complaints regardless of whether the member State concerned has ratified the relevant Conventions.

4. See also Articles 4 and 5 of Convention No. 151 and Paragraph 2 of Recommendation No. 163.

5. See e.g., section L.425-1 of Act No. 82-915 (France).

6. See Gernigon, B. "ILO Convention No. 98: An instrument still topical 50 years after its adoption" in Collective bargaining: A fundamental principle, a right, a Convention, op. cit. p. 27.

7. Ibid.

Updated by MB. Approved by AB. Last Updated 10 December 2001.