Compilation of decisions of the Committee on Freedom of Association

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

Distinctions based on occupational category

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.