Compilation of decisions of the Committee on Freedom of Association

Right of workers and employers, without distinction whatsoever, to establish and to join organizations3

General principle

1. Article 2 of Convention No. 87 is designed to give expression to the principle of non-discrimination in trade union matters, and the words without distinction whatsoever used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, nationality, political opinion, etc., not only to workers in the private sector of the economy, but also to civil servants and public service employees in general.

Distinctions based on race, political opinion or nationality

1. A law which prohibits African workers from establishing trade unions which can be registered and participate in industrial councils for the purpose of negotiating agreements and settling disputes constitutes a form of discrimination which is inconsistent with the principle accepted in the majority of countries, and embodied in Convention No. 87, that workers without distinction whatsoever should 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. It is also inconsistent with the principle that all workers organizations should enjoy the right of collective bargaining.

1. The prohibition of registration of mixed trade unions (consisting of workers of different races) is not compatible with the generally accepted principle that workers, without distinction whatsoever, should have the right to establish and, subject only to the rules of the organizations concerned, to join organizations of their own choosing without previous authorization.

1. Workers should have the right, without distinction whatsoever, in particular without discrimination on the basis of political opinion, to join the organization of their own choosing.

1. Workers should have the right to establish the organizations that they consider necessary in a climate of complete security irrespective of whether or not they support the social and economic model of the Government, including the political model of the country.

1. Referring to Article 2 of Convention No. 87, the Committee recalls that on numerous occasions it has interpreted the right of freedom of association to include migrant workers.

1. The Committee has emphasized the importance of guaranteeing the right of migrant workers, both documented and undocumented, to organize.

1. The right of workers, without distinction whatsoever, to establish and join organizations of their own choosing, without previous authorization, implies that anyone legally residing in the country benefits from trade union rights, including the right to vote, without any distinction based on nationality.

1. With regard to the denial of the right to organize to migrant workers in an irregular situation, the Committee recalled that all workers, with the sole exception of the armed forces and the police, are covered by Convention No. 87, and it therefore requested the Government to take the terms of Article 2 of Convention No. 87 into account in the legislation in question.

1. The Committee recalled the resolution concerning a fair deal for migrant workers in a global economy adopted by the ILO Conference at its 92nd Session (2004) according to which [a]ll migrant workers also benefit from the protection offered by the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up (1998). In addition, the eight core ILO Conventions regarding freedom of association and the right to bargain collectively, non-discrimination in employment and occupation, the prohibition of forced labour and the elimination of child labour, cover all migrant workers, regardless of status [para. 12].

1. With regard to the granting of trade union rights to aliens, the requirement of reciprocity is not acceptable under Article 2 of Convention No. 87.

Distinctions based on the nature of the contract

1. The Committee referred to the findings of the General Survey of the Committee of Experts on the fundamental Conventions on labour rights in the light of the ILO Declaration on Social Justice for a Fair Globalization, paragraph 935, in which it is indicated that: the Committee observes that one of the main concerns expressed by trade union organizations is the adverse impact of insecure forms of employment on trade union rights and the protection of workers rights, especially in the case of repeatedly renewed short-term temporary contracts; outsourcing, which is used even by some governments in their own public services to perform legally mandated ongoing tasks; and the non-renewal of contracts for anti-union reasons. Some of these modalities often deprive workers of access to freedom of association and collective bargaining, especially when they conceal a genuine and ongoing labour relationship. Some forms of job insecurity can also deter workers from joining trade unions. The Committee wishes to emphasize the importance of examining, within a tripartite framework, the impact of these forms of employment on the exercise of trade union rights in all member States.

1. All workers must be able to enjoy the right to freedom of association regardless of the type of contract by which the employment relationship has been formalized.

1. The status under which workers are engaged with the employer should not have any effect on their right to join workers organizations and participate in their activities.

1. All workers, regardless of their status, should be guaranteed their freedom of association rights so as to avoid the possibility of having their precarious situation taken advantage of.

1. The criterion for determining the persons covered by the right to organize is not based on the existence of an employment relationship. Workers who do not have employment contracts should have the right to form the organizations of their choosing if they so wish.

