Compilation of decisions of the Committee on Freedom of Association

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

Function of the ILO with regard to freedom of association

1. The function of the International Labour Organization in regard to freedom of association and the protection of the individual is to contribute to the effectiveness of the general principles of freedom of association, as one of the primary safeguards of peace and social justice. In fulfilling its responsibility in the matter, the Organization must not hesitate to discuss at the international level cases which are of such a character as to affect substantially the attainment of the aims and purposes of the ILO as set forth in the Constitution of the Organization, the Declaration of Philadelphia and the various Conventions concerning freedom of association.

1. By virtue of its Constitution, the ILO was established in particular to improve working conditions and to promote freedom of association in the various countries. Consequently, the matters dealt with by the Organization in this connection no longer fall within the exclusive sphere of States and the action taken by the Organization for the purpose cannot be considered to be interference in internal affairs, since it falls within the terms of reference that the ILO has received from its Members with a view to attaining the aims assigned to it.

1. The Committee recalls/reminds the Government that the purpose of the whole procedure established by the International Labour Organization for the examination of allegations of violations of freedom of association of employers and workers is to promote and ensure respect for this freedom in law and in fact.

1. The Committees existence derives from the fundamental constitutional obligation and the desire of the ILOs constituents to contribute to the effective implementation of the principles of freedom of association.

1. The object of the special procedure on freedom of association is not to blame or punish anyone, but rather to engage in a constructive tripartite dialogue to promote respect for trade union rights in law and practice.

1. Since its creation in 1951, the Committee has been given the task to examine complaints alleging violations of freedom of association whether or not the country concerned has ratified the relevant ILO Conventions.

1. Complaints lodged with the Committee can be submitted whether or not the country concerned has ratified the freedom of association Conventions.

1. The Committees procedure can be set in motion in relation to States that have not ratified Conventions Nos. 87 and/or 98.

1. The mandate of the Committee consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions.

1. While recalling that questions of representation at the International Labour Conference fall within the competence of the Conference Credentials Committee, the Committee will proceed with its examination of this case on the basis of article 26bis, paragraph 6, of the Standing Orders of the International Labour Conference and its mandate to review the freedom of association aspects raised by the Credentials Committee.

1. Complaints may be lodged not only in relation to acts by the Government but also to acts by any public or private authority that curtails the exercise of trade union rights.

1. Although the use of internal legal procedures, whatever the outcome, is undoubtedly a factor to be taken into consideration, the Committee has always considered that, in view of its responsibilities, its competence to examine allegations is not subject to the exhaustion of national procedures.

1. The Committees mandate is not linked to the 1998 ILO Declaration on Fundamental Principles and Rights at Work which has its own built-in follow-up mechanisms but rather stems directly from the fundamental aims and purposes set out in the ILO Constitution.

1. It is within the mandate of the Committee to examine whether, and to what extent, satisfactory evidence is presented to support allegations; this appreciation goes to the merits of the case and cannot support a finding of irreceivability.

1. It is not always easy or possible to provide proof for all types of allegations. It is the evaluation of the proof submitted that is decisive (a process carried out when the Committee examines the case) and direct interest in the case in terms of receivabilty is assumed when, as in the present complaint, the complainant organizations allege widespread non-compliance with legislation concerning freedom of association.

1. The Committee always takes account of national circumstances, such as the history of labour relations and the social and economic context, but the freedom of association principles apply uniformly and consistently among countries.

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.

Fundamental obligations of member States in respect of human and trade union rights

1. When a State decides to become a Member of the International Labour Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association.

1. The membership of a State in the International Labour Organization carries with it the obligation to respect in national legislation freedom of association principles and the Conventions which the State has freely ratified.

1. The ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government.

1. Freedom of association is one of the primary safeguards of peace and social justice. The ILO member States have committed, through the 2008 Social Justice Declaration to respect, promote and realize the fundamental principles and rights and work, with an emphasis on freedom of association and effective recognition of collective bargaining as particularly important to the attainment of the four strategic objectives of the ILO Decent Work Agenda.

