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Freedom of Association: A user's guide

1. 2 5 TheGoverning Body GB of thelLO set up in 1951 a Committee Allegations onFreedom of Association CFA The CFA has nine membersin all to the Committee three each drawn from E mployers Workers and G overnment groups on Freedom intheGB Since 1978 the CFA has been chaired by an independent of Association person It meets three times a year just preceding the usual meetings of the GB in March June and N ovember Background 44 and function T he CFA examines complaints containing allegations of viola tions of the Conventions on freedom of association regardless of whether or not the countries concerned have ratified those instru ments The consent of the governments concerned is not necessary in order for these complaints to be examined the legal basis for this con cept resides in the Constitution of the ILO and the Declaration of Philadelphia according to which member States by virtue of their mem bership in the O rganization are bound to respectthe fundamental prin ciples contained in its Constitution particularly those concerning freedom of association pg COE 1994 GS para 19 Formally the responsibility of the Committee is to consider with a view to making a recommendation to the G B whether cases are worthy of examination by the G B and referral to the FFCC As it receives many new cases each year an important aspect of the CFA s work is collecting the positions of the complainant and the gov er
2. m firefighters RCE 1991 C 87 Japan and m personnel in a maritime safety agency RCE 1994 C 98 Japan are not armed forces or police for the purposes of the Convention and must therefore also have the right to organize The COE noted with satisfaction that the right to belong to the trade union of their choice was restored to workers at Government C ommuni cation Headquarters The CO E had been requesting the restoration of the right for several years despite the Government s arguments that it considered these workers to be members of the armed forces RCE 1999 C 87 United Kingdom Likewise firefighters and prison guards have never been found to be armed forces and the police by the supervisory bodies and there fore must have the right to organize Restrictions placed on senior public officials organizations not allowing them for example to join organizations with other public servants are acceptable if m therestrictions are limited to persons exercising senior managerial or policy making responsibilities and m the restrictions do not limit their right to establish their own organizations This same rule is applied to restrictions imposed by the State on the right of managerial or executive staff in the private sector to organize M oving to other forms of discrimination or distinction the super visory bodies have consistently asked States to change their law and practice with regard to m making
3. 0 lt 2 lt U n U lt LL Q a ia LL Factfinding and Conciliation No Usually takes atleast one to two Investigative written as well Committee on Freedom of years as oral testimony Association ratification not required if State agrees to jurisdiction Article 24 representation No Usually referred to CFA when con W ritten ratification required cerning FO A Time span slightly longer than if complaint made directly to CFA Article 26 complaint Yes If Commission of Inquiry CO I is m Written and oral testimony ratification required established one to two years m Investigative powers c International Labour O ffice assistance Informal advisory mission None N one are made Information gathering typi no ratification required cally has a technical focus Direct contacts mission Report of the mis General conclusions are made G eneral factfinding may no ratification required sion is normally while leaving final conclusions to occur given to the Supervisory bodies appropriate super visory body for its information Technical assistance None N one are given but important rec Information gathering typi no ratification required ommendations may be made cally has a technical focus Tripartite forum Publicity Special characteristics a Regular system of supervision No Yes Yes No Yes Decision to establish a lies with the ILO s tripartite GB m The C
4. Organizations Direct requests P O bservations sent directly to published in governments Report Ill 1A Tripartite Conference Committee International Labour Conference 2 3 Reports and comments to the Committee of Experts Comments from workers and employers organizations CL f LL O LLI E O U E CL m N a 3 O c 0 2 lt 2 lt U 0 0 LL O 2 Q ia LL Action by COE These reports are reviewed by the COE Employers and workers organizations are encouraged to providethe CO E with any comments they might have on the application of the Conventions concerned T hese comments are one recourse available for bringing a FOA viola tion to the attention of the supervisory bodies Such comments may be sent directly to the International Labour Standards and Human Rights D epartment of the International Labour Office and need not be sent through the government need not be sent at the same time as the governments report nor Is it necessary to wait until the year when the report is due and may be sent by any employers or workers organization W hat is the immediate effect of such comments The Office will include the comments with the file reviewed by the COE concerning the State and its application of the Convention concerned The Office will normally send a copy of the comments to the gov ernment con
5. ordinary law will be found on the premises m The actual search must be restricted to the purpose for which the warrant was issued m Judicial review is required for any similar search by the authorities i e of private homes of trade unionists workplaces and so on The CO E noted with satisfaction in connection with recommendations made by an ILO COI that property expropriated from leaders of an employers organization by the Government was returned RCE 1992 C 87 Nicaragua G overnments may not call a state of emergency for the purpose of evading freedom of association principles or ignoring civil liberties The supervisory bodies have 44 emphasized that the freedom of asso ciation Conventions do not contain any provision permitting derogation from the obligations arising under the Convention or any suspension of their application based on a plea that an emergency exists pg CFA Digest of 1996 para 186 T hus for example m restrictions on the right to strike m detention or arrest of trade unionists m the passage of legislation aimed at anti social disruptive elements but used against workers for the exercise of legitimate trade union rights trial by military tribunal restrictions on trade union meetings restrictions on publications suspension or dissolution of associations by administrative authority the declaration of martial law affecting freedom of association or unilateral setting or changing
6. Allegation to CFA Possible Article 24 representation Re mos is eration recourse Article 26 complaint j Request for technical cooperation Remember An ILO Convention is the basis only for certain specific FOA principles For example the obligation to promote collective bar gaining flows from Convention No 98 and not from Convention N o 87 Care must be taken to ensure that the Convention which is the basis for recourseto a supervisory mechanism is known It is also neces sary to ascertain whether the State involved has ratified the Convention How does onefind out if the country concerned has ratified the rele vant FOA Convention Annex 1 gives alist of ratifications of FOA Conventions as of 15 Sep tember 1999 n addition the ILO systematically makes this informa tion public Other ways of finding out are as follows m contact the local or nearest ILO Office m contact the ILO s International Labour Standards and H uman Rights D epartment CH 1211 G eneva 22 Switzerland m consult the ILOLEX database http ilolex ilo ch 1567 or the Internet homepage of the International Labour Standards D epart ment http www ilo org public english 50normes index htm m consult ILO texts on freedom of association many include ratifi cation lists m consult the most recent issue of Report 111 Part 2 to the I nterna tional Labour Conference List of ratifications by Convention and by country issued y
7. Swaziland x x x Sweden x Switzerland x x x Syrian Republic x Tajikistan Tanzania United Republic of T hailand Theformer Y ugoslav Republic of Macedonia x x Togo X Xx x Trinidad and Tobago Tunisia x x Turkey X Turkmenistan x x U ganda x x Ukraine x x x x United K ingdom United Arab E mirates United States Uruguay x x x x x x U zbekistan x Venezuela Viet Nam Yemen Y ugoslavia Zambia x Zimbabwe 09 1 Annex 2 Additional reading ILO law on freedom of association Standards and procedures G eneva ILO 1995 Freedom of association and collective bargaining G eneral Survey of the eports on the F reedom of A ssodation and theR ight to O rganize C onvention N o 87 1948 and theR ight to rganizeand C ollectiveB argaining C onvention N o 98 1949 Geneva ILO 1994 Freedom of association D igest of decisions and prindples of the Freedom of A ssociation C ommittee of the G overning Body of thelL 0 Geneva ILO fourth revised edition 1996 Freedom of association A workers education manual eneva ILO second revised edition 1987 CO UJ ANNEX2
8. automobile manufacturing The following may be aircraft repair agricultural activities considered to be essential the supply and distribution of foodstuffs PRICES the Mint the government printing the hospital sector service and the state alcohol salt electricity services and tobacco monopolies water supply services the education sector the telephone service metropolitan transport air traffic control postal services of the service endanger the life personal safety or health of the whole or part of the population oOo 1 Consider FOA recourse As regards the nature of appropriate guarantees in cases where restrictions are placed on the right to strike in essential services and the public service restrictions on the right to strike should be accompanied by adequate impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards once made are fully and promptly implemented C Digest of 1996 para 545 CFA Digest of 1996 para 547 CFA Digest of 1996 para 544 2 Uu a 0 V Negotiated While taking a strict view on when and how the right to strike can be minimum services limited the supervisory bodies have promoted the use of negotiated minimum services in certain cases where for example the authorities had previously resorted to a
9. 19 in influencing application of FOA principles at the national level m Employers and workers organizations as well as the government concerned should have thoroughly analysed the State s applica tion of the FOA principles in law and in practice when a report is requested Analysis done independently by those most concerned by the matter could be useful in particular cases especially where there is an opportunity to publicize issues which stand in the way of application The technical assistance of the International Labour O ffice may be requested m Consultation about issues which stand in the way of application can be useful in finding solutions for application and promoting ratification m Employers and workers organizations can comment directly to the ILO about the application of the Convention or Recommendation a 5 O c 0 lt 2 lt U 2 0 LL Q a ia LL In preparing its 1994 GS the COE received information and comments from four workers and employers organizations concerning unratified Conventions in addition to information provided concerning ratified Conventions COE 1994 GS para 21 Since the ILO Director G eneral began in May 1995 his campaign pro moting ratification of FOA Conventions 11 ratifications of Convention N o 87 and 16 ratifications of Convention N o 98 had been registered as of 12 February 1999 The Director G eneral used the Article 19
10. 34 35 40 42 51 51 53 68 69 70 71 72 List of tables 1 Organizational rights Basic requirements 2 State interference in organizations 3 Procedural options Characteristics of supervisory mechanisms 4 FFCC procedures Recourse to the FFCC in the light of other procedures 5 CFA procedures Receivability of complaints Citations in the text Provided below is alist showing the sources of quotations from 0 Constitution the D eclaration of Fundamental Principles and Rights at Work and international labour Conventions and Recommendations used in this guide T he full titles of the Conventions are given in Annex 1 Convention N o 87 Article 2 Convention N o 87 Article 9 Convention No 87 Article 3 1 amp 2 Convention N o 87 Article 4 Convention N o 87 Article 8 1 amp 2 Convention N o 87 Article 5 Convention N o 98 Article 2 1 Convention N o 98 Article 3 Convention N o 98 Article 1 1 Convention N o 135 Article 1 Convention N o 98 Article 4 Recommendation N o 113 Paras 1 1 amp 4 Convention N o 135 Article 2 1 amp 2 ILO Constitution Article 19 e Follow up to the D eclaration A 1 amp 2 B 1 ILO Constitution Article 22 ILO Constitution A rticle 24 ILO Constitution Article 25 ILO Constitution Article 26 1 2 3 4 ILO Constitution Article 28 ILO Constitution Article 29 2 Preface Thereare many different fiftieth anniversar
11. Article 26 complaints involving FOA the GB normally refers the matter first to its CFA The CFA may examine the com plaint and ask the government for its observations and the com plainant for additional information before taking a final decision to set up a Commission of Inquiry In one situation the CFA had been examining various CFA allegations before several employers delegates to the 1987 ILC made a complaint under article 26 The G B referred the matter to the CFA for its recom mendation Only after several further examinations of the cases including interim recommendations to the government concerned and requests for further information did the CFA recommend to the GB that a Commission of Inquiry be constituted CFA Case 1344 1442 1454 264th Report para 42 267th Report para 36 g 269th Report para 35 A Commission of Inquiry normally conducts a full investigation of a Commission of Inquiry complaint including a visit to the country concerned if permitted by the government and the publication of a report usually running into hundreds of pages 44 hen the Commission of Inquiry has fully considered the com plaint it shall prepare a report embodying its findings on all questions of fact relevant to determining the issue between the parties and con taining such recommendations as it may think proper as to the steps which should be taken to meet the complaint and the time within which they should be take
12. GS stands for G meal Survey eneral Survey is a report made by the COE on the basis of reports sent by ILO member States under Article 19 of the ILO Constitution see section 2 2 page 51 The G Ss produced in 1984 and 1994 on freedom of association and collective bargaining are cited in this guide T hey are important ref erence documents as they elaborate the views of the CO E on the meaning and application of the FOA standards RCE stands for of the C ommittee of E xperts on theA pplication of C onventions and ecommendations T his is the green book published each year as a report to the nternational Labour Conference by the COE These RCEs are important reference documents as they include the observations made by the CO E concerning individual countries application of ratified Conventions including the FOA Conventions For further explanation see section 2 3 page 53 Thesupervisory bodies means those bodies which are engaged in the supervision of international labour standards T hese include the COE the CFA the Conference Committee the FF CC and ad hoc committees and Commissions of Inquiry set up to handle Article 24 representations and Article 26 complaints For further explanation see the introduction to this guide To make this guide useful to a broad range of readers it includes a limited number of quotations T hese quotations are intended to pro vide a better sense of the thinking of the various
13. General Survey of the Committee of x perts on the A pplication of Conventions and R ecommendations six G en eral Surveys concerning freedom of association and collective bar gaining have been published 1956 1957 1959 1973 1983 and 1994 COE 1994 GS para 100 means paragraph 100 of the engal Survey of the C ommittee of E x parts published in 1994 Citations to decisions of the Committee on Freedom of Association CFA reports are published as part of the O ffidal B ul 1 of the ILO CFA Case No 1707 294th Report para 152 means the discussion of CFA Case N o 1707 appearing in para graph 152 of the CFA s 294th Report Citations to discussions in the Committee on the Application of Standards CC 1993 C 87 Canada means the discussion in the Committee occurring during the 1993 International Labour Conference concerning the application of Convention N o 87 in Canada Explanation of quotations used in the guide Explanation of citations given in the guide EXPLANATION OF QUOTATIONS AND CITATIONS Regular system of supervision Introduction to this guide and to the freedom of association procedures of the ILO T he practical influence and impact of the ILO 5 freedom of associa tion FOA standards and principles and the use of procedures for their enforcement is nothing less than spectacular in the world of international jurisprudence T he purpose of this guide is to broaden the use of
14. ISBN 92 2 110837 6 ILO Cataloguingin P ublication D ata The designations employed in ILO publications which are in conformity with United N ations practice and the presentation of material therein do not imply the expression of any opinion whatsoever on the part of the International Labour Office concerning the legal status of any country area or territory or of its authori ties or concerning the delimitation of its frontiers The responsibility for opinions expressed in signed articles studies and other con tributions rests solely with their authors and publication does not constitute an endorsement by the International Labour Office of the opinions expressed in them Reference to names of firms and commercial products and processes does not imply their endorsement by the nternational Labour O ffice and any failure to men tion a particular firm commercial product or process is not a sign of disapproval ILO publications can be obtained through major booksellers or ILO local offices in many countries or direct from ILO Publications International Labour O ffice CH 1211 G eneva 22 Switzerland Catalogues or lists of new publications are avail able free of charge from the above address Printed in Switzerland WEI Table of contents WW W N F P reface E xplanation of IL O terminology and abbreviations E xplanation of quotations used in the guide E xplanation of atations given in the guide Introduction
15. Restrictions on firstlevel imposed on firstlevel organizations of rural workers they should TY nevertheless be entitled to affiliate to federations and confederations organizations of their own choosing in whatever way they deem appropriate COE 1994 GS para 86 COE 1994 GS para 87 COE 1994 GS 89 Under Convention 87 trade union diversity more than one trade union or workers organization with members from a given cat egory of workers must be possible T hus m atrade union monopoly may not be established by law m a monopoly may not be established in fact for example by attributing in law particular trade union functions to a specifically designated trade union or by giving the competent authorities dis cretionary power in law to refuse the registration of a trade union when they believe that an already registered union adequately rep resents the workers concerned and m where a single organization is voluntarily established by workers or employers the possibility of forming other organizations must remain Systems which prohibit union security practices as well as systems which permit such practices without mandating them are compat ible with FOA principles The COE has left it 4 the practice and regulations of each State to decide whether itis appropriate to guarantee the right of workers not to join an occupational organization or on the other hand to authorize and where necessar
16. a system of recognition of trade unions for the purpose of collective bargaining operates in a way which hinders or otherwise fails to promote collective bargaining the supervisory bodies have noted difficulties in properly applying freedom of association principles Problems may begin where trade unions are asked to show that they actually represent the workers for whom they seek to establish collec tive bargaining W here the national system gives the employer full lati tude to decide whether or not to bargain with the trade union the supervisory bodies have looked to see that the government is generally promoting employers recognition on a reasonable showing of repre sentiveness Where the government uses a system which makes the employer s recognition compulsory upon a particular showing of representativeness the supervisory bodies have scrutinized the system Figure 11 Promotion of collective bargaining Exclusive representation May only registered trade unions be recognized as bargaining agents YES Are the conditions for registration excessive f compul NI Is there a system of compulsory If the conditions for the granting recog nition of registration are tantamount to T obtaining previous authorization from YES NO the public authorities for the establish ment or function of a trade union this would undeniably constitute an infringement of Convention N o 87 Is certification made
