FOA PROGRAMME

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FOA PROGRAMME
Turin Training Centre
Trade Union Training for FTUB on Freedom of
Association and Workers Rights New Delhi,
December 2006
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FREEDOM OF ASSOCIATION (FOA) A RIGHT
UNIVERSALLY RECOGNIZED

• FOA is a human right universally recognized and
  protected

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

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ILO FOA INSTRUMENTS
Right of Association (Agriculture) Convention,
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),
1971
Rural Workers Organizations (No. 141), 1975
Labour Relations (Public Service) (No. 151), 1978
Collective Bargaining Convention (No. 154),1981
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Ratifications
C 11 C 87 C 98 C 135 C- 151-C 154
Myanmar 1923 1955 --- --- ---
India --- --- --- --- ---
Thailand --- --- --- --- ---
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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

• 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 trade union 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 trade
  union organizations

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Freedom of association and protection of the
right to organize convention, 1948 (no. 87)

• Aims at protecting in law and in practice the
  free exercise of the right to organize of
  workers and employers organizations vis-à-vis
  public authorities (independence)

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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

• 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

• Rules and practices should not unduly affect
  organizational structure and composition.

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

• Plurality and Monopoly possibility of pluralism

• Recognition of the most representative
  organizations

• A way of striking a balance between trade union
  unity and fragmentation of trade union movement
• Determination based on objective, pre-established
  and precise criteria
• Certain preferential rights granted to most
  representative organizations.

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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

• Procedure for appeal to an independent and
  impartial body

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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

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

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

• Be able to formulate their programme

• Covers necessary financial autonomy and
  independence

• 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 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 strike

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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

• 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

• 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
• acute national crisis (limited period of time)

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

• Most extreme form of interference by public
  authorities

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

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The legality and the workers and employers
organizations rights (art. 8)

• Workers and employers shall respect the law of
  the land
• The law of the land shall not be such as to
  impair the guarantees provided for in the
  Convention

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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

(civil servants employed in government ministries
and other comparable bodies and officials acting
as supporting elements in these activities)
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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

• 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

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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

• Effective and dissuasive sanctions

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Promotion of Collective Bargaining (art. 4)

• Process to create standards to govern labour
  relations

• Conditions favouring collective bargaining
• Respect of FOA and civil liberties
• Parties should be organized, independent and free
  from any public interference
• Appropriate rules governing the procedure

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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

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• Obligation to negotiate in good faith

• Implies genuine and consistent efforts by both
  parties to reach 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)

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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

• Levels of negotiation

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

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FOA PROGRAMME
Turin Training Centre
Using the Supervisory Mechanism to Protect
Workers Rights
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The Committee on Freedom of Association

• Established in 1951
• Tripartite committee of the Governing Body,
  comprised of three representatives for each group
  and chaired by an independent person
• Meets three times a year (March, May and November)

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The Committee on Freedom of AssociationMandate

• Deals with the complaints filed against the
  government for violation of the conventions and
  principles on FOA
• Focus on specific situation
• Legislative as well as factual examination even
  without ratification or consent
• Decisions adopted unanimously
• Digest (jurisprudence)

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The Committee on Freedom of Association

• Complaints must emanate from
• National organization having direct interest in
  the matter
• International organization having consultative
  status with ILO (ITUC, IOE)
• International organization where allegations
  relate to matters directly affecting their
  affiliated organizations
• A government
• Exiled or dissolved organizations may lodge
  complaints

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The Committee on Freedom of Association Special
characteristics

• Quasi-judicial body
• Not subject to the prior exhaustion of national
  remedies
• Examination even without the governments replay
• Not bound by national judicial decision
• The Committee has dealt with more than 2500 cases

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(No Transcript)
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CFA Type of restriction (1995-2003)
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Myanmar  Case No. 2268 Complaint presented by
The International Confederation of Free Trade
Unions (ICFTU) on the 28-05-2003

• Allegations relating to legislative issues
  unclear legislative framework covering freedom of
  association serious discrepancies between
  legislation and Convention No. 87 repressive
  texts which contribute to a climate of denial of
  fundamental freedoms and to annihilate and
  destroy any form of labour organization
• Allegations relating to factual issues total
  lack of legally registered workers
  organizations systematic practice of repression
  by public authorities of any form of labour
  organization the FTUB cannot function freely and
  independently on the Myanmar territory and its
  General Secretary has to face criminal
  prosecution because of his legitimate trade union
  activities murder, detention and torture of
  trade unionists continuing repression of
  seafarers for the exercise of their trade union
  rights arrest and dismissal of workers in
  connection with collective labour protests and
  claims.