Freedom of Association

Freedom of association refers to the right of workers and employers to establish organizations which have the means to promote and defend the interests of their members. Without freedom of association (FOA) workers would not be able to create unions and enter into collective bargaining. FOA is a human right which is universally recognized, but often challenged.

The necessary pre-conditions for effective freedom of association are democracy and respect for civil liberties. Even if workers have the legal right to create unions it would not mean very much if governments could arbitrarily arrest them, confiscate union property, or physically threaten union organizers. Protection from these actions or threats is a right which can be insisted upon through the International Labour Organization.

The ILO is the United Nations agency which specializes in matters related to work in the world. It comprises of governments, and organizations which represent workers and employers. It promotes improved working conditions and practices by campaigning for the adoption of international labour standards. These standards are seen by the international community as the basic rules by which decent work in the world should be organized. They come in two forms: as Conventions which governments may ratify and incorporate as part of their legal framework, and Recommendations which are non-binding.

There are a number of Conventions related to freedom of association and collective bargaining, but the two fundamental ones are: No. 87, Freedom of Association and Protection of the Right to Organize (1948) and No. 98, Right to Organize and Collective Bargaining (1949). While all the Conventions and Recommendations of the ILO are relevant to the interests of unionists these two Conventions are considered particularly essential for the practice of free trade unionism. If a country has ratified either of these Conventions, workers and employers have the right to legal action in order to force their application. If unions and employer organizations feel that the Conventions are not being adhered to they can use the formal supervisory mechanisms of the ILO to complain and have their cases discussed. Moreover, complaints concerning violations of trade union rights by states concerning FOA can be brought to the ILO even if the country is not a member of the Organization[Note 1] or, if it is a member, even if it has not ratified the relevant Conventions. Complaints concerning violations are handled by the ILO's Committee on Freedom of Association.

Freedom of association and collective bargaining are considered especially important by the ILO because of the Organization's tripartite nature. Tripartism is the term used to describe equal participation and representation of governments and organizations which represent employers and worker in bodies within the ILO as well as at the national and enterprise level. Promoting social dialogue amongst the three partners (governments, workers and employers) is a primary source of social justice and one of the main safeguards of sustainable peace. The ILO is the only tripartite organization within the United Nations system.

Unions are represented in the Organization through their national centers. As well, the labour movement is represented at the ILO by its international bodies: the International Trade Union Confederation (ITUC), the largest such body, and the World Federation of Trade Unions (WFTU).

ILO Conventions, such as those related to freedom of association and collective bargaining, are legal frameworks. As such they need to be precise in their wording and cover their subjects as exhaustively as possible. For more detailed information concerning their application consult the resources provided at the end of this document.

This informal introduction to freedom of association and collective bargaining at the international level is designed to provide an entry point into the subject area for workers participating in labour education. It is divided into four major sections:

2. Convention No. 87: Freedom of Association and Protection of the Right to Organize

There is a critical relationship between the associational rights of workers' and employers' organizations and civil liberties. If they are to function properly, these organizations must be able to carry out their activities in a climate of freedom and security. Civil liberties that are essential to the normal exercise of trade union rights include:

The most dramatic example of the success of the ILO's work to protect human rights is when unionists are released from detention, frequently after having been subjected to harsh treatment or torture. This work is often in parallel with efforts made by the international confederations, such as the ITUC or the Global Union Federations (GUFs), which demand that countries abide by international labour standards as set by the ILO.

FOA principles demand that governments not interfere with the associational rights of workers and employers. These rights are the foundation of the exercise of basic union activities. Arrest or detention, physical threats, assaults or disappearances motivated by the trade union activities of the persons concerned can all be considered interference of FOA rights.

When union leaders, members or organizers (even before the union is formed) are arrested:

Especially important is that, according to the principles elaborated by the ILO’s supervisory bodies, "no impunity should prevail". This means people, groups and organizations in a country should be held accountable under the laws of the country. If acts against unions are not punished by the country's judiciary this reinforces a climate of violence and insecurity. This is extremely damaging to the exercise of trade union rights.

Workers should have the freedom to hold opinions and express them without interference. They should also be able to see, receive and give information and ideas through any media such as a union newspaper. In keeping with these principles the government should not be able to restrict the issuance of any mandatory publication licenses solely at the discretion of the licensing authorities. Applications for licenses should be dealt with promptly. And the issuance of a license should not be a way of restraining the subject matter of the publication or other media.

