Compilation of decisions of the Committee on Freedom of Association

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

Organizations unity and pluralism

1. The right of workers to establish organizations of their own choosing implies, in particular, the effective possibility of forming, in a climate of full security, organizations independent both of those which exist already and of any political party.

1. The free choice of workers to establish and join organizations is so fundamental to freedom of association as a whole that it cannot be compromised by delays.

1. The existence of an organization in a specific occupation should not constitute an obstacle to the establishment of another organization, if the workers so wish.

1. The provisions contained in a national constitution concerning the prohibition of creating more than one trade union for a given occupational or economic category, regardless of the level of organization, in a given territorial area which in no case may be smaller than a municipality, are not compatible with the principles of freedom of association.

1. The right of workers to establish organizations of their own choosing implies, in particular, the effective possibility to create if the workers so choose more than one workers organization per enterprise.

1. It is contrary to Convention No. 87 to prevent two enterprise trade unions coexisting.

1. A provision of the law which does not authorize the establishment of a second union in an enterprise fails to comply with Article 2 of Convention No. 87, which guarantees workers the right to establish and join organizations of their own choosing without previous authorization.

1. Provisions which require a single union for each enterprise, trade or occupation are not in accordance with Article 2 of Convention No. 87.

1. The principle of trade union pluralism is grounded in the right of workers to come together and form organizations of their own choosing, independently and with structures which permit their members to elect their own officers, draw up and adopt their by-laws, organize their administration and activities and formulate their programmes without interference from the public authorities and in the defence of workers interests.

1. The Committee has pointed out that the International Labour Conference, by including the words organizations of their own choosing in Convention No. 87, made allowance for the fact that, in certain countries, there are a number of different workers and employers organizations which an individual may choose to join for occupational, denominational or political reasons; it did not pronounce, however, as to whether, in the interests of workers and employers, a unified trade union movement is preferable to trade union pluralism. The Conference thereby recognized the right of any group of workers (or employers) to establish organizations in addition to the existing organization if they think this desirable to safeguard their material or moral interests.

1. While it may generally be to the advantage of workers to avoid a multiplicity of trade union organizations, unification of the trade union movement imposed through state intervention by legislative means runs counter to the principle embodied in Articles 2 and 11 of Convention No. 87. The Committee of Experts of the ILO on the Application of Conventions and Recommendations has emphasized on this question that there is a fundamental difference, with respect to the guarantees of freedom of association and protection of the right to organize, between a situation in which a trade union monopoly is instituted or maintained by legislation and the factual situations which are found to exist in certain countries in which all the trade union organizations join together voluntarily in a single federation or confederation, without this being the direct or indirect result of legislative provisions applicable to trade unions and to the establishment of trade union organizations. The fact that workers and employers generally find it in their interests to avoid a multiplication of the number of competing organizations does not, in fact, appear sufficient to justify direct or indirect intervention by the State, and especially, intervention by the State by means of legislation. While fully appreciating the desire of any government to promote a strong trade union movement by avoiding the defects resulting from an undue multiplicity of small and competing trade unions, whose independence may be endangered by their weakness, the Committee has drawn attention to the fact that it is more desirable in such cases for a government to seek to encourage trade unions to join together voluntarily to form strong and united organizations than to impose upon them by legislation a compulsory unification which deprives the workers of the free exercise of their right of association and thus runs counter to the principles which are embodied in the international labour Conventions relating to freedom of association.

1. While it is generally to the advantage of workers and employers to avoid the proliferation of competing organizations, a monopoly situation imposed by law is at variance with the principle of free choice of workers and employers organizations.

1. Unity within the trade union movement should not be imposed by the State through legislation because this would be contrary to the principles of freedom of association.

1. The government should neither support nor obstruct a legal attempt by a trade union to displace an existing organization. Workers should be free to choose the union which, in their opinion, will best promote their occupational interests without interference by the authorities. It may be to the advantage of workers to avoid a multiplicity of trade unions, but this choice should be made freely and voluntarily. By including the words organizations of their own choosing in Convention No. 87, the International Labour Conference recognized that individuals may choose between several workers or employers organizations for occupational, denominational or political reasons. It did not pronounce as to whether, in the interests of workers and employers, a unified trade union movement is preferable to trade union pluralism.

