Compilation of decisions of the Committee on Freedom of Association

Collective bargaining15

Workers covered by collective bargaining

Public servants

1. Only armed forces, the police and public servants engaged in the administration of the State may be excluded from collective bargaining.

1. Convention No. 98, and in particular Article 4 thereof concerning the encouragement and promotion of collective bargaining, applies both to the private sector and to nationalized undertakings and public bodies.

1. All public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights, and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service.

1. A distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies), as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the government, by public undertakings or by autonomous public institutions. Only the former category can be excluded from the scope of Convention No. 98.

1. Article 1(2) of Convention No. 151 states that the extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as policy-making or managerial, or to employees whose duties are of a highly confidential nature, shall be determined by national laws or regulations. However, under Convention No. 98, the right of collective bargaining can be denied only to public servants working in the state administration.

1. The Committee has considered it useful to recall that, under the terms of the Labour Relations (Public Service) Convention, 1978 (No. 151) (Article 7): Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilization of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees organizations, or of such other methods as will allow representatives of public employees to participate in the determination of these matters.

1. While recalling the terms of Article 7 of Convention No. 151, the Committee has emphasized that when national legislation opts for negotiation machinery, the State must ensure that such machinery is applied properly.

1. The Committee acknowledges that Article 7 of Convention No. 151 allows a degree of flexibility in the choice of procedures to be used in the determination of the terms and conditions of employment.

1. Referring to Article 8 of Convention No. 151 concerning the settlement of disputes, the Committee has recalled that, in view of the preparatory work which preceded the adoption of the Convention, this Article has been interpreted as giving a choice between negotiation or other procedures (such as mediation, conciliation and arbitration) in settling disputes. The Committee has stressed the importance of the principle contained in Article 8 of Convention No. 151.

1. Although certain categories of public servants should already enjoy the right to collective bargaining, in accordance with Convention No. 98, the promotion of that right was generally recognized for all public servants with the ratification of Convention No. 154 and, in consequence, workers in the public sector and the central public administration should enjoy the right of collective bargaining.

1. The mere fact that public servants are white-collar employees is not in itself conclusive of their qualification as employees engaged in the administration of the State; if this were not the case, Convention No. 98 would be deprived of much of its scope. To sum up, all public service workers, with the sole possible exception of the armed forces and the police and public servants directly engaged in the administration of the State, should enjoy collective bargaining rights.

1. It is imperative that the legislation contain specific provisions clearly and explicitly recognizing the right of organizations of public employees and officials who are not acting in the capacity of agents of the state administration to conclude collective agreements. From the point of view of the principles laid down by the supervisory bodies of the ILO in connection with Convention No. 98, this right could only be denied to officials working in ministries and other comparable government bodies, but not, for example, to persons working in public undertakings or autonomous public institutions.

1. Those public employees and officials who are not acting in the capacity of agents of the state administration (for example, those working in public undertakings or autonomous public institutions) should be able to engage in free and voluntary negotiations with their employers; in that case, the bargaining autonomy of the parties should prevail and not be conditional upon the provisions of laws, by-laws or the budget.

1. If any class of public employee could be denied the right to collective bargaining simply by legislating their terms and conditions of employment, Convention No. 98 would be deprived of all of its scope vis-à-vis public employees.

1. The Committee has considered that 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 Convention No. 87. It also held that the same considerations apply to Conventions Nos. 98, 151 and 154.

1. In the preparatory work leading up to Convention No. 151, it was established that judges of the judiciary did not fall within the scope of implementation of the Convention; nevertheless, said Convention does not exclude the auxiliary staff of judges. The Committee therefore deems that auxiliary staff of the judiciary must therefore have the right to collective bargaining.

1. Convention Nos. 87 and 98 are applicable to locally recruited personnel in embassies.

1. The Committee does not consider that the mere fact that public servants are subject to security clearance vests them with the quality of employees engaged in the administration of the State.

1. The Committee queried whether federal airport screeners may actually be considered as public servants engaged in the administration of the State. While recognizing that there is clearly a security element involved in their work, as indeed exists for security screeners of private enterprises, the Committee was concerned that the extension of the notion of national security concerns for persons who were clearly not making national policy that may affect security, but only exercising specific tasks within clearly defined parameters, may impede unduly upon the rights of these federal employees. It therefore requested the Government to carefully review, in consultation with the workers organizations concerned, the matters covered within the overall terms and conditions of employment of federal airport screeners which are not directly related to national security issues and to engage in collective bargaining on these matters with the screeners freely chosen representative.

1. While the work of transport security officers, as the tasks of numerous other workers across the country that affect or implement in one form or another the measures adopted for national security reasons, relate without a doubt to questions of security, the Committee cannot consider that the clearly non-policy making aspects of those working in an enlarged security administration can be assimilated without limit into a category of workers whose collective bargaining rights can be denied.

1. In a case in which an attempt was being made to give the workers in the National Bank private sector status, the Committee considered that it was not within its purview to express an opinion as to whether the workers should be given public law or private law status. Considering that Conventions Nos. 87 and 98 apply to all workers in the banking sector, however, the Committee expressed the hope that the right of bank employees would be recognized to conclude collective agreements and join the federations of their choosing.

1. No provision in Convention No. 98 authorizes the exclusion of staff having the status of contract employee from its scope.

Workers of state-owned enterprises

1. The workers of state-owned commercial or industrial enterprises should have the right to negotiate collective agreements.

Employees of the postal and telecommunications services

1. Convention No. 98 applies to employees of the postal and telecommunications services.

1. While the particular status of mail contractors (under a contract with the Post Office) may call for clarification as regards the definition of bargaining units, the rules for certification, etc., as well as specific negotiations taking their status under the Act and their work requirements into account, the Committee fails to see any reason why the principles on the basic rights of association and collective bargaining afforded to all workers should not also apply to mail contractors.

Radio and television staff

1. The staff of a national radio and television institute, a public undertaking, may not be excluded, by reason of their duties, from the principle concerning the promotion of collective bargaining.

Teaching staff

1. The Committee has drawn attention to the importance of promoting collective bargaining, as set out in Article 4 of Convention No. 98, in the education sector.

1. In the Committees opinion, teachers do not carry out tasks specific to officials in the state administration; indeed, this type of activity is also carried out in the private sector. In these circumstances, it is important that teachers with civil servant status should enjoy the guarantees provided for under Convention No. 98.

1. Workers in public or private universities shall have the right to collective bargaining.

1. While there may be some linkages between the educational and employment relationship of graduate teaching and research assistants to their university, a series of other concrete elements leads the Committee to consider that graduate teaching and research assistants, in so far as they are workers, should, like all other workers, enjoy the right to bargain collectively over the terms and conditions of their employment, excluding academic requirements and policies, so as to protect and promote their occupational interests. In that capacity, this right should include being represented in negotiations by the union of their choice and having sufficient protection for the exercise of their trade union rights.

Hospital staff

1. Persons employed in public hospitals should enjoy the right to collective bargaining.

1. The Committee has considered that health service employees cannot be considered to be public servants engaged in the administration of the State whose right to negotiate may be subject to restrictions.

Aviation sector personnel

1. Air flight control personnel should have the right to engage in collective bargaining on their conditions of employment.

1. Civil aviation technicians working under the jurisdiction of the armed forces cannot be considered, in view of the nature of their functions, as belonging to the armed forces and as such liable to be excluded from the guarantees laid down in Convention No. 98; the standards contained in Article 4 of the Convention concerning collective bargaining should be applied to them.

Customs staff

1. The Committee emphasized the importance it attaches to the promotion of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organizations of the customs sector.

1. While the decision to install a new port security system may to the extent that it forms part of a broader Government policy on port security reasonably be regarded as lying outside the scope of collective bargaining, the presence of such a system may have an impact upon the customs staffs conditions of employment, which should be the subject of consultation and negotiation between the parties.