Also, the government must not interfere with the exchange of information. Actions contrary to this principle include:

Unions are, of course, involved with political matters and so governments may be concerned about them communicating their political views[NOTE 2]. But as the the ILO's Committee on Freedom of Association has written: "The fear of the authorities of seeing a trade union newspaper serve political ends unrelated to trade union activities, or which at least lie far outside their normal scope, is not sufficient reason to refuse to allow such a newspaper to exist."

Also, workers must be able to exercise their freedom of assembly, that is: to be able to hold peaceful meetings or demonstrations. They must be able to convene meetings in their union premises to discuss occupational questions without interference or prior authorization by the authorities. In questions relating to the disturbance of public order governments may take necessary preventative measures. However, resort to force should be limited to situations where law and order is seriously threatened and this force should be in proportion to the danger posed by any potential disturbance.

In 1948 the ILO's constituent partners - governments, workers and employers - working in a tripartite manner adopted the organization's 87th Convention: Freedom of Association and the Protection of the Right to Organize. The aim of the Convention was to protect the right of workers and employers to create and maintain organizations independently of governments. It is universally recognized, thought too often ignored, that the right to organize free and independent unions is a fundamental right of all working people. The right to organize depends on three principles:

A. That no distinction is to be made amongst those entitled
to the right of association

All workers and employers have the right to organize. There should be no distinction based on grounds of occupation, sex, colour, race, religion, age, residence, marital status, nationality or political opinion. The only exceptions allowed are the armed forces and police (interpreted narrowly, in the sense that different categories of workers like firefighters, prison staff or custom officers should not be included in the concept of police).

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

Authorities may prescribe legal formalities for the establishment of organizations as long as they ensure the normal functioning and publicity of the organizations. However, long complicated registration procedures would not be acceptable. Neither would the ability of authorities to have discretionary power over what organizations could be created. And crucially: there should exist a right to appeal to independent courts if the creation of an organization is refused.

C. That there is freedom of choice with regard to membership in organizations

Workers and employers should be able to establish and join organizations of their own choosing. The organizations themselves may have rules concerning membership. The authorities are allowed to stipulate rules and practices, but these should not unduly affect organizational structure and composition of the unions. Some limitations are acceptable though, such as demanding that organizations have a minimum number of members in order to be recognized. Minimum membership should be reasonable and not represent, in practice, an obstacle for the creation of a union.

The state should allow for the possibility of pluralism, for example: mulitiple unions within a particular occupation or employment sector. However, the government does have the right to provide recognition to the most representative organizations in a country. This allows for the striking of a balance between trade union unity and fragmentation in the labour movement. The determination of the most representative organization however should be based on objective, pre-established and precise criteria. Organizations recognized as most representative can be granted certain preferential rights, namely the right to collective bargaining, the right to be consulted by the government and the right to represent the workers in international or regional conferences, but other organizations in the country should be able to continue representing their members' interests.

Once their organizations are created workers and employers should be able to function independently. They should be able to draw up their constitution and rules, freely elect their representatives, organize their administration and activities, and formulate their programmes.

Authorities are allowed to stipulate certain formal requirements concerning trade unions constitution, such as provisions guaranteeing the democratic functioning of the organization. But a number of activities would be incompatible with the provisions of Convention 87. These include: demanding approval of by-laws by public authorities or existing trade unions, imposing model constitutions, or demanding that public authorities have the right to require amendments to constitutions. In case of disagreements between the organizations and the authorities there should be a procedure for appeal to an independent and impartial body.

Freely electing their representatives is essential for organizations. Public authorities should not be able to exercise control over the process. Election results should not be subject to approval by public authorities. If disagreements about elections arise there should be access to an independent and impartial judicial process. As for conditions stipulating eligibility of candidates the primary principle should be to ensure that qualified people are not disqualified. There could be violations of freedom of association if laws include eligibility conditions which:

Worker and employer organizations should also be able to organize their administration and activities. This means that unions should be able to formulate their own programmes and operate with the necessary financial autonomy and independence. Their premises, correspondence and other communications should not be violated. And their organization's assets should be protected.

