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Master in Industrial and Employment Relations

(2019-2020)
Contents
1. INTRODUCTION ........................................................................................................ 1
2. LEGAL FRAMEWORK ............................................................................................... 2
International Standards .................................................................................................. 2
2.1. National Standards .............................................................................................. 3
3. FREEDOM OF ASSOCIATION & THE ILO ................................................................ 3
3.1. Most relevant standards ...................................................................................... 3
3.2. Freedom of association as a fundamental principle & right at work...................... 3
3.3. Overview of guaranteed rights ............................................................................. 3
3.4. Right of workers and employers to establish and to join organizations of their own
choosing (individual sphere)........................................................................................... 4
3.5. Protection against acts of anti-union discrimination (individual spheres) .............. 6
3.6. Right of workers’ and employers’ organizations to draw up their constitutions and
rules, to elect their representatives in full freedom and to organize their administration and
activities (collective sphere). .......................................................................................... 7
3.7. Dissolution and suspension of organizations by administrative authority (collective
sphere) .......................................................................................................................... 9
3.8. Right of organizations to establish federations and confederations and to affiliate
with international organizations (collective sphere). ....................................................... 9
3.8.1. Protection against acts of interference (collective sphere) ............................... 9
4. THE RIGHT TO STRIKE .......................................................................................... 10
4.1. Introduction ....................................................................................................... 10
4.2. Employers’ group .............................................................................................. 10
4.3. Workers’ group .................................................................................................. 11
4.4. The Committee of Experts of the ILO ................................................................ 11
4.5. The right to strike in practice.............................................................................. 12
5. HOW IS COMPLIANCE WITH THE FREEDOM OF ASSOCIATION STANDARDS
SUPERVISED BY THE ILO? ........................................................................................... 12
6. FURTHER READING ............................................................................................... 13
References ......................................................................................................................... 14

Master in Industrial and Employment Relations


FREEDOM OF ASSOCIATION

1. INTRODUCTION
Freedom of association and expression is the foundation of a model of participatory
democracy, based on free debate among independent actors ( Rodgers, Lee, Swepston, &
Van Daele, 2009, p. 7). The Treaty of Versailles and the original ILO Constitution recognized
“the principle of freedom of association for all lawful purposes” among the principles on which
the ILO was founded. Organizing for the protection of economic interests was already well
established by the time the ILO was created in 1919 ( Rodgers, Lee, Swepston, & Van Daele,
2009, p. 47).
ILO Conventions on Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), and Right to Organise and Collective Bargaining Convention, 1949
(No. 98) form the basic international law on this subject. The basic principle in these
instruments is an elaboration of the general right to associate, which is recognized in virtually
all States. It is simply that all employers and workers have the right to organize to defend their
interests, and that the organizations thus formed have the right to operate independently to
do so.
This right is deeply rooted in political democracy, which cannot function fully unless freedom
of association is recognized. Protection of the right to freedom of association has therefore
been critical for the ILO and its member States over the years. While it is always difficult to
attribute too much credit to a single instrument, the outcome of a number of national crises
has been an increase in the legal and practical impact of the right of workers and employers
to organize, accompanying a greater degree of democracy, even if these crises have on
occasion taken years to resolve. The major violations of the Conventions are based on the
fear of governments – especially, but not only, totalitarian governments – that independent
trade unions, and sometimes employers’ organizations, are a threat to government power.
And indeed, in situations of crisis or political change, trade unions (and sometimes employers’
organizations) are often the only organized independent non-governmental entities.
Trade union leaders are often in the front line of political change in favour of greater
democracy, and in many cases are assassinated, imprisoned or exiled for their beliefs and
their actions. There have been a number of Commissions of Inquiry dealing with such
situations based on complaints under article 26 of the ILO Constitution, or Fact-Finding and
Conciliation Commissions when governments have agreed to this procedure. All these cases
have been undertaken in response to governments’ attempts to restrict the freedom of action
of trade unions. And they have all resulted in real improvements in the freedom of trade unions
to take part in economic governance – and sometimes in greater political freedom as well. (
Rodgers, Lee, Swepston, & Van Daele, 2009, p. 50).
Freedom of association and collective bargaining, are of vital importance for the social
partners, as they enable them to establish rules in the field of working conditions, including
wages, to pursue more general claims and to reconcile their respective interests with a view
to ensuring lasting economic and social development. Strong and independent workers‟
organizations are essential to compensate the legal and economic inferiority of workers.
Furthermore, employers’ organizations are particularly important for the protection of interests
of small enterprises. Workers‟ and employers‟ organizations are major tools for labour market
governance and for the development of industrial relations systems that are vectors of stability,
progress and economic and social prosperity. They also make it possible to ensure the

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effective application of labour legislation through the denunciation of violations of the law
wherever necessary. In addition, these organizations participate in consultation machinery for
the definition of economic and social policy and the formulation of draft labour legislation. It is
therefore essential to ensure their independence in relation to the public authorities and
political parties, as recalled by the resolution adopted by the International Labour Conference
in 1952 concerning the independence of the trade union movement (ILO, 2012, p. 18 (par.51)).
2. LEGAL FRAMEWORK
The right to freedom of association stems from multiple legal sources that include both
international and national standards.
International Standards

United Nations

•Universal Declaration of Human Rights (1948) (article 20, 23)


•Convention Relating to the Status of Refugees (1951) (article 15)
•International Covenant on Economic, Social and Cultural Rights (1966) (article 8)
•International Covenant on Civil and Political Rights (1966) (article 21, 22)
•Convention on the Rights of the Child (1989) (article 15)
•Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (1998)

International Labour Organization

•ILO Constitution (Preamble) and Declaration of Philadelphia


•Declaration of Fundamental Principles and Rights at Work, 1998
•Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)
•Right to Organise and Collective Bargaining Convention, 1949 (No. 98)
•Right of Association (Agriculture) Convention, 1921 (No. 11)
•Rural Workers’ Organisations Convention, 1975, (No. 141) and Recommendation (No. 149)
•Collective Agreements Recommendation, 1951 (No. 91)
•Workers’ Representatives Convention, 1971 (No. 135) and Recommendation, (No. 143)
•Labour Relations (Public Service) Convention, 1978 (No. 151) and Recommendation (No. 159)
•Collective Bargaining Convention, 1981 (No. 154) and Recommendation (No. 163)

Council of Europe

•Convention for the Protection of Human Rights and Fundamental Freedoms (1959) (article11)
•European Social Charter (1961) (article 5, 6)
•Charter of Fundamental Rights of the European Union (2000) (article 12)

Organization of American States

•American Convention on Human Rights (1969) (article 15, 16)

African Union

•African Charter on Human and Peoples’ Rights (1981) (article 10, 11)
•African Charter on the Rights and Welfare of the Child (1990) (article 8)

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2.1. National Standards
Freedom of association is guaranteed in almost all national constitutions. In most cases, the
constitution provides that this freedom shall be exercised in accordance with the law. Most
constitutions also provide for a number of exceptions, in particular in relation to security forces,
or leave the determination of exceptions to the law. Specific references to the right to freely
form, to join or not to join trade unions are also found in many constitutions (ILO, 2012, p. 4).
3. FREEDOM OF ASSOCIATION & THE ILO
3.1. Most relevant standards
Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87):
This fundamental convention sets forth the right for workers and employers to establish and
join organizations of their own choosing without previous authorization. Workers' and
employers' organizations shall organize freely and not be liable to be dissolved or suspended
by administrative authority, and they shall have the right to establish and join federations and
confederations, which may in turn affiliate with international organizations of workers and
employers. 1
Right to Organise and Collective Bargaining Convention, 1949 (No. 98):This fundamental
convention provides that workers shall enjoy adequate protection against acts of anti-union
discrimination, including requirements that a worker not join a union or relinquish trade union
membership for employment, or dismissal of a worker because of union membership or
participation in union activities. Workers' and employers' organizations shall enjoy adequate
protection against any acts of interference by each other, in particular the establishment of
workers' organizations under the domination of employers or employers' organizations, or the
support of workers' organizations by financial or other means, with the object of placing such
organizations under the control of employers or employers' organizations. The convention also
enshrines the right to collective bargaining. 2
3.2. Freedom of association as a fundamental principle & right at work
According to the 1998 ILO Declaration on Fundamental Principles and Rights at Work, all
Member States of the ILO, even if they have not ratified all the relevant international labour
Conventions, have an obligation arising from the very fact of membership of the Organization,
to respect, to promote and to realize, in good faith and in accordance with the ILO Constitution,
the principles concerning the fundamental rights which are the subject of those Conventions,
namely: (a) freedom of association and the effective recognition of the right to collective
bargaining; (b) the elimination of all forms of forced or compulsory labour; (c) the effective
abolition of child labour; and (d) the elimination of discrimination in respect of employment and
occupation (ILO, 2008, p. 1 (par. 3)).
3.3. Overview of guaranteed rights 3

1 Source: https://www.ilo.org/global/standards/subjects-covered-by-international-labour-
standards/freedom-of-association/lang--en/index.htm
2 Source: https://www.ilo.org/global/standards/subjects-covered-by-international-labour-
standards/freedom-of-association/lang--en/index.htm
3 This section is a summary of the main conclusions included in the 2012 General Survey on the

fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for
a Fair Globalization.

