Freedom of association and Social Dialogue

Claude Akpokavie

Freedom of association and Social Dialogue

Claude Akpokavie

Freedom of association (FOA) is a universally recognised human right

Enabling right: democracy; development

Constitutional obligation in the ILO

Key importance because of the ILO tripartite structure

FOA : UNIVERSAL HUMAN RIGHTFOA : UNIVERSAL HUMAN RIGHT

Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87)

149 ratifications

ILO FOA INSTRUMENTSILO FOA INSTRUMENTS

Right to Organize and Collective Bargaining Convention, 1949 (No. 98)

159 ratifications

ILO FOA INSTRUMENTSILO FOA INSTRUMENTS

Labour Relations (Public Service) (No. 151), 1978

Collective Bargaining Convention (No. 154),1981

Rural Workers’ Organizations (No. 141), 1975

Workers’ Representatives Convention (No. 135), 1971

KEY COMPONENTS OF FOA & CB

Civil Liberties

Organisational rights

Dispute resolution

Non-Interference

Anti-union discrimination

Promotion of collective bargaining

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

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

Protects in law and in practice the freedom to establish organizations

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

Convention 87: article 2

Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of he organisation concerned, to join organisations of their own choosing without previous authorisation

CIVIL LIBERTIESCIVIL LIBERTIES

Civil liberties essential to the normal exercise of trade union rights:

The right to life and personal safety The right to freedom and security of person from arbitrary

arrest and detention Freedom of opinion and expression Freedom of assembly (before or at the time of meetings) The right to a fair trial by an independent and impartial

tribunal The right to protection of the property of trade union

organizations

No impunity should prevail. The absence of judgement reinforces the climate of violence and insecurity, extremely damaging to the exercise of trade union rights

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

FOA AND RESPECT OF CIVIL LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIESFOA AND RESPECT OF CIVIL LIBERTIES

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

This right to organize depends on three principles:

2. That there is no need for previous authorization to establish organizations

1. That no distinction are made among those entitled to the right of association

3. That there is freedom of choice with regard to membership of such organizations

1. 1. Right to establish and join organizations Right to establish and join organizations without distinctionwithout distinction whatsoever (art. 2) whatsoever (art. 2)

All workers and employers are covered

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

Only exception: armed forces and the police interpreted narrowly

2. 2. Right to establish organizations Right to establish organizations without without previous authorizationprevious authorization

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

Would be incompatible:

Right to appeal to independent courts against refusal of authorization

Long and complicated registration procedures Discretionary power granted to public authority

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

Subject only to the rules of organizations concerned

Rules and practices should not unduly affect organizational structure and composition. However, some limitations are acceptable as regards :

minimum number of members required

certain categories of workers to whom membership is limited at the first level as long as they can organise

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

Plurality and Monopoly: possibility of pluralism

Recognition of the most representative organizations

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

Determination based on objective, pre-established and precise criteria

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

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

Convention 87: article 3

Workers and employers organisations, shall have the right to draw up their own constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes

Public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof

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

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

Would be incompatible:

Procedure for appeal to an independent and impartial body

Approval of by-laws by public authorities or already existing trade union

Imposed model Constitution Where public authorities have the right to require amendments

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

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

No arbitrary interference by public authorities in the election process

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

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

Conditions of eligibility: possible violations of FOA if a law:

Requires that all candidates belong to an occupation or an enterprise

Requires that all candidates be national of the country. Possible requirement of a reasonable period of residence

Prohibits re-election

Excludes candidates because of their political beliefs or criminal records

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

Be able to formulate their programme

Covers necessary financial autonomy and independence

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

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

Right of organizations to formulate their programmes include:

Right to hold meetings

Right to have access to the working place by trade union leaders with due respect for the rights of property and management

Right to communicate with management

Right to obtain information

Right to present a list of dispute grievances

Political vs trade union activities

The right to strikeThe right to strike

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

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

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

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

Prerequisites found to be acceptable:

Prerequisite not acceptable:

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

Take strike decisions by secret ballot Give 20 days’ notice of a strike in certain services Give prior notice to the employer before calling a strike

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

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

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

civil servants exercising authority in the name of the state

workers in essential services : services the interruption of which would endanger the life, the personal safety or health of the whole or part of the population – hospitals, electricity & water utilities, air traffic control

acute national crisis (limited period of time)

Workers coveredWorkers coveredWorkers coveredWorkers covered

May take various forms

Abuse of the right to strikeAbuse of the right to strike

Sanctions provided in national legislation in case of abuse are acceptable

FOA principles do not protect against abuse

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

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

Most extreme form of interference by public authorities

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

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

Right to organize at higher level

Should enjoy the various rights accorded to first-level organizations

At the national level, would be incompatible: Requirement of an excessively large number of member

organizations

Prohibition imposed on setting up more than one confederation per occupation, branch of activity or region

