Compilation of decisions of the Committee on Freedom of Association

Protection against discrimination13

General principles

1. Anti-union discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions.

1. Acts calculated to make the employment of a worker subject to the condition that he or she not join a union or shall relinquish their trade union membership constitute a violation of Article 1 of Convention No. 98.

1. No person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present.

1. No person should be dismissed or prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment.

1. No one should be subjected to discrimination or prejudice with regard to employment because of legitimate trade union activities or membership, and the persons responsible for such acts should be punished.

1. No person should be prejudiced in employment by reason of legitimate trade union activities and cases of anti-union discrimination should be dealt with promptly and effectively by the competent institutions.

1. Since inadequate safeguards against acts of anti-union discrimination, in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts.

1. The Committee considers that it is not its role to determine in federal States which are the internal standards regulating protection against anti-union discrimination and, in particular, whether the standards of general application or those of the province in question should be applicable. Nevertheless, irrespective of the procedural or substantive laws applying to public officials or employees in provinces of a federal State, the Committee is bound to examine whether the actual alleged anti-union discrimination measures are or are not in accordance with the provisions of ratified ILO Conventions and the principles of freedom of association.

Workers protected

1. Protection against anti-union discrimination applies equally to trade union members and former trade union officials as to current trade union leaders.

1. No person should be prejudiced in his or her employment by reason of membership of a trade union, even if that trade union is not recognized by the employer as representing the majority of workers concerned.

1. Protection against acts of anti-union discrimination would appear to be inadequate if an employer can resort to subcontracting as a means of evading in practice the rights of freedom of association and collective bargaining.

1. Noting in one case that conditions approaching civil war prevailed, the Committee considered that special restrictions for the purpose of eliminating sabotage in public utility undertakings should not in any case be such as to give rise to anti-union discrimination.

1. The Committee has pointed out that Article 8 of Convention No. 151 allows a certain flexibility in the choice of procedures for the settlement of disputes concerning public servants on condition that the confidence of the parties involved is ensured. The Committee itself has stated in relation to grievances concerning anti-union practices in both the public and private sectors that such complaints should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but should also be seen to be such by the parties concerned.

Forms of discrimination

General principles

1. The Committee is not called upon to pronounce upon the question of the breaking of a contract of employment by dismissal except in cases in which the provisions on dismissal imply anti-union discrimination.

1. Protection against anti-union discrimination should apply more particularly in respect of acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the employers consent, during working hours.

1. Protection against acts of anti-union discrimination should cover not only hiring and dismissal, but also any discriminatory measures during employment, in particular transfers, downgrading and other acts that are prejudicial to the worker.

1. Acts of anti-union discrimination may vary in nature and are not confined to discharge, dismissal, retrenchment or termination of service, but also include all actions taken in retaliation against a worker exercising trade union activities, such as suspension.

Discrimination in relation to hiring

1. Workers face many practical difficulties in proving the real nature of their dismissal or denial of employment, especially when seen in the context of blacklisting, which is a practice whose very strength lies in its secrecy. While it is true that it is important for employers to obtain information about prospective employees, it is equally true that employees with past trade union membership or activities should be informed about the information held on them and given a chance to challenge it, especially if it is erroneous and obtained from an unreliable source. Moreover, in these conditions, the employees concerned would be more inclined to institute legal proceedings since they would be in a better position to prove the real nature of their dismissal or denial of employment.

1. With regard to special committees set up under a law with a view to granting or refusing the certificates of loyalty required of certain workers in public utility undertakings if they were to be engaged or retained in service, the Committee recalled the desirability of ensuring that the special committees in question should not be used in such a manner as to give rise to anti-union discrimination.

1. Legislation should allow the possibility to appeal against discrimination in hiring, i.e. even before the workers can be qualified as employees.

1. The Committee has expressed its fear that the use of polygraph tests during hiring interviews may lead to anti-union discriminations.

Discrimination during employment

1. The non-renewal of a contract for anti-union reasons constitutes a prejudicial act within the meaning of Article 1 of Convention No. 98.

1. In certain circumstances, the renewal of fixed-term contracts for several years may affect the exercise of trade union rights.

1. In certain circumstances, the employment of workers through repeated renewals of fixed-term contracts for several years can be an obstacle to the exercise of trade union rights.