17. action closer in line with FO A principles Is effect given to the action only after judicial review Is there a rightto appeal to an independent and impartial judicial body Is the judicial body permitted to examine the substance of the case Is the judicial body permitted to study the grounds for the administrative measure Has the judicial body authority to rescind the administrative action In a case involving a trade union organization voluntarily dissolving itself the decision was freely taken D by a congress convened in a regular manner O by all the workers concerned Such a dissolution the CFA concluded would not be regarded as an infringement of freedom of association CFA Case No 338 73rd Report para 42 The supervisory bodies have dealt not only with cases involving dis solution and suspension action by administrative authorities but with such action taken by judicial and legislative authorities as well W here judicial authorities take the action m itis preferable that dissolution should be a remedy of last resort applied after exhausting other possibilities with less serious effects for the organization as a whole m normal due process should as a rule be applied in judicial proceed ings involving possible dissolution or suspension including trial by an impartial and independent judiciary adequate time to prepare a defence theright to an appeal and a prompt hear
18. bargaining O The exclusion for example of working time from the scope of col lective bargaining unless there is government authorization would seem to infringe FO A principles CFA Case N o 1370 248th Report para 224 Following the case the law was amended to the satisfaction of the CO E RCE 1994 C 98 Portugal DB Legislation amending collective agreements for example concerning the crewing of ships is not in conformity with Convention No 98 CFA Digest of 1985 para 628 O W here an agreement on a check off system was changed by legisla tion the CFA concluded that it should be possible for collective agree ments to provide for a system for the collection of union dues without interference by the authorities CFA Case No 1594 289th Report para 24 297th Report para 21 m Theestablishment of rules of procedure agreed between employers and workers organizations should be encouraged The determination of the level of collective bargaining atthe enterprise geographic area sectoral or national levels is to be leftto the discretion of the parties Therefore the CFA has not considered the refusal of employers to bargain at a particular level as an infringement of freedom of association O E 2 lt E n Lu gt O U O 2 O 2 2 A Similarly however legislation should in no way interfere with the possible legitimate trade union action which might be taken to inf
19. citizenship of members a precondition for establishing a trade union m making citizenship a precondition for membership of a trade union m therequirement that a trade union should have a certain propor tion of citizens as members The COE noted with satisfaction that the Government of Panama amended provisions of its Labour Code including that which required that 75 per cent of the members of a trade union must be Panamanian The CO E had been requesting the Government to do so in line with FO A RCE 1996 C 87 Panama m conditions of residence or reciprocity for non citizens member ship of unions m restrictions placed on minors right to organize m restrictions on people s right to become or remain a trade union member for professing certain political opinions or having engaged in political activities except those which advocate violence and on their membership of other political organizations x d lt 2 s 2 lt X O M m 2 E a lt Z E A U Uu lt LL gt a LL No previous authorization 44 W orkers and employers without distinction whatsoever shall have the right to establish and subject only to the rules of the organization concerned to join organizations of their own choosing without pre vious authorization Convention N o 87 Article 2 An explicit requirement of permission from the State to form
20. conditions of nationality should not be imposed The COE noted with satisfaction that following its comments the law was amended to permit the election to trade union office of any person who had been resident in the country for atleast five years RCE 1989 C 87 Guinea m Requirements imposed on financial administration should be lim ited to those intended to protect the rights of members and to ensure sound and dfident management m Legislative provisions concerning the political activities of organi zations should balance the legitimate interest of organizations ex pressing thar point of on matters of economic and social policy affecting their members and workers in general on the one hand and the separation of political activities in the strict sense of the term and trade union activities required to ensure the requisite independence of the organization on the other Failure to protect Any removal or suspension of trade union officers which is not the against acts 44 result of an internal decision of the trade union a vote by members or of interference normal judicial proceedings seriously interferes in the exercise of the 1 5 STATE IN TERFEREN CE trade union office to which the officers have been freely elected by the members of their trade union COE 1994 GS para 122 44 W orkers and employers organizations shall enjoy adequate protec tion against any acts of interference by each
21. for the purposes of promoting mutual understanding and good relations between public practices Consultation principle authorities and employers and workers organizations as well as between these organizations with a view to developing the economy as a whole or individual branches thereof improving conditions of work and raising standards of living Bg Recommendation 113 1 1 amp 4 Bearing in mind the principles set out in the Recommendation con cerning Consultation and Cooperation between Public Authorities and Employers and Workers O rganizations at the Industrial and N ational Levels 1960 N o 113 the supervisory bodies have pro moted the idea of tripartite consultation In one case the CFA expressed the importance for the preservation of a country s social harmony of regular consultations with employers and Workers representatives Such consultation the Committee felt should involve the whole trade union movement irrespective of the philosoph ical or political beliefs of its leaders CFA Digest of 1996 para 924 Such consultations should occur during the preparation of legislation m which affects the interests of employers and workers and their organizations interests m inthefield of labour law In a case involving broad reform of freedom of association rights draft legislation concerning trade unions collective labour disputes and the right to strike and coll
22. oblig ation to request reports on obstacles to ratification focusing attention of the governments concerned on the possibility of ratification 274 ULS 5 Annex 1 44 Each of the Members agrees to make an annual report to the Inter national Labour Office on the measures which it has taken to give effect to the provisions of Conventions to which itis a party These reports shall be made in such form and shall contain such particulars as the Governing Body may request ILO Constitution Article 22 W here a State ratifies an ILO Convention including one concerning F OA it becomes obliged to provide reports on the application of the Convention A ccording to the established system reports are due every other year for Conventions N os 87 and 98 reports are due every five years for Conventions N os 11 135 141 151 and 154 reports must provide information on steps taken to apply the Con vention in law and in practice reports must indicate to which representative employers and workers organizations the government has communicated copies of the report and reports must indicate whether any comments have been received from the organizations of employers and workers regarding the practical application of the Convention figure 13 Figure 13 Regular supervision Comments of employers and workers organizations Reports from governments Comments of workers or employers
23. of terms of employment can all be contrary to the application of freedom of association princi ples even when put in place on the grounds of a state of emergency Protection of trade union premises and property Other considerations un 2 3 gt U ei In a case where restrictions were placed on trade union rights during a State of emergency the CFA while noting that the state of emergency had come to an end urged the Government to redress any wrongs that might have been inflicted on trade unionists at that time and to ensure that any of them who might have been dismissed for their union activity be reinstated in their jobs Bolivia 306th Report Case No 1831 para 151 A fine line sometimes divides purely political matters and other matters affecting freedom of association 44 Political matters which do impart the exercise of freedom of association are outside the competence of the Committee on Freedom of Association The Committee is not competent to deal with a com plaint that is based on subversive acts and itis likewise incompetent to deal with political matters that may be referred to in a government s reply p p But 44 measures which although of a political nature and not intended to restrict trade union rights as such may nevertheless be applied in such a manner as to affect the exercise of such rights pp CFA Digest of 1996 paras 202 204 Care should betaken in expe
24. or contacts resulting from international affiliations The COE noted with satisfaction that among other things the Committee had been commenting upon for several years the Labour Code of 1993 abolished the ban on subsidies or economic assistance to unions from foreign organizations RCE 1994 C 87 Paraguay 44 W orkers and employers organizations shall have the right to draw up their constitutions and rules to elect their repre sentatives in full freedom to organize their administraton and activities and to formulate their programmes The public author ities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof pg Convention N o 87 Article 3 1 and 2 The restraint from interference which the authorities must exercise under Article 3 2 of Convention 87 is conditioned by Article 8 cited above organizations are not immune from laws of the land which do not otherwise impede the exercise of FOA principles Table 2 shows wherethe supervisory bodies have stepped in to ask the governments concerned to change their laws and practices A number of guidelines can be distilled from cases handled by the supervisory bodies m Legislation should lay down only formal requirements as regards trade union constitutions m Constitutions and rules should not be subject to prior approval at the discretion of the public authorities m Therisk of arbitrary interference b
25. order to ascertain the facts relating to a case and to seek solutions to the difficulties encountered CFA 193rd Report para 26 m Direct contacts may ocur either during the examination of the case or at the stage of the action to be taken on the recommendations of the G B m Direct contacts can only be established at theinvitation of the govern ments concerned or at least with their consent In a case involving a range of allegations including the lodging of an Article 26 complaint by a Workers delegate to the 1992 International Labour Conference the CFA considered that it would be highly appro priate in view of the importance of the complaints and the seriousness of the issues raised thata representative of the Director G eneral visit the country C te d lvoire indicated that it was prepared to accept a direct contacts mission to investigate the case further The mission comprised Mr Keba Mbaye former vice President of the International Court of Jus tice first honorary President of the Supreme Court of Senegal and member of the CO E accompanied by officials of the O ffice CFA Case N os 1594 and 1647 Report U pon receiving complaints of a particularly serious nature and after having received the prior approval of the Chair of the CFA the D irector G eneral may appoint a representative whose mandate would beto carry out preliminary contacts Possible purposes of preliminary contacts are B to transmit to the compete
26. possibility of establishing a minimum service in these enterprises to maintain activities strictly essential for the safety of machinery and equipment and for the prevention of accidents with the participation of the workers organizations concerned CFA Case 1521 273rd Report para 19 In another case involving a strike organized in the public transport sector the CFA observed that the strike was legal provided that minimum services be provided to satisfy essential social needs and to ensure the safety of equipment It noted however that the legislation did not specify whose decision it was to fix the level of minimum services and there was no evidence to suggest that there had been negotiations in this instance concerning the minimum services required The G overnment subsequently amended the legislation to provide for the determination of minimum services through agreements reached between the parties concerned In the absence of an agreement such services Will be determined through arbitration Furthermore the N ational Constitutional Court had since laid down the criteria of need adaptation and proportionality for determining minimum services 2 4 lt Z E lt U Uu lt LL gt a LL CFA Case 1486 268th Report para 152 and CFA Case No 1782 299th Report paras 326 and 327 FOA principles have also been influential in limiting restrictions placed Obj
27. restricted to employees of any particular ministry department service and secondly that they may freely join federations and or join mixed members confederations of their own choosing like organizations of from other sectors organizations workers in the private sector However provisions stipulating that at the first level different organizations must be established for each category of public servants are incompatible with the right of workers to estab lish and join organizations of their own choosing restrictions are compatible with freedom of association provided Executives that two conditions met first that the persons concerned have confidential employees the right to form their own organizations to defend their interests Prohibited from joining or and second that the category of executive and managerial staff forming organizations open is not so broadly defined as to weaken the organizations of other Workers in the enterprise or branch of activity by depriving them to lower grade workers of a substantial proportion of their actual or potential membership 2 x a lt Z E A U Uu lt LL gt a LL Because of the nature of their work and the conditions in which Agricultural and domestic they carry it out rural workers are in something of a special cate workers gory In the opinion of the Committee while restrictions can be
28. seeing a trade union newspaper serve political ends unrelated to trade union activities or which atleast lie far outside their normal scope is not sufficient reason to refuse to allow such a newspaper to appear yy But 44 is only in so far as trade union organizations take care not to allow their occupational demands to assume a clearly political char acter that they can legitimately claim that there should be no interfer ence in their activities Bg CFA Digest of 1996 paras 160 and 164 T he State must also not interfere with the exchange of information Actions which can be incompatible with the free exercise of trade union rights and civil liberties include m tampering with correspondence m surveillance of workers in respect of trade union activities and m interfering in union meetings and the exercise of free speech 1 2 CIVILUBERTIES The freedom In exercising the freedom of assembly trade unions have met state of assembly _ interference both before meetings or demonstrations where permis sion for them was not given or at the time of the meeting or demon stration where the State has intervened either to maintain the peace or to break up an otherwise peaceful meeting Figure 3 helps determine what constitutes interference in assembly Figure 3 Civil liberties Interference in assembly W as meeting held at trade union premises The right of occupational Trade unions must conform organiza
29. shall have the right to file The Governing Body may adopt the same a complaint with the International Labour O ffice procedure either of its own motion or on receipt if itis not satisfied that any other M ember of a complaint from a delegate of the Conference is securing the effective observance of any Article 26 4 ILO Constitution Convention which both have ratified LLI a 2 9 1 ar LLI 1 D 2 E lt O 1 lt LL y Article 26 1 ILO Constitution Has the GB acted on its own motion or on a complaint filed by a delegate to the Conference The Governing Body may if it thinks fit before referring such a com plaint to a Commission of Inquiry communicate with the government in question in the manner described in article 24 Article 26 2 ILO Constitution Has the Governing Body communicated with the government in question M If the Governing Body does not think it necessary to communicate the complaint to the government in question or if when ithas made such communication no statement in reply has been received within a reasonable time which the Governing Body considers to be satisfactory the Governing Body may appoint a Commission of Inquiry to consider the complaint and to report thereon Article 26 3 ILO Constitution Governing Body may decide to appoint a Commission of Inquiry ILO Constitution Article 26 1 2 3 4 In handling
30. supervisory bodies On Issues of importance Quotations from IL O C onventions or R ecommendations on F OA Q uotations from super visor y bodies Q uotations from the D igest of decisions and principles of the CFA uotations from the eneral Surveys of the CO E Citations to the origin of quotations or ideas discussed in this guide are provided This makes it possible for readers to look up the infor mation and reflect further on it These citations are given in small print alongside the related quotation or idea Quotations in charts appear in clockwise order from top to bottom Citations to ILO Conventions or Recommendations on FOA for example C 87 means the Freedom of Association and Pro tection of the Right to O rganize Convention 1947 N o 87 Citations to the reports of the Committee of E xperts on the Application of Conventions and Recommendations these reports are published yearly RCE 1994 Colombia C 98 means the comment of the Committee of E xperts concerning the appli cation by Colombia of Convention N o 98 in its 1994 report RCE 1994 para 63 means paragraph 63 in the general section of the Committee s 1994 report Citations to the Digest of decisions the most recent revision compiling CFA decisions was published in 1996 CFA Digest of 1996 para 482 means paragraph 482 in the D igest of 06151015 and prindples of the C ommittee on F redom of A ssodation published in 1996 Citations to the
31. the most important FOA principles in a user friendly format The ILO has produced other texts which are essential for a fuller understanding of the scope of FOA principles and procedures A list of these publications appears in Annex 2 PART 1 1 1 Introduction The impact of freedom of association standards and principles Freedom of association principles have been elaborated by the LO s supervisory bodies over the past 50 years T hey have also been applied by those bodies The CFA has explained its views in more than 2 000 cases involving detailed and specific facts m heCOE has provided insights from a longer term perspective It has examined the reports of countries which have ratified the ILO s FOA Conventions explaining how those Conventions are applied and the reports of countries which have not ratified them that explain obstacles to their ratification m he Conference Committee has brought its tripartite influence to bear on the application of FOA standards and principles through its public discussions during the annual June sessions of the nter national Labour Conference concerning among other things indi vidual cases of FOA infringement m Various COIs the FFCC have provided insights in a handful of highly publicized cases involving FOA principles In each of these contexts freedom of association standards and prin ciples have had an impact laws have been changed individuals released from pr
