FOA PROJECT

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FOA PROJECT
Training Centre Programme on ILS and HR
Freedom of Association
(C.87 and C.98)
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FREEDOM OF ASSOCIATION (FOA) A RIGHT
UNIVERSALLY RECOGNIZED

• FOA is a human right universally recognized and
  protected

• FOA recognition and respect expressly requested
  by ILO Constitutional documents

• FOA is of particular importance for the ILO in
  reason of its tripartite structure

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FOA AND RESPECT OF CIVIL LIBERTIES

• A system of democracy and the respect of
  fundamental human rights are essential to full
  and genuine FOA

• Absence of civil liberties removes all meaning
  from the concept of FOA. Genuine, free and
  independent workers and employers organizations
  cannot develop in a climate of violence and
  uncertainty

• The interdependence of FOA and civil liberties
  was reiterated in the ILO 1970 Resolution
  Concerning Trade Union Rights and Their Relation
  to Civil Liberties

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FOA AND RESPECT OF CIVIL LIBERTIES

• Civil liberties essential to the normal exercise
  of FOA rights

• The right to life and personal safety
• The right to freedom and security of person from
  arbitrary arrest and detention
• Freedom of opinion and expression
• Freedom of assembly
• The right to a fair trial by an independent and
  impartial tribunal
• The right to protection of the property of
  workers and employers organizations

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FOA AND RESPECT OF CIVIL LIBERTIES

• The detention, arrest, physical threats, assaults
  or disappearances of leaders of workers and
  employers organizations for activities in
  connection with the exercise of their right to
  organize are blatant violations of FOA

• All appropriate measures should be taken to
  guarantee that FOA can be exercised in normal
  conditions. Violation of this right can be
  denounced before the ILO

• No impunity should prevail. The absence of
  judgement (or excessive delay in its
  pronouncement) reinforces the climate of violence
  and insecurity, extremely damaging to the
  exercise of FOA

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ILO FOA INSTRUMENTS
Right of Association (Agriculture), 1921 (No. 11)
Freedom of Association and Protection of the
Right to Organize Convention, 1948 (No. 87)
Right to Organize and Collective Bargaining
Convention, 1949 (No. 98)
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ILO FOA INSTRUMENTS
Workers Representatives Convention (No. 135) and
Recommendation (No. 143), 1971
Rural Workers Organizations (No. 141) and
Recommendation (No. 149), 1975
Labour Relations (Public Service) (No. 151) and
Recommendation (No. 159), 1978
Collective Bargaining Convention (No. 154)
Collective Agreements Recommendation (No. 91),
1951
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Freedom of association and protection of the
right to organize convention, 1948 (no. 87)

• Aims at protecting the free exercise of the right
  to organize of workers and employers
  organizations vis-à-vis public authorities

• Protects in law and in practice the freedom to
  establish organizations, which could be
  considered a prerequisite without which the other
  guarantees enunciated in ILO instruments would
  remain a dead letter

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Freedom of association and protection of the
right to organize convention, 1948 (no. 87)
This right to organize depends on three
principles
1. That no distinction are made among those
entitled to the right of association
2. That there is no need for previous
authorization to establish organizations
3. That there is freedom of choice with regard to
membership of such organizations
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1. Right to establish and join organizations
without distinction whatsoever (art. 2)

• All workers and employers are covered

• No distinction based on grounds of, inter alia,
  occupation, sex, colour, race, religion, age,
  residence, marital status, nationality, political
  opinion

• Only exception armed forces and the police
  interpreted narrowly

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2. Right to establish organizations without
previous authorization

• Statutory and by-law formalities are acceptable
  as long as they ensure the normal functioning and
  publicity of organizations

• Would be incompatible

• Long and complicated registration procedures
• Discretionary power granted to public authority
• Excessive minimum membership required for
  establishment or registration

• Recognition of legal personality without delay if
  formal requirements complied with

• Right to appeal to independent courts against
  refusal of authorization

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

• Subject only to the rules of organizations
  concerned

• No interference by public authorities when
  drawing up their structure and composition

• Rules and practices may not unduly affect
  organizational structure and composition.
  However, are acceptable limitations as regards

• required minimum number of members
• certain categories of workers to whom membership
  is limited at the first level as long as they can
  organise

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

• Legislation and practices must not unduly affect
  organizational plurality and diversity. Monopoly
  must not be imposed by law or practice

• Systems prohibiting union security practices as
  well as systems which permit such practices, are
  compatible with FOA principles. Should take
  effect trough collective agreements

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Recognition of the most representative
organizations