1. All workers employed in agri-food enterprises, irrespective of the type of their employment relationship with those enterprises, should have the right to join the trade union organizations representing the interests of the workers in that sector.

Distinctions based on occupational category

General principles

1. All workers, without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing.

1. To establish a limited list of occupations with a view to recognizing the right to associate would be contrary to the principle that workers, without distinction whatsoever, should have the right to establish and join organizations of their own choosing.

Public servants

1. The standards contained in Convention No. 87 apply to all workers without distinction whatsoever, and are therefore applicable to employees of the State. It was indeed considered inequitable to draw any distinction in trade union matters between workers in the private sector and public servants, since workers in both categories should have the right to organize for the defence of their interests.

1. Article 2 of Convention No. 87 stipulates that workers, without distinction whatsoever, shall have the right to establish organizations of their own choosing. This implies that public administration workers should also enjoy the same right.

1. Public servants, like all other workers, without distinction whatsoever, have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests.

1. Public employees (with the sole possible exception of the armed forces and the police, by virtue of Article 9 of Convention No. 87) should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members.

1. In view of the importance of the right of employees of the State and local authorities to constitute and register trade unions, the prohibition of the right of association for workers in the service of the State is incompatible with the generally accepted principle that workers, without distinction whatsoever, should have the right to establish organizations of their own choosing without previous authorization.

1. The denial of the right of workers in the public sector to set up trade unions, where this right is enjoyed by workers in the private sector, with the result that their associations do not enjoy the same advantages and privileges as trade unions, involves discrimination as regards government-employed workers and their organizations as compared with private sector workers and their organizations. Such a situation gives rise to the question of compatibility of these distinctions with Article 2 of Convention No. 87, according to which workers without distinction whatsoever shall have the right to establish and join organizations of their own choosing without previous authorization, as well as with Articles 3 and 8, paragraph 2, of the Convention.

1. There are no grounds for challenging the validity of special legal regulations which govern public servants right to organize in so far as such regulations comply with the provisions of Convention No. 87

1. The existence of a dispute settlement mechanism cannot justify the denial to government employees of the right to organize.

1. The transfer of public sector workers from a private law system to a public law system is not problematic per se, as long as it respects the principles of freedom of association and collective bargaining.

1. The Committee has underlined the need for a Government to recognize the right to organize of workers who are hired by the State on the basis of civil contracts for professional services.

1. The members of the armed forces who can be excluded from the application of Convention No. 87 should be defined in a restrictive manner.

1. Article 9, paragraph 1, of Convention No. 87 provides that the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations; under this provision, it is clear that the International Labour Conference intended to leave it to each State to decide on the extent to which it was desirable to grant members of the armed forces and of the police the rights covered by the Convention, which means that States having ratified the Convention are not required to grant these rights to the said categories of persons.

1. The fact that Article 9, paragraph 1, of Convention No. 87 stipulates that the extent to which the guarantees provided for in the Convention shall apply to the armed forces and the police shall be determined by national laws and regulations cannot warrant the assumption that any limitations or exclusions imposed by the legislation of a State as regards the trade union rights of the armed forces and the police are contrary to the Convention; this is a matter which has been left to the discretion of the Members States of the ILO.

1. Article 2 of Convention No. 87 provides that workers and employers, without distinction whatsoever, shall have the right to establish and to join organizations of their own choosing. While Article 9 of the Convention does authorize exceptions to the scope of its provisions for the police and the armed forces, the Committee would recall that the members of the armed forces who can be excluded should be defined in a restrictive manner. Furthermore, the Committee of Experts on the Application of Conventions and Recommendations has observed that, since this Article of the Convention provides only for exceptions to the general principle, workers should be considered as civilians in case of doubt.

1. Civilian workers in the manufacturing establishments of the armed forces should have the right to establish organizations of their own choosing without previous authorization, in conformity with Convention No. 87.

1. The civilian staff working at the Army Bank should enjoy the right to establish and join trade union organizations, and adequate protection against acts of anti-union discrimination, in the same way as other trade union members and leaders in the country.

