Compilation of decisions of the Committee on Freedom of Association

Collective bargaining15

The right to bargain collectively General principles

1. Measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers organizations and workers organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements.

1. The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association, and trade unions should have the right, through collective bargaining or other lawful means, to seek to improve the living and working conditions of those whom the trade unions represent. The public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof. Any such interference would appear to infringe the principle that workers and employers organizations should have the right to organize their activities and to formulate their programmes.

1. The preliminary work for the adoption of Convention No. 87 clearly indicates that one of the main objects of the guarantee of freedom of association is to enable employers and workers to combine to form organizations independent of the public authorities and capable of determining wages and other conditions of employment by means of freely concluded collective agreements. (Freedom of Association and Industrial Relations, Report VII, International Labour Conference, 30th Session, Geneva, 1947, p. 52.)

1. One of the main objectives of workers in exercising their right to organize is to bargain collectively their terms and conditions of employment. Provisions which ban trade unions from engaging in collective bargaining therefore unavoidably frustrate the main objective and activity for which such unions are set up. This is contrary not only to Article 4 of Convention No. 98 but also Article 3 of Convention No. 87 which provides that trade unions shall have the right to exercise their activities and formulate their programmes in full freedom.

1. The Committee underlines the importance of collective disputes being conducted and resolved peacefully within the framework of collective bargaining.

1. Federations and confederations should be able to conclude collective agreements.

1. The Committee has pointed out the importance which it attaches to the right of representative organizations to negotiate, whether these organizations are registered or not.

1. The Committee stressed the importance of ensuring that the essential rules governing the system of labour relations and collective bargaining are shared, to the maximum extent possible, by the most representative workers and employers organization.

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.

Subjects covered by collective bargaining

1. It is for the parties concerned to decide on the subjects for negotiation.

1. Measures taken unilaterally by the authorities to restrict the scope of negotiable issues are often incompatible with Convention No. 98; tripartite discussions for the preparation, on a voluntary basis, of guidelines for collective bargaining are a particularly appropriate method of resolving these difficulties.

1. Matters which might be subject to collective bargaining include the type of agreement to be offered to employees or the type of industrial instrument to be negotiated in the future, as well as wages, benefits and allowances, working time, annual leave, selection criteria in case of redundancy, the coverage of the collective agreement, the granting of trade union facilities, including access to the workplace beyond what is provided for in legislation etc.; these matters should not be excluded from the scope of collective bargaining by law, or as in this case, by financial disincentives and considerable penalties applicable in case of non- implementation of the Code and Guidelines.

1. It is not for the Committee to express an opinion on the amount of remuneration paid, or on the justification for granting or not granting various benefits and special payments. This matter relates to negotiation between the parties concerned.

1. Legislation excluding working time from the scope of collective bargaining, unless there is government authorization, would seem to infringe the right of workers organizations to negotiate freely their working conditions with employers, as guaranteed under Article 4 of Convention No. 98.

1. As regards the legislative ban on including secondary boycott clauses in collective agreements, the Committee has considered that restrictions on such clauses should not be included in the legislation.

1. It should be possible for collective agreements to provide for a system for the collection of union dues, without interference by the authorities.

1. The issue of the payment of wages by the employer to full-time union officials should be up to the parties to determine and the Government should authorize negotiation on the issue of whether trade union activity by full-time union officials should be treated as unpaid leave.

1. Where job distribution is subject to legal restrictions, the Committee has drawn attention to the fact that such provisions may tend to prevent the negotiation by collective agreement of better terms and conditions, mainly concerning access to particular employment, and thereby to infringe the rights of the workers concerned to bargain collectively and to improve their working conditions.

1. Legislation amending collective agreements which have already been in force for some time, and which prohibits collective agreements concerning the manning of ships from being concluded in the future, is contrary to the principle of free bargaining provided for in Convention No. 98.

1. Legislation establishing that the ministry of labour has powers to regulate wages, working hours, leave and conditions of work, that these regulations must be observed in collective agreements, and that such important aspects of conditions of work are thus excluded from the field of collective bargaining, is not in harmony with Article 4 of Convention No. 98.