The right of unions to formulate their programmes include the right to hold meetings, communicate with management, and obtain information from employers. Also their leaders or representatives should have the right to enter the workplace (with due respect for the rights of property and management).

Respect for the law of the land is a prerequisite for the creation and maintenance of unions and this must be accepted by all the social partners: worker and employer organizations as well as governments. However it is a clear principle that the law cannot contradict or impair the guarantees provided by the Convention.

The dissolution of an organization is the most extreme form of interference by public authorities. The Convention stipulates that "Workers' and employers' organizations shall not be liable to be dissolved or suspended by administrative authority." The resources listed at the end of this article should be consulted for more information.

A basic organizing principle of the labour movement is to build cohesion amongst labour groups in order to minimize fragmentation and maximize labour's influence locally, nationally and internationally. This can best be done by encouraging affiliations to other labour bodies. Unions at the local level should be allowed to join larger unions. Unions should be able to affiliate to national federations and international bodies such as the Global Union Federations (GUFs). And national confederations should be able to affiliate to international confederations such as the International Trade Union Confederation (ITUC) and the World Federation of Trade Unions (WFTU). These are not the only combinations possible of course, but the principle is clear: working people and their organizations are strengthened when they unite and should be allowed to do so.

FOA principles specifically include references to the right to associate or combine at higher levels occupationally and internationally. The organizations which are created should have the right to freely engage in activities to further the interests of their members. Convention 87 stipulates the organizations should enjoy the various rights accorded to the first-level organizations such as the right to freely elect representatives, create their own constitutions and organize programmes.

The right to strike is a fundamental right of workers and their organizations. This right may be governed by provisions stipulating conditions or restrictions (such as those relating to workers in services considered to be essential), but in general workers must be free to exercise their fundamental right to withdraw their labour by organizing a work stoppage. A strike is a legitimate weapon unions can use to further the interests of their members.

In principle, employers and workers, and their organization should be left alone to resolve their disputes. The methods they decide upon to address disputes are part of the organization of their activities and programmes. However, the ILO's Committee of Freedom of Association has agreed to many possible requirements in the application of the right: a cooling-off period, voluntary conciliation, mediation and arbitration procedures, the holding of a ballot, the acceptance of a reasonable quorum, essential services, minimum services, providing employer with prior notice and the possibility of an order to return to work in certain cases.

Some conditions may be considered too excessive though and possibly constitute violations of freedom of association rights. These include demands for a quorum of two-thirds of the workers and compulsory arbitration with binding result before calling a strike.

Any work stoppage, however brief and limited, can be considered a strike. Purely political strikes do not fall under the scope of freedom of association but workers should be able to have recourse to protest strikes, i.e., strikes against economic or social measures which a direct impact on leaving or working conditions of the workers. Sympathy strikes (which are strikes by groups of workers for the purpose of supporting another group of strikers) are lawful when the initial strike is lawful. Restrictions on strike pickets and workplace occupation should be limited to cases where the action ceases to be peaceful. It should be noted in this context that worker representatives at the ILO have continually rejected the view of some employers that property rights are above fundamental human rights in the world of work.

Meanwhile though, freedom of association principles do not protect workers if they abuse the right to strike. Sanctions provided in national legislation in case of abuse are acceptable. However all penalties should be proportionate to the offence or fault committed. Nobody should be imprisoned for organizing or participating in a peaceful strike, even if the strike is illegal following the failure to respect some formal requirements.

The declaration of certain services as essential therefore not allowing the workers to legally strike is often a contentious issue. Often attacks on the right to strike are accompanied by requests to widen the scope for essential services. Worker members of the ILO's Freedom of Association Committee have said: "Trying to expand the definition of essential services in the private, for-profit sector, is clearly a strategy to reduce the power and impact of strikes, thus weakening workers and their unions and creating an imbalance between the social partners." [NOTE 3]

With that understanding though there is a recognition, in the labour movement as well, that certain categories of workers can have their right to strike limited or even prohibited. These include:

Where restrictions have been placed on the right to strike in essential services and the public sector the ILO Committee on Freedom of Association has argued that the restrictions 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".

Governments are in a special position because they are legislative actors as well as employers. The supervisory bodies of the ILO have intervened in cases where the state's restrictions on the right to strike have been excessive. Such cases have involved general prohibitions of all strikes by all workers.