1. Fixed-term contracts should not be used deliberately for anti-union purposes.

1. The Committee invited a government to examine with the most representative workers and employers organizations, a way of ensuring that the systematic use of short-term temporary contracts in the non-traditional export sector did not become in practice an obstacle to the exercise of trade union rights.

1. Acts of harassment and intimidation carried out against workers by reason of trade union membership or legitimate trade union activities, while not necessarily prejudicing workers in their employment, may discourage them from joining organizations of their own choosing, thereby violating their right to organize.

1. Granting bonuses to non-union member staff even if it is not to all non-union workers and excluding all workers who are union members from such bonuses during a period of collective conflict, constitutes an act of anti-union discrimination contrary to Convention No. 98.

1. Direct threat and intimidation of members of a workers organization and forcing them into committing themselves to sever their ties with the organization under the threat of termination constitutes a denial of these workers freedom of association rights.

1. The governments obligations under Convention No. 98 and the principles on protection against anti-union discrimination cover not only acts of direct discrimination (such as demotion, dismissal, frequent transfer, and so on), but extend to the need to protect unionized employees from more subtle attacks which may be the outcome of omissions. In this respect, proprietorial changes should not remove the right to collective bargaining from employees, or directly or indirectly threaten unionized workers and their organizations.

1. The Committee has drawn attention to the fact that initiating administrative proceedings against union officials without sufficient grounds might have an intimidating effect on union officials.

1. Transfers of employees for reasons unconnected with their trade union affiliation or activities are not covered by Article 1 of Convention No. 98.

Discriminatory dismissal

1. The dismissal of workers on grounds of membership of an organization or trade union activities violates the principles of freedom of association.

1. Subcontracting accompanied by dismissals of union leaders can constitute a violation of the principle that no one should be prejudiced in his or her employment on the grounds of union membership or activities.

1. It would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the workers trade union membership or activities.

1. In cases of anti-union dismissals, newly established enterprise level unions are likely to suffer adverse consequences threatening their very existence, if their entire leadership and a large part of their membership is dismissed.

1. Where public servants are employed under conditions of free appointment and removal from service, the exercise of the right to freely remove public employees from their posts should in no instance be motivated by the trade union functions or activities of the persons who could be affected by such measures.

1. Not only dismissal, but also compulsory retirement, when imposed as a result of legitimate trade union activities, would be contrary to the principle that no person should be prejudiced in his or her employment by reason of trade union membership or activities.

1. In certain cases, the Committee has found it difficult to accept as a coincidence unrelated to trade union activity that heads of departments should have decided, immediately after a strike, to convene disciplinary boards which, on the basis of service records, ordered the dismissal not only of a number of strikers, but also of members of their union committee.

1. Acts of anti-trade union discrimination should not be authorized under the pretext of dismissals based on economic necessity.

1. The application of staff reduction programmes must not be used to carry out acts of anti-union discrimination.

1. A corporate restructuring should not directly or indirectly threaten unionized workers and their organizations.

1. It is not within the Committees purview to pronounce itself on allegations relating to restructuring programmes, even when these involve collective dismissals, unless they have given rise to acts of anti-union discrimination or interference.

1. The liquidation of a company and the fact that the legal person under which the company operated has ceased to exist should not be used as a pretext for anti-union discrimination nor should they be an obstacle to the competent authorities determining whether or not there were acts of anti-union discrimination and, if such practices are shown to have taken place, to sanctioning such illegal acts and ensuring that the affected workers are duly compensated.

1. In the Committees opinion, the bipartite talks and the administrative procedure of permission to dismiss do not guarantee adequate protection to workers against acts of anti-union discrimination, since it appears that the legislation currently in force allows an employer merely to invoke lack of harmony in the working relationship to justify the dismissal of workers who only wish to exercise a fundamental right under the principles of freedom of association.

Organizations leaders and representatives

General principles

1. One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers organizations shall have the right to elect their representatives in full freedom.

1. The Committee has drawn attention to the Workers Representatives Convention (No. 135) and Recommendation (No. 143), 1971, in which it is expressly established that workers representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers representatives or on union membership, or participation in union activities, in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements.

1. The principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds a trade union office confers immunity against dismissal irrespective of the circumstances.

1. A deliberate policy of frequent transfers of persons holding trade union office may seriously harm the efficiency of trade union activities.

Blacklists

1. All practices involving the blacklisting of trade union officials or members constitute a serious threat to the free exercise of trade union rights and, in general, governments should take stringent measures to combat such practices.

Dismissal of trade union leaders

1. The Committee has pointed out that one way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct.

1. The dismissal of trade unionists for absence from work without the employers permission, for example, to attend a workers education course, does not appear in itself to constitute an infringement of freedom of association.

1. The Committee cannot accept that the failure to work on a non-workday should be considered a breach of labour discipline leading to the dismissal of trade union leaders.

1. In a case in which trade union leaders could be dismissed without an indication of the motive, the Committee requested the government to take steps with a view to punishing acts of anti-union discrimination and to making appeal procedures available to the victims of such acts.

1. In no case should it be possible to dismiss a trade union officer merely for having presented a list of dispute grievances; this constitutes an extremely serious act of discrimination.

1. A recommendation of the chairperson of a union in respect of an employers proposal is a legitimate act within the context of collective bargaining and should be protected as a legitimate trade union activity.

1. According to the findings of a court, one of the essential reasons for the dismissal of a trade union official was that he performed certain trade union activities in the employers time, using the personnel of the employer for trade union purposes and using his business position to exercise improper pressure on another employee all this without the consent of the employer. The Committee considered that, when trade union activities are carried on in this way, it is not possible for the person concerned to invoke the protection of Convention No. 98 or to contend that, in the event of dismissal, his legitimate trade union rights have been infringed.

1. In a case in which a trade union leader was dismissed and then reinstated a few days later, the Committee pointed out that the dismissal of trade union leaders by reason of union membership or activities is contrary to Article 1 of Convention No. 98, and could amount to intimidation aimed at preventing the free exercise of their trade union functions.

1. The dismissal of trade union officers on account of their trade union office or activities, even if they are subsequently reinstated, is contrary to Article 1 of Convention No. 98, and could, in cases where dismissal has been proven, amount to intimidation preventing the exercise of their trade union functions.

1. Especially at the initial stages of unionization in a workplace, dismissal of trade union representatives might fatally compromise incipient attempts at exercising the right to organize, as it not only deprives the workers of their representatives, but also has an intimidating effect on other workers who could have envisaged assuming trade union functions or simply join the union.

1. With regard to the reasons for dismissal, the activities of trade union officials should be considered in the context of particular situations which may be especially strained and difficult in cases of labour disputes and strike action.

1. In cases involving a large number of dismissals of trade union leaders and other trade unionists, the Committee considered that it would be particularly desirable for the government to carry out an inquiry in order to establish the true reasons for the measures taken.

Need for rapid and effective protection

1. Legislation should lay down explicitly remedies and penalties against acts of anti-union discrimination in order to ensure the effective application of Article 1 of Convention No. 98.

1. Where a government has undertaken to ensure that the right to associate shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment.

1. In accordance with Convention No. 98, a government should take measures, whenever necessary, to ensure that protection of workers is effective, which implies that the authorities should refrain from any act likely to provoke, or have as its object, anti-union discrimination against workers in respect of their employment.

1. As long as protection against anti-union discrimination is in fact ensured, the methods adopted to safeguard workers against such practices may vary from one State to another; but if there is discrimination, the government concerned should take all necessary steps to eliminate it, irrespective of the methods normally used.

1. The government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned.

1. Cases concerning anti-union discrimination should be examined rapidly, so that the necessary remedies can be really effective; an excessive delay in processing such cases constitutes a serious attack on the trade union rights of those concerned.

1. The basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by procedures to ensure that effective protection against such acts is guaranteed.

1. It may often be difficult, if not impossible, for workers to furnish proof of an act of anti-union discrimination of which they have been the victim. This shows the full importance of Article 3 of Convention No. 98, which provides that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organize.

1. Respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial.

1. The longer it takes for a procedure particularly concerning the reinstatement of trade unionists to be completed, the more difficult it becomes for the competent body to issue a fair and proper relief, since the situation complained of has often been changed irreversibly, people may have been transferred, etc., to a point where it becomes impossible to order adequate redress or to come back to the status quo ante.

1. Delay in the conclusion of proceedings giving access to remedies diminishes in itself the effectiveness of those remedies, since the situation complained of has often been changed irreversibly, to a point where it becomes impossible to order adequate redress or come back to the status quo ante.

1. Cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned.

1. In cases in which proceedings concerning dismissals had already taken 14 months, the Committee requested the judicial authorities, in order to avoid a denial of justice, to pronounce on the dismissals without delay and emphasized that any further undue delay in the proceedings could in itself justify the reinstatement of these persons in their posts.