1. With regard to allegations concerning the refusal to bargain collectively on certain matters in the public sector, the Committee has recalled the view of the Fact-Finding and Conciliation Commission on Freedom of Association that there are certain matters which clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation. It is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and that such matters should not be regarded as falling outside the scope of collective bargaining conducted in an atmosphere of mutual good faith and trust.

1. While staffing levels or the departments to be affected as a result of financial difficulties may be considered to be matters which appertain primarily or essentially to the management and operation of government business and therefore reasonably regarded as outside the scope of negotiation, the larger spectrum of job security in general includes questions which relate primarily or essentially to conditions of employment, such as pre-dismissal rights, indemnities, etc., which should not be excluded from the scope of collective bargaining.

1. The determination of the broad lines of educational policy is not a matter for collective bargaining between the competent authorities and teachers organizations, although it may be normal to consult these organizations on such matters.

1. As regards the education sector, a distinction may be made between matters that essentially concern the determination of the broad lines of educational policy, which may be excluded from collective bargaining, and matters relating to conditions of employment, which should be subject to collective bargaining.

1. Free collective bargaining should be allowed on the consequences for conditions of employment of decisions on educational policy.

1. The bargaining partners are best equipped to weigh the justification and determine the modalities of negotiated retirement clauses.

1. The bargaining partners are best equipped to weigh the justification and determine the modalities (and, as far as employers are concerned, the financial practicability) of negotiated compulsory retirement clauses before the legal retirement age, be it by reason of the difficult nature of the job, or for health and safety reasons.

1. The Committee recognizes the right of States to regulate pension schemes but it is necessary that States should respect the principle of collective bargaining in so doing.

1. A general pension system does not necessarily preclude collective bargaining. Indeed, although the general system establishes a compulsory minimum guaranteed platform for the population as a whole, there is nothing to prevent a supplementary scheme being established by collective bargaining in addition to the general system. It is necessary to draw a distinction between private companies and the public sector. In the case of the former, the employer may negotiate a possible award of a supplementary pension with the trade union, taking into account its economic possibilities and prospects.

1. The parties involved in collective bargaining should be able to improve the legal provisions on retirement and pension schemes by mutual agreement.

1. Supplementary pension schemes can legitimately be considered as benefits that may be the subject of collective bargaining.

1. Under ILO standards, the fixing of minimum wages may be subject to decisions by tripartite bodies.

1. The Committee recalls that it has consistently taken the view that it is up to the legislative authority to determine the legal minimum standards for conditions of work or employment which, in its opinion, does not restrict or impede the promotion of bipartite bargaining to fix conditions of work, as foreseen in Article 4 of Convention No. 98.

The principle of free and voluntary negotiation

1. The voluntary negotiation of collective agreements, and therefore the autonomy of the bargaining partners, is a fundamental aspect of the principles of freedom of association.

1. The Committee emphasizes the importance of respecting the autonomy of the parties in the collective bargaining process so that the free and voluntary character thereof, established in Article 4 of Convention No. 98, is ensured.

1. Collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining.

1. Nothing in Article 4 of Convention No. 98 places a duty on the government to enforce collective bargaining by compulsory means with a given organization; such an intervention would clearly alter the nature of bargaining.

1. Article 4 of Convention No. 98 in no way places a duty on the government to enforce collective bargaining, nor would it be contrary to this provision to oblige social partners, within the framework of the encouragement and promotion of the full development and utilization of collective bargaining machinery, to enter into negotiations on terms and conditions of employment. The public authorities should however refrain from any undue interference in the negotiation process.

1. Although nothing in Article 4 of Convention No. 98 places a duty on the government to enforce collective bargaining by compulsory means with a given organization, as such an intervention would clearly alter the voluntary nature of collective bargaining, this does not mean that governments should abstain from any measure whatsoever aiming to establish a collective bargaining mechanism.

1. A legislative provision that would oblige a party to conclude a contract with another party would be contrary to the principle of free and voluntary negotiations.