32. these standards principles and procedures T hese standards principles and procedures have been used m to offer support and guidance to countries around the world which have sought to introduce democracy m to secure the release from detention and arrest of trade unionists and employers representatives alike m to maintain and promote the right of the social partners employers and workers organizations to bargain collectively on terms and conditions of employment and other issues of occupa tional concern m to protect individual workers against discrimination based on the exercise of their associational rights T hese results are assured through the LO s supervisory procedures and mechanisms To assist the reader these bodies are introduced here before the standards and principles themselves are explained The regular system of supervision depends on ratification of thelL O 5 Conventions on freedom of association and the obligation laid down in thelLO s Constitution to provide periodic reports on their application With regard to principles the independent 20 member C ommittee of E on theA pplication of C onventions and R ecommendati ons m examines governments reports on the application of freedom of association Conventions where they have been ratified m receives comments from workers and employers organizations on the application of FOA Conventions and considers them in their
33. to this guide and to the freedom of association procedures of the ILO Regular system of supervision Special supervisory mechanisms The International Labour Office Arrangement of the guide Part 1 The impact of freedom of association standards and principles 1 1 Introduction 1 2 Civil liberties The right to freedom and security of person and freedom from arbitrary arrest and detention The freedom of opinion and expression The freedom of assembly Protection of trade union premises and property O ther considerations 1 3 Organizational rights N o distinction N o previous authorization Freedom of choice in membership 1 4 Dispute resolution Right to strike Resolution mechanisms used for specific categories N egotiated minimum services O bjectives methods and prerequisites 1 5 State interference D issolving and suspending organizations Respect for national law nterference in establishing federations TABLE OF CONTENTS S FREEDOM OF ASSOCIATION A USER S GUIDE 29 29 31 33 33 35 35 36 38 40 45 45 47 50 51 ol 53 53 24 55 57 Limitations on international affiliation Interference in drawing up organization rules and constitutions Failure to protect against acts of interference 1 6 Anti union discrimination Substance of protection 1 7 Promotion of collective bargaining W here bargaining s voluntary character has been restricted Further application of the principle of promo
34. 1111 OUUU Is reinstatement a possible remedy 2 4 lt Z E A U Uu lt LL gt a LL T he supervisory bodies have in many cases asked governments to act in specific situations to ensure that the workers involved are protected against anti union discrimination In a case involving a large number of abusive dismissals for union activities the CFA requested the Government concerned to secure the reinstatement of the trade unionists The CFA took note of measures adopted by the overnmentto secure the reintegration of those concerned and protective legislative initiatives taken by the Government CFA Case No 1082 In other cases governments have changed their legislative provisions to improve protections against anti union discrimination Between 1994 and 1996 the COE specifically noted its satisfaction in Six cases where States had changed their laws on anti union protection to conform to the Committee s comments Costa Rica 1994 Paraguay 1994 Dominican Republic 1994 Colombia 1995 Gabon 1996 and Austria 1996 Recourse under the Workers Representatives Convention 1971 N o 135 is also available where anti union discrimination has occurred or where legislative protections are inadequate 44 W orkers representatives in the undertaking shall enjoy effective protection against any act prejudicial to them including dismissal based on their st
35. 24 and 25 of the Constitution of the International Labour O rganization ThelLO Constitution provides a special procedure for the examina tion of allegations from employers and workers organizations that a ratified ILO Convention is not being effectively observed 44 In the event of any representation being made to the International Labour O ffice by an industrial association of employers or of workers that any of the M embers has failed to secure in any respectthe effective observance within its jurisdiction of any Convention to which itis a party the Governing Body may communicate this representation to the government against which it is made and invite that government to make such statement on the subject as it may think fit Bg ILO Constitution Article 24 The GB has established a procedure for determining the receivability of representations and then for their examination Where a repre sentation is deemed receivable it is referred to an ad hoc tripartite committee for examination Where the representation concerns FOA principles the G B normally refers it to the CFA for examination O nce the O ffice acknowledges receipt of the representation and the government concerned is informed the O fficers of the GB makea recommendation to the G B concerning its receivability T he checklist for receivability should be consulted figure 17 Figure 17 Article 24 representations Requirements for receivability To be rece
36. 3 O c 0 2 lt 2 lt U 2 0 LL Q is LL Direct and preliminary contacts W here the government concerned delays in sending observations on the complaint m special communications may be sent by the D irector G eneral after the CFA mentions the government concerned in a special intro ductory paragraph to its report m in a non urgent case the CFA will issue an urgent appeal for observations from the government if none are received after three requests m action to secure a reply may be taken by the Chair of the CFA on behalf of the Committee during the International Labour Confer ence through contacts made with the delegation of the govern ment concerned and m the CFA may also proceed with its examination of the complaint without the government s observations In accordance with the procedural rules set out in paragraph 17 of the 127th Report approved by GB the CFA may present a report on the substance of these cases even if the observations or information requested from the governments have not been received in due time The Committee accordingly requests the governments to transmit their obser vations or information as a matter of urgency At various stages in the procedure recourse may be had to direct contacts whereby a representative of the D irector G eneral of the ILO who can bean independent person or an ILO official is sent to the country concerned in
37. David Tajgman and Karen Curtis International Labour O ffice Geneva Freedom of association A user s guide Standards principles and procedures of the International Labour Organization Copyright International Labour O rganization 2000 First published 2000 Publications of the International Labour Office enjoy copyright under Protocol 2 of the Universal Copyright Convention N evertheless short excerpts from them may be reproduced without authorization on condition that the source is indicated For rights of reproduction or translation application should be made to the Publications Bureau Rights and Permissions International Labour Office CH 1211 G eneva 22 Switzerland T he International Labour Office welcomes such applications Libraries institutions and other users registered in the U nited K ingdom with the Copyright Licensing Agency 90 Tottenham Court Road London WIP 9HE Fax 44 171 436 3986 in the United States with the Copyright Clearance Center 222 Rosewood D rive D anvers MA 01923 Fax 1 508 750 4470 or in other coun tries with associated Reproduction Rights O rganizations may make photocopies in accordance with the licences issued to them for this purpose Tajgman D Curtis Freedom of assodation A user s guide eneva International Labour Office 2000 Guide freedom of association trade union rights ILO Convention ILO Recommendation comment ratification application 04 02 2
38. OI is an expert not tripartite group No No No Partially high COE reviews case and issues comments m Comments arising out of a communication made by a workers or an employers organization tend to be published as observa tions with potential for high publicity High possibility of public dis cussion of case m Publicity is potentially high m Potential tripartite review by the Conference Com mittee m W here a Convention with a five year reporting cycle is involved i e Convention N o 135 the CO E normally requests a report out of cycle when it receives a comment from workers or employers m Review focuses more on adequacy of legislation than on a given factual aberration Case cannot be handled in the Conference Committee unless it comes first before the CO E ratification is therefore required and the elements in question should be brought before the COE b Special systems of supervision High cases published quickly after conclusions and recommendations are made cases deal with specific facts which can often attract media attention High the special procedure singles out such cases from others High cases found in a sepa rate CFA report High discussion in G B and special publication of findings m Can review both legislative matters and factual vio lations of FOA m Useful for focus on a particular enterprise or specific union leaders and members having been detained or suf
39. State has often intervened either m with regard to workers in general or in a particular industry or m asconcerns its own workers 44 ithe Committee of Experts emphasizes that the right to strike cannot be considered as an absolute right notonly may itbe subjectto a general prohibition in exceptional circumstances but it may be gov erned by provisions laying down conditions for or restrictions on the exercise of this fundamental right Bg COE 1994 GS para 151 The supervisory bodies have intervened in cases where the State s restrictions have been excessive Such cases have involved general pro hibitions of strikes by all workers see figure 6 Figure 6 Dispute resolution General restrictions on the right to strike Has the prohibition been justified by a situation of acute national crisis This means genuine crisis situations such as those arising as a result of a serious conflict insurrection or national disaster in which the normal conditions for the functioning of society are absent Has the prohibition been for a limited period and to the extent necessary to meet the requirements of the situation Has a general prohibition of strikes been made Has a system been established which involves referral of disputes to com pulsory arbitration leading to a final binding award Compulsory arbitration to end a collective labour dispute and a strike is acceptable if itis at the request of both pa
40. a 597 Limitations placed on the right of workers in export processing zones to engage in collective bargaining these workers should have the rightto bargain collectively CFA Case No 1726 294th Report para 409 The CFA continues to supervise this case Limitations placed on workers in state owned commercial or industrial enterprises these workers should have the right to bargain collectively 2 4 lt Z E A U Uu lt LL gt a LL CFA Case N os 1429 1436 1636 1657 1665 259th Report para 796 The CFA continues to supervise these cases The CO E noted with satisfaction the provisions of the 1992 Labour Code adopted by the Dominican Republic granting workers in the exportpro cessing zone of the country the rightto bargain collectively RCE 1994 C 98 Dominican Republic m Collective bargaining should be progressively extended to all matters including determining working conditions and terms of employment regulating relations between employers and workers and regulating relations between employers or their organizations and a workers organization or workers organizations 44 The CO E considers measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with FO A principles pp COE 1994 GS para 250 The supervisory bodies have acted in many cases on the issue of scope of
41. al acts CFA D igest of 1985 para 272 or m minimum membership requirements are placed on organizations see figure 4 In addition to excessive registration requirements FOA principles may be infringed where arrangements for recognition of atrade union for the purposes of collective bargaining are excessively restrictive see figure 11 page 39 Figure 4 Organizational rights Minimum membership requirements Does the law require a minimum number of members Does the number fixed hinder the establishment of organizations The establishment of a trade union may be considerably hindered or even rendered impossible when legislation fixes the minimum number of members of a trade union at obviously too high a figure as is the case for example where legislation requires thata union must have at least 50 founder members The legal requirement that there must be a minimum number of 20 members to form a union does not seem excessive and therefore does not in itself constitute an obstacle to the formation of a trade union The minimum membership requirement of 10 000 members for the registration Consider of trade unions at federal level FOA could influence unduly the workers free choice of union to which they wish recourse to belong even when federal registration is only one of the alternatives available for protecting their rights before an organization can be establish
42. an organization is as incompatible with FOA principles as are rules which operate implicitly as systems of previous authorization T he supervi sory bodies have had numerous cases involving such systems On the other hand the supervisory bodies have said that States are free to set formalities in their legislation as may be appropriate to ensure the normal functioning of organizations provided that those requirements do not impair the guarantees provided by Convention No 87 50 FOA principles are violated where m government authority has discretionary power to refuse registra tion CFA Digest of 1996 para 244 The Awami Labour Union Daewoo Motorway Construction Project was registered in 1996 after judicial intervention and the filing of a com plaint against the Government of Pakistan in 1994 alleging among other things refusal to register the union CFA Case No 1726 305th Report paras 51 53 m there is no recourse to a judicial authority against a refusal to grant authorization to establish a trade union CFA D igest of 1996 para 264 The Government of N igeria amended its legislation in 1999 so as to re establish the right to appeal against an administrative denial of regis tration following the examination of a complaint and an ILO direct contacts mission to the country CFA Case No 1793 315th Report para 22 m the establishment of an organization is blocked because leaders are detained on suspicion of crimin
43. and observations Complainant G overnment insufficiently sufficiently substantiated substantiated allegations allegations Director G eneral 1 a 3 O c 0 2 lt U n U lt LL Q a ia LL allegations CFA considers government s observations and may ask for further facts or statements from the complainant and or government proposes conclusions and recommendations to the Governing Body Governing Body 44 The Committee regrets that it has not received from the complainants the detailed and precise information that was requested from them in support of their complaint In these circumstances the Committee rec ommends the Governing Body to decide that this case does not call for further examination pg CFA Case N o 1232 238th Report para 39 m National remedies need not necessarily have been exhausted before there is recourse to the CFA The CFA determines in each case individually the importance of this general principle In a case alleging anti trade union dismissals violations of a collective agreement and procedural delays involving a strike action the M inistry of Labour had initiated legal proceedings with a view to penalizing the employer and providing reinstatement and compensation for the workers affected Eleven months had passed between the anti union acts alleged by the complainant and the Ministry s judicial application for sanctions a
44. atus or activities as a workers representative or on union membership or participation in union activities in so far as they actin conformity with existing laws or collective agreements or other jointly agreed arrangements pg Convention N o 135 Article 1 The CO E noted with satisfaction thata new law laid down guarantees against acts of discrimination including dismissal against workers representatives because of their trade union activities RCE 1994 C 135 Costa Rica Furthermore public servants engaged in the administration of the State who are not included within the scope of Convention N o 98 Article 6 are to be protected against anti union discrimination in employment by virtue of Article 4 of the Labour Relations Public Service Convention 1978 N o 151 1 7 44 easures appropriate to national conditions shall be taken where Promotion necessary to encourage and promote the full development and utiliza of collective tion of machinery for voluntary negotiation between employers and bargaining employers organizations and workers organizations with a view to the regulation of terms and conditions of employment by means of col lective agreements pg Convention N o 98 Article 4 O ver the years the supervisory bodies have handled a broad rangeof Where bargaining s cases impacting on collective bargaining and its promotion Many of voluntary character these cases challenged action by a government on
45. bargaining between employers and workers organizations as well as with governments M otives underlying strike action have undergone important changes in recent years in the light of technological advances increasing global ization and the conditions in which goods and services are produced and their relationship with work In this context the CO E has noted that 44 strikes have recently been held in some countries for the protection of employment or against delocalization sometimes with backing from employers pg COE 1994 GS para 140 The impact can be most clearly seen in four particular areas m theright to strike m the methods used to resolve disputes involving particular cate gories of workers m the promotion of dispute resolution mechanisms hand in hand with the promotion of voluntary collective bargaining and m restrictions on strike objectives or methods and excessive pre requisites 44 W orkers organizations shall have the right to organize their activities and to formulate their programmes The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof pg Convention N o 87 Article 3 1 amp 2 In principle employers and workers and their organizations should left alone in resolving their disputes the methods they decide upon are part of the organization of their activities and programmes In practice the
46. by an independent body Is the representative organization to be chosen by a majority vote of the employees in the unit to recognize trade unions concerned which prove their Canan Organization which representativeness previously failed to secure a a sufficiently large number of votes request a new election Are employers encouraged after a stipulated period Cana new organization other than the certified organization demand a new election after a reasonable period CFA Digest of 1996 para 259 Under some systems the employer may give recognition only on a showing of 50 per cent support by all members of a bargaining unit This might be impossible to establish if there were more than one union offering to bargain for the workers concerned FOA principles are compromised in such a case 44 The Committee of Experts considers that under such a system if no union covers more than 50 per cent of the workers collective bar gaining rights should be granted to all the unions in this unit atleaston behalf of their own members pg COE 1994 GS para 241 O 2 lt E n Lu gt O U O 2 O 2 2 A 1 8 Consultation 44 easures appropriate to national conditions should be taken to pro mote effective consultation and cooperation atthe industrial and national levels between public authorities and employers and workers organi zations as well as between these organizations
47. by the State 44 W orkers and employers without distinction whatsoever shall have the rightto establish and subjectonly to the rules of the orga nization concerned to join organizations of their own choosing without previous authorization pp Convention N o 87 Article 2 The right to organize is very broad applicable to all No distincton m employers and m workers including persons who do not work under contracts of employment x lt 2 s 2 lt X O M m It is to be guaranteed by the State Furthermore the State may not make distinctions in that guarantee on the basis of occupation Sex colour race creed nationality or m political opinion Theonly exception to the principle concerns the armed forces and the police 2 4 lt Z E A U Uu lt LL gt a LL States in many cases examined by the supervisory bodies have attempted to restrict this right or to draw distinctions in its application 5 principles have been used to protect this right A distinction which is clearly contrary to FOA principles concerns employment in the public service Persons in the public service must enjoy the right to organize and the supervisory bodies have said so repeatedly in cases involving for example m Civil servants who should be able to establish an organization of their own choosing to represent