1. Civilians working in the services of the army should have the right to form trade unions.

1. A provision that denies the right to set up trade unions to judges and public prosecutors is contrary to the principles of freedom of association as laid down in the relevant Conventions, according to which workers without distinction whatsoever shall have the right to establish and join organizations of their own choosing without previous authorization.

1. Judges, like all other workers, should benefit from the right to freedom of association.

1. Local public service employees should be able effectively to establish organizations of their own choosing, and these organizations should enjoy the full right to further and defend the interests of the workers whom they represent.

1. The functions exercised by firefighters do not justify their exclusion from the right to organize. They should therefore enjoy the right to organize.

1. The right of firefighters to form and join organizations of their own choosing should also be guaranteed (although the right to collective action may be subject to restrictions or a prohibition).

1. Firefighters should be afforded the right under Article 2 of Convention No. 87 to establish and join the organization of their own choosing, including the right to be able to form or join higher-level organizations with a membership that is no longer restricted but may also encompass firefighters covered by general labour law.

1. Prison staff should enjoy the right to organize.

1. Customs officials are covered by Convention No. 87 and therefore have the right to organize.

1. The functions exercised by employees of customs and excise, immigration, prison and preventive services should not justify their exclusion from the right to organize on the basis of Article 9 of Convention No. 87.

1. The denial of the right to organize to workers in the labour inspectorate constitutes a violation of Article 2 of Convention No. 87.

1. Teachers should have the right to establish and join organizations of their own choosing, without previous authorization, for the promotion and defence of their occupational interests.

1. Teachers, like all other workers, should benefit from the right to freedom of association.

1. With regard to the instructors governed by contracts for the provision of services, the Committee considered that since Convention No. 87 only allows exclusion from its scope of the armed forces and the police, the instructors in question should be able to establish, and join, organizations of their own choosing.

1. Workers in public or private universities shall have the right to establish organizations and to join them.

1. Teaching and research assistants in so far as they are workers should be ensured full protection of their right to organize.

1. The Committee requested a government to take measures to repeal a provision of the Universities Act which empowered the employer to determine the persons who could be members of academic staff associations. The Committee also recommended that consideration be given to the possibility of introducing an independent system for the designation, where necessary, of academic staff members, either through third party arbitration or some form of informal machinery.

1. Conventions No. 87 and No. 98 are applicable to locally recruited personnel in embassies.

1. The duty to apply the principles of freedom of association extends to embassies, consulates and other offices, as an integral part of the public administration. Even if the Committee were to accept a Governments argument that ILO Conventions were not applicable to embassies because they do not form part of its territory, it considers that this argument does not apply to the fundamental principles of freedom of association, respect for which it has been mandated to promote.

1. The total exclusion from the legislation of high-ranking public servants is a violation of their fundamental right to organize. Therefore, it is necessary to ensure that such public servants obtain the right to form their own associations to defend their interests and that this category of staff is not defined so broadly as to weaken the organizations of other public employees.

1. As concerns persons exercising senior managerial or policy-making responsibilities, the Committee is of the opinion that while these public servants may be barred from joining trade unions which represent other workers, such restrictions should be strictly limited to this category of workers and they should be entitled to establish their own organizations to defend their interests.

1. The exclusion found in Convention No. 151 with regard to policy decision-makers or high-ranking public officials relates to the issue of collective bargaining and not to the right to organize which should be guaranteed to all public officials without distinction.

Security agents

1. Private security agents should freely be able to establish trade union organizations of their own choosing.

1. A national constitution should not have the effect of denying the right to organize of workers who need to carry arms because of the nature of their work.

Agricultural workers

1. Agricultural workers should enjoy the right to organize.

1. Legislation which lays down that not less than 60 per cent of the members of a trade union must be literate is incompatible with the principle established in Convention No. 87 that workers, without distinction whatsoever, shall have the right to establish organizations of their choosing. Article 1 of Convention No. 11 confirms this principle and lays down that each Member of the International Labour Organization which ratifies this Convention undertakes to secure to all those engaged in agriculture the same rights of association and combination as to industrial workers.

Plantation workers

1. In the resolution adopted by the Plantations Committee at its First Session in 1950, it is provided that employers should remove existing hindrances, if any, in the way of the organization of free, independent and democratically controlled trade unions by plantation workers.