1. Legislation which lays down mandatory conciliation and prevents the employer from withdrawing, irrespective of circumstances, at the risk of being penalized by payment of wages in respect of strike days, in addition to being disproportionate, runs counter to the principle of voluntary negotiation enshrined in Convention No. 98.

1. The opportunity which employers have, according to the legislation, of presenting proposals for the purposes of collective bargaining provided these proposals are merely to serve as a basis for the voluntary negotiation to which Convention No. 98 refers cannot be considered as a violation of the principles applicable in this matter.

Mechanisms to facilitate collective bargaining

1. If the negotiations are not successful because of disagreement, the Government should consider with the parties ways of overcoming such an obstacle through a conciliation or mediation mechanism, or, if the disagreements persist, through arbitration by an independent body trusted by the parties.

1. The intervention of a neutral, independent third party, in which the parties have confidence, may be enough to break a stalemate resulting from a collective dispute, which the parties cannot resolve by themselves.

1. While various arrangements can facilitate negotiations and help promote collective bargaining, legislation or practices establishing machinery or procedures for arbitration or conciliation designed to facilitate bargaining between both sides of an industry should guarantee the autonomy of parties to collective bargaining.

1. The bodies appointed for the settlement of disputes between the parties to collective bargaining should be independent, and recourse to these bodies should be on a voluntary basis.

1. Certain rules and practices can facilitate negotiations and help to promote collective bargaining and various arrangements may facilitate the parties access to certain information concerning, for example, the economic position of their bargaining unit, wages and working conditions in closely related units, or the general economic situation; however, all legislation establishing machinery and procedures for arbitration and conciliation designed to facilitate bargaining between both sides of industry must guarantee the autonomy of parties to collective bargaining. Consequently, instead of entrusting the public authorities with powers to assist actively, even to intervene, in order to put forward their point of view, it would be better to convince the parties to collective bargaining to have regard voluntarily in their negotiations to the major reasons put forward by the government for its economic and social policies of general interest.

The principle of bargaining in good faith

1. The Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations.

1. It is important that both employers and trade unions bargain in good faith and make every effort to reach an agreement; moreover genuine and constructive negotiations are a necessary component to establish and maintain a relationship of confidence between the parties.

1. Both employers and trade unions should bargain in good faith and make every effort to come to an agreement, and satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence.

1. The principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided.

1. In the context of voluntary collective bargaining and a spirit of good faith, a request made by trade union organizations to suspend the work of the Public Sector Salary Negotiation Committee for some days, to allow for internal consultations on a proposal which the Government submitted during that meeting and about which further technical details were needed, is not unreasonable.

1. The act of postponing or arranging negotiation meetings unilaterally at the last minute and without prior warning, if it occurs without good reason, is a practice that is harmful to the development of normal and healthy labour relations.

1. While the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties, both employers and trade unions should bargain in good faith making every effort to reach an agreement.

1. Agreements should be binding on the parties.

1. Recalling that meaningful collective bargaining is based on the premise that all represented parties are bound by voluntarily agreed provisions, the Committee urged the Government to ensure the statutory enforceability of every collective agreement among those represented by the contracting parties.

1. Mutual respect for the commitment undertaken in collective agreements is an important element of the right to bargain collectively and should be upheld in order to establish labour relations on stable and firm ground.

1. Collective bargaining implies both a give-and-take process and a reasonable certainty that negotiated commitments will be honoured, at the very least for the duration of the agreement, such agreement being the result of compromises made by both parties on certain issues, and of certain bargaining demands dropped in order to secure other rights which were given more priority by trade unions and their members. If these rights, for which concessions on other points have been made, can be cancelled unilaterally, there could be neither reasonable expectation of industrial relations stability, nor sufficient reliance on negotiated agreements.

1. A legal provision which allows the employer to modify unilaterally the content of signed collective agreements, or to require that they be renegotiated, is contrary to the principles of collective bargaining.