Imposed monopoly at the federal or confederal levels

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

Workers’ and employers’ shall respect the law of the land

The law of the land shall not be such as to impair the guarantees provided for in the Convention

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

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

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

Promotion of collective bargaining

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

Armed forces and the police

Civil servants engaged in the administration of the state

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

Only exceptions:

All workers are covered

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

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

This protection is particularly necessary for trade union officials

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

Existence of broad enough protective provisions in legislation

Existence of procedures able to ensure that complaints are examined promptly, impartially, inexpensively and effectively

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

Period covered:

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

The law should provide for effective and dissuasive sanctions

Preventive or reparatory mechanisms

Inversion of the burden of proof

Compensation is not enough

Protection against acts of interference (art. 2)Protection against acts of interference (art. 2)

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

Necessary to have express legislative provisions against acts of interference

Effective and dissuasive sanctions

Rapid appeal procedure

Promotion of Collective Bargaining (art. 4)Promotion of Collective Bargaining (art. 4)

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

Process to create standards to govern labour relations

Conditions favouring collective bargaining:

Respect of FOA and civil liberties

Parties should be organized, independent and free from any public interference

Parties should be of equal strength

Appropriate rules governing the procedure

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

Parties should recognize each other

Recognition procedure based on objective, pre-established and precise criteria

Possible exclusive bargaining agent

Prohibition of Restrictions on the principle of free and voluntary negotiations

In the drafting of collective bargaining

In the form of administrative approval of freely concluded collective agreements

In cancellation of agreements because they are contrary to national economic policy

In compulsory extension of the period for which collective agreements are in force

restrictions on future agenda of collective bargaining Restrictions on clauses to index wages to cost of living

Compulsory arbitration

Intervention of public authorities

Implies genuine and consistent efforts by both parties to reach an agreement

Does not mean that there is an obligation to conclude an agreement

Any unjustified delay in the holding of negotiations should be avoided

Support measures aiming at promoting collective bargaining (information, statistics, voluntary procedures designed to facilitate bargaining)

Obligation to negotiate in good faith:

Terms and conditions of work and employment Regulation of the relations between employers and

workers and between organizations of workers and employers

Strict limitations possible in case of stabilization policies

Topics to be covered:

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

Levels of negotiation:

Agreements reached:

Collective agreements Other forms of agreements

* * *

Social Dialogue

Social DialogueSocial Dialogue

What is Social Dialogue?

"Social dialogue is defined by the ILO to include all types ofnegotiation, consultation or simply exchange of information between, or among representatives of governments, employers and workers, on issues of common interest relating to economic and social policy."

Social DialogueSocial Dialogue

Levels and forms of social dialogue:

Different levels national, sectoral, enterprise, regional, sub-regional, global?

Different formsnegotiation, consultation, information

Collective bargaining is a form of social dialogue

Social DialogueSocial Dialogue

What are the key components:

• Actors

• Institutions

• Agenda

Social DialogueSocial Dialogue

Who are the actors?

Bipartite (workers’ and employers’ organizations)

Tripartite (government, workers’ and employers’ organizations)

Social DialogueSocial Dialogue

What type of institutions?

Depends on industrial relations framework and culture:Formal, legally-based Informal, voluntaryAd-hoc arrangements

Key question: are the institutions flexible and efficient and do they facilitate the dialogue?

Social DialogueSocial Dialogue

The Agenda of social dialogue

The agenda must be rooted in the reality of the economic and social experiences of the parties

- Need for a shared analysis of the key problems- Need to develop a common vision- Adopt a problem-solving approach

Social DialogueSocial Dialogue

Why engage in social dialogue?

• Link between good industrial relations climate, productivity and competitiveness

• Minimizes conflict and promotes stability and social/industrial peace• Enhances flexibility and adaptability• Promotes innovation and joint problem-solving• Replaces adversarial approach with collaboration, consultative,

partnership approaches • Promotes win-win solutions

Social DialogueSocial Dialogue

Enabling Conditions for effective Social dialogue

Strong, independent workers' and employers' organizations with the technical capacity and the access to relevant information to participate in social dialogue;

Political will and commitment to engage in social dialogue on the part of all the parties;

Respect for the fundamental rights of freedom of association and collective bargaining;

Appropriate institutional support

Social DialogueSocial Dialogue

Lessons learnt for successful social dialogue• Respect• High levels of trust• Willingness to share power and influence• Search for a wider consensus• Acceptance of interdependence• Consultation, information-sharing, negotiation and deal-making• Respect for freedom of association – independence of actors• Open, democratic decision-making processes• Government is a key player• Trade-offs between and within interest groups• Willingness to embrace change• Dynamic not static process• Capacity to deliver• Links between different levels (national, enterprise, community, regional, global)