Seafarers

1. When examining legislation which made it possible to exclude seafarers not resident in the country from collective agreements, the Committee called on the Government to take measures to amend the Act so as to ensure that full and voluntary collective bargaining open to all seafarers employed on ships sailing under the national flag was once again a reality.

Workers of cooperatives

1. As a logical consequence of the right to organize of workers associated in cooperatives, the trade union organizations that workers of cooperatives join should be guaranteed the right to engage in collective bargaining on their behalf with a view to defending and promoting their interests.

Temporary and part-time workers

1. Temporary workers should be able to negotiate collectively.

1. While the particular circumstances of the part-time employees may call for differentiated treatment and adjustments as regards the definition of bargaining units, the rules for certification, etc., as well as specific negotiations taking their status and work requirements into account, the Committee fails to see any reason why the principles on the basic rights of association and collective bargaining afforded to all workers should not also apply to part-time employees.

Workers employed under programmes to combat unemployment

1. With regard to temporary job offers in the public sector to combat unemployment, in which the wages were not determined under the terms of the collective agreements governing remuneration of regular employees, the Committee expressed the hope that the Government would ensure that, in practice, the job offers remained of a limited duration and did not become an opportunity to fill permanent posts with unemployed persons, restricted in their right to bargain collectively as regards their remuneration.

1. People involved in community participation activities intended to combat unemployment, of a limited duration of six months, are not true employees of the organization which benefits from their labour and can therefore legitimately be excluded from the scope of collective agreements in force, at least in respect of wages.

1. With reference to people involved in community participation activities, the Committee however considered that the persons concerned perform work and provide a service of benefit to the organizations concerned. For this reason, they must enjoy a certain protection in respect of their working and employment conditions.

1. In the context of measures to combat unemployment and the introduction of job offer schemes which imposed a ceiling on hourly wage rates, the Committee emphasized that the Government should ensure, in practice, that job pools are not resorted to on a successive basis in order to fill regular jobs with unemployed persons restricted in their right to bargain collectively in respect of wages. The Committee urged the Government to set up tripartite procedures in order to prevent any abuse.

Subcontracted workers

1. Collective bargaining between the relevant trade union and the party who determines the terms and conditions of employment of the subcontracted/agency workers should always be possible.

Civic volunteers

1. The work of civic volunteers, which entails compensation, determination of working hours, and continuity of service must similarly afford these workers with the protection afforded by freedom of association principles, including the right to collective bargaining.

Self-employed workers

1. The Committee requested a Government to take the necessary measures to ensure that workers who are self-employed could fully enjoy trade union rights for the purpose of furthering and defending their interest, including by the means of collective bargaining; and to identify, in consultation with the social partners concerned, the particularities of self-employed workers that have a bearing on collective bargaining so as to develop specific collective bargaining mechanisms relevant to self-employed workers, if appropriate.

Non-unionized workers

1. With regard to legislation that grants non-unionized workers the right to choose the collective agreement they desire when one or more have been concluded within the company, the Committee considered that non-unionized workers are in a better position to determine which union has best succeeded in defending the interests of the occupational category to which they belong by means of the collective agreement it has concluded with the company. It also considered that their right to choose does not undermine the principle of promoting free and voluntary collective bargaining laid down in Article 4 of Convention No. 98, as it is not restricted by the existence of more than one collective agreement within an enterprise.

Erga omnes effect of collective agreements

1. In a case in which some collective agreements applied only to the parties to the agreement and their members and not to all workers, the Committee considered that this is a legitimate option just as the contrary would be which does not appear to violate the principles of freedom of association, and one which is practised in many countries.

1. While Convention No. 98 is compatible both with systems that grant bargaining rights to the most representative organization which affect the entire workforce erga omnes and systems which allow minority trade unions to bargain on behalf of their members, in the former case it is not consistent also to grant collective bargaining rights in the same field to minority trade unions and, in practice, doing so may lead to anti-union practices.