1. Where one government stated that it was not prepared to tolerate a trade union movement split into several tendencies and that it was determined to impose unity on the whole movement, the Committee recalled that Article 2 of Convention No. 87 provides that workers and employers shall have the right to establish and to join organizations of their own choosing. This provision of the Convention is in no way intended as an expression of support either for the idea of trade union unity or for that of trade union diversity. It is intended to convey, on the one hand, that in many countries there are several organizations among which the workers or the employers may wish to choose freely and, on the other hand, that workers and employers may wish to establish new organizations in a country where no such diversity has hitherto been found. In other words, although the Convention is evidently not intended to make trade union diversity an obligation, it does at least require this diversity to remain possible in all cases. Accordingly, any governmental attitude involving the imposition of a single trade union organization would be contrary to Article 2 of Convention No. 87.

1. A situation in which an individual is denied any possibility of choice between different organizations, by reason of the fact that the legislation permits the existence of only one organization in the area in which that individual carries on his or her occupation, is incompatible with the principles embodied in Convention No. 87; in fact, such provisions establish, by legislation, a trade union monopoly which must be distinguished both from union security clauses and practices and from situations in which the workers voluntarily form a single organization.

1. The power to impose an obligation on all the workers in the category concerned to pay contributions to the single national trade union, which is permitted to be formed in any one occupation in a given area, is not compatible with the principle that workers should have the right to join organizations of their own choosing. In these circumstances, it would seem that a legal obligation to pay contributions to that monopoly trade union, whether workers are members or not, represents a further consecration and strengthening of that monopoly.

1. The Committee has suggested that a State should amend its legislation so as to make it clear that when a trade union already exists for the same employees as those whom a new union seeking registration is organizing or is proposing to organize, or the fact that the existing union holds a bargaining certificate in respect of such class of employees, this cannot give rise to objections of sufficient substance to justify the registrar in refusing to register the new union.

1. In respect to a legislation designed to set up and maintain a single trade union system by expressly mentioning the national trade union confederation, the Committee pointed out that the Committee of Experts on the Application of Conventions and Recommendations has considered that this provision might constitute an obstacle to the creation of another confederation if the workers so wished and had expressed the hope that the Government will adopt the necessary measures to delete the reference in the legislation to a specific trade union organization. In these circumstances the Committee endorsed the comments made by the Committee of Experts.

1. A provision authorizing the refusal of an application for registration if another union, already registered, is sufficiently representative of the interests which the union seeking registration proposes to defend, means that, in certain cases, workers may be denied the right to join the organization of their own choosing, contrary to the principles of freedom of association.

1. Where workers organizations have themselves requested the unification of the trade unions, and this desire has been confirmed in such a way as to make it equivalent to a legal obligation, the Committee has pointed out that, when a unified trade union movement results solely from the will of the workers, this situation does not require to be sanctioned by legal texts, the existence of which might give the impression that the unified trade union movement is merely the result of existing legislation or is maintained only through such legislation.

1. Even in a situation where, historically speaking, the trade union movement has been organized on a unitary basis, the law should not institutionalize this situation by referring, for example, to the single federation by name, even if it is referring to the will of an existing trade union organization. In fact, the right of workers who do not wish to join the federation or the existing trade unions should be protected, and such workers should have the right to form organizations of their own choosing, which is not the case in a situation where the law has imposed the system of the single trade union.

1. The requirement that a trade union is obliged to obtain the recommendation of a specific central organization in order to be duly recognized constitutes an obstacle for workers to establish freely the organization of their own choosing and is therefore contrary to freedom of association.

1. Trade union unity voluntarily achieved should not be prohibited and should be respected by the public authorities.

1. The compulsory membership of employers in Chambers of Commerce when such Chambers have the powers of employers organizations in the meaning of Article 10 of Convention No. 87 is contrary to freedom of association standards and principles.

1. The Committee recalled that the organizational monopoly required by the law was at the root of the freedom of association problems in the country and the main hurdle to the recognition of an employers organization, and requested a government to take measures to amend the legislation so as to ensure the right of workers and employers to establish more than one organization, be it at the enterprise, sectoral or national level, and in a manner that does not prejudice the rights formerly held by the employers organization.

1. The unification into a single employers organization must be the result of the free choice of the members concerned and should not be the consequence of any eventual pressure or interference by the public authorities within the framework of a monopolistic system of industrial relations.