1. The Collective Agreements Recommendation, 1951 (No. 91), which guides governments in their understanding of the principles of collective bargaining, explicitly recognizes in its Paragraph 3 that collective bargaining agreements should bind the signatories thereto and those on whose behalf the agreement is concluded.

1. Failure to implement a collective agreement, even on a temporary basis, violates the right to bargain collectively, as well as the principle of bargaining in good faith.

1. All the parties to the negotiation, whether or not they have legal personality, must be liable for any breaches of the right to secrecy of the information which they receive in the framework of collective bargaining.

Collective bargaining with representatives of non-unionized workers

1. The conclusion, with workers who are not union members or who leave their trade union, of collective accords which provide better terms than the collective agreements, serve to discourage collective bargaining as laid down in Article 4 of Convention No. 98.

1. The Collective Agreements Recommendation, 1951 (No. 91), emphasizes the role of workers organizations as one of the parties in collective bargaining; it refers to representatives of unorganized workers only when no organization exists.

1. The Collective Agreements Recommendation, 1951 (No. 91), provides that: For the purpose of this Recommendation, the term collective agreements means all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers organisations, on the one hand, and one or more representative workers organisations, or, in the absence of such organisations, the representatives of the workers duly elected and authorised by them in accordance with national laws and regulations, on the other. In this respect, the Committee has emphasized that the said Recommendation stresses the role of workers organizations as one of the parties in collective bargaining. Direct negotiation between the undertaking and its employees, by-passing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted.

1. The Workers Representatives Convention, 1971 (No. 135), and the Collective Bargaining Convention, 1981 (No. 154), also contain explicit provisions guaranteeing that, where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures are to be taken to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned.

1. The Committee has recalled that Article 5 of Convention No. 135 provides that where there exist in the same undertaking both trade union representatives and elected representatives, appropriate measures shall be taken, wherever necessary, to ensure that the existence of elected representatives is not used to undermine the position of the trade unions concerned or their representatives and to encourage cooperation on all relevant matters between the elected representatives and the trade unions concerned and their representatives.

1. Collective agreements with the non-unionized workers should not be used to undermine the rights of workers belonging to the trade unions.

1. The possibility for staff delegates who represent 10 per cent of the workers to conclude collective agreements with an employer, even where one or more organizations of workers already exist, is not conducive to the development of collective bargaining in the sense of Article 4 of Convention No. 98; in addition, in view of the small percentage required, this possibility could undermine the position of the workers organizations, contrary to Article 3, paragraph 2, of Convention No. 154.

1. Where an offer made directly by the company to its workers is merely a repetition of the proposals previously made to the trade union, which has rejected them, and where negotiations between the company and the trade union are subsequently resumed, the Committee considers that the complainants have not demonstrated in such a situation that there has been a violation of trade union rights.

Recognition of the most representative organizations

1. The Collective Bargaining Recommendation, 1981 (No. 163), enumerates various means of promoting collective bargaining, including the recognition of representative employers and workers organizations (Paragraph 3(a)).

1. Systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association.

1. Legislation that sets a threshold for the validation of collective agreements goes against neither Article 4 of Convention No. 98 nor the objective of promoting the broadest possible development and utilization of voluntary collective bargaining procedures, especially if the threshold has been set in consultation with the social partners and if it is not too high.

1. In a case where the right to represent all the employees in the sector in question appeared to have been granted to organizations which were representative only to a limited extent at the national level, the Committee considered that, if national legislation establishes machinery for the representation of the occupational interests of a whole category of workers, this representation should normally lie with the organizations which have the largest membership in the category concerned, and the public authorities should refrain from any intervention that might undermine this principle.

1. Employers, including governmental authorities in the capacity of employers, should recognize for collective bargaining purposes the organizations representative of the workers employed by them.

1. Recognition by an employer of the main unions represented in the undertaking, or the most representative of these unions, is the very basis for any procedure for collective bargaining on conditions of employment in the undertaking.

1. Employers should recognize for the purposes of collective bargaining organizations that are representative of workers in a particular industry.

1. Where difficulties with regard to the interpretation of rules concