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CHAPTER II
Substantive provisions of labour legislation:
Freedom of Association1
Introduction
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.
 Example
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.
Example
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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)
Example
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).
Example
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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.
Example
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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).
Example
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.
Example
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.
Example
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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.
Example
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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).
Example
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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).
Example
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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.
Example
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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.
Example
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).
Example
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Elections
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.
Example
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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.
Example
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).
Example
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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).
Example
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.
Example
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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.
Example
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.
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