Air and maritime transport workers

1. Air and maritime transport workers, like all other workers, should benefit from the right to freedom of association.

1. The prohibition of trade union activities in international airlines constitutes a serious violation of freedom of association.

Port workers

1. In one case where the port employees of a country were, by custom and agreement, classified as government officials and were therefore outside the coverage of the Trade Unions Act, and the government had considered that Convention No. 87 (ratified by the country concerned) did not apply to them, the Committee pointed out that the government had assumed an international obligation to apply the Convention to workers without distinction whatsoever, and that in these circumstances the provisions of the Convention could not be modified as regards particular categories of workers because of any private or national agreement, custom or other arrangement between such categories of workers and the government.

Hospital personnel

1. The right to establish and to join organizations for the promotion and defence of workers interests without previous authorization is a fundamental right which should be enjoyed by all workers without distinction whatsoever, including hospital personnel.

Managerial and supervisory staff

1. It is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that such workers have the right to establish their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership.

1. As regards provisions which prohibit supervisory employees from joining workers organizations, the Committee has taken the view that the expression supervisors should be limited to cover only those persons who genuinely represent the interests of employers.

1. Limiting the definition of managerial staff to persons who have the authority to appoint or dismiss is sufficiently restrictive to meet the condition that these categories of staff are not defined too broadly.

1. A reference in the definition of managerial staff to the exercise of disciplinary control over workers could give rise to an expansive interpretation which would exclude large numbers of workers from workers rights.

1. An excessively broad interpretation of the concept of worker of confidence, which denies such workers their right of association, may seriously limit trade union rights and even, in small enterprises, prevent the establishment of trade unions, which is contrary to the principle of freedom of association.

1. Legal provisions which permit employers to undermine workers organizations through artificial promotions of workers constitute a violation of the principles of freedom of association.

Self-employed workers and the liberal professions

1. By virtue of the principles of freedom of association, all workers with the sole exception of members of the armed forces and the police should have the right to establish and join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions, who should nevertheless enjoy the right to organize.

1. The Committee requested a government to take the necessary measures to ensure that self-employed workers fully enjoyed freedom of association rights, in particular the right to join the organizations of their own choosing.

1. It is contrary to Convention No. 87 to prevent trade unions of self-employed workers who are not subordinate to, or dependent on, a person.

Temporary workers

1. All workers, without distinction whatsoever, whether they are employed on a permanent basis, for a fixed term or as contract employees, should have the right to establish and join organizations of their own choosing.

Workers undergoing a period of work probation

1. Workers undergoing a period of work probation should be able to establish and join organizations of their choosing, if they so wish.

1. The denial of the right to organize to workers undergoing a period of work probation could raise problems with regard to the application of Convention No. 87.

Workers hired under training contracts

1. Persons hired under training agreements should have the right to organize.

1. The status under which workers are engaged with the employer, as apprentices or otherwise, should not have any effect on their right to join workers organizations and participate in their activities.

Unemployed persons

1. The Committee does not find that granting unemployed persons solely the right to join a trade union and participate in its functioning subject to the rules of the organization concerned is contrary to the principles of freedom of association.

Persons working under community participation programmes intended to combat unemployment

1. Persons working under community participation programmes intended to combat unemployment are workers within the meaning of Convention No. 87 and they must have the right to organize, given that they undeniably have collective interests which must be promoted and defended.

Workers in cooperatives

1. The Promotion of Cooperatives Recommendation, 2002 (No. 193), calls on governments to ensure that cooperatives are not set up or used for non-compliance with labour law or used to establish disguised employment relationships.

1. Mindful of the particular characteristics of cooperatives, the Committee considers that associated labour cooperatives (whose members are their own bosses) cannot be considered, in law or in fact, as workers organizations within the meaning of Convention No. 87, that is organizations that have as their objective to promote and defend workers interests. That being so, referring to Article 2 of Convention No. 87 and recalling that the concept of worker means not only salaried worker, but also independent or autonomous worker, the Committee has considered that workers associated in cooperatives should have the right to establish and join organizations of their own choosing.