48. cerned and ask for any comments the government might have If there is insufficient time before the meeting of the or if the COE does not receive the government s comments it will normally review the substance of the comments received in the following year The COE will review the comments and the file This will be done even if the report from the government is not due until another year In timing the sending of a comment it must be remembered that the COE meets in N ovember D ecember each year T hus it is possible that a comment received at the beginning of N ovember will not be considered by the CO E until its meeting in the following year O nce considered the CO E usually publishes an observation in its report to the nternational Labour Conference If the government has not had time to reply the COE will often merely request the government to provide further information on the matters raised W hen government replies are inadequate the CO E has often made forceful statements in its observations where there appears to bea real problem in applying FOA standards nce observation is placed in the CO E report it is possible that the case will be one of those called individually for discussion during the meeting of the Conference Committee on the A pplica tion of Standards at the nternational Labour Conference in June OncetheCOE has sent its observation the government will normally provide additional information a
49. deci Send the decision W ould making Describe in sion with the com as soon as it is appeal prejudice the complaint how plaint issued the case the procedure does not provide ade quate guarantees a 0 C U lt 2 E lt U 0 0 LL Q a ia LL Explain in Consider C FA the complaint recourse but be how the prejudice prepared to would occur explain why no national recourse Was taken Several procedures are followed to ensure the speediest possible handling A distinction is drawn between urgent and less urgent cases 44 Matters involving human life or personal freedom or new changing conditions affecting the freedom of action of a trade union movement as a whole and cases arising out of a continuing state of emergency and cases involving the dissolution of an organization are treated as cases of urgency pp CFA Procedures para 55 In urgent cases the CFA m deals with the case on a priority basis m is authorized to make appropriate recommendations for the pro tection of the parties concerned during the entire period that the case remains under consideration m submits its report immediately to the GB In practice for example an ILO field office may be called upon to hasten the sending of government observations on complaints or the taking of interim action pending review of the case by the CFA A complainant may wish for a case to be handled as a
50. der the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade 2 0 Z 2 Uu O 20 ci union organizations pg CFA Digest of 1996 para 498 The supervisory bodies have found a number of prerequisites to be acceptable and not inconsistent with FO A principles D take strike decisions by secret ballot CFA Digest of 1996 para 503 D give 20 days notice of a strike in services of social or public interest CFA Digest of 1996 para 504 D take a second strike vote if a strike has not taken place within three months of the first CFA Digest of 1996 para 514 and D give prior notice to the employer before calling a strike CFA Digest of 1996 para 503 A number of prerequisites have been found to be excessive or potentially so D a decision by over half of all the workers involved in order to declare a strike CFA Digest of 1996 para 507 and Oa quorum requirement of two thirds CFA Digest of 1996 para 511 2 E a lt Z E A U Uu lt LL gt a LL 1 5 State interference Dissolving and suspending organizations Cases before the supervisory bodies have dealt with a variety of types of governmental interference in the full exercise of freedom of asso ciation including m dissolution and suspension of organization
51. e Constitution The report forms will be drawn up so as to obtain information from governments which have not ratified one or more of the fundamental Conventions including Conventions N os 87 and 98 on any changes which may have taken place in their law and practice taking due account of article 23 of the Constitution and estab lished practice Follow up to the Declaration para I A 1 amp 2 B 1 The information from the annual follow up reports will be reviewed by the GB following examination by a group of experts It will also be part of information used in a Global Report to be produced as part of the follow up Whether they result in preparation of a G engal Survey or information to the GB under the D eclaration reports under A rtide 19 give four impor tant opportunities m forthereporting State to consider its application of the Conven tions and the advisability of ratification m forthe COE where a G meal Survey is to be produced to consoli date its views on the meaning of the instruments concerned m for all the parties concerned to determine what obstacles stand in the way of ratification and possible ways of overcoming them and m for identifying areas in which the assistance of the O rganization through its technical cooperation activities may prove useful to its M embers to help them implement these fundamental principles and rights T hese opportunities suggest the use that can be made of article
52. e a change a 5 O c 0 lt 2 lt U 0 0 LL O 2 Q is LL Action Caution Gove rnment Desired results _ resists 5 COE will continue dialogue cha nge urged 5 Government recants and until change 16 made although by COE changes policy practice or law this might take some time 6 If government continues to 6 Only a limited number of cases resist the case comes before the are selected each year for Conference Committee public discussion The Fact F inding and Conciliation Commission on Freedom of Asso ciation FF CC was set up by the ILO 5 Governing Body in January 1950 following negotiations with the Economic and Social Council of the United N ations The FFCC is a neutral body composed of nine independent persons who normally work in panels of three 15 man date is to examine alleged violations of FOA principles In practice today the FFCC is rarely used This is so for a number of reasons relevant in a variety of circumstances W here a complaint alleging violation of FOA principles is made concerning a member of the ILO technically this is reviewed by the CFA with a view to a recommendation on whether to pass the complaint to the FF CC for examination n practice however the CFA most often has sufficient information to examine the sub stance of allegations and thus does not normally recommend that the case be referred to the FFCC Where a complaint allege
53. early in June Remember For the process to begin certain rules must be followed for each procedure T he pages which follow detail these procedural requirements U LLI 2 WY 0 2 5 5 O 2 U e E N Table 3 Procedural options Characteristics of supervisory mechanisms Procedure Interim intervention Authoritative conclusion Form of evidence a Regular system of supervision Committee of Experts on the None m Varies depending on when Written only Application of Conventions worker employer comment is and Recommendations CO E received in relation to the COE ratification required meeting in N ovember December m Depending on the nature of the case the CO E will normally ask the government for additional information before it indicates a conclusion or requests a change in law or practice Conference Committee None Strong language can be found in Government concerned may ratification required Conference Committee s conclu be asked to provide particu sions involving the case lars usually orally G overn ment may also provide written information b Special systems of supervision Committee on Freedom of Yes Varies depending on promptness m W ritten Association of government response to request Oral testimony heard only ratification not required for information on the case and rarely the urgency of the case two months to one year a 5 c
54. ective bargaining were the subject of discussion with an ILO direct contacts mission The mission made comments on the legislation In this case the CFA drew the Government s attention to the importance of prior consultation of employers and workers organiza tions before the adoption of all legislation respecting the field of labour law and hoped that it would do so CFA Case N o 1492 272nd Report para 78 2 4 a lt Z E Uu lt LL gt a LL m affecting collective bargaining or conditions of employment or Unions complained to the CFA that the Government had announced its intention to abolish provisions concerning wage indexation This had been done according to the trade unions without any prior consultation with the social partners despite a written assurance that consultation would take place The legislation was adopted by Parliament and the indexation clauses in the collective agreements were abolished until the next round of negotiations which would take place one year later in spring 1987 In these circumstances the CFA pointed out that it is essential that the intro duction of draft legislation affecting collective bargaining or conditions of employment should be preceded by full and detailed consultations with the appropriate organizations of workers and employers CFA Case No 1338 246th Report para 43 m through which the government seeks to alter bar
55. ectives methods on strike objectives or methods or on the obligation to give advance and prerequisites notice In particular principles have been developed in respect of m political strikes 44 Strikes of a purely political nature and strikes decided systematically long before negotiations take place do not fall within the scope of the principles of freedom of association But 44 ii purely political strikes do not fall within the scope of the principles of freedom of association trade unions should be able to have recourse to protest strikes in particular where aimed at criticizing a government s economic and social policies pg CFA Digest of 1996 paras 481 and 482 Although the Government considered a general strike called in 1993 to be political in nature and therefore not protected by FO A principles the CFA noted thata substantial part of the responsible trade union s claims were of a social and economic nature The CFA urged the Government to refrain in future from arresting or detaining trade leaders or members for their legitimate trade union activities CFA Case N o 1713 291st Report para 574 m sympathy strikes which should be lawful when the initial strike is lawful CFA Digest of 1996 para 486 m picketing in that prohibition is justified only if action ceases to be peaceful CFA Digest of 1996 para 584 and m prerequisites for a lawful strike 44 conditions that have to be fulfilled un
56. ed Must an organization have a minimum number of members in order to be registered Does the registration requirement restrict the scope of the organization s activities In a legal system where registration of a workers organization is optional the act of registration may confer on an organization a number of important advantages such as special immunities tax exemption the rightto obtain recogni tion as exclusive bargaining agent etc In order to obtain such recognition an organization may be required to fulfil cer tain formalities which do not amount to previous authorization and which do not normally pose any problem as regards the requirements of Convention No 87 P CFA Digest of 1996 para 269 CFA Case N 0 1559 284th Report para 263 a CFA Digest of 1996 para 255 44 W orkers and employers without distinction whatsoever shall have CFA Digest of 1996 para 256 Freedom of choice in membership the right to establish and subject only to the rules of the orga nization concerned to join organizations of their own choosing without previous authorization Convention N o 87 Article 2 17 1 3 ORGANIZATIONAL RIGHTS Workers and employers have the right to establish organizations of their own choice and to join them subject only to the rules of the organizations concerned T he supervisory bodies have reviewed many cases involving restrictions on that choice The implicatio
57. ed on the basis of at least six common charaderistics m The speed of interim intervention is the time it might take for a preliminary intervention by the ILO to occur if is available at all under a particular procedure In the case of detained trade unionists for example the organization concerned can request the ILO to intervene directly with the government m The speed of reaching authoritative conclusions is the time it might take before the supervisory mechanism can process the alle gation and give an indication as to whether a FOA infringement has occurred m The nature of the allegation concerns whether the complaint refers to a factual situation such as anti union discrimination in a given enterprise or whether the problem is more legislative in nature m Theform in which evidence can be presented refers to the pos sibility of evidence being given in person or through personal visit or wholly in written form m Whether the supervisory body isatripartite forum or may even tually come before a tripartite forum may be of importance m The publicity attached to the mechanism can be important as it is mostly through moral persuasion that the supervisory mechanisms produce results The CFA recalled in its 193rd Report 1979 that 44 influence which it can have is above all a moral one It derives from the objec tiveness of the procedures which the Committee follows and the persua sive effect and the authority of
58. ence adopted a resolution concerning trade union rights and their relation to civil liberties The resolution contains a list of the fundamental rights essential for the exercise of freedom of association T hey are addressed in turn here The announcement of the release of trade unionists from arrest or detention sometimes in situations where those concerned have been subjected to harsh treatment or torture is the most dramatic example of the success of the ILO 5 human rights work FOA principles demand that the State not interfere with the exercise of associational rights These rights concern the exercise of basic trade union activities and arrest or detention physical threats assaults or disappearances can all constitute interference W here trade unionists leaders rank and file members or organizers of atrade union even before it is formed are arrested m due process must be respected they must be charged and must have access to legal representation m they may not be arrested or detained for the exercise of legitimate trade union activities and m wherethey are charged with violation of ordinary criminal law the charge must not be a pretext for the suppression of the association Figure 1 provides a summary of these basic rights Figure 1 Civil liberties Arrest and detention Trade unionist has been arrested The arrest of trade unionists may create an atmo sphere of intimidation and fear prejudicial to t
59. ensively and effectively Figure 9 Anti union discrimination Quality of protection Yes answers bring the mechanism closer in line with FO A principles wn O Is there protection against anti union discrimination both based on trade union membership and on legitimate trade union activities Does protection cover former activities membership Is there protection even where the union is not recognized by the employer Does protection cover activities outside the workplace Does protection provide broad cover i e all acts that are prejudicial to workers and to pastand future employees Are there additional protective measures for trade union leaders Does protection cover dismissal of workers because of a legitimate strike 11111111 12111111 11111111 Is there protection against blacklisting 2 lt 2 a Q V 2 O Z gt 2 lt m Figure 10 Ant union discrimination Quality of the procedure Yes answers bring the mechanism closer in line with FOA principles O Is the mechanism impartial and seen as such by the parties Is the mechanism Inexpensive Is the mechanism really effective against anti union discrimination Does the mechanism provide for appeal against a judgement Does the mechanism provide for sufficiently dissuasive sanctions including civil remedies and penal sanctions Is the mechanism prompt ensuring rapid examination of complaints 21
60. es Adequate time to prepare defence Facilities to prepare defence Because of the fact that detention may involve serious interference with trade union rights and because of the importance which it attaches to The prolonged detention of persons without bringing them to trial because of the difficulty in securing evidence under the normal O Able to communicate freely with counsel Provided with prompt trial Trial by an impartial independent judiciary the principle of fair trial the Committee has pressed governments to bring detainees to trial in all cases irrespective of the reasons put forward by governments for prolonging the detention procedure 15 a practice which involves an inherent danger of abuse for this reason it is subject to criticism CFA Digest of 1996 para 87 CFA Digest of 1996 para 92 CFA Digest of 1996 para 90 The implications of due process are found throughout FOA princi ples including m in all cases of arrest or detention m in situations warranting investigation such as the disappearance of trade unionists in situations of confiscation of property where searches are made of trade union premises review of restrictions on publication and where an administrative authority has dissolved or suspended an association 2 4 lt Z E A Uu lt LL a LL W here trade
61. eted 44 Each of these governments making the complaint and with which the complaint is concerned shall within three months inform the Director G eneral of the International Labour Office whether or not it accepts the recommendations contained in the report of the Commis sion and if not whether it proposes to refer the complaint to the Inter national Court of Justice ILO Constitution Article 29 2 International Labour is mandated to carry out the instruc tions of the D irector G eneral and this includes providing assistance where possible to improve workers and employers freedom of association Wherever there is a difficulty in applying standards and princi ples calling upon the O fficefor appropriate assistance might be a type of recourse to betaken to improve the situation Types of assistance include seminars aimed at providing general information about FOA stan dards and principles and or resolving particular national difficul ties in their application analysis of and advice on legal drafts in the light of FOA standards and principles where doing so could improvetheir application through an improved legal framework requesting an opinion of the Office on the meaning or interpreta tion given to a particular provision of an ILO Convention or Recommendation direct contacts in the context of ongoing procedures such as a com plaint before the CFA or an Article 26 co
62. ews given by the supervisory bodies Several ways have been used to do this m Graphic representations have been used to illustrate some of the approaches to FOA principles taken by the supervisory bodies m Yes no charts have been used to elaborate the requirements asso ciated with a number of principles The charts are meant to help organize thinking about a real situation with a view to deciding whether it can be considered to be a violation of the established FOA principles The charts will help decide whether to seek recourse to the FOA supervisory bodies and how to prepare the materials needed to make out a case T he questions in the coloured boxes of the charts are critical and need to be addressed T he statements of the supervisory bodies in the shaded boxes can help understand important principles and nuances The International Labour Office Arrangement of the guide INTRODUCTION TO THE FREEDOM OF ASSOCIATION PROCEDURES W 2 FREEDOM OF ASSOCIATION A USER S GUIDE m Tables have been used to summarize some of the most important approaches to implementing F OA principles m D iret quotations are provided from the relevant international instru ments see list on page viii as well as from the supervisory bodies m Brief reports of the facts behind cases decided by the supervisory bodies are provided to give a fuller sense of the practical meaning of the principles T his guide attempts to provide the most basic and
