Compilation of decisions of the Committee on Freedom of Association

Protection against discrimination13

Forms of discrimination

General principles

1. The Committee is not called upon to pronounce upon the question of the breaking of a contract of employment by dismissal except in cases in which the provisions on dismissal imply anti-union discrimination.

1. Protection against anti-union discrimination should apply more particularly in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the employers consent, during working hours.

1. Protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker.

1. Acts of anti-union discrimination may vary in nature and are not confined to discharge, dismissal, retrenchment or termination of service, but also include all actions taken in retaliation against a worker exercising trade union activities, such as suspension.

Discrimination in relation to hiring

1. Workers face many practical difficulties in proving the real nature of their dismissal or denial of employment, especially when seen in the context of blacklisting, which is a practice whose very strength lies in its secrecy. While it is true that it is important for employers to obtain information about prospective employees, it is equally true that employees with past trade union membership or activities should be informed about the information held on them and given a chance to challenge it, especially if it is erroneous and obtained from an unreliable source. Moreover, in these conditions, the employees concerned would be more inclined to institute legal proceedings since they would be in a better position to prove the real nature of their dismissal or denial of employment.

1. With regard to special committees set up under a law with a view to granting or refusing the certificates of loyalty required of certain workers in public utility undertakings if they were to be engaged or retained in service, the Committee recalled the desirability of ensuring that the special committees in question should not be used in such a manner as to give rise to anti-union discrimination.

1. Legislation should allow the possibility to appeal against discrimination in hiring, i.e. even before the workers can be qualified as employees.

1. The Committee has expressed its fear that the use of polygraph tests during hiring interviews may lead to anti-union discriminations.

Discrimination during employment

1. The non-renewal of a contract for anti-union reasons constitutes a prejudicial act within the meaning of Article 1 of Convention No. 98.

1. In certain circumstances, the renewal of fixed-term contracts for several years may affect the exercise of trade union rights.

1. In certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights.

1. Fixed-term contracts should not be used deliberately for anti-union purposes.

1. The Committee invited a government to examine with the most representative workers and employers organizations, a way of ensuring that the systematic use of short-term temporary contracts in the non-traditional export sector did not become in practice an obstacle to the exercise of trade union rights.

1. Acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize.

1. Granting bonuses to non-union member staff even if it is not to all non-union workers and excluding all workers who are union members from such bonuses during a period of collective conflict, constitutes an act of anti-union discrimination contrary to Convention No. 98.

1. Direct threat and intimidation of members of a workers organization and forcing them into committing themselves to sever their ties with the organization under the threat of termination constitutes a denial of these workers freedom of association rights.

1. The governments obligations under Convention No. 98 and the principles on protection against anti-union discrimination cover not only acts of direct discrimination (such as demotion, dismissal, frequent transfer, and so on), but extend to the need to protect unionized employees from more subtle attacks which may be the outcome of omissions. In this respect, proprietorial changes should not remove the right to collective bargaining from employees, or directly or indirectly threaten unionized workers and their organizations.

1. The Committee has drawn attention to the fact that initiating administrative proceedings against union officials without sufficient grounds might have an intimidating effect on union officials.

1. Transfers of employees for reasons unconnected with their trade union affiliation or activities are not covered by Article 1 of Convention No. 98.

Discriminatory dismissal

1. The dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association.

1. Subcontracting accompanied by dismissals of union leaders can constitute a violation of the principle that no one should be prejudiced in his or her employment on the grounds of union membership or activities.

1. It would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the workers trade union membership or activities.

1. In cases of anti-union dismissals, newly established enterprise level unions are likely to suffer adverse consequences threatening their very existence, if their entire leadership and a large part of their membership is dismissed.

1. Where public servants are employed under conditions of free appointment and removal from service, the exercise of the right to freely remove public employees from their posts should in no instance be motivated by the trade union functions or activities of the persons who could be affected by such measures.

1. Not only dismissal, but also compulsory retirement, when imposed as a result of legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities.

1. In certain cases, the Committee has found it difficult to accept as a coincidence unrelated to trade union activity that heads of departments should have decided, immediately after a strike, to convene disciplinary boards which, on the basis of service records, ordered the dismissal not only of a number of strikers, but also of members of their union committee.

1. Acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity.

1. The application of staff reduction programmes must not be used to carry out acts of anti-union discrimination.

1. A corporate restructuring should not directly or indirectly threaten unionized workers and their organizations.

1. It is not within the Committees purview to pronounce itself on allegations relating to restructuring programmes, even when these involve collective dismissals, unless they have given rise to acts of anti-union discrimination or interference.

1. The liquidation of a company and the fact that the legal person under which the company operated has ceased to exist should not be used as a pretext for anti-union discrimination nor should they be an obstacle to the competent authorities determining whether or not there were acts of anti-union discrimination and, if such practices are shown to have taken place, to sanctioning such illegal acts and ensuring that the affected workers are duly compensated.

1. In the Committees opinion, the bipartite talks and the administrative procedure of permission to dismiss do not guarantee adequate protection to workers against acts of anti-union discrimination, since it appears that the legislation currently in force allows an employer merely to invoke lack of harmony in the working relationship to justify the dismissal of workers who only wish to exercise a fundamental right under the principles of freedom of association.