• A way of striking a balance between trade union
  unity and fragmentation of trade union movement

• Determination of most representative trade union
  must be based on objective, pre-established and
  precise criteria

• Certain preferential rights granted to most
  representative organizations. Other organizations
  should be able to continue representing their
  members interests

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Right of workers and employers organizations to
draw up their constitutions and rules (art. 3)

• The law should only law down formal requirements
  as regards the organizations constitution

• Would be incompatible

• Approval of by-laws by public authorities or
  already existing trade union
• Imposed model constitution
• Where public authorities have the right to
  require
• amendments (beyond formal changes)

• Procedure for appeal to an independent and
  impartial body in case of refusal

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Right of workers and employers organizations to
elect their representatives in full freedom (art.
3)

• No control shall be exercised by public
  authorities over the election process

• No arbitrary interference by public authorities
  in the election process

• Results should not be subject of approval by
  public authorities. If contested recourse to
  independent and impartial judicial body

• Conditions of eligibility avoid situations where
  qualified persons would be disqualified

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Right of workers and employers organizations to
elect their representatives in full freedom (art.
3)

• Possible violations of FOA if a law

• Requires that all candidates belong to an
  occupation or an enterprise
• Requires that all candidates be national of the
  country. Possible requirement of a reasonable
  period of residence
• Prohibits re-election
• Excludes candidates because of their political
  beliefs or criminal records

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Right of workers and employers organizations to
organize their administration and activities
(art. 3)

• Be able to hold congresses of members without
  interference

• Covers necessary financial autonomy and
  independence

• No prior authorization to receive funds

• Protection of workers and employers
  organizations assets shall be guaranteed.
  Inviolability of union premises, correspondence
  and communications

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Right of workers and employers organizations to
formulate their programmes (art. 3)

• Right of organizations to formulate their
  programmes include

• Right to hold meetings
• Right to have access to the working place by
  trade union leaders with due respect for the
  rights of property and management
• Right to communicate with management
• Right to obtain information
• Right to present a list of dispute grievances

• Political vs trade union activities

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The right to strike

• Most visible form of collective action in the
  context of a labour dispute

• Even if not expressly mentioned in ILO
  Conventions on FOA, the right to strike is fully
  recognized and protected

• Right to strike recognized by other international
  instruments

• Legitimate weapon of workers organizations in
  furtherance of their members interests

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Workers covered

• Certain categories of workers can see their right
  to strike limited, even prohibited

• armed forces and the police
• civil servants exercising authority in the name
  of the state
• workers in essential services  services the
  interruption of which would endanger the life,
  the personal safety or health of the whole or
  part of the population

• Compensatory guarantees should be provided for
  workers deprived of their right to strike

• In cases of not essential services but of public
  utility, possible to establish a system of
  negotiated minimum service

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Prerequisites

• The law may subordinate the exercise of the right
  to strike to certain prerequisites (reasonable
  criteria)

• Prerequisites found to be acceptable

• Take strike decisions by secret ballot
• Give short notice of a strike in certain services
• Mediation, conciliation and voluntary arbitration

• Prerequisites not acceptable

• Decision by over half of all the workers involved
• A quorum requirement of two-thirds
• Compulsory arbitration before calling strike

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Forms of strike

• Any work stoppage, however brief and limited, may
  generally be considered as a strike

• Political strikes do not fall within the scope of
  FOA. However possible recourse to protest strikes

• Sympathy strikes are lawful when the initial
  strike is lawful

• Restrictions on strike pickets and workplace
  occupations should be limited to cases where the
  action ceases to be peaceful

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Acute national crisis and ban on strike

• Acute national crisis can justify a ban on
  strike. The limitation needs to be for a limited
  period of time, to the extent necessary to meet
  the requirements of the situation

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Abuse of the right to strike

• FOA principles do not protect against abuse

• Sanctions provided in national legislation in
  case of abuse are acceptable

• May take various forms

• All penalties should be proportionate to the
  offence or fault committed. No imprisonment for
  organizing or participating in a peaceful strike

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Intervention of the police in strike actions

• Workers and their organization have an obligation
  to respect the law of the land

• Intervention of security forces in strike
  situation should be limited strictly to the
  maintenance of public order and only if there is
  a serious threat to law and order

• Necessary instruction should be given to
  competent authorities so as to avoid the danger
  of excessive violence in trying to control
  demonstrations that might undermine public order

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Protection against dissolution or suspension of
organizations by administrative authority (art. 4)