1. In a case where judicial proceedings concerning allegations of anti-union dismissal of workers had been pending for several years, the Committee requested the Government to ensure that they were concluded without further delay and, while awaiting the final judicial decisions, to ensure the immediate provisional reinstatement of the workers in respect of whom reinstatement orders that had not been shelved were issued at first instance.

1. Legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of anti-union discrimination to ensure the practical application of Articles 1 and 2 of Convention No. 98.

1. Where a government has undertaken to ensure that the free exercise of trade union rights shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment.

1. The Committee has recalled the need to ensure by specific provisions accompanied by civil remedies and penal sanctions the protection of workers against acts of anti-union discrimination at the hands of employers.

1. As regards the allegation concerning the lack of legislative guarantees against anti-union discrimination, the Committee considered that the current system of protection against anti-union practices (heavy fines in the case of anti-union dismissals, administrative orders to reinstate workers so dismissed and the possibility of closing down the enterprise) does not infringe Convention No. 98 but could be improved in so far as accelerating the procedure.

1. Complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner.

1. The Committee has recalled that the Fact-Finding and Conciliation Commission on Freedom of Association had stressed the importance of providing expeditious, inexpensive and wholly impartial means of redressing grievances caused by acts of anti-union discrimination; it has drawn attention to the desirability of settling grievances wherever possible by discussion without treating the process of determining grievances as a form of litigation, but the Commission has concluded, in cases where honest differences of opinion or viewpoint exist, that resort should be had to impartial tribunals or individuals as the final step in the grievance procedure.

1. The Committee has drawn attention to the Workers Representatives Recommendation, 1971 (No. 143), which recommends, as one of the measures that should be taken to ensure the effective protection of workers representatives, the adoption of provision for laying upon the employer, in the case of any alleged discriminatory dismissal or unfavourable change in the conditions of employment of a workers representative, the burden of proving that such action was in fact justified.

1. Besides preventive machinery to forestall anti-union discrimination (such as, for example, a request for the prior authorization of the labour inspectorate before dismissing a trade union leader), a further means of ensuring effective protection could be to make it compulsory for each employer to prove that the motive for the decision to dismiss a worker has no connection with the workers union activities.

1. In cases of staff reductions, the Committee has drawn attention to the principle contained in the Workers Representatives Recommendation, 1971 (No. 143), which mentions amongst the measures to be taken to ensure effective protection to these workers, that recognition of a priority should be given to workers representatives with regard to their retention in employment in case of reduction of the workforce.

1. The Committee has emphasized the advisability of giving priority to workers representatives with regard to their retention in employment in case of reduction of the workforce, to ensure their effective protection.

1. The Committee has considered that governments should take the necessary measures to enable labour inspectors to enter freely and without previous notice any workplace liable to inspection, and to carry out any examination, test or inquiry which they may consider necessary in order to satisfy themselves that the legal provisions including those relating to anti-union discrimination are being strictly observed.

1. Where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention.

1. In a case in which the remedies available to undocumented workers dismissed for attempting to exercise their trade union rights included: (1) a cease and desist order in respect of violations of the law; and (2) the conspicuous posting of a notice to employees setting forth their rights under the law and detailing the prior unfair practices, the Committee considered that such remedies in no way sanctioned the act of anti-union discrimination already committed, but only acted as possible deterrents for future acts. Such an approach is likely to afford little protection to undocumented workers who can be indiscriminately dismissed for exercising freedom of association. The remedial measures in question are therefore inadequate to ensure effective protection against acts of anti-union discrimination.

1. The Committee considers that the role of the Government in relation to acts of anti-union discrimination and interference is not confined to mediation and conciliation but also includes, where appropriate, investigation and enforcement in order to ensure effective protection against acts of anti-union discrimination and interference and, in particular, ensure that such acts are identified and remedied, that guilty parties are punished and that such acts do not reoccur in the future.

1. In order to guarantee effective protection against anti-union discrimination, it would be necessary to try to establish the truth of the allegations made by the complainant organizations concerning pressure to encourage workers to resign from their union and, if those allegations are found to be true, to take appropriate corrective measures.

Reinstatement of trade unionists in their jobs

1. No one should be subjected to anti-union discrimination because of legitimate trade union activities and the remedy of reinstatement should be available to those who are victims of anti-union discrimination.