1. All States have the obligation to respect fully the commitments undertaken by ratification of ILO Conventions. While the manner in which the application of a ratified Convention is ensured in law and in practice varies from one State to another depending on the national constitutional and legal system, the basis for this obligation cannot be challenged.

1. It is the responsibility of the Government to ensure the application of international labour Conventions concerning freedom of association which have been freely ratified and which must be respected by all state authorities, including the judicial authorities.

1. The Committee reminds the Government that it has a responsibility to ensure the application of international labour Conventions concerning freedom of association which have been freely ratified and which must be respected by all state authorities, and that the inviolability of trade union premises is a civil liberty which is essential to the exercise of trade union rights, the Committee trusts that the Government will ensure in particular full respect for these principles in the future.

1. The Committee wishes to emphasize in this respect that, when a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association; all ILO member States are therefore expected to give effect to these principles as expressed and developed in the fundamental Conventions on freedom of association and collective bargaining and this duty extends, in the Committee's view, to the embassies, consulates and other offices, as an integral part of the public administration.

1. According to article 19, paragraph 8 of the ILO Constitution, in no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation.

1. Trade union rights, like other basic human rights, should be respected no matter what the level of development of the country concerned.

1. The Committee has referred to the Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the Governing Body of the ILO in November 1977, which states that (paragraph 46 of the Declaration, as amended in November 2000): where governments of host countries offer special incentives to attract foreign investment, these incentives should not include any limitation of the workers freedom of association or the right to organize and bargain collectively.

1. A State cannot use the argument that other commitments or agreements can justify the non-application of ratified ILO Conventions.

1. The level of protection for exercising trade union rights which results from the provisions and principles of Conventions Nos. 87 and 98 constitutes a minimum standard which may be complemented and it is desirable that other supplementary guarantees should be added resulting from the constitutional and legal system of any given country, its traditions as regards labour relations, trade union action or bargaining between the parties.

1. Faced with allegations against one government of violations of trade union rights, the Committee recalled that a successive government in the same State cannot, for the mere reason that a change has occurred, escape the responsibility deriving from events that occurred under a former government. In any event, the new government is responsible for any continuing consequences which these events may have. Where a change of regime has taken place in a country, the new government should take all necessary steps to remedy any continuing effects which the events on which a complaint is based may have had since its accession to power, even though those events took place under its predecessor.

Obligations of governments relating to the procedure of the Committee on Freedom of Association

1. The Committee remains confident that, if the procedure protects governments from unreasonable accusations, governments on their side will recognize the importance of formulating, for objective examination, detailed/precise/accurate replies concerning allegations made against them.

1. In all the cases presented to it since it was first set up, the Committee has always considered that the replies of governments against whom complaints are made should not be limited to general observations.

1. While no formal rules fixing any particular period of prescription are embodied in the procedure for the examination of complaints, it may be difficult if not impossible for a government to reply in detail to allegations regarding matters which occurred a long time ago.

1. When a case is classified as interim, this is because the Committee requires certain information from the Government or the complainants relating to particular aspects of the case in order to be able to make substantive rulings on these questions. There may however be matters within the case that do not require further information, thus enabling the Committee to express an opinion on the substance of such questions. At that point, the recommendations can be acted upon by the Government.

The functions of organizations of workers and of employers

1. The development of free and independent organizations and negotiation with all those involved in social dialogue is indispensable to enable a government to confront its social and economic problems and resolve them in the best interests of the workers and the nation.

1. The fundamental objective of the trade union movement should be to ensure the development of the social and economic well-being of all workers.

1. The occupational and economic interests which workers and their organizations defend do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers.

1. A trade unions activities cannot be restricted solely to occupational questions, since the choice of a general policy in economic affairs for example is bound to have consequences on the situation of workers (remuneration, holidays, the running of enterprises, etc.).

1. In exercising freedom of association rights, workers and their organizations should respect the law of the land, which in turn should respect the principles of freedom of association.