63. examination of governments reports and m requests States which are not fully applying the relevant FOA pro visions to take the necessary action to do so INTRO DUCTION TO THE FREEDOM OF ASSOCIATION PROCEDURES NJ FREEDOM OF ASSOCIATION A USER S GUIDE Special supervisory mechanisms The Committee also examines reports from countries which have not ratified the FOA Conventions in respect of the state of law and prac tice in the country concerned and eventual obstacles to ratification T he tripartite standing C ommittee on the A pplication of Standards of the International Labour Conference consisting of constituents from workers organizations from employers organizations and govern ment delegates m receives the report of the COE m onthebasis of the COE report discusses in public individual cases involving freedom of association and m discusses in public the state of law and practice and eventual obstacles reported to the CO E by countries which have not ratified the FOA Conventions T he special supervisory mechanisms offer several avenues of recourse at the international level in respect of specific allegations of infringe ment of FOA principles E ach mechanism has its particular character istics and benefits but all require the laying of a charge ThelLO s Governing Body GB is involved in handling all cases using special supervisory mechanisms D etails of its role in each mechanism can be found th
64. f people Thus FOA prin ciples include a specific reference to the right to combine at higher levels that is between occupations and internationally and the right of these organizations to freely engage in activities for thefurtherance of their members interests As concerns national bodies the supervisory bodies have asked govern ments to change their legislation and practice in cases where for example m a requirement of an excessively large minimum number of member organizations has been imposed m aprohibition has been imposed on setting up more than one con federation per occupation branch of activity or region m thelaw enumerates which federations may be legally established m prior authorization is required before a federation may be legally established or m Other excessive conditions are imposed such as requiring a two thirds majority vote of the members of federations for the estab lishment of a confederation U 4 lt Z E A U Uu lt LL gt a LL As concerns international affiliation the supervisory bodies have acted in cases where for example m only asingle named national body is permitted to affiliate interna tionally m aprohibition is placed on international affiliation m prior authorization by the public authorities is required for interna tional affiliation m restrictions or conditions are placed on assistance communications
65. fering anti union discrimination m Independent members m Investigative authority Government consent required On FOA issues GB normally refers the matter to the CFA If time is short consideration should be given to the delay of at least one GB session caused by the need for a GB decision to refer a case to the CFA Complaint can only come from a worker or employer in their capacity as an ILC delegate in June otherwise complaints may emanate from member States also having ratified the Convention atany time m Possible to take evidence in the country c International Labour O ffice assistance N ormally low M ay be high depending on combined use with supervi sory mechanisms N ormally low Usually helpful for legislative review and advice G overnment s consent necessary to enter territory m f funding is needed a donor must be found m Can be very effective in resolving technical difficul ties and for legislative review U 2 WY 0 2 5 5 O 2 U e i N a 3 O c 0 2 lt 2 lt U 2 0 LL Q a ia LL Selecting the supervisory mechanism Several supervisory mechanisms are available to choose from when recourse to an infringement of FOA principles is desired E xperience has shown that each mechanism has characteristics which can make a difference for the party bringing the charge T hese mechanisms can be compar
66. gaining structures in which it acts in fact or indirectly as employer The CFA observed that the Public Sector Restraint Act 1991 went beyond what it had previously considered to be normally acceptable limits that might be placed temporarily on collective bargaining because the Act cancelled previously negotiated agreements and in so far as the Gov ernment had expressed its intention to extend the initial one year period of wage restraint by exacting further legislation The CFA invited the Government to resume wide and constructive consultations with the trade unions concerned with a view to restoring collective bargaining in accordance with FO A principles The Committee stressed the importance of adequate consultation prior to the introduction of legislation through which the Government seeks to alter bargaining structures in which it acts in factor indirectly as employer CFA Case No 1607 284th Report para 594 Y E 2 2 2 e 1 9 44 Facilities Such facilities in the undertaking shall be afforded to workers rep for workers resentatives as may be appropriate in order to enable them to carry out their functions promptly and efficiently In this connection account shall be representatives prompty y taken of the characteristics of the industrial relations system of the country and the needs size and capabilities of the undertaking concerned pg Convention N o 135 Article 2 1 am
67. gainst the enterprise Although the Government asked that the national procedures be allowed to run their course the Committee expressed its concern atthe slowness and the lack of efficiency of the procedures and requested the Government to take measures to ensure that the procedures were carried out rapidly It further addressed the merits of the case CFA Case N o 1879 305th Report para 183 2 5 ALLEGATIONS TO THE COMMITTEE ON FOA 61 44 cases concerning anti union discrimination contrary to Conven tion No 98 should be examined rapidly so thatthe necessary remedies can be really effective An excessive delay in processing cases of anti union discrimination and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dis missed by the enterprise constitutes a denial of justice and therefore a denial of the trade union rights of the persons concerned pp CFA Case N o 1879 305th Report para 202 Complainants must keep this in mind when preparing their com plaints Figure 16 may help in organizing an approach to the issue of exhaustion of national remedies an appeal against the action alleged to violate FOA in a particular case Figure 16 CFA procedure Concerning appeal to national remedies Does national legislation provide appeal procedures Does the procedure offer appropriate guarantees of independence and due process Enclose the
68. ganizations having general consultative status with the ILO International Co operative Alliance International Confederation of Free Trade Unions World Confederation of Labour International Federation of Agricultural Pro ducers World Federation of Trade U nions International rganization of E mployers rganization of African Trade Union Unity and Pan African E mployers Confederation 4 LL wa O 5 2 U LLI E 2 lt O 4 4 N Preliminary Several preliminary substantive issues repeatedly arise in the CFA s substantive issues review of complaints T hey are discussed here m Theallegations in the complaint should not be purely political in character m The allegations should be clearly stated and fully supported by evidence It is of utmost importance to thelL O D irector G en eral that complaints are resolved speedily and that information in support of allegations is as complete as possible T hese are related ideas in that the D irector G eneral in each case communicates with both the complainant and the government concerned in such a manner as to ensure that the facts and the positions of the parties put before the CFA are as complete as possible Figure 15 shows the approach taken where complainants are system atically asked to supplement insufficiently substantiated complaints or complaints which are not supported by objective evidence Figure 15 CFA procedure Handling of allegations
69. harmonious industrial relations to endeavour to facilitate the rein Statement of the dismissed workers The Government in its follow up reply indicated that in fact only nine union leaders had been dismissed and that harmonious industrial relations prevailed The CFA concluded that rein Statement no longer appeared feasible CFA Case No 1719 304th Report paras 413 414 308th Report para 52 m of the functions they perform essential services or role in the industrial relations system see figure 7 44 T he Committee of Experts considers that essential services are only those the interruption of which would endanger the life personal safety or health of the whole or part of the population P rohibition of strikes in essential services in the strict sense of the term may be justified accompanied however by compensatory guarantees p g CFA 1994 GS paras 159 and 162 Five workers dismissed from their jobs in a trolleybus enterprise for having participated in a strike were reinstated following the CFA s con clusion that the enterprise was not an essential service The CFA recom mended that all be reinstated and called for the deletion from the relevant list in legislation of industries and enterprises which were not essential within the strict meaning of the term CFA Case No 1849 306th Report paras 22 23 m of their hierarchical rank managerial staff or m acombination of these In this a
70. he normal development of trade union activities Anyone who 16 arrested should be informed at the Charged with violation time of the arrest of the reasons for the arrest and of ordinary criminal law should be promptly notified of any charges brought against her or him The arrest of trade union leaders against whom no Is the charge related to trade union ae ae ne criminal charges are laid involves restrictions on the activities or membership exercise of trade union rights W hile persons engaged in trade union activities or holding trade union office Cannot claim immunity in respect of the ordinary criminal law trade union activities should not themselves be used by the public authorities as a pretext for the arbitrary arrest or detention of trade unionists The detention of trade unionists for trade union activities member Is there reason to believe ship is contrary to the principles of the charge 15 a pretext freedom of association 1 2 CIVILLIBERTIES i t If in certain cases the Committee has reached the conclusion that allegations relating to mea sures taken against trade unionists did not war Although the exercise of trade union activity rant further examination this was only after it or the holding of trade union office does not had received information from the governments provide immunity as regards the application showing sufficiently precisely that the of ordinary cr
71. htens public awareness of the situation and brings pressure to bear on the government concerned n practice it may take some time before the Groups employers workers and governments in the Confer ence agree on the particular case being brought up for discussion Figure 14 shows the steps and care that need to be taken in order to usethe COE and Conference Committee processes in the regular system of supervision Action by the Conference Committee CL is LL LLI E O U E CL m N Figure 14 Regular supervision Results and cautions Caution Action Desired results Send comment 1 Comment should be to COE 1 COE reviews the comment received in good time before at its next meeting the COE N ovember December meeting O therwise it could 2 COE makes observation asking be deferred to the next meeting government to take remedial action 2 COE normally makes an observation asking the government for more information or its views on the comment if not already received Action Caution G overnment Desired results provides 3 Governments may delay additional 3 Information that government their reply or reply in a manner information provides acknowledges a contrary to the comment change in conformity with the comment 4 COE may find that practice is not contrary to the requirements 4 COE makes its finding that FOA of the Convention Standards requir
72. iendly accom paniment to ILO law on freedom of association Standards and procedures Published in 1995 the latter sets forth all the relevant legal documents concerning freedom of association Conventions procedures for spe cial supervisory mechanisms and so on and can be used to identify the sources relevant to the situations described in this guide am most grateful to D avid Tajgman and K aren Curtis for setting out in a concise but nevertheless exhaustive manner thanks to their in depth research and the clarity of their presentation not only the var ious procedures available to ILO constituents but also the different circumstances in which these mechanisms can best be used This guide responds hope to the expectations of those numerous individuals who consider that ILO studies concerning freedom of association were until now so legal in nature that their dissemination was limited in practice to a rather small circle of specialists In any event this publication represents part of the constantly rein forced activities of the International Labour Organization and the International Labour O fficeto promote universal respect for the prin ciples of freedom of association M ay it contribute through wide cir culation and a deep and meaningful impact on the social partners to making this fundamental freedom a reality for all Such is my resolute and sincere wish Bernard G ernigon C hid Freedom of A ssodation B ranch Inte
73. ies concerning freedom of association to be celebrated at the end of the twentieth century and the beginning of the next Between 1998 and 2001 the ILO is recalling the significant steps taken in this domain starting with the adoption in 1948 of the fundamental Convention dealing with freedom of association the Freedom of Asso ciation and Protection of the Right to O rganize Convention N o 87 in 1949 the birth of the other fundamental standard in this field the Right to Organize and Collective Bargaining Convention 98 in 1950 the elaboration of the procedure of the International Labour Organization for the protection of trade union rights and in 1951 the creation of the Freedom of Association Committee of thelLO T hese momentous events have marked in an enduring way the life of the Organization and beyond that the development and existence of workers and employers organizations throughout the world The extent of ILO action in respect of freedom of association depends however on these actions being better known than they are today by the social partners both at the national and international levels This is why we thought it would be useful during this time of anniversaries to add to the LO s publications on freedom of associ ation a guide presenting a pedagogical approach to the questions raised in respect of the relevant ILO standards and procedures The guide should be considered as the informal user fr
74. iminal law the continued deten measures were in no way occasioned by trade tion of trade unionists without bringing them to union activities but solely by activities outside trial may constitute a serious impediment to the trade union sphere that were either the exercise of trade union rights prejudicial to public order or political in nature Consider FO A recourse CFA Digest of 1996 para 76 CFA Digest of 1996 para 95 CFA Digestof 1996 para 82 CFA Digest of 1996 para 83 CFA Digest of 1996 para 72 CFA Digest of 1996 para 115 CFA Digest of 1996 para 91 see also paras 111 and 114 After an arrest or detention has occurred for whatever reason trade unionists have the right to a fair trial and assurances of due process see figure 2 44 Any trade unionist who is arrested should be presumed innocent until proven guilty after a public trial during which he or she has enjoyed all the guarantees necessary for his or her defence pp CFA Digest of 1996 para 171 Figure 2 Civil liberties Judicial safeguards Safeguards after detention arrest and judicial due process Has the period of arrest been prolonged Preventive detention should be limited to very short periods of time intended solely to facilitate the course of a judicial inquiry After arrest has a normal judicial process been followed providing guarantees of due process Elements of due process Informed of charg
75. ing Action taken by legislative authorities may well also be contrary to FOA principles It is the right to a defence and an appeal which has been the main concern of the supervisory bodies In a 1984 case involving Poland the Commission of Inquiry empha sized although it is true that Article 4 of the Convention refers only to measures taken by administrative authorities the fact remains that dissolution by legislative authorities entails consequences that are LLI U E ia LLI 2 7 just as irremediable as a definitive dissolution by administrative author ities since neither admits of appeal to independent bodies pp COE 1994 GS para 183 The conclusions of the Commission were instrumental in focusing interna tional attention on the free trade union movement in Poland atthe time 44 It is furthermore essential to determine whether a given dissolution by legislative authority prevents workers from maintaining their mem bership and pursuing their activities in trade unions of their own choosing if this is the case such legislation would not be in conformity with the Convention pg COE 1994 GS para 183 Respect FOA principles do not give workers and employers organizations im for national law munity from the law of the land principles do however require that the law of the land not impair the exercise of freedom of association 44 In exercising the rights pr
76. ire amendments to constitutions are laid down in public law on the subject of trade union elections thus enabling the public authorities to interfere in the voting process W here there is supervi sion by the administrative authorities or the single trade union central orga nization of the election procedure for example by requiring the presence of labour inspectors or representatives of the administration W here the results of elec tions must be accepted or approved by the public authorities before they can be given effect W here legislation requires all candidates for office to belong to the respective occupation enterprise or production unit or be actually em ployed in this occupation either at the time of candi dature or during a certain period prior to election W here legislation sets nationality as a condition for trade union office W here political beliefs or affiliations or lack of them is setas a condi tion for trade union office W here a condition for trade union office is that candidates be free of any criminal conviction W here a restriction is placed on re election nent control by the authorities in that the law establishes the minimum contribution of members W here regulations specify the proportion of union funds that have to be paid to the federa tions or require that cer tain financial operations such as the receipt of funds from abroad be approved by the public au
77. ison the right to organize or bargain collectively expanded Part 1 of this guide explains the LO s FOA standards and principles in the context of this impact It explains how these principles have been used in real situations to protect freedom of association and the manner in which the supervisory machinery can be used to this end 2 O Q Q 2 ES e 2 x lt Z E A U Uu lt LL gt a LL 1 2 Civil liberties The right to freedom and security of person and freedom from arbitrary arrest and detention ThelLO and its supervisory bodies have time and again recognized a critical relationship between the associational rights of workers and employers organizations and civil liberties if they are to function properly such organizations must be able to carry out their activities in a broader climate of freedom and security T he right of association although it might exist in law cannot exist in practice if for example m theState arbitrarily arrests and detains trade union leaders m the property of organizations is confiscated without a court order or m private parties with impunity physically threaten trade unionists Protection by the State from these types of threats in relation to the exercise of freedom of association is ahuman right respect for which can be insisted upon through the ILO In 1970 the International Labour Confer
78. ivable each of the following must be answered Yes YES Has the representation been communicated to the ILO in writing Does the representation come from an industrial association of employers or workers Does the representation make specific reference to article 24 of the Constitution Does the representation concern a M ember of the ILO Does the representation refer to a Convention to which the M ember in question is a party i e is there a ratification in force Does the representation indicate in what respect it is alleged that the M ember has failed to secure the effective observance within its jurisdiction of that Convention O nce examined by the ad hoc tripartite committee a report of find ings is referred to the G B for approval or adoption T he G B may also decide to publish the case 44 If no statement is received within a reasonable time from the govern ment in question or if the statement when received is not deemed to be satisfactory by the Governing Body the latter shall have the right to pub lish the representation and the statement if any made in reply to it pg ILO Constitution Article 25 Representations concerning F OA principles are normally examined by the CFA under its procedures see section 2 5 The CFA will report its finding to the G B and the G B will refer the case to the COE for follow up In its 1995 Report the COE noted information provided by the GB in respect of a
