Compilation of decisions of the Committee on Freedom of Association

Protection against acts of interference14

General principles

1. Article 2 of Convention No. 98 provides that workers and employers organizations shall enjoy adequate protection against acts of interference in their establishment, functioning or administration.

1. Article 2 of Convention No. 98 establishes the total independence of workers organizations from employers in exercising their activities.

1. Workers shall have the right to join organizations of their own choosing without any interference from the employer.

1. The Committee recalled the fundamental principle of workers being able to join organizations of their own choosing and of the enterprise not interfering in favour of a trade union.

1. The employers consent to the establishment of the union should not be required as a condition for registration. Indeed, the Committee considers that such a requirement would constitute a clear violation of the principles of freedom of association.

1. Respect for the principles of freedom of association requires that employers exercise great restraint in relation to intervention in the internal affairs of trade unions.

1. Respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard. They should not, for example, do anything which might seem to favour one group within a union at the expense of another.

Forms of interference

1. As regards allegations of anti-union tactics in the form of preventing the establishment of workers organizations or bribes offered to union members to encourage their withdrawal from the union and the presentation of statements of resignation to the workers, as well as the alleged efforts made to create puppet unions, the Committee considers such acts to be contrary to Article 2 of Convention No. 98, which provides that workers and employers organizations shall enjoy adequate protection against any acts of interference by each other or each others agents in their establishment, functioning or administration.

1. The intervention by an employer to promote the establishment of a parallel trade union constitutes an act of interference by the employer in the functioning of a workers association, which is prohibited under Article 2 of Convention No. 98.

1. The Committee recalled that it has had the opportunity to review the question of employers freedom of expression in a case where, observing that the protection afforded by unfair labour practices in the country included protection against freedom of speech that would interfere with the formation of any labour organization or with the selection of a trade union as a representative for the purpose of bargaining collectively, found that the principles of freedom of association did not appear to be violated.

1. The Committee requested a government to ensure that employers did not express opinions which would intimidate workers in the exercise of their organizational rights, such as claiming that the establishment of an association is unlawful, or warning against application with a higher level organization, or encouraging workers to withdraw their membership.

1. Any coercion of workers or trade union officers to revoke their union membership constitutes a violation of the principle of freedom of association, in violation of Convention No. 87.

1. Coercing trade union members into leaving the trade union constitutes a serious violation of Conventions Nos. 87 and 98 that consecrate the right of workers to freely join the organization of their own choice and the principle of the adequate protection of this right.

1. Management drafting of a union resignation letter constitutes a grave interference in the functioning of workers organization.

1. The Committee considered that the distribution of resignation forms and the setting up of a toll-free telephone line providing information on how to resign from the union constitute interference in the internal affairs of the union. In that regard, the Committee recalls that Article 2 of Convention No. 98 stipulates that workers and employers organizations shall enjoy adequate protection against any acts of interference by each other or each others agents or members in their establishment, functioning or administration, and requested the Government to put into place a mechanism that would enable it to rapidly redress any effects of this type of interference, including through the imposition of sufficiently dissuasive sanctions on the employer, where appropriate, and to avoid such incidents in the future.

1. The distribution of resignation forms to trade union members and one-on-one interviews to obtain the withdrawal of members from the union constitute acts of interference.

1. Paid full-time union officers should be able to carry out their trade union duties in accordance with the rules of their organization without having to account for each activity to the management. Such activities should include educational activities, activities carried out under the aegis of the relevant federation or confederation and those related to the preparation of action on a collective dispute.

1. Extending an invitation to participate in the meetings with the enterprise management to one organization and not to another, may be an informal way of showing favouritism to one organization and thereby influencing the trade union membership of workers.

1. The closure of trade union offices, as a consequence of a legitimate strike, constitutes a violation of the principles of freedom of association and, if carried out by management, interference by the employer in the functioning of a workers organization, which is prohibited under Article 2 of Convention No. 98.

1. The intervention by an employer to promote the constitution of the executive board of a trade union, and interference with its correspondence, are acts which constitute a grave violation of the principles of freedom of association.

1. Attempts by employers to persuade employees to withdraw authorizations given to a trade union could unduly influence the choice of workers and undermine the position of the trade union, thus making it more difficult to bargain collectively, which is contrary to the principle that collective bargaining should be promoted.

1. The alleged offer of conditional benefits by the company provided that it would not be required to enter into a collective bargaining relationship with the union, if true, would be tantamount to employer interference in the right of workers to form and join the organization of their own choosing to represent their occupational interests.

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

1. The maintenance of camera surveillance in rooms set aside for trade union meetings is likely to produce an intimidating effect on trade union bodies and members and may give rise to employer interference in a manner contrary to the principles of freedom of association in relation to trade union meetings.

1. The issue of a management requesting its employees to state whether or not they belong to a union, even though this may not be intended to interfere with the exercise of trade union rights, may naturally be regarded as such an interference and felt to be intimidating to union members.

1. The issue of circulars by a company requesting its employees to state to which trade union they belong, even though this is not intended to interfere with the exercise of trade union rights, may not unnaturally be regarded as such an interference.

1. The fact that one of the members of a government is at the same time a leader of a trade union which represents several categories of workers employed by the State creates a possibility of interference in violation of Article 2 of Convention No. 98.

1. Recalling the importance of the independence of the parties in collective bargaining, negotiations should not be conducted on behalf of employees or their organizations by bargaining representatives appointed by or under the domination of employers or their organizations.

Need for effective protection

1. The Committee recalled the importance it attaches to protection being ensured against acts of interference by employers designed to promote the establishment of workers organizations under the domination of an employer.