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The Freedom of Association and Protection of the Right to Organize Convention No. 87, sets
two spheres of protection: an individual freedom sphere (entitles workers and employers) and
a collective freedom sphere (guarantees rights to trade unions - workers‘ organizations - and
to employers‘ organizations).
The principal objective of Convention No. 87 is to protect the autonomy and independence of
workers’ and employers’ organizations in relation to the public authorities, both in their
establishment and in their functioning and dissolution (ILO, 2012, p. 19, par.55).
3.4. Right of workers and employers to establish and to join organizations of their own
choosing (individual sphere).
General principle. By virtue of Article 2 of Convention No. 87, all workers 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 previous
authorization.
Necessary framework. Freedom of association cannot be adequately exercised if the
following fundamental rights are not guaranteed by the Member State:
(i) the right to freedom and security of person and freedom from arbitrary arrest and
detention;
(ii) freedom of opinion and expression, and in particular freedom to hold opinions
without interference and to seek, receive and impart information and ideas through
any media and regardless of frontiers;
(iii) freedom of assembly;
(iv) the right to a fair trial by an independent and impartial tribunal; and
(v) the right to protection of the property of trade union organizations.

The ILO supervisory bodies have since unceasingly stressed the interdependence between
civil liberties and trade union rights, emphasizing that a truly free and independent trade union
movement can only develop in a climate free from violence, pressure and threats of any kind
against the leaders and members of such organizations (ILO, 2012, p. 22, par 59).
“Without distinction whatsoever”. These guarantees apply to all employers and workers in
the private and public sectors, including seafarers, agricultural workers, migrant workers,
domestic workers, apprentices, subcontracted workers, dependent workers, workers
employed in export processing zones and in the informal economy, and self-employed
workers. This right also has to be guaranteed in both law and practice without distinction or
discrimination of any sort, particularly with regard to race, nationality, sex, civil status, age,
occupation and political opinions and activities (ILO, 2012, p. 19, par 53).

Key elements: Who? Workers & Employers + Broad + No discrimination.

Authorized exceptions. As an exception armed forces and police, can be excluded; though
this exception should be interpreted in a restrictive manner (ILO, 2012, p. 19, par 53).
“Without previous authorization”. National rregulations can provide for registration
procedures, including mainly formalities, provided that they do not in practice impose a
requirement of “authorization”, or give the authorities discretionary power to refuse the
establishment of an organization; nor must they constitute such an obstacle that they amount
in practice to a pure and simple prohibition (ILO, 2012, p. 30, par.82). Trade unions should

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have the right to appeal to impartial and independent courts against any administrative
decision relating to their registration (ILO, 2012, p. 33, par.88)

Key elements:

• Under this provision, legal formalities to ensure normal functioning, publicity and
democratic structure of the organization are compatible with the Convention.
• Complicated, discretionary registration is contrary to the Convention.

“Of their own choosing”. This provision encompasses several thematic issues:

• Structure and composition of organizations: Minimum membership. Minimum membership


numbers must be reasonable and in relation to the level where organization will be
established (industry, sector, enterprise, etc.).

• Right to join several organizations. it is important to allow workers in the private and public
sectors who are engaged in more than one job in different occupations or sectors to join
the corresponding unions as full members (or at least, if they so wish, to join trade unions
at the branch level as well as the enterprise level at the same time). Obliging workers
toonly join one trade union could unduly prejudice their right to establish and join
organizations of their own choosing (ILO, 2012, p. 34, par.91).

• Trade union monopoly. Trade union unity imposed directly or indirectly by law is contrary
to the Convention, since trade union diversity must remain possible in all cases. It is
important for workers to be able to change trade union or to establish a new union for
reasons of independence, effectiveness or ideological choice (ILO, 2012, p. 34, par.92).