79. l questions and recommendations to the GB viathe D irector G eneral of thelLO The complaint which initiates a can be referred to the nterna tional Court of Justice if the recommendations contained in a report of accepted by the government concerned helnternational L abour Office secretariat to the International Labour O rganization may also become specially involved in cases using the special supervisory mechanisms For example m direct contacts may be made by ILO officials on behalf of the D irector G eneral of the ILO in an attempt to solve difficulties in implementing F OA principles m informal advisory services can be provided originating from ILO offices in the field as well as from its headquarters in G eneva and m technical assistance impacting on the application of FOA principles including in areas related to collective bargaining and sound indus trial relations practices has often been provided by the O ffice In Part 1 of the guide the FOA standards and principles are explained briefly highlighting their real impacts in practice Part 2 returns to a detailed and practical discussion of the procedures and bodies men tioned in Part 1 highlighting how they can best be used to secure and promote FOA Care has been taken here to explain FOA standards principles and procedures in a way which on the one hand can be useful to the layperson and on the other remains faithful to the vi
80. luence the choice of bargaining level Thus the prohibition of strikes aimed at ensuring multiemployer agreements would be contrary to FOA principles CFA Case No 915 202nd Report para 53 CFA Case No 1698 295th Report para 259 2 4 lt Z E A U Uu lt LL gt a LL Recognition of trade unions for the purpose of collective bargaining m Collective bargaining should not be hampered by the absence of rules governing the procedures to be used or by the inadequacy or inappropriateness of such rules In one case where there were legislated time limits of 105 days within which employers had to reply to proposals by workers and six months within which a collective agreement had to be concluded the CFA thought it desirable to reduce these periods in order to encourage and promote the development of voluntary negotiation particularly in view of the fact that the workers in the country in question were unable to take strike action CFA Case N o 654 133rd Report para 244 m Bodies and procedures for the settlement of labour disputes should be so conceived as to contribute to the promotion of collec tive bargaining The Voluntary Conciliation and Arbitration Recommendation 1951 No 92 sets forth same of the essential characteristics of such machinery O joint nature of machinery O voluntary recourse O procedures free of charge and expedition W here
81. matter of urgency The complainant should clearly state why the case is urgent if such handling is desired W here time 15 of the essence the D irector G eneral may also take steps to attempt to resolve the difficulty even before a case is pending but with the hope of preventing or mitigating the harm done W here a government was alleged to have arbitrarily prevented an offi cial of an employers organization from leaving the country to attend an important ILO seminar for employers the Director G eneral of the ILO atthe request of others attending the seminar addressed a telegram to the M inister for Foreign Affairs of the government concerned asking the Minister to intervene in order to facilitate the departure of the official The Minister did not act and allegations involving all the facts of the case were made to the CFA The conduct of government officials was ultimately exposed and the Government s inaction was strongly deplored by the CFA CFA Case N o 1317 241st Report para 292 Once the Office has determined that there is sufficient information from the complainant to support the complaint observations on the allegations are requested from the government concerned The CFA normally examines the substance of the complaint once the govern ment has provided its observations Speedy action Urgent cases and delayed observations 4 LL wa O 5 2 U LLI E 2 lt O z 4 N a
82. matters with the government concerned and the complainants in order to appreciate more fully the factual situ ation examine the possibilities for solving the problems and seek conciliation or m in other cases where particular difficulties have arisen in the exam ination of questions involving the implementation of its recom mendations Hearing of the parties and review of the allegations For further information concerning a possible hearing of the parties see ILO Procedures of the Fact Finding and Conciliation Commission and the Com mittee on Freedom of Association for the examination of complaints alleging violation of freedom of association Annex of Freedom of assodation D igest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO G eneva 4th revised ed 1996 para 66 See also CFA 193rd Report para 30 4 LL wa O 5 2 U LLI E 2 lt O 4 4 N a 5 c T 2 lt 2 lt U 0 0 LL O 2 Q a ia LL CFA conclusions and recommendations O nce the CFA has examined the case it normally makes a report on the case with conclusions and recommendations T his is given to the G B for its approval m TheCFA say in its conclusions and recommendations that the case calls for no further examination T his normally occurs where the CFA finds no violation of FOA m TheCFA ma
83. mong 14 others three representations concerning FO A prin ciples The representation in each case had been referred to the CFA B n one case the CFA had adopted interim conclusions m n another case the CFA had asked to be kept informed of the results of negotiations taking place on the matter at issue Inthe last case the COE noted that the representation in question had just been referred to the CFA RCE 1995 paras 24 28 31 Examination 2 z lt 2 ia L rd St N lt N 2 7 ThelLO s Constitution provides the possibility for complaints to be Article 26 filed alleging the non effective observance of a ratified ILO Conven complaints tion including FOA Conventions Such complaints may be made by member States also having ratified the Convention in question T he GB has authority over the handling of such a complaint and may All tions in 2 ee egauons caning wa decide to appoint aformal Commission of Inquiry for its examination Commission of Inquiry The Governing Body may also act on its own motion or on receipt of a complaint from a delegate employer worker or government to the International Labour Conference in setting up a Commission of Inquiry Figure 18 shows the steps for dealing with an Article 26 complaint Figure 18 Article 26 complaints Action before appointment of a Commission of Inquiry Hasan ILO member filed the complaint YES w Any of the M embers
84. mplaint or an informal advisory visit where such a visit could improve the appli cation of FOA in the country concerned A number of considerations should be kept in mind in relation to the possibility of assistance provided by the O ffice A question of political will O ften difficulties with implementa tion of FOA standards and principles involve the political will of decision makers With this in mind the question that should be asked before a request for assistance is made is a whether there is a political will to resolve the situation and b whether the assis tance being requested may improve overall labour relations and promote resolution of the problem Funding The Offices resources are limited Where costs might involve such items as lodging for participants in seminars provi sion will have to be made and a source of funding needs to be found Requests for assistance should be specific Where a promo tional or educational activity is concerned who is the target audi ence and what outcome is hoped for from the activity W hat issues should be dealt with in a requested promotional or educational activity Where a mission by ILO officials is considered who might be considered to conduct the mission senior international civil servants or persons external to the ILO Persons from within the region or outside And what result is hoped for as of the mission 2 8 Assistance by the International Labour Office Type
85. n ILO Constitution Article 28 2 7 ARTICLE 26 COMPLAIN TS 71 FREEDOM OF ASSOCIATION A USER S GUIDE 72 Follow up to the Commission of Inquiry has issued its report including con Commission s report clusions and recommendations the G B will wantto follow up on steps taken to implement the recommendations Where FOA is involved the GB may refer the matter to its CFA and in turn to the COE for follow up in the course of reporting on ratified Conventions 44 The Committee takes note of the report presented by the Commis sion of Inquiry established in accordance with article 26 of the ILO Con stitution to examine the complaint against Nicaragua concerning the application of Conventions N os 87 98 and 144 The Committee notes in particular that in paragraph 546 of its recommendations the Com mission of Inquiry considers that the Government should indicate as from 1991 in its reports submitted under article 22 of the Constitution the measures taken in law and in practice to give effect to its recom mendations on the application of these Conventions during the period in question Consequently the Committee asks the G overnment to pro vide detailed information on the measures taken to give effectto the rec ommendations of the Commission of Inquiry pg COE 1991 C 87 Nicaragua T he complaint may also be referred to the International Court of Justice after the Commission s work is compl
86. n absolute ban on strikes although the ser vices concerned could not be considered essential in the strict sense of the term 44 In order to avoid damages which are irreversible or out of all pro portion to the occupational interests of the parties to the dispute as well as damages to third parties namely the users or consumers who suffer the economic effects of collective disputes the authorities could establish a system of minimum service in other services which are of public utility rather than impose an outright ban on strikes which should be limited to essential services in the strict sense of the term pp COE 1994 GS para 160 There are two requirements for the use of a minimum services approach m t must be a minimum service limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service while maintaining the effec tiveness of the pressure brought to bear by the strike action m The workers organizations involved should be able to partidpate in defining such a service along with the employers and relevant public authorities t is also recommended that the minimum services be defined before a dispute arises The CFA suggested that the law prohibiting strikes in the railway service and urban public rail transport be amended as these were not as the Government argued essen tial services The Committee did not however exclude the
87. na Faso B where the government concerned had refunded the salaries of 31 worker students with respect to their earlier strike CFA Case No 1349 243rd Report para 194 RCE 1989 C 98 Malta B where a prohibition on strikes was lifted and restrictions on collective bargaining were removed CFA Case N 0 1458 262nd Report para 124 RCE 1991 C 87 Iceland where broad reform of labour laws enabled the emergence of eight central trade union organizations and many federations and firstlevel trade unions where previously monopoly trade unionism was imposed by law and enforced through coercion CFA Case N o 1904 306th Report 78 RCE 1991 C 87 Romania 4 LL wa O 5 2 U LLI E 2 lt O 4 4 N where reformed labour laws prohibited solidarist associations from engaging in trade union activities or collective bargaining improved protection againstanti union discrimination and eliminated provision for unequal treatment between solidarist associations and trade union associations CFA Case N 0 1483 275th Report para 240 RCE 1994 87 Costa Rica a 3 O c 0 2 lt 2 lt U 2 0 LL a ia LL 2 6 Article 24 representations Allegations by industrial associations of employers and workers Receivability Standing orders concerning the pro cedure for the examination of repre sentations under A rticles
88. nd ultimately the COE may ask the government to change the law and or practice Depending on the severity of the allegation the COE may ask the government to send its reports in an accelerated fashion T his will mean that the report will be due the very next year O therwise the report will not be due until the normal reporting year for the Convention involved If the COE asks for a change in law or practice it will not stop asking for the change until it has been made Where some years go by without a change it becomes more likely that the case will be selected for discussion by the Conference Committee The tripartite Conference Committee holds its meetings in public during the nternational Labour Conference E ach year the officers of the Committee including the Chair a government delegate and Co Chairs the employers and workers spokespersons select from the hundreds of observations made by the COE in its report a handful between 20 and 40 for individual discussion For such discussions the government concerned is asked to publicly explain what the situa tion is with respect to application of the Convention All members of the Committee including workers and employers delegates have the Opportunity to publicly comment on the case raise questions and sug gest solutions In practice airing of the allegation in the Conference Committee can have an important impact Often discussion of the individual case heig
89. nding resources to pursue cases which are of a purely political nature not impacting on freedom of association 2 4 lt 2 E U Uu lt LL gt a LL The Committee of Experts considers that the freedom to establish 1 3 organizations is the foremost among trade union rights isthepre rganizational requisite without which the other guarantees enunciated in Conven rights tions Nos 87 and 98 would remain a dead letter This freedom depends on three principles m that no distinctions are made among those entitled to the right of association m thatthereis need for previous authorization to establish organi zations and m thatthereis freedom of choice with regard to membership of such organizations Table 1 summarizes the basic requirements of these organizational rights Table 1 Organizational rights Basic requirements N o distinctions N o previous authorization Freedom of choice in membership m Applied to all categories of Requirements for the formation and Rules and practices may not unduly Workers and employers operation of organizations must not affect m There may be no distinction on 27 B organizational structure and com the basis of occupation sex position colour race creed nationality 20 5 Mc e organizational plurali or political opinion 9 y i m trade union securi m Exception rights of armed forces y and police decided
90. nment concerned even before its task of reviewing the substance of theinformation made available This is important to remember as the information provided by both the complainants and the govern ments concerned can contribute to the speedy resolution of cases a 3 O c 0 2 lt 2 lt U 2 0 LL Q ia LL Receivability Complaints to the CFA should be sent to The Director G eneral International Labour O rganization CH 1211 Geneva 22 Switzerland In order for a caseto be receivable complainants must submit allega tions in a certain manner table 5 T he first thing to remember is that the correspondence communicating a complaint should say dearly that its intent is to lodge a complaint with the ILO s CFA Table 5 CFA procedures Receivability of complaints Requirements in all cases Details which may be important in particular cases 1 Complaint must come from a The organization may be national and must have a direct interest in an employers or workers the matter organization mE 0 The organization may be international having consultative status with the ILO c The organization may be international where allegations relate to matters directly affecting their affiliated organization d If information about the organization is not known by the CFA the organi Zation should provide information with the complaint including i information about it
91. ns of these restrictions fall into three categories m structure and composition of organizations m tradeunion unity or pluralism and m Clauses respecting trade union security W hile certain restrictions may be placed on the structure and compo sition of organizations the supervisory bodies have found some to be contrary to FOA principles Such restrictions attempt to affect for example m the size of organizations by imposing minimum membership requirements COE 1994 GS para 81 and m therights of certain categories of workers to organize such as public servants managerial staff or agricultural workers COE 1994 GS para 85 The Industrial Relations Reform Act 1993 amended the provision in the 1990 Australian federal law which required a membership of 10 000 as a prerequisite for voluntary registration Registration conferred important rights and benefits The CFA case was filed by the International O rgani zation of Employers and the Confederation of Australian Industry CFA Case N o 1559 292nd Report para 16 Figure 5 Organizational rights Restrictions on special categories Permissible restrictions and their limitations on special categories of workers The Committee considers that it is admissible for firstlevel organi zations of public servants to be limited to that category of workers Public servants subject to two conditions firstly that their organizations are not Fo rbidding them to form also
92. nt authorities in the country the concern to which the events described in the complaint have given rise B to explain to those authorities the principles of freedom of association involved to obtain from the authorities their initial reaction as well as any comments and information with regard to the matters raised in the complaint B to explain to the authorities the special procedure in cases of alleged infringements of trade union rights and in particular the direct con tacts method which may subsequently be requested by the govern ment in order to facilitate a full appraisal of the situation by the CFA and the G B B to request and encourage the authorities to communicate as soon as possible a detailed reply containing the observations of the govern ment on the complaint CFA 193rd Report para 28 The CFA will examine the complaint once it has all the necessary information before it 44 The Committee will decide in the appropriate instances and taking into account all the circumstances of the case whether it should hear the parties or one of them during its sessions so as to obtain more com plete information on the matter CFA Procedures para 66 A hearing may exceptionally occur where m thecomplainants and the government have submitted contradic tory statements on the substance of the matters at issue or m in cases in which the CFA considers it useful to have an exchange of views on certain
93. of Inquiry Follow up to the Commission s report 2 8 Assistance by the International Labour Office Types of assistance Considerations Requests for assistance Annex 1 List of ratifications by country Annex 2 Additional reading List of figures Civil liberties A rrest and detention Civil liberties Judicial safeguards Civil liberties nterference in assembly O rganizational rights M inimum membership requirements O rganizational rights Restrictions on special categories D ispute resolution G eneral restrictions on the right to strike D ispute resolution E ssential services em 23 x ML s Se State interference Safeguards in cases of administrative intervention 9 Anti union discrimination Q uality of protection 10 Anti union discrimination Q uality of the procedure 11 Promotion of collective bargaining E xclusive representation 12 Procedural options Ratification and available mechanisms 13 Regular supervision Comments of employers and workers organizations 14 Regular supervision Results and cautions 15 CFA procedure H andling of allegations and observations 16 CFA procedure Concerning appeal to national remedies 17 Article 24 representations Requirements for receivability 18 Article 26 complaints Action before appointment of a Commission of Inquiry TABLE OF CONTENTS FREEDOM OF ASSOCIATION A USER S GUIDE 5 30 48 57 59 13 16 17 14 20 29 26 28 28 21 31 23
94. ort para 20 O 2 lt E n Lu gt O U O 2 O 2 2 A m thecompulsory extension of the period for which collective agree ments are in force m restrictions Imposed by the authorities on future collective bar gaining and m restrictions on clauses to index wages to the cost of living W here the Government concerned had enacted a law providing for the derogation prohibition and inapplicability of wage indexation proce dures in employment contracts the CFA called for restoration of free col lective bargaining as soon as possible CFA Case 1639 286th Report para 94 The COE through Governments periodic reporting on the ratified Con vention monitors efforts at liberalizing collective bargaining and tripar tite consultation RCE 1998 C 98 Argentina Further application The Collective Bargaining Convention 1981 154 elaborates fur of the principle ther the aims of measures taken to promote collective bargaining The of promoting collective following are FOA principles bargaining Collective bargaining should be made possible for all employers and all groups of workers The supervisory bodies have dealt with cases involving for example Limitations placed on collective bargaining of public employees all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights CFA Digest of 1985 par