• Most extreme form of interference by public
  authorities

• Same applies to decisions taken by public
  authorities that lead to de facto dissolution
  (cancellation of registration or of legal
  personality, depriving workers and employers
  organizations of their financial assets)

• If administrative dissolution exists, right of
  appeal to independent courts with suspensive
  effect

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Right to establish federations and
confederations and to affiliate with
international organizations (art. 5)

• Right to organize at higher level

• Should enjoy the various rights accorded to
  first-level organizations

• At the national level, would be incompatible

• Requirement of an excessively large number of
  member organizations
• Prohibition imposed on setting up more than one
  confederation per occupation, branch of activity
  or region
• Imposed monopoly at the federal or confederal
  levels

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Right to establish federations and confederations
and to affiliate with international organizations
(art. 5)

• At the international level would be incompatible

• Only a single, named national organization
  permitted to affiliate internationally
• Prohibition placed on international affiliation
• Prior authorization required for international
  affiliation
• Restrictions or conditions placed on assistance
  (including financial), communications or contacts
  resulting from international affiliations

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Right to organize and collective bargaining
convention, 1949 (no. 98)

• Protection of workers against acts of anti-union
  discrimination from employers

• Protection of workers and employers
  organizations against acts of interference by
  each other

• Promotion of collective bargaining

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Right to organize and collective bargaining
convention, 1949 (no. 98)

• All workers are covered

• Only exceptions

• Armed forces and the police
• Civil servants engaged in the administration of
  the state

• No distinction based on grounds of occupation,
  sex, colour, race, religion, age, residence,
  marital status, nationality, political opinion

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Protection against acts of anti-union
discrimination (art. 1)

• No person shall be prejudiced in his employment
  by reason of his/her trade union membership or
  legitimate trade union activities

• This protection is particularly necessary for
  trade union officials

• Protection against acts of anti-union
  discrimination requires to be effective

• Existence of broad enough protective provisions
  in legislation
• Existence of procedures able to ensure that
  complaints are examined promptly, impartially,
  inexpensively and effectively

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Protection against acts of anti-union
discrimination (art. 1)

• Period covered

• In taken up the employment
• In the course of employment
• At the time of termination

• The law should provide for effective and
  dissuasive sanctions

• Not enough protection in cases where employers
  can, in practice, on condition they pay the
  compensation prescribed by law for cases of
  unjustified dismissal dismiss any worker if true
  reason is the workers trade union membership or
  activities

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Protection against acts of interference (art. 2)

• Total independence of workers organizations from
  employers and their organizations in exercising
  their activities and vice versa

• Necessary to have express legislative provisions
  against acts of interference

• Rapid appeal procedure

• Effective and dissuasive sanctions

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Promotion of Collective Bargaining (art. 4)

• Process to create standards to govern labour
  relations

• Instrument of democratization

• Fundamental right endorsed by Member States by
  the very fact of their membership to the ILO

• Within multinational enterprises. Special
  incentives to attract foreign investments should
  not, inter alia, include any limitation of the
  workers right to bargain collectively

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• Conditions favouring collective bargaining

• Respect of FOA and civil liberties
• Parties should be organized, independent and free
  from any public interference
• Parties should be of equal strength
• Appropriate rules governing the procedure

• Workers organizations need to be representative
  of those for whom they collectively bargain

• Criteria
• Parties should recognize each other
• Recognition procedure based on objective,
  pre-established and precise criteria.
  Possible exclusive bargaining agent

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• Restrictions on the principle of free and
  voluntary negotiations

• Compulsory arbitration
• Intervention of public authorities

• In the drafting of collective bargaining
• In the form of administrative approval of freely
  concluded collective agreements
• In cancellation of agreements because they are
  contrary to national economic policy
• In compulsory extension of the period for which
  collective agreements are in force

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• Obligation to negotiate in good faith

• Implies genuine and consistent efforts by both
  parties to reach an agreement
• Does not mean that there is an obligation to
  conclude an agreement
• Any unjustified delay in the holding of
  negotiations should be avoided
• Support measures aiming at promoting collective
  bargaining (information, statistics, voluntary
  procedures designed to facilitate bargaining)

• Negotiation process

• Informal and within pre-established institutions
  or bodies
• Certain behaviour should be prohibited (unfair
  labour practices)

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• Topics to be covered

• Terms and conditions of work and employment
• Regulation of the relations between employers and
  workers and between organizations of workers and
  employers
• Strict limitations possible in case of
  stabilization policies

• Levels of negotiation

• Should be possible at any level (in law and in
  practice)
• Should be left to the choice of the parties
  concerned

• Agreements reached

• Collective agreements
• Other forms of agreements