• Coercion or favouritism by the public authorities. It may take various forms: pressure
exerted on organizations in public statements by the authorities; unequally distributed aid;
premises provided for holding meetings or activities to one organization, but not to another;
refusal to recognize the officers of some organizations in the exercise of their legitimate
activities, etc (ILO, 2012, p. 36, par. 95).

• Recognition of the most representative trade unions. In an attempt to establish a proper


balance between imposed trade union unity, which is incompatible with the Convention,
and the excessive multiplication of trade unions, the legislation in some countries
establishes the concept of the “most representative trade unions”, which are granted a
variety of rights and advantages. There are different methods to determine the most
representative trade unions and the manner in which they jointly or separately engage in
collective bargaining. In the view of the Committee of Experts of the ILO, this concept is
not in itself contrary to the principle of freedom of association, but must be accompanied
by certain conditions, namely: (i) the determination of the most representative
organizations must be based on objective, pre-established and precise criteria, so as to
avoid any possibility of bias or abuse; and (ii) the distinction should be limited to the
recognition of certain preferential rights (for example, for such purposes as collective
bargaining, consultation by the authorities or the designation of delegates to international
organizations) (ILO, 2012, p. 36, par. 96).

• Trade union security and the right not to join an organization. Although, in several
countries, the law guarantees directly or indirectly the right not to join a trade union
organization and forbids the exercise of any constraint to oblige a person to join or support
a trade union, in other countries the law allows “union security” clauses in collective

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agreements or arbitration awards. Union security clauses are intended, for example, to
make trade union membership compulsory or to require the payment of dues by workers
who are not members (agency fees) and who benefit from the advantages of the collective
agreement negotiated by the union. Although each State should decide whether it is
appropriate to guarantee the right of workers not to join an occupational organization, or
on the other hand, to authorize and, where necessary, to regulate the use of union security
clauses in practice, such clauses should be the result of free negotiation between workers‟
organizations and employers including public employers. On the other hand, compulsory
contribution towards the maintenance of trade unions or employers’ associations, imposed
by law, runs against the right to freely join the organization of one’s own choosing. It
becomes especially problematic if these contributions are collected by the Government,
which has not been party to the negotiation of such clauses, and eventually distributed to
trade unions or employers’ organizations, since such a degree of involvement raises
concerns as to possible undue interference of the State in their activities (ILO, 2012, p. 37,
par. 99).

3.5. Protection against acts of anti-union discrimination (individual spheres)


Under the terms of the first two articles of Convention No. 98, States are under the obligation
to take specific measures to ensure both: (i) the adequate protection of workers against any
acts of anti-union discrimination both at the time of taking up employment and in the course of
employment, including at the time of the termination of the employment relationship, and
covering acts of anti-union discrimination in respect of their employment (dismissal, transfer,
demotion and other prejudicial acts); and (ii) adequate protection for workers’ and employers’
organizations against any acts of interference by each other in their establishment, functioning
or administration (ILO, 2012, p. 70, par. 173).
The acts of anti-union discrimination against which, in accordance with the Convention, States
have to provide adequate protection in both law and practice include in particular measures
with the following objectives: (i) making the employment of a worker subject to the condition
that he or she shall not join a union or shall relinquish trade union membership; or (ii) causing
the dismissal of or otherwise prejudicing a worker by reason of union membership or because
of participation in union activities outside working hours or, with the consent of the employer,
within working hours (Article 1(2)) (ILO, 2012, p. 72, par. 176).
Recruitment and “blacklists”. Hiring procedures give rise to specific risks of anti-union
discrimination. A worker who is the victim of anti-union discrimination at the hiring stage may
face insurmountable difficulties because it will often be virtually impossible to prove that her
or his union membership or past trade union activities were the real reason for the refusal of
employment (ILO, 2012, p. 73, par. 178).
Other measures, such as transfer, relocation, demotion, withdrawal of benefits or restrictions
of all kinds (remuneration, social benefits, vocational training, etc.) may be adopted for anti-
union reasons and cause serious prejudice to the worker concerned. The same applies in
certain cases to the non-renewal of contracts of employment, pressure and harassment (ILO,
2012, p. 73, par. 179).
Dismissal. Of all forms of anti-union discrimination, dismissal is probably the one with the
most serious consequences. Special attention should be given to guarantee workers adequate
protection against dismissal occurring: (i) in the context of industrial action, (ii) in the context
of collective bargaining (particularly the negotiation of multi-business agreements and “pattern