95. ot impeded RCE C 87 Costa Rica 2 lt Z LLI Y id d 7 gt xX O LL o PART 2 2 1 Introduction to the common issues Common issue L The facts Procedural options for enforcing freedom of association standards and principles A summary of mechanisms available for the supervision of FOA principles was presented in the introduction to this guide E ach of these mechanisms have been put in place with a single purpose improving respect for FOA principles and the exercise of FOA rights Part 2 explains in more detail how to make use of these supervisory mechanisms T hese details are presented with the users of the mechanisms those interested in having recourse to infringements of FOA principles in mind T hus the pages which follow give an overview of m thepreliminary issues which should be resolved before recourse is taken and which are common to each mechanism and m grounds for deciding which supervisory mechanism can or should be used Before any action can be taken it is necessary to learn the facts sur roundinga possibleinfringement of F OA prinaples Securing the facts means answering the question W ho did what when and how in the light of requirements under FOA principles Part 1 of this guide gives information which should be sufficient guidance as to what con stitutes an infringement of FOA principles Investigation of thefacts sho
96. other or each other s agents or members in their establishment functioning or administration pg Convention N o 98 Article 2 1 44 M achinery appropriate to national conditions shall be established where necessary for the purpose of ensuring respect for the right to organize as defined in the preceding Articles pp Convention N o 98 Article 3 The State must protect employers and workers against acts of inter ference N ot doing so is tantamount to the State s own interference with FOA principles T he supervisory bodies have asked governments to amend their legislation in this regard in many cases After the CO E had requested the Government concerned to adopt pro visions establishing means of redress and sufficiently effective and dis suasive sanctions for acts of anti union discrimination and interference a new law of 1993 made a punishable offence actions or omissions on the part of employers workers or their respective organizations which are in breach of Convention N o 98 including provisions prohibiting interference RCE 1994 98 Costa Rica T hey have also acted in specific cases requesting governments to take action to remedy interference by employers or employers organizations In a case involving allegations that management had interfered with the organizing activities of workers by supporting the formation of a rival organization and otherwise interfering with workers in their organizing effo
97. ovided in this Convention workers and employers and their respective organizations like other persons or orga nized collectivities shall respect the law of the land The law of the land shall not be such as to impair nor shall itbe so applied as to impair the guarantees provided for in this Convention Convention No 87 Article 8 1 amp 2 In a case Involving an unforeseen or wildcat strike the CFA noted that the union involved had not followed the procedure for calling a lawful strike including notice of the dispute to the Ministry and a mandatory cooling off period In such a situation the CFA found that the union had not followed the law of the land and the law itself did not impair the guarantees provided for the Convention Moreover there was no evidence that the resulting arrests were for any other reason than maintaining law and order CFA Case No 1336 241st Report para 46 Interference 44 in establishing Workers and employers organizations shall have the right to federations establish and join federations and confederations and any such organi zation federation or confederation shall have the right to affiliate with international organizations of workers and employers pg Convention N o 87 Article 5 Workers and employers have long understood that there is strength in numbers their organizations are likely to have greater influence where they are able to represent large numbers o
98. p 2 In addition to the Workers Representatives Convention 1971 N o 135 the FOA rights found in other standards imply certain facilities to Workers wanting to organize or conduct their trade union affairs T he supervisory bodies have been called upon to secure appropriate facilities for workers representatives in cases including such matters as m access to the workplace The amendment to Act N o 358 of 1974 on the Position of the Trade Union Representative at the Workplace grants regional trade union rep resentatives in certain circumstances the right to gain admittance to workplaces where they themselves are not employed and to carry out trade union activities there RCE 1993 C 135 Sweden The CFA asked the government concerned to guarantee access of trade union representatives to workplaces with due respect for the rights of property and management so that trade unions could communicate with workers in order to apprise them of the potential advantages of unionization CFA Case N 0 1523 284th Report para 138 m theprovision of appropriate facilities The CFA asked the government concerned to provide appropriate facilities for union work to meetits obligations under ratified Convention N o 135 even after the privatization of state owned enterprises CFA Case N o 1565 279th Report para 381 m thecollection of dues and U 4 a lt Z E A U Uu lt LL g
99. pan Jordan K azakhstan K enya K orea Republic of K uwait K yrgyzstan Lao Peoples D emocratic Republic Latvia Lebanon Lesotho Liberia Libyan Arab Jamahiriya Lithuania Luxembourg M adagascar M alawi M alaysia M alaysia Peninsular M ali M alta M auritania M auritius X X X X X X X X X X KX K XK X X X X X X X X X X X X X X X X X X X X X X X X XK x X X X X X X X X X X X X X X XX KX XK X X X X X y t9 ANNEX 1 Country Convention se ee ea M exico x x CO o FREEDOM OF ASSOCIATION A USER S GUIDE M oldova Republic of Mongolia Mozambique M yanmar N amibia N epal N etherlands N ew Z ealand N icaragua N iger N igeria N orway Oman Pakistan Panama Papua N ew G uinea Paraguay Peru Philippines Poland Portugal Q atar Romania Russian Federation Rwanda Saint Lucia Saint K itts and N evis Saint V incent and the G renadines San M arino Sao Tome and Principe Saudi A rabia Senegal Seychelles Sierra Leone Singapore Slovakia Slovenia Solomon Islands Somalia X X X X X X X Xx X X X X X X X X X X X X X X X X X X X X X x X X X X X X X X X X X X X X X X X X Xx X X X X X X X X X X X X X X Countr Convention l u 8 amp 9 B5 M i i South Africa x Spain X X X X X X Sri Lanka X Sudan Suriname x x x x X
100. practice in regard to the matters dealt with in the Convention showing the extent to which effect has been given or is proposed to be given to any of the provisions of the Convention by legislation admin istrative action collective agreement or otherwise and stating the diffi culties which prevent or delay the ratification of such Convention pg ILO Constitution Article 19 e ii 2 s TheArticle 19 obligation is currently used as the basis Reporting k m for the production of G eneral Surveys concerning different instru for General Surveys ments selected yearly by the G B and and on obstacles m for the reporting called for in the follow up to the ILO s D eclara tion on Fundamental Principles and Rights at Work 1998 G eneral Surveys on freedom of association have been produced in 1956 1957 1959 1973 1983 and 1994 A mini survey was also carried out in 1998 and published in the CO E general report of 1999 44 The purpose of the annual follow up to the Declaration is to pro vide an opportunity to review each year by means of simplified proce dures the efforts made in accordance with the Declaration by M embers which have not yet ratified all the fundamental Conventions The follow up will cover each year the four areas of fundamental prin ciples and rights specified in the Declaration The follow up will be based on reports requested from M embers under article 19 paragraph 5 e of th
101. rea FOA principles have often been used to adjust restrictions on the right to strike with the result of improving other mechanisms used to resolve disputes for these categories of workers 2 E a 2 lt Z E A U Uu lt LL a LL Upon their conclusion that the electricity sector was an essential service the CFA noted that before their right to strike could be restricted workers in the sector needed to benefit from compensatory procedures for the set tlement of disputes and the presentation of their demands These did not exist and the CFA urged the government concerned to ensure that ade quate impartial and speedy conciliation and arbitration procedures were put in place The COE later noted with satisfaction that a new labour code providing these procedures had been put in place CFA Case N o 1549 277th Report para 447 RCE 1993 C 87 Dominican Republic Figure 7 Dispute resolution Essential services Has essentiality of the service been claimed as the justification for the restriction W ould interruption The following do not constitute essential services in the strict sense of the term radio and television the petroleum sector and ports banking computer services for the collection of excise duties and taxes department stores and pleasure parks the metal and mining sectors transport generally refrigeration enterprises hotel services construction
102. rnational L abour O ffice x PREFACE x FREEDOM OF ASSOCIATION A USER S GUIDE Ex planation of ILO terminology and abbreviations To make this guide as concise as possible a handful of ILO terms and abbreviations are repeatedly used T hese include the following COE is the ILO Committee of Experts on the Application of Conventions and Recommendations see section 2 3 page 53 CFA is the ILO Governing Bodys Committee on Freedom of A ssociation see section 2 5 page 58 The Conference Committee is the standing ILO Committee on the Application of Standards of the International Labour Confer ence see section 2 3 page 53 Digest refers to the D igest of dedsions and prindples of the F redom of A ssodation C ommittee of the overning Body thelL 0 The D igests produced in 1985 and in 1996 are cited in this guide They are major reference documents as they collect and summarize impor tant decisions made by the CFA about the application of FOA principles in cases brought before it FOA stands for freedom of association FOA principles are decisions which touch upon the basic ele ments necessary to freedom of association as embodied in the ILO Constitution FOA standards stem from the texts of international labour Con ventions and Recommendations dealing with FOA For a list of these see Annex 1 FFCC isthelLO sFact Finding and Conciliation Commission on Freedom of Association see section 2 4 page 57
103. roughout Part 2 The GB s tripartite nine member C ommittee on Freedom of A ssodation m receives allegations of infringement of FOA principles by ILO member States from employers and workers organizations whether or not the Conventions concerned have been ratified by the State in question m reviews the substance of a case with a view to sending it to the FFCC see below m makes conclusions and recommendations based on the informa tion before it and asks the governments concerned to take steps to implement the recommendations and m brings its conclusions and recommendations before the G B and where the government concerned has ratified the relevant FOA Convention may pass aspects of the case to the COE for follow up The Fad F inding and C ondliation Commission on Freedom of ssocation FF CC is aneutral body composed of nine independent persons who normally work in panels of three The Commission m examines complaints of infringement of freedom of association referred to it by the G B and m follows a procedure similar to that used by a Commission of Inquiry A Commission of Inquiry COT may be established as ad hoc body on the basis of a complaint lodged under Article 26 of thelLO 5 Con stitution E ach Commission m iscomposed of usually three neutral persons of high standing m organizes its work according to the requirements of the case involved and m reports its findings on factua
104. rties involved in a dispute or if the strike in question may be restricted even banned i e in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term namely those whose interruption would endanger the life personal safety or health of the whole or part of the population Consider FO A recourse CFA Digestof 1996 para 515 COE 1994 GS para 152 Other cases handled by the supervisory bodies have involved specific Resolution mechanisms restrictions on the strike action of certain categories of workers con used for specific sidered permissible because m of their status public service 44 categories T he Committee of Experts considers that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State Bg COE 1994 GS para 158 2 Y a 2 2 VI m W here almost all union leaders and members who took partin a strike were customs officials the CFA looked upon them as public servants exer cising authority in the name of the State It was alleged that 144 persons were dismissed Although the strike was justifiably declared illegal the CFA noted that large scale dismissals involve a serious risk of abuse and called upon the government concerned with a view to encouraging a return to
105. rts transfers demotions and so on the CFA recalled to the Gov ernment its responsibility to provide adequate protection against acts of anti union discrimination and hoped that then forthcoming legislation would conform to this principle Ultimately three workers were reinstated in their former positions dissuasive penalties against anyone preventing the exercise of FOA rights were incorporated into law and collective agreements were reached in the enterprise with the assistance of gov ernment mediation CFA Case N o 1571 278th Report para 548 279th Report paras 400 421 284th Report para 23 2 E 2 lt 2 E U Uu lt LL gt a LL 1 6 44 orkers shall enjoy adequate protection against acts of anti union Anti union discrimination in respect of their employment p p discrimination Convention N o 98 Article 1 1 FOA principles require the State to protect workers against anti union Substance of protection discrimination in their employment T his normally means that m legislative provisions must prohibit acts of anti union discrimination and these provisions must be broad enough in scope to cover all possible types of such discrimination such as refusal to hire dis missal transfer demotion or refusal to train and that m national procedures exist to ensure that complaints of anti union dis crimination are examined promptly impartially inexp
106. s m interference in the establishment of federations m limitations on international affiliation a interference in the drawing up of organization rules and constitu tions interference in freely electing trade union leaders and m the failure to protect against acts of interference 44 W orkers and employers organizations shall not be liable to be dis solved or suspended by administrative authority pg Convention N o 87 Article 4 W here administrative authorities are concerned the supervisory bodies have said first and foremost that national legislation should not provide for intervention by administrative authorities in dissolving and suspending organizations Rather the supervisory bodies ask gov ernments to change such legislation to bring it into conformity with FOA principles In recent years the CO E has noted with satisfaction changes in the laws of several countries which remove the power from administrative author ities to dissolve trade unions Some of these cases involve Colombia RCE 1992 C 87 Colombia Madagascar RCE 1991 C 87 Mada gascar Venezuela RCE 1991 C 87 Venezuela and Argentina RCE 1989 C 87 Argentina Where legislation does empower the administration to take such action conformity with FOA principles depends on the answers to a number of questions figure 8 Figure 8 State interference Safeguards in cases of administrative intervention Yes answers bring the
107. s membership 1 its statutes by laws iii information about its national international affiliations iv any information that would lead to an appreciation of the nature of the organization e Complaints emanating from organizations in exile which have been dis solved or have failed to satisfy the national administration of its lawful existence are not automatically deemed irreceivable but are rather con sidered on the basis of the information provided in d above f The organization must have a permanent existence which makes it pos sible to correspond with it 2 Complaint must be in a A copy of a communication to a third party is not sufficient the written writing communication must be directed to the ILO b The document may be sent by fax but it must be followed by an original document 3 Complaint must be signed a An entitled representative includes for example a president or execu by a representative of tive director It would not include for example a clerical assistantto the a body entitled to make president or a lowerJevel official of the organization a complaint b A request for anonymity will be respected only after the Director G eneral has examined the complaint and concluded that it contains allegations of some degree of gravity which have not previously been examined by the Committee c Electronic mail is not receivable as it cannot be signed Non governmental international or
108. s of assistance 2 8 ASSISTAN CE BY THE ILO 73 Considerations m Requests to ILO Multidisciplinary Advisory Teams MDTs Many of thelLO s MDTs have specialists in international labour standards who might be able to provide the assistance requested O ften assistance from this source can be quick and sensitive to local conditions Contact the nearest ILO Office to establish the situation of the MDT covering the country concerned Requests for assistance Requests for assistance should be sent to Freedom of Association Branch Human Rights and International Labour Standards Department International Labour O rganization CH 1211 Geneva 22 Switzerland a c 0 lt 2 lt U 2 0 LL a ia LL ANNEXES Annex 1 List of ratfications by country as of 15 September 1999 m Right of Association Agriculture Convention 1921 11 m Right of Association N on M etropolitan Territories Convention 1947 No 84 m Freedom of Association and Protection of the Right to Organize Convention 1948 N o 87 m Right to Organize and Collective Bargaining Convention 1949 N o 98 Workers Representatives Convention 1971 N o 135 Rural Workers O rganizations Convention 1975 N o 141 Labour Relations Public Service Convention 1978 N o 151 Collective Bargaining Convention 1981 N o 154 Countr l a amp 8 9 B m a Afghanistan Albania
109. s violations of FOA principles con cerning a non member of the ILO but a member of the United N ations an arrangement is in place for the U nited N ations to use the ILO 5 services including the FF CC for the purpose of exam ining the allegation T his arrangement requires however the agree ment of the country concerned In practice this agreement is typically not easy to secure Table 4 gives a summary of FFCC procedures Is the government concerned gt Has the government concerned Ratified the relevant FOA Convention N ot ratified the relevant Convention 2 4 Fact Finding and Conciliation Commission on Freedom of Association Background and function Table 4 FFCC procedures Recourse to the FFCC in the light of other procedures A member of the ILO y v COE can receive comments CFA can receive the allegation and would not normally recom mend referral to FFCC Articles 24 and 26 can be used O ffice assistance can be requested CFA can receive allegation and would not normally recommend referral to FFCC Not a member of the ILO v m COEcan receive comments i e supervision of a ratified Convention continues even if a State is no longer an ILO member Use of FFCC would require consent of the government Use of FFCC would require consent of the government 2 O 0 2 z lt U 2 Q 2 lt O e lt LL UO N
