Compilation of decisions of the Committee on Freedom of Association

Right of workers and employers to establish and join organizations of their own choosing5

in respect of particular organizations

1. The spirit of Convention No. 87 calls for impartial treatment of all trade union organizations by the authorities, even if they criticize the social or economic policies of national or regional executives, as well as avoidance of reprisals for pursuing legitimate trade union activities.

1. Any favourable or unfavourable treatment by the public authorities of a particular trade union as compared with others, if it is not based on objective pre-established criteria of representativeness and goes beyond certain preferential rights related to collective bargaining and consultation, would constitute an act of discrimination which might jeopardize the right of workers to establish and join organizations of their own choosing.

1. Considering the limited functions which, in one case, were by law open to certain categories of trade unions, the Committee felt that the distinction made between trade unions under the national legislation could have the indirect consequence of restricting the freedom of workers to belong to the organizations of their choosing. The reasons which led the Committee to adopt this position are as follows. As a general rule, when a government can grant an advantage to one particular organization or withdraw that advantage from one organization in favour of another, there is a risk, even if such is not the governments intention, that one trade union will be placed at an unfair advantage or disadvantage in relation to the others, which would thereby constitute an act of discrimination. More precisely, by placing one organization at an advantage or at a disadvantage in relation to the others, a government may either directly or indirectly influence the choice of workers regarding the organization to which they intend to belong, since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organization for occupational, religious, political or other reasons. The freedom of the parties to choose is a right expressly laid down in Convention No. 87.

1. By according favourable or unfavourable treatment to a given organization as compared with others, a government may be able to influence the choice of workers or employers as to the organization which they intend to join. In addition, a government which deliberately acts in this manner violates the principle laid down in Convention No. 87 that the public authorities shall refrain from any interference which would restrict the rights provided for in the Convention or impede their lawful exercise; more indirectly, it would also violate the principle that the law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in the Convention. It would seem desirable that, if a government wishes to make certain facilities available to trade union organizations or employers organizations, these organizations should enjoy equal treatment in this respect.

1. In a case in which there was at the very least a close working relationship between a trade union and the labour and other authorities, the Committee emphasized the importance it attaches to the resolution of 1952 concerning the independence of the trade union movement and urged the government to refrain from showing favouritism towards, or discriminating against, any given trade union, and requested it to adopt a neutral attitude in its dealings with all workers and employers organizations, so that they are all placed on an equal footing.

1. On more than one occasion, the Committee has examined cases in which allegations were made that the public authorities had, by their attitude, favoured or discriminated against one or more trade union organizations:

1. The Committee considered that a government had demonstrated de facto favouritism towards one employers organization by registering it as the replacement for another employers organization, and had called upon the government in question to remedy the effects of this favouritism.

1. Both the government authorities and employers should refrain from any discrimination between trade union organizations, especially as regards recognition of their leaders who seek to perform legitimate trade union activities.

1. In a particular case the Committee considered that a bonus of 80 a year to certain employees of the public service belonging to representative trade union organizations does not seem to constitute a real means of pressure leading to the conclusion that the public authorities intend, through the advantages granted to certain workers, to influence unduly the choice of workers with regard to the organization that they intend to join. For it to retain its present quality, it is important that the amount of the bonus in question does not exceed a symbolic level.

1. Situations in which the local authorities interfere in the activities of a freely constituted trade union by establishing alternative workers organizations and inciting workers using unfair means to change their membership violate the right of workers to establish and join organizations of their own choosing.

1. Generally, the fact that a government is able to offer the use of premises to a particular organization, or to evict a given organization from premises which it has been occupying in order to offer them to another organization, may, even if this is not intended, lead to the favourable or unfavourable treatment of a particular trade union as compared with others, and thereby constitute an act of discrimination.