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bargaining”), and (iii) dismissals for economic reasons, if they are used as an indirect means
of engaging in acts of anti-union discrimination.
How to provide for “adequate protection”? The most ordinary methods are: (i) preventive
measures (such as the need to obtain prior authorization from the judicial authorities, an
independent authority or the labour inspectorate for the dismissal of a staff representative or
a trade union delegate); (ii) compensation and sufficiently dissuasive sanctions (civil,
administrative or penal) and/or; (iii) the reinstatement of a worker dismissed by reason of trade
union membership or legitimate trade union activities with retroactive compensation which, in
the absence of preventive judicial or administrative procedures of prior authorization,
constitutes the most effective remedy for acts of anti-union discrimination.
When a country opts for a system of compensation and fines, the Committee of Experts of the
ILO considers that the compensation envisaged for anti-union dismissal should fulfil certain
conditions: (i) be higher than that prescribed for other kinds of dismissal, with a view to the
effective dissuasion of this type of dismissal; (ii) be adapted in accordance with the size of the
enterprises concerned (it has considered, for example, that while compensation of up to six
months’ wages may be a deterrent for small and medium-sized enterprises, that is not
necessarily the case for highly productive and large enterprises); and (iii) the amount be
reviewed periodically (particularly in countries with galloping inflation where the compensation
soon becomes merely symbolic), based for example on a minimum number of wage units or
units of taxable income (ILO, 2012, p. 76, par. 185).
Who are the persons protected? While the Convention requires protection against acts of
anti-union discrimination in relation to all workers, the protection provided for in the Convention
is particularly important in the case of trade union representatives and officers. One of the
ways of ensuring this protection is to provide that trade union representatives may not be
dismissed or otherwise prejudiced either during their term of office, or for a specified period
following its expiry (ILO, 2012, p. 76, par 186).
Effective and rapid procedures. The existence of legal provisions prohibiting acts of anti-
union discrimination is not enough if they are not accompanied by effective and rapid
procedures to ensure their application in practice. This general principle, is based on Article 3
of the Convention, which provides that “[m]achinery appropriate to national conditions shall be
established, where necessary, for the purpose of ensuring respect for the right to organise as
defined in [Articles 1 and 2]” (ILO, 2012, p. 78, par. 190).
Burden of proof. One of the main difficulties in relation to allegations of discrimination in
general, and of anti-union discrimination in particular, relates to the burden of proof. In
practice, placing on workers the burden of proving that the act in question occurred as a result
of anti-union discrimination may constitute an insurmountable obstacle to establishing liability
and ensuring an appropriate remedy. In response, certain States have decided to strengthen
the protection of workers by requiring the employer, under certain conditions, to prove that the
act of alleged anti-union discrimination was caused by factors other than trade union activity
or membership. Provisions introducing a “reversal of the burden of proof” are among the
preventive mechanisms designed to afford protection against anti-union discrimination which,
usefully supplement the other types of sanctions and compensation measures that may be
adopted in this field (ILO, 2012, p. 78, par. 192).

3.6. Right of workers’ and employers’ organizations to draw up their constitutions and

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rules, to elect their representatives in full freedom and to organize their
administration and activities (collective sphere).
Legislative provisions which regulate in detail the internal functioning of workers’ and
employers‟ organizations pose a serious risk of interference.
Drawing up of constitutions and rules. Two conditions have to be met to guarantee fully
the right of workers’ and employers’ organizations to draw up their constitutions and rules: (i)
national legislation should only lay down formal requirements respecting trade union
constitutions, except with regard to the need to follow a democratic process and to ensure a
right of appeal for the members; and (ii) the constitutions and rules should only be subject to
the verification of formal requirements by the authorities (ILO, 2012, p. 38, par.100).
Freedom to elect representatives. This right can be subdivided in two aspects: (i) election
procedures (there should be no interference of authorities in the election procedures); and (ii)
conditions of eligibility of representatives (see grounds below).
Requirement to belong to an occupation or to an enterprise, and service requirements. The
conditions of eligibility of representatives should be flexible, either by admitting as candidates
persons who have previously been employed in the occupation concerned, or by exempting
from the occupational requirement a reasonable proportion of the officers of an organization.
Nationality, age and literacy: National legislation should allow foreign workers to take up trade
union office, at least after a reasonable period of residence in the host country. Requirements
of age of majority, or be able to read and write, are incompatible with the Conventions.
Political views or activities: Legislation cannot prohibit the exercise of trade union functions
solely on the grounds of political belief, affiliation or activities.
Criminal record: conviction for an act the nature of which is not such as to call into question
the integrity of the person concerned and is not such as to be prejudicial to the performance
of trade union duties should not constitute grounds for disqualification from trade union office.
Re-election: any legislative provision, irrespective of its form, which restricts or prohibits re-
election to trade union office is incompatible with the Convention.
Removal and suspension of trade union officers: the exercise of trade union office is not
incompatible with professional life and, consequently, any worker exercising trade union office,
including high-level civil servants should be able to remain in an employment relationship, if
she or he so wishes.
Organization of administration, activities, and formulation of programmes.
Financial management. The autonomy and financial independence and the protection of the
assets and property of organizations are essential elements of the right of organizations to
organize their administration in full freedom. In this view, only limited supervision is allowed,
including the following:

