Compilation of decisions of the Committee on Freedom of Association

Procedure in respect of the Committee on Freedom of Association and the social partners1

Areas of competence of the Committee on Freedom of Association

1. Where national laws, including those interpreted by the high courts, violate the principles of freedom of association, the Committee has always considered it within its mandate to examine the laws, provide guidelines and offer the ILOs technical assistance to bring the laws into compliance with the principles of freedom of association, as set out in the Constitution of the ILO and the applicable Conventions.

1. The Committee has on a number of occasions requested the amendment of a countrys legislation. The specific measures taken to give effect to these recommendations and the applicable internal procedure are clearly left to the discretion of the Government concerned.

1. When it has had to deal with precise and detailed allegations regarding draft legislation, the fact that such allegations relate to a text that does not have the force of law should not in itself prevent the Committee from expressing its opinion on the merits of the allegations made. It has considered it desirable that, in such cases, the Government and the complainant should be made aware of the Committees point of view with regard to the proposed bill before it is enacted, since it is open to the Government, on whose initiative such a matter depends, to make any amendments thereto.

1. The Committee does not have the authority to interpret the scope of national legislation, which falls to the national competent authorities and ultimately the courts.

1. Where specific allegations have been examined by the national judiciary, including the Supreme Court, which has rendered a final decision, the Committee wishes to emphasize that it is not taking a position as to whether the interpretation of the national legislation by the courts is founded in light of particular circumstances.

1. Within the terms of its mandate, the Committee is empowered to examine to what extent the exercise of trade union rights may be affected in cases of allegations of the infringement of civil liberties.

1. While it is not for the Committee to decide upon questions concerning the occupation or administration of territories, as a Member of the ILO, the Government of the occupying country is bound to respect the principle of freedom of association as contained in the ILO Constitution in respect of the occupied territories where its national legislation does not apply and in respect of which the ratification of the international Conventions on freedom of association does not of itself create an obligation vis-à-vis the ILO. The Committee recalls, in this respect, that its competence in the matter is independent of the ratification of the Conventions on freedom of association.

1. The Committee is not competent to consider purely political allegations; it can, however, consider measures of a political character taken by governments in so far as these may affect the exercise of trade union rights.

1. Cases relating to death threats against trade union members, burglary of trade union headquarters and theft from trade union organizations or trade unionists are matters in which the Committee has full competence.

1. Questions of representation at the International Labour Conference, participation in the International Labour Conference and composition of delegations to the International Labour Conference fall within the competence of the Conference Credentials Committee.

1. It is within the competence of the Committee to examine alleged obstacles to the effective exercise of the right to organize and collective bargaining by subcontracted workers in the metal sector.

1. Questions concerning general tax legislation fall outside the competence of the Committee unless such legislation is used in practice to interfere in trade union activities.

1. It is not within the mandate of the Committee to speak to matters of agrarian reform except in so far as the steps taken constitute discrimination against employers or where they concern enterprises where workers are employed and where breaches of Conventions Nos. 87 or 98 are alleged.

1. Questions concerning social security legislation fall outside the competence of the Committee.

1. The adoption of a legal system for pensions does not generally fall within the jurisdiction of the Committee. However, it can examine to what extent the principles of freedom of association have been respected in adopting that system.

1. The alleged regressive and unconstitutional nature of legislative reform of a social security institution and irregularities in the legislative process lie outside the mandate of the Committee.

1. The Committee can only examine allegations regarding dismissals when they entail anti-union discrimination.

1. It is not within the mandate of the Committee to assess the legislative and regulatory action of the Government to establish minimum employment and contractual conditions in a particular sector.

1. The Committee does not have the mandate and will not pronounce itself with respect to the advisability of recourse to fixed-term or indefinite contracts.

1. The Committee wishes to point out that its powers are confined to verifying that national law and practice respect the exercise of the trade union rights enshrined in the Conventions on freedom of association and do not include examination of the regime and duration of employment contracts or the level of conditions of work. Therefore, it can only concern itself with the problem raised from a very restricted standpoint: the impact in practice of these short-term contracts which are renewed indefinitely on the exercise of trade union rights.

1. The Committee recalled that its competence relates to cases of violations of freedom of association, and not cases of abuse of labour supply services or the misuse of temporary contracts, even though many workers may be affected, and that it is only competent to examine allegations made by the complainant union where a connection is established between such cases and the trade union membership or activities of the persons concerned.

1. In a case involving accusations of misappropriation, the Committee considered that it is not within its remits to determine the responsibilities of those involved, that task being a matter for the national judicial authorities, of whose decisions it will take note as appropriate.

1. The Committee recalls that it has no competence to examine complaints relating to housing rights.

1. The Committee is not in a position to opine as to migrant workers legal right to reside in the country, nor is it within the Committees mandate to examine a countrys immigration policy unrelated to freedom of association.

1. In a case where a complainant claimed that dismissals were unfair without specifically alleging that anti-union discrimination or any violation of freedom of association principles, for that matter played a part in dismissals, the Committee considered that this particular allegation called for no examination.

1. The Committee recalls that it is only able to give an opinion on allegations concerning programmes and processes of restructuring or economic rationalization, whether or not they entail staff reductions or the transfer of companies or services from the public to the private sector, if they give rise to acts of discrimination or anti-union interference.

1. The remits of courts should be determined by national legislation. The Committees role is confined to ensuring that any decisions taken are in line with the principles of freedom of association.