1. Respect for the principles of freedom of association requires that workers should not be dismissed for engaging in legitimate trade union activities.

1. The Government must ensure an adequate and efficient system of protection against acts of anti-union discrimination, which should include sufficiently dissuasive sanctions and prompt means of redress, emphasizing reinstatement as an effective means of redress.

1. In the case of a country in which there was no legislation providing for the reinstatement of workers who had been dismissed without justification, the Committee requested the government to take measures to amend the legislation so that workers dismissed for the exercise of their trade union rights can be reinstated in their posts.

1. In cases of the dismissal of trade unionists on the grounds of their trade union membership or activities, the Committee has requested the government to take the necessary measures to enable trade union leaders and members who had been dismissed due to their legitimate trade union activities to secure reinstatement in their jobs and to ensure the application against the enterprises concerned of the corresponding legal sanctions.

1. In many cases, the Committee has requested the government to ensure that the persons in question are reinstated in their jobs without loss of pay or compensation.

1. If it appears that the dismissals occurred as a result of involvement by the workers concerned in the activities of a union, the Government must ensure that those workers are reinstated in their jobs without loss of pay.

1. If, given the considerable time that has elapsed since the dismissals, in violation of the principles of freedom of association, it is not practicable to reinstate the workers concerned, the Committee has requested the government to take steps to ensure that the workers receive full compensation without delay.

1. In certain cases of dismissals in which judicial proceedings were ongoing, if the decision concludes that there have been acts of anti-union discrimination, the Committee has requested the reinstatement of the workers concerned as a priority solution.

1. If the judicial authority determines that reinstatement of workers dismissed in violation of freedom of association is not possible, measures should be taken so that they are fully compensated.

1. The compensation should be adequate, taking into account both the damage incurred and the need to prevent the repetition of such situations in the future.

1. If reinstatement is not possible, the government should ensure that the workers concerned are paid adequate compensation which would represent a sufficient dissuasive sanction for anti-trade union dismissals.

1. If the judicial authority or an independent competent body determines that reinstatement of trade union members is not possible for objective and compelling reasons, adequate compensation should be awarded to remedy all damages suffered and prevent any repetition of such acts in the future, so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination.

1. In many cases, the Committee has requested the government to take the necessary measures to ensure that, if reinstatement is not possible for objective and compelling reasons, the workers concerned receive adequate compensation so as to constitute a sufficiently dissuasive sanction against acts of anti-union discrimination.

1. In one case, the Committee requested the Government, if it was found by an independent judicial body that reinstatement in one form or another was not possible, to ensure that the workers concerned were paid adequate compensation beyond that provided in the law for simple unmotivated dismissal, but rather such compensation as to represent a sufficient dissuasive sanction for anti-union dismissal.

1. In certain cases, the Committee has requested the government to carry out independent investigations of dismissals and, if it finds that they constitute anti-trade union acts, to take measures to ensure the reinstatement of the workers concerned.

1. In one case, the Committee, taking into account the slowness of the judicial proceedings, requested a Government to ensure that the labour inspectorate carried out an investigation without delay, and, if the dismissals were shown to have been carried out for anti-union reasons, to take steps to ensure that the workers concerned were immediately reinstated in their places of work.

1. If the post occupied by the worker has been eliminated, she or he should be reinstated in a comparable post if the dismissal constituted an act of anti-union discrimination.

1. Where the enterprise no longer exists, measures should be taken to ensure that workers dismissed for trade union activities are fully compensated.

1. Declarations of loyalty or other similar commitment should not be imposed as a condition for reinstatement.

1. In a case of a strike by air traffic controllers in which public safety was endangered, the Committee considered that it could not ask the Government to allow the request for a return to work of those who were dismissed, as claimed by the complainant.

1. The necessary measures should be taken so that trade unionists who have been dismissed for activities related to the establishment of a union are reinstated in their functions, if they so wish.

1. It is inconsistent with the right to strike for an employer to be permitted to refuse to reinstate some or all of the employees at the conclusion of the strike, lock-out or other industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal.

Discrimination against employers

1. In relation to allegations concerning discrimination against employers leaders on the grounds of agrarian reform, the Committee considered that the provisions concerning compensation for land expropriation should be reviewed to make sure that there is real and fair compensation for the losses thus sustained by owners, and that the Government should reopen the compensation files if so requested by persons who consider they have been despoiled in the agrarian reform process.