Also, the ILO's Committee on Freedom of Association has sought to promote the use of negotiated minimum services in certain public utility cases where, for example, the authorities had previously resorted to an absolute ban on strikes although the services concerned could not be considered essential in the strict sense of the term.

Sometimes employers and governments, especially in developing countries, argue that the Committee on Freedom of Association applies the principle of the right to strike without taking into account of national economic and political circumstances. However worker representatives at the ILO have pointed out that labour standards are universal and applicable at whatever level of social and economic development.

Occasionally it has been argued, especially by some governments and employers, that the "right to strike has no basis in either Conventions Nos. 87 or 98". However, even if not expressly mentioned in the Conventions the right to strike is fully recognized and protected. The ILO's supervisory instruments, including the Committee on Freedom of Association and the Committee of Experts, have frequently stated that the right to strike is a corollary of freedom of association and a fundamental right of workers giving rise to substantial case law in support of the right. As well, the ILO's top governing institution, the International Labour Conference, has adopted resolutions emphasizing recognition of the right to strike. [NOTE 4]

ILO Convention No 98 expands on the right to organize, especially in the area of discrimination against unionists and their organizations, protects workers’ organizations against acts of interference by employers and provides a focus on collective bargaining.

The Convention states that "Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment". The Convention requires the government to enact legislative provisions which prohibit acts of anti-union discrimination. These provisions must be broad enough in scope to cover all possible types of discrimination, such as refusal to hire, dismissal, transfer, demotion, or refusal to train. A primary principle of the Convention is that nobody "shall be prejudiced" in his or her employment by reason of their trade union membership or legitimate trade union activities. The employment period covered by the Convention includes when a worker takes up the employment, during the course of the employment, and at the time of termination.

In addition the Convention calls for the existence of national procedures which ensure that complaints of anti-union discrimination are examined properly, impartially, inexpensively and effectively. The country's laws should provide for effective and dissuasive sanctions to stop discrimination based on the legitimate trade union activities of the workers.

The Convention also addresses the need for protecting unions from interference. It stipulates that there should be total independence of workers' organizations from employers (and their organizations) while they conduct their union activities. To ensure this non interference there is a need to have legislation which expressly prohibits it. As well there is a need for a rapid appeal procedure. And, to ensure that the principles embodied in the Convention are respected, there is a need for effective and dissuasive sanctions.

Collective bargaining is a fundamental right of workers which is endorsed by member states of the ILO by the very fact of their membership in the Organization.

Two primary factors encourage free collective bargaining in a society: first, respect for freedom of association and civil liberties. Second, the existence of appropriate rules governing the process.

Additionally, worker organizations need to be representative of the people they bargain for. And the two parties in the process should recognize each other. Recognition procedures must be based on objective, pre-established and precise criteria.

ILO Convention No 98 stipulates the governmental obligation to promoting free and voluntary collective bargaining. It stipulates that "measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers and employers' organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

The purpose of collective bargaining is to negotiate the terms and conditions of work and employment and determine the relations between employers and workers and between organizations of workers and employers. Any unjustified delay in the holding of negotiations should be avoided. Once started the negociation process there is an obligation in collective bargaining to negotiate in good faith, which implies genuine and consistent efforts by both parties to reach an agreement. However, in order to guarantee the principle of free and voluntary collective bargaining, to negotiate in good faith does not mean that there is an obligation to conclude an agreement.

In its promotion of collective bargaining the ILO's supervisory mechanism has handled a broad range of cases. Many of these cases have challenged actions by a government on the grounds that it restricted voluntary collective bargaining due to:

The cases addressed by the ILO's supervisory mechanism result in legal interpretations and recommendations which clarify and give details about the scope of application of the provision of the Conventions. Since this document is an informal introduction to the international rules related to freedom of association and collective bargaining the resources listed at the end of the document should be consulted for more information.

In 1971 the ILO adopted a Convention which specifically addressed Workers' Representatives (No. 135). It defines workers' representatives as people who are designated or elected by trade unions or their members, or representatives who are freely elected by workers in an enterprise.

If worker representatives are acting in conformity with existing laws or collective agreements they should have effective protection against any act prejudicial to them, including dismissal based on:

If in the same enterprise there exist both trade union representatives and other representatives (as is the case with works councils in Europe) measures should be taken to ensure that the position of the unions is not undermined.