1. The Committee cannot cease consideration of the special situation of workers with regard to cooperatives, in particular as concerns the protection of their labour interests and considers that such workers should enjoy the right to join or form trade unions in order to defend those interests.

1. The Committee requested a government to ensure that cooperatives were not used as a means of preventing workers from exercising trade union rights, in particular by publicizing among both members and workers of cooperatives the rights and obligations of both.

Distributors, sales agents and subcontracted workers

1. The Committee requested a government to develop, in consultation with the social partners concerned, appropriate mechanisms, including an agreed process for dialogue determined in advance, aimed at strengthening the protection of subcontracted/agency workers rights to freedom of association and collective bargaining, thus preventing any abuse of subcontracting as a way to evade in practice the exercise by these workers of their fundamental rights.

1. The Committee does not have the competence to express an opinion concerning the legal relationship (labour or commercial) of certain distributors and sales agents of an enterprise including on the question of whether the absence of a recognized employment relationship implies that they are not covered by the Labour Act. Nevertheless, in view of the fact that Convention No. 87 permits the exclusion only of the armed forces and the police, the sales agents in question should be able to establish organizations of their own choosing (Convention No. 87, Article 2).

Workers in export processing zones

1. Workers in export processing zones despite the economic arguments often put forward like other workers, without distinction whatsoever, should enjoy the trade union rights provided for by the freedom of association Conventions.

1. The Committee recalled that the standards contained in Convention. No 87 apply to all workers "without distinction whatsoever" and that the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy provides that special incentives to attract foreign investment should not include any limitation of the workers freedom of association or the right to organize and bargain collectively and thus considered that legislation concerning export processing zones should ensure these rights.

1. The ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy provides that special incentives to attract foreign investment should not include any limitation of the workers freedom of association or the right to organize and bargain collectively. The Committee considers that legal provisions on export processing zones should ensure the right to organize and bargain collectively for workers.

Domestic workers

1. Domestic workers are not excluded from the application of Convention No. 87 and should therefore be governed by the guarantees it affords and have the right to establish and join occupational organizations.

1. Domestic workers, like all other workers, should benefit from the right to freedom of association.

Home-based workers

1. Home-based workers are not excluded from the application of Convention No. 87 and should therefore be governed by the guarantees it affords and have the right to establish and join occupational organizations.

1. Persons working from home in the social services, health and childcare sectors should be able to enjoy the provisions of the Labour Code, or enjoy genuinely equivalent rights.

Workers who have been dismissed

1. A provision depriving dismissed workers of the right to union membership is incompatible with the principles of freedom of association since it deprives the persons concerned of joining the organization of their choice. Such a provision entails the risk of acts of anti-union discrimination being carried out to the extent that the dismissal of trade union activists would prevent them from continuing their trade union activities within their organization.

1. The loss of a persons trade union status as a result of dismissal for strike activities is contrary to the principles of freedom of association.

Retired workers

1. The Committee does not find that granting retired workers solely the right to join a trade union and participate in its functioning subject to the rules of the organization concerned is contrary to the principles of freedom of association.

1. The right to decide whether or not a trade union should represent retired workers for the defence of their specific interests is a question pertaining to the internal autonomy of all trade unions.

Professional footballers

1. The status of the professional football players as workers is undeniable. It follows that they must be covered by Conventions Nos. 87 and 98 and, hence, that they must enjoy the right to associate in defence of their interests, even if, given the specific characteristics of their work, the football players have deemed it appropriate to form a civil organization rather than a trade union. This fact does nothing to diminish the status of that civil organization as an organization representing football workers.

Workers in small businesses

1. If an exemption for small businesses employing ten or fewer employees from the right to form trade unions was envisaged, this would clearly be in contravention of Article 2 of Convention No. 87, which states that all workers without distinction whatsoever have the right to establish or join an organization of their own choosing.

1. The right to organize should not be dependent on the size of the enterprise, or the number of workers employed by it.

Distinctions based on age

1. With reference to Article 2 of Convention No. 87, the Committee considers that minor workers should be allowed to form or join trade union organizations of their own choosing.

Other distinctions

1. The requirement for the establishment of a trade union that workers need to be employees of only one employer is a violation of the principles of freedom of association.