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Can
•obligation of submitting annual financial reports
•serious grounds for believing that the actions of an organization
are contrary to its rules or the law
•significant number of workers call for an investigation

Cannot
•establish the minimum contribution of members
•Supervision of financial accounts by the authorities
•Regulation of maximum salaries
•restrict the freedom of trade unions to invest, manage and use
their assets

Internal administration and inviolability of union premises. Includes matters no intervention in:
settlement of internal disputes, issues relating to membership and members’ dues; decisions
to terminate the activities of an organization, decisions relating to the procedure for the
submission of claims to the employer. This freedom also includes the right of organizations to
be able to dispose of all their fixed and moveable assets unhindered, and that they should
enjoy inviolability of their premises, correspondence and communications (ILO, 2012, p. 45,
par. 13-14).
Activities and programmes. Workers’ and employers’ organizations should have the right to
organize their activities in full freedom and to formulate their programmes with a view to
defending the occupational interests of their members, while respecting the law of the land.
This includes in particular the right to hold trade union meetings, the right of trade union officers
to have access to places of work and to communicate with management, the right to organize
protest action, as well as certain political activities (ILO, 2012, p. 45, par. 115).
3.7. Dissolution and suspension of organizations by administrative authority (collective
sphere)
The dissolution and suspension of trade union organizations constitute extreme forms of
interference by the authorities in the activities of organizations and should therefore be
accompanied by all the necessary guarantees. This can only be ensured through a normal
judicial procedure, which should also have the effect of a stay of execution (ILO, 2012, p. 65,
par. 162).
3.8. Right of organizations to establish federations and confederations and to affiliate
with international organizations (collective sphere).
In order to defend the interests of their members more effectively, workers’ and employers’
organizations should have the right to form federations and confederations of their own
choosing, which should themselves enjoy the various rights accorded to first-level
organizations, in particular as regards their freedom of operation, activities and programmes.
International solidarity of workers and employers also requires that their national federations
and confederations be able to group together and act freely at the international level (ILO,
2012, p. 65, par. 163).
3.8.1. Protection against acts of interference (collective sphere)

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Under the terms of article 2 of the Convention, workers’ and employers’ organizations shall
enjoy adequate protection against any acts of interference by each other or each other’s
agents or members in their establishment, functioning or administration. Acts of interference
are deemed to include acts which are designed to promote the establishment of workers’
organizations under the domination of an employer or an employers’ organization, or to
support workers’ organizations by financial or other means, with the object of placing such
organizations under the control of employers or employers’ organizations. Similarly,
discrimination against a representative employers’ organization, for example through its
exclusion from participation in the preparation of labour legislation or consultations on social
and economic matters, would not be in conformity with the Convention (ILO, 2012, p. 79, par.
194).
With regard to the contribution of employers to the financing of trade unions, or affording trade
union organizations certain facilities, the Committee of Experts of the ILO considers that, while
there is no objection in principle to a public or private employer expressing its wish to promote
the capacity of a trade union as a social partner in this manner, this should not have the effect
of allowing the employer control over the trade union, or of favoring one trade union over
another. It is essential for workers’ and employers‟ organizations to maintain their
independence so that they can defend the interests of their members effectively (ILO, 2012,
p. 80, par. 196).
4. THE RIGHT TO STRIKE
4.1. Introduction
Strikes are essential means available to workers and their organizations to protect their
interests, but there is a variety of opinions in relation to the right to strike. While it is true that
strike action is a basic right, it is not an end in itself, but the last resort for workers‟
organizations, as its consequences are serious, not only for employers, but also for workers,
their families and organizations and in some circumstances for third parties. In the absence of
an express provision in Convention No. 87, it was mainly on the basis of article 3 of the
Convention, which sets out the right of workers‟ organizations to organize their activities and
to formulate their programmes, and article 10, under which the objective of these organizations
is to further and defend the interests of workers, that a number of principles relating to the
right to strike were progressively developed (as was the case for other provisions of the
Convention) by the Committee on Freedom of Association as a specialized tripartite body (as
of 1952), and by the Committee of Experts (as of 1959, and essentially taking into
consideration the principles established by the Committee on Freedom of Association). This
position of the supervisory bodies of the ILO in favour of the recognition and protection of the
right to strike has, however, been subject to a number of criticisms from the Employers’ group
in the Committee on the Application of Standards of the International Labour Conference (ILO,
2012, p. 46, par. 117).
4.2. Employers’ group
The Employers’ group considers that neither the preparatory work for Convention No. 87, nor
an interpretation based on the Vienna Convention on the Law of Treaties, offers a basis for
developing, starting from the Convention, principles regulating in detail the right to strike.
According to the Employer members, the right to strike has no legal basis in the freedom of
association Conventions. In their view, Convention No. 87 at most contains a general right to
strike, which nonetheless cannot be regulated in detail under the Convention. They consider

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that when the Committee of Experts expresses its views in detail on strike policies, especially
on essential services, it applies a “one-size-fits-all” approach that fails to recognize differences
in economic or industrial development and current economic circumstances. They add that
the approach of the Committee of Experts undermines tripartism and ask it to reconsider its
interpretation of the matter. In 2011, the Employer members reiterated their position,
considering that the observations of the Committee of Experts on the right to strike and
essential services are not in conformity with the text, the preparatory work and the history of
the negotiation of Convention No. 87 (ILO, 2012, p. 47).
4.3. Workers’ group
The Worker members of the Conference Committee contest the position of the Employer
members and consider that, although the right to strike is not explicitly mentioned in the
Convention, that does not prevent its existence being recognized, particularly on the basis of
several international instruments.
4.4. The Committee of Experts of the ILO
Background of the right. With regard to the views put forward that the preparatory work
would not support the inclusion of the right to strike, the Committee would first observe that
the absence of a concrete provision is not dispositive, as the terms of the Convention must be
interpreted in the light of its object and purpose. While the Committee considers that the
preparatory work is an important supplementary interpretative source when reviewing the
application of a particular Convention in a given country, it may yield to the other interpretative
factors, in particular, in this specific case, to the subsequent practice over a period of 52 years
(see Articles 31 and 32 of the Vienna Convention on the Law of Treaties). In addition, and as
seen below in response to comments made by both workers’ and employers‟ organizations,
the process of determining whether there is compliance with a general right to strike invariably
involves consideration of the specific circumstances in which the Committee is called upon to
determine the ambit and modalities of the right. The Committee has further borne in mind over
the years the considerations set forth by the tripartite constituency and would recall in this
respect that the right to strike was indeed first asserted as a basic principle of freedom of
association by the tripartite Committee on Freedom of Association in 1952 and has been
recognized and developed in scores of its decisions over more than a half century. Moreover,
the 1959 General Survey, in which the Committee first raised its consideration in respect of
the right to strike in relation to the Convention, was fully discussed by the Conference
Committee on the Application of Standards without objection from any of the constituents (ILO,
2012, p. 48, par. 118).
Other international sources of recognition. The affirmation of the right to strike by the
supervisory bodies lies within the broader framework of the recognition of this right at the
international level, particularly in the International Covenant on Economic, Social and Cultural
Rights of the United Nations (Article 8, paragraph 1(d)), 261 which, to date, has been ratified
by 160 countries, most of which are ILO members, as well as in a number of regional
instruments, as indicated in paragraph 35 of the present Survey. It is in the context of the
Council of Europe that the protection of the right to strike is the most fully developed at the
regional level, in light of the abundant case law of the European Committee of Social Rights,
the supervisory body for the application of the European Social Charter adopted in 1961 and
revised in 1996, which sets out this right (ILO, 2012, p. 49, par. 120).