Because of the vital importance of freedom of association the ILO has established special procedures to examine complaints regarding infringements of trade union rights.

The procedures may be brought against governments even if they have not ratified the Organization's freedom of association conventions. When a country joins the ILO it formally accepts the obligations in the Organization's constitution, which includes the principle of freedom of association.

The Committee on Freedom of Association (CFA) is responsible for examining the substance of complaints presented to the Organization which involve possible violations of trade union rights. It submits its findings with conclusions and recommendations for adoption to the ILO's Governing Body. The Governing Body is the executive body of the International Labour Organization.

In addition to an independent chairperson the Committee consists of 9 members appointed by the Governing Body from the government, employer and worker representatives – three titular members titular from each social partner and substitutes. Its decisions are adopted unanimously.

The Committee is considered a quasi-judicial body since the procedure it follows conforms to the basic principles that apply to procedures in a court of law. Prior cases considered by the Committee constitute a digest of jurisprudence to which it referred to systematically in order to guarantee objective treatment ot the cases: similar principles are applied to similar situations. The Committee is not bound by any national judicial decision. National legal remedies do not have to be exhausted before filing a complaint with the Committee. From 1951 to 2008 the Committee dealt with more than 2,600 cases.

Complaints to the Committee on Freedom of Association must come from organizations of workers or employers or governments, not individuals. The organizations may be:

It is important to underline that non-recognised, exiled or dissolved organizations may also lodge complaints.

The resources listed at the end of this document should be consulted before a complaint is considered or submitted. But generally, the rules governing the acceptance of a complaint from an eligible organization are that it:

Once the Committee has issue the recommendations, trade unions have a very active role to play to try to obtain its practical application by the government. In many occasions, the Committee requests the complainant to send further information before examining certain aspect of the complaint. Unions should carefully reply to the Committee’s request to avoid some allegations being dropped by the Committee.

Freedom of association and collective bargaining may be human rights universally recognized but they are too often ignored in practice. Unions are in a particularly important position to promote these rights and ensure that they are respected. By working with national and international labour organizations to support the ILO's Conventions, unionists can play a crucial role in expanding the number of workers who are able to effectively exercise their rights to join a union and bargain for better wages and working conditions.

1. How can national or regional labour organizations help ensure that countries adhere to the principles of freedom of association?

2. Why are international labour standards concerning collective bargaining important to consider as globalization increases?

Freedom of Association, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO. Fifth (revised) edition, 2006

Bernard GERNIGON, Alberto ODERO y Horacio GUIDO, COLLECTIVE BARGAINING: ILO standards and the principles of the supervisory bodies, INTERNATIONAL LABOUR OFFICE, GENEVA, 2000

Bernard GERNIGON, Alberto ODERO and Horacio GUIDO, ILO PRINCIPLES CONCERNING THE RIGHT TO STRIKE, INTERNATIONAL LABOUR OFFICE, GENEVA, 2000

International Training Centre of the ILO - Freedom of Association Programme

International Labour Standards: A trade union training guide. (2007). International Training of the ILO. Turin.

Freedom of association: A users' guide. Standards, principles and procedures of the International Labour Organization. (2000). International Labour Office. Geneva.

Freedom of Association. Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO. Fifth revised edition. (2006). International Labour Office. Geneva.

Freedom of Association and Collective Bargaining, General Survey of the Committee of Experts on the Application of Conventions and Recommendations, 1994, International Labour Office, Geneva.

International Labour Standards: A trade union training guide. (2007). International Training of the ILO. Turin.

Freedom of Association and Collective Bargaining Electronic Library. (2007). International Training Centre of the ILO.

Notes

[1] The country should be, however, a member of the United Nations. In this case, the complaint is examined by the Fact Finding and Conciliation Commission on Freedom of Association and the consent of the Government concerned is required.

[2] The Committee has also pointed out that when issuing their publications, trade union organizations should have regard, in the interests of the development of the trade union movement, to the principles enunciated by the International Labour Conference at its 35th Session (1952) for the protection of the freedom and independence of the trade union movement and the safeguarding of its fundamental task, which is to ensure the social and economic well-being of all workers.

[3] Source: Note prepared and presented by the Worker members of the CFA to the meeting in March 2006, pg 4

[4] Source: Note prepared and presented by the Worker members of the CFA to the meeting in March 2006, pg 2