110. t a LL 44 in the absence of other arrangements for the collection of trade union dues workers representatives authorized to do so by the trade union should be permitted to collect such dues regularly on the premises of the undertaking pg CFA Digest of 1985 para 326 W orkers trade union associations which had been granted trade union status under the then new Acton Trade Union Associations adopted to the satisfaction of the COE to replace the law which had been the sub ject of COE comments for many years enjoy a number of privileges including the right to deduction of trade union dues RCE 1989 C 87 Argentina m facilities on plantations 44 Itis of special importance that the entry of trade union officials into plantations for the purpose of carrying out lawful trade union activities should be readily permitted provided that there is no interference with the carrying on of the work during working hours and subject to any appro priate precautions being taken for the protection of the property CFA Digest of 1985 para 220 The COE had asked the Government concerned to guarantee the right of trade union leaders to hold meetings on plantations It later noted an administrative order of compulsory application providing that vigi lance shall be increased in all sectors including plantations to ensure that the right of association of workers and their trade union leaders is n
111. tenance of public order to decide whether meetings including trade union meetings may in particular cir cumstances endanger public order and security and to take any nec essary preventive measures The authorities should resort to the use of force only in situations where law and order is seriously threatened The intervention of the forces of law and order should be in due proportion to the danger to law and order that the authorities are attempting to control and gov ernments should take measures to ensure that the competent authori ties receive adequate instruction so as to eliminate the danger entailed by the use of excessive violence when controlling the demonstrations which might result in disturbance of peace Consider FOA recourse CFA Digest of 1996 paras 141 142 CFA Digest of 1996 para 145 CFA Digest of 1996 para 136 CFA Digest of 1996 133 CFA Digest of 1996 paras 143 137 CFA Digest of 1996 para 130 FREEDOM OF ASSOCIATION A USER S GUIDE The Committee has always drawn a distinction between demonstrations in pursuit of purely trade union objectives which it has considered as falling within the exercise of trade union rights and those designed to achieve other ends Trade union premises may be searched but only where a warrant has been made by the judicial authority when that authority has good reason to believe that evidence of criminal proceedings under the
112. the conclusions unanimously reached on the basis of established principles by such a body as the Committee which is composed of Government Employers and Workers members Finally this influence derives to some extent from the publicity which the conclusions of an international body entail Bp CFA 193rd Report para 8 In addition some mechanisms and supervisory bodies related to a mechanism have particular characteristics related to them K nowing these characteristics may help the potential user decide which mechanism is the most appropriate Table 3 gives an overview of both the common and particular charac teristics of the various mechanisms With this introduction the following sections provide information on each of the supervisory mechanisms A Ithough its influence is less clear reporting by governments which 2 2 have not ratified the FOA Conventions on application of theprinci Article 19 reports ples has had an impact both on the application of the principlesin on unrat fied the States concerned and globally Conventions and Recommendations 44 the Member does not obtain the consent of the authority or authorities within whose competence the matter of ratification lies no further obligation shall rest upon the M ember except that it shall report to the Director G eneral of the International Labour Office at appropriate intervals as requested by the Governing Body the position of its law and
113. the grounds that It has been restricted restricted voluntary collective bargaining due to m theimposition of compulsory arbitration The CFA noted with interest information that legislation which provided independent compulsory arbitration in a case involving the railway transport sector was no longer in effect The legislation had ended a strike in that sector and given rise to a FO A case The CFA had recom mended that the Government concerned return to voluntary collective bargaining in the sector CFA Case No 1438 279th Report para 14 m intervention of authorities in the drafting of collective agreements m the requirement of administrative approval of freely concluded collective agreements The CO E noted with interest that worksevel collective agreements were no longer subjectto prior approval It continued to note with regret that agreements at other levels were still subject to prior approval and requested the Government to amend the legislation in this respect RCE 1996 C 98 Argentina m the cancellation of agreements because they were contrary to national economic policy m administrative or legislative intervention preventing compliance with currently applicable collective agreements or requiring the renegotiation of existing agreements The CFA noted with satisfaction the repeal of legislated transitional rules which had overridden certain previously negotiated collective agreements CFA Case No 1760 299th Rep
114. their interests Furthermore the administrative cancellation of a civil servants association 15 incom patible with the principles of freedom of association CFA Case N o 1189 238th Report paras 251 and 260 m port employees who by custom and agreement had been outside the coverage of the Trade Unions Act and therefore without the right to organize CFA Digest of 1996 para 218 m teachers who should have the opportunity to form occupational organizations CFA Case N o 1176 244th Report para 271 The COE noted with satisfaction that the Province of British Columbia repealed Section 80 of the University Act which had limited the right of university teachers to establish organizations of their own choosing The CO E had requested the Government to make the change RCE 1993 C 87 Canada T he State may decide how the right of association is applied to the armed forces and the police but in doing so those who are placed within these categories must be strictly defined 44 The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations Bp Convention N o 87 Article 9 T hus for example the supervisory bodies have found that m Civilian workers in the manufacturing establishments of the armed forces CFA D igest of 1996 para 223 m Civilian staff working at the Army Bank CFA Digest of 1996 para 224
115. thorities W here administrative authorities have the power to examine the books and other docu ments of an organization without safeguards of ordinary due process W here administrative authorities may conduct an investigation and demand information at any time W here there is a legisla tive provision which inter feres with organizations right to dispose of all their fixed and movable assets unhindered resolution concerning restrictions placed on the right to strike See section 1 7 Promo tion of collective bar gaining concerning restrictions placed on col lective bargaining W here organizations are forbidden from making financial contributions for any political activity W here there is a total ban on any political activities by trade unions W here legislation estab lishes a close relationship between trade union organizations and a single political party in power After having dissolved several unions executive councils and appointed government administrators by Executive Decree the Government heeded the observations and recommendations made by the supervisory bodies repealed the dissolution decrees and withdrew the government administrators The unions were able to conduct new elections of the offi cers without government interference CFA Case No 1793 312th Report paras 19 and 20 m Foreign workers should be allowed to take union office after a r sonable period of residence
116. ting collective bargaining Recognition of trade unions for the purpose of collective bargaining 1 8 Consultation practices Consultation principle 1 9 Facilities for workers representatives Part 2 Procedural options for enforcing freedom of association standards and principles 2 1 Introduction to the common issues Common issue 1 T hefacts Common issue 2 Ratification Selecting the supervisory mechanism 2 2 Article 19 reports on unratified Conventions and Recommendations Reporting for G eneral Surveys and on obstacles 2 3 Reports and comments to the Committee of E xperts Comments from workers and employers organizations Action by the COE Action by the Conference Committee 2 4 Fact Finding and Conciliation Commission on F reedom of Association Background and function 2 5 Allegations to the Committee on F reedom of Association Background and function Receivability Preliminary substantive issues Speedy action Urgent cases and delayed observations D irect and preliminary contacts H earing of the parties and review of the allegations CFA conclusions and recommendations Attention of the COE and other follow up 2 6 Article 24 representations Allegations by industrial associations of employers and workers Receivability Examination 70 70 71 12 73 13 13 74 77 83 10 17 18 21 23 26 33 33 39 47 53 56 60 62 68 70 2 7 Article 26 complaints Allegations leading to a Commission of Inquiry Commission
117. tions to hold meetings in to the general provisions applicable to all public their premises to discuss occupa meetings and must respect the reasonable limits tional questions without prior which may be fixed by the authorities to avoid authorization and interference by disturbances in public places organizations the authorities is an essential must comply with reasonable formalities element of freedom of association and the public authorities should refrain from any interference which would restrict this right or TE 117 impede its exercise unless public W ere formalities complied with order is disturbed thereby or its maintenance seriously and imminently endangered m The obligation on a procession to follow a predetermined itinerary does not constitute a violation of trade union rights W as public order disturbed or seriously and imminently threatened Although the prohibition of demonstrations on the public highway in the busiest parts of a city when itis feared that disturbances might occur does not constitute an infringe ment of trade union rights the authorities should strive to reach agreement with the organizers of the demonstration to enable itto be held in some other place where there would be no fear of disturbances W ere formalities reasonable W as the demonstration in pursuit of purely trade union objectives 1615 for the government which is responsible for the main
118. tions will be sent to the government concerned for action TheCFA will follow up on each of its open cases in ways appropriate to the most recent conclusions and recommendations It receives new information from governments and complainants for further exami nation of the case It may ask for additional information in cases where there is a delay in requested information being provided Ultimately the case will be closed or definitive conclusions and recommendations will be reached As part of their conclusions and recommendations the CFA may Attention of the COE bring an aspect of a case to the attention of the COE Thisoccurs and other follow up only where the FOA Convention has been ratified and thus the COE periodically requests government reports on application of the Con vention TheCOE will then ask the government concerned what mea sures it has taken to give effect to the recommendations of the CFA The COE will do this until they are satisfied that the necessary mea sures have been taken In cases brought to the attention of the CO E by the CFA the COE has been able to express its satisfaction for example when all teachers dismissed following a strike had been reinstated in their original services sanctions that had been applied to suspended public employees had been set aside and all political prisoners and administrative detainees had been freed CFA Case No 1266 241st Report para 141 RCE 1989 98 Burki
119. uld be made with a view to how they will be presented to a supervisory body For example m Doesthe possible infringement involve an action with ongoing implications such as infringement embodied in legislation or in policy m Doesthe possible infringement involve a specific act or occurrence perhaps requiring immediate remedial action such as the arrest or detention of trade unionists the seizing of an organization s assets the dissolution of an organization or the break up of a trade union meeting U LLI 2 WY 0 2 5 5 O 2 OQ Z E N a 3 O c 0 2 lt 2 lt U 0 0 LL Q a ia LL m Are witnesses necessary to show the possible infringement for example to give statements as to what happened or can the pos sible infringement be seen through public documents for example in legislation or the text of a policy document With this in mind the process of learning the facts should include col lecting in the appropriate form the information necessary to make out a case Relevant legislation court orders and judgements witness statements police reports and so on should all be copied for possible presentation to the supervisory bodies If copying is impossible detailed and specific notes should be taken of the information For example m A four page handwritten police incident report dated 1 M ay 1999 was read seen b
120. unionists are physically assaulted disappear or are mur dered a serious obstacle is placed before the exercise of associational rights m State involvement in the event cannot be tolerated m Regardless of whether the State is directly involved or implicated an independent judicial inquiry should determine the facts of the Case m Thoseresponsible should be punished and repeated acts prevented N or may the State stand idly by and permit private parties or individ uals to threaten the life security physical or moral integrity of the person The 1970 resolution noted in particular the freedom to hold opinions The freedom of opinion without interference and to see receive and impart information and and expression ideas through any media and regardless of frontier With regard to licences to publish m theissuance of any mandatory licence for publication should not be at the mere discretion of the licensing authorities m in practice the issuance of a licence should not be a method of prior restraint on the subject matter of publication m applications for licences should be dealt with promptly m feesor bonds should not have the effect of restricting publication A dministrative withdrawal of licences and the control of printing facilities or of paper supply should be subject to judicial review The supervisory bodies have taken a broad view of trade unions freedom of expression 44 The fear of the authorities of
121. x x x x Algeria x x 1 Angola x lt Antigua and Barbuda Argentina X X X X Armenia Australia x x x x Austria x X Azerbaijan x X X X X B ahamas Bahrain Bangladesh x x x Barbados Belarus Belgium X X X Belize x x x x Benin x x x Bolivia Bosnia and H erzegovina x x Botswana x x x y ee FREEDOM OF ASSOCIATION A USER S GUIDE Country Convention un 8 7 6 Brazil x Bulgaria Burkina Faso x x x Burundi x x Cambodia x Cameroon x x x Canada x Central African Republic X X Chad Chile x China x Colombia Comoros x x x Congo x x Costa Rica x x Cote d Ivoire x x Croatia Cuba Cyprus Xx x x Czech Republic X Democratic Republic of the Congo D enmark x D jibouti x x Dominica x x x Dominican Republic X X E cuador E quatorial G uinea E gypt X X X El Salvador E ritrea E stonia X X Ethiopia X X X Fiji x x Finland x x x France x x Gabon Gambia Georgia Germany x x x G hana 135 141 X X X Xx X 154 X Country Convention Se 9 8 ee G reece Grenada Guatemala Guinea G uinea B issau G uyana H aiti H onduras H ungary Iceland India Indonesia ran Islamic Republic of reland srael Italy Jamaica Ja
122. y to regulate the use of union security clauses in practice pp COE 1994 GS para 100 T he effect of laws which m makeit compulsory to join a particular union or m designate a specific trade union as the recipient of union dues isto establish atrade union monopoly and is contrary to FOA principles 44 However provisions which require deduction at source of contribu tions by all workers whether or not they are union members to a majority union without mentioning a specific trade union are in the view of the COE compatible with FO A principles Bg COE 1994 GS para 103 G overnments may not place one occupational organization at an advan tage or disadvantage in relation to another as this may influence workers choice regarding the organization to which they intend to belong In 1993 the COE noted with interest the repeal of provisions in M ada gascar under which only members of trade unions belonging to a revo lutionary organization had the right to be elected to workers committees These provisions placed one organization ata disadvan tage to another RCE 1993 C 87 Madagascar ale x d lt 2 s 2 lt X O M m 2 E a lt Z E A U Uu lt LL gt a LL 1 4 Dispute resolution Right to strike Freedom of association principles have had an impact on methods used to resolve disputes concerning collective
123. y issue an interim report with interim condusions and rec ommendations where the government concerned is asked to provide additional information or to take action to assist the CFA in exam ining the case further or reaching definitive conclusions T he gov ernment concerned may also be asked to remedy aspects of the case and report back to the CFA on the measures which have been taken The CFA will normally re examine the case after a period of time has passed After the re examination the CFA may make new interim conclusions and recommendations in light of any new information provided m TheCFA may make conclusions asking that it be kept informed of devdopments T his may occur where the CFA does not need addi tional information for its examination of the case and reaching of conclusions but where it wants to leave the matter open in order to follow developments before closing the case m heCFA may make definitive conclusions and recommendations where the government has been asked to take action and has reported back to the CFA on the measures taken T he case can be brought to a final conclusion in the eyes of the Committee With the report of the CFA before it the GB has the opportunity to discuss cases handled in the report Any discussion takes place in a private session O nce the G B adopts perhaps with modification the report with its conclusions and recommendations in different cases the conclusions and any recommenda
124. y the authorities in the election process posed by specific regulations should be minimal Limitations on international affiliation Interference in drawing up organization rules and constitutions Z i Z 2 E E Table 2 State interference in organizations Constitutions and rules Election of representatives Administration and activities Formulation of programmes m W here a firstlevel rade m Where very precise rules m W here there is perma B See section 1 4 Dispute 2 4 2 2 lt Z E lt U Uu lt LL gt a LL union may be required to conform to the constitu tion of a single federation m W here the constitution of a new trade union may be subject to approval by the central administration of the existing organization m W here the sole central organization or higher level organizations specified by the law may have the exclusive right to elaborate the bylaws of firstlevel trade unions m W here the constitutions may have to be drawn up by the public authorities m W here trade unions may be required to follow a model constitution which contains more than certain purely formal clauses or to use such a model as a basis m W here the approval of constitutions and rules of occupational organi zations is subject to the discretionary power of the public authorities m W here the public authori ties have the right to requ
125. y trade unionist John D oe on 3 M ay 1999 at Police H eadquarters m Legislative Decree 478 A of 1999 D eclaration of E mer gency is a one page document published by the G overnment on 1 M ay 1999 m Mary Doe secretary to the executive director can provide an eye witness account of the entry without a court order by administra tive authorities into trade union offices on 1 M ay 1999 It is important for the supervisory bodies to have objective evidence of the facts allegations of violation of FOA principles without sup porting objective evidence renders the task of the supervisory bodies more difficult T hisis why focus must be placed on statements of fact and factual events O nce the facts of a possible infringement are known two important questions can begin to be answered m AreFOA principles likely to have been infringed m Which of the supervisory mechanisms provides the most appro priate recourse to the infringement O nce again Part 1 should provide sufficient information to give an answer to the first question In the pages which follow more informa tion about the various procedures will be given to help answer the second question Ratification of the relevant ILO Convention on is required only Common issue 2 for certain types of recourse Ratification Figure 12 Procedural options Ratification and available mechanisms Has the relevant Convention been ratified Commentto COE

Freedom of Association: A user's guide

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