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Recognition at the national level. Although the exercise of the right to strike is in most
countries fairly commonly subject to certain conditions or restrictions, the principle of this right
as a means of action of workers’ organizations is almost universally accepted. In a very large
number of countries, the right to strike is now explicitly recognized, including at the
constitutional level (ILO, 2012, p. 50, par. 123).
Consistent practice. Each year, the Committee examines many individual cases relating to
national provisions regulating strikes, most frequently without being challenged by the
governments concerned, which generally adopt measures to give effect to the comments of
the Committee of Experts. Over the years, the supervisory bodies have specified a series of
elements concerning the peaceful exercise of the right to strike, its objectives and the
conditions for its legitimate exercise, which may be summarized as follows:
i. the right to strike is a right which must be enjoyed by workers’ organizations (trade
unions, federations and confederations);
ii. as an essential means of defending the interests of workers through their
organizations, only limited categories of workers may be denied this right and only
limited restrictions may be imposed by law on its exercise;
iii. the objectives of strikes must be to further and defend the economic and social
interests of workers and;
iv. the legitimate exercise of the right to strike may not result in sanctions of any sort,
which would be tantamount to acts of anti-union discrimination.
Accordingly, subject to the restrictions authorized, a general prohibition of strikes is
incompatible with the Convention, although the supervisory bodies accept the prohibition of
wildcat strikes. Furthermore, strikes are often called by federations and confederations which,
in the view of the Committee, should be recognized as having the right to strike. Consequently,
legislation which denies them this right is incompatible with the Convention (ILO, 2012, p. 49-
50, par.122).
4.5. The right to strike in practice
For a practical approach of the right to strike, please review Chapter 10 of the Compilation of
decisions of the Committee on Freedom of Association, Sixth edition (2018), available on the
e-platform.
5. HOW IS COMPLIANCE WITH THE FREEDOM OF ASSOCIATION STANDARDS
SUPERVISED BY THE ILO?
Soon after the adoption of Conventions Nos. 87 and 98 on freedom of association and
collective bargaining, the ILO came to the conclusion that the principle of freedom of
association needed a further supervisory procedure to ensure compliance with it in countries
that had not ratified the relevant conventions. As a result, in 1951 the ILO set up the Committee
on Freedom of Association (CFA) for the purpose of examining complaints about violations of
freedom of association, whether or not the country concerned had ratified the relevant
conventions. Complaints may be brought against a member state by employers' and workers'
organizations.
The CFA is a Governing Body committee, and is composed of an independent chairperson
and three representatives each of governments, employers, and workers. If it decides to
receive the case, it establishes the facts in dialogue with the government concerned. If it finds
that there has been a violation of freedom of association standards or principles, it issues a
report through the Governing Body and makes recommendations on how the situation could
be remedied. Governments are subsequently requested to report on the implementation of its

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recommendations. In cases where the country has ratified the relevant instruments, legislative
aspects of the case may be referred to the Committee of Experts. The CFA may also choose
to propose a "direct contacts" mission to the government concerned to address the problem
directly with government officials and the social partners through a process of dialogue. In
more than 60 years of work, the CFA has examined over 3,000 cases . More than 60 countries
on five continents have acted on its recommendations and have informed it of positive
developments on freedom of association during the past 35 years. 4
Below you can find the procedure followed by this supervisory body when a complaint is
received.

6. FURTHER READING
• Search cases dealt by the Committee:
https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:20030:0::NO:::

• 2018 Compilation of decisions of the Committee on Freedom of Association:


https://www.ilo.org/global/standards/subjects-covered-by-international-labour-
standards/freedom-of-association/WCMS_632659/lang--en/index.htm

• Report III(1B): Giving globalization a human face (General Survey on the fundamental
Conventions):
https://www.ilo.org/ilc/ILCSessions/101stSession/reports/reports-
submitted/WCMS_174846/lang--en/index.htm?ssSourceSiteId=global

• Freedom of association in practice: Lessons learned. Global Report under the follow-
up to the ILO Declaration on Fundamental Principles and Rights at Work. Report of
the Director-General, 2008:

4 Source: https://www.ilo.org/global/standards/applying-and-promoting-international-labour-
standards/committee-on-freedom-of-association/lang--en/index.htm

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https://www.ilo.org/global/publications/ilo-bookstore/order-
online/books/WCMS_096122/lang--en/index.htm

References
Rodgers, G., Lee, E., Swepston, L., & Van Daele, J. (2009). The International Labour
Organization and the quest for social justice, 1919–2009. Geneva: International Labour Office.
ILO. (2008). Freedom of association in practice: Lessons learned, Global Report under the
follow-up to the ILO Declaration on Fundamental Principles and Rights at Work. Geneva:
International Labour Office.
ILO. (2012). Giving globalization, General Survey on the fundamental Conventions concerning
rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization, 2008.
Geneva: International Labour Office.

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