1. Where legislation does not contain specific provisions for the protection of workers organizations from acts of interference by employers and their organizations (and provides that any case not provided for by the legislation should be decided, inter alia, in accordance with the provisions laid down in the Conventions and Recommendations adopted by the International Labour Organization, in so far as they are not contrary to laws of the country, and in accordance with Convention No. 98, by virtue of its ratification), it would be appropriate for the government to examine the possibility of adopting clear and precise provisions ensuring the adequate protection of workers organizations against these acts of interference.

1. The existence of legislative provisions prohibiting acts of interference on the part of the authorities, or by organizations of workers and employers in each others affairs, is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice.

1. Legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers organizations to ensure the practical application of Articles 1 and 2 of Convention No. 98.

1. In endorsing an observation made by the Committee of Experts on the Application of Conventions and Recommendations concerning a law, the Committee pointed out that it would be extremely difficult for a worker who was dismissed by an employer invoking, for example, neglect of duty, to prove that the real motive for dismissal was to be found in his or her trade union activities. Further, since lodging an appeal in this case did not suspend the decision taken, the dismissed trade union leader had, by virtue of the law, to resign his or her trade union post when dismissed. The Committee considered that the law therefore made it possible for managements of undertakings to hinder the activities of a trade union, which is contrary to Article 2 of Convention No. 98, according to which workers and employers organizations shall enjoy adequate protection against any acts of interference by each other or each others agents or members in their establishment, functioning or administration.

Solidarist or other associations

Definition

1. An Act on solidarist associations provides that such associations may be formed by 12 or more workers, and defines them as follows: Solidarist associations are bodies of indeterminate duration which have their own legal personality and which, to achieve their purposes (the promotion of justice and social peace, harmony between employers and workers and the general advancement of their members), may acquire goods of all kinds, conclude any type of contract and undertake legal operations of any sort aimed at improving their members social and economic conditions so as to raise their standard of living and enhance their dignity. To this effect they may undertake savings, credit and investment operations and any other financially viable operations. They may also organize programmes in the areas of housing, science, sport, art, education and recreation, cultural and spiritual matters and social and economic affairs and any other programme designed legally to promote cooperation between workers and between workers and their employers. The income of solidarist associations comes from members minimum monthly savings, the percentage of which shall be determined by the general meeting, and the employers monthly contribution on behalf of the workers, which shall be determined by common agreement between the two sides.

1. Solidarist associations are associations of workers which are set up dependent on a financial contribution from the relevant employer and which are financed in accordance with the principles of mutual benefit societies by both workers and employers for economic and social purposes of material welfare (savings, credit, investment, housing and educational programmes, etc.) and of unity and cooperation between workers and employers; their deliberative bodies must be made up of workers, though an employers representative may be included who may speak but not vote. In the Committees opinion, although from the point of view of the principles contained in Conventions Nos. 87 and 98, nothing prevents workers and employers from seeking forms of cooperation, including those of a mutualist nature, to pursue social objectives, it is up to the Committee, in so far as such forms of cooperation crystallize into permanent structures and organizations, to ensure that the legislation on and the functioning of solidarist associations do not interfere with the activities and the role of trade unions.

Safeguards to prevent associations from carrying out trade union activities

1. The provisions governing solidarist associations should respect the activities of trade unions guaranteed by Convention No. 98.

1. The necessary legislative and other measures should be taken to guarantee that solidarist associations do not get involved in trade union activities, as well as measures to guarantee effective protection against any form of anti-union discrimination and to abolish any inequalities of treatment in favour of solidarist associations.

1. As regards allegations relating to solidarism, the Committee has recalled the importance it attaches, in conformity with Article 2 of Convention No. 98, to protection being ensured against any acts of interference by employers designed to promote the establishment of workers organizations under the domination of an employer.

1. As regards allegations concerning the activities of solidarist associations aimed at thwarting trade union activities, the Committee drew the Governments attention to Article 2 of Convention No. 98, which provides that workers and employers organizations shall enjoy adequate protection against any acts of interference by each other and that measures designed to promote the establishment of workers organizations under the domination of employers or employers organizations, or to support workers organizations by financial and other means, with the object of placing such organizations under the control of employers or employers organizations, are specifically assimilated to such acts of interference.

1. The interference of solidarist associations in trade union activities, including collective bargaining, through direct settlements signed between an employer and a group of non-unionized workers, even when a union exists in the undertaking, does not promote collective bargaining as set out in Article 4 of Convention No. 98, which refers to the development of negotiations between employers or their organizations and workers organizations.

1. Since solidarist associations are financed partly by employers, are comprised of workers but also of senior staff or personnel having the employers confidence and are often started up by employers, they cannot play the role of independent organizations in the collective bargaining process, a process which should be carried out between an employer (or an employers organization) and one or more workers organizations totally independent of each other. This situation therefore gives rise to problems in the application of Article 2 of Convention No. 98, which sets out the principle of the full independence of workers organizations in carrying out their activities.

1. In relation to solidarist associations, the Committee emphasized the fundamental importance of the principle of tripartism advocated by the ILO, which presupposes organizations of workers and of employers which are independent of each other and of the public authorities. The Committee requested the Government to take measures, in consultation with the trade union confederations, to create the necessary conditions for strengthening the independent trade union movement and for developing its activities in the social field.

1. Workers welfare associations cannot be substitutes for free and independent trade unions for as long as they fail to present guarantees of independence in their composition and functioning.

1. The Committee has recalled that legislative or other measures have to be taken in order to ensure that organizations that are separate from trade unions do not assume responsibility for trade union activities and to ensure effective protection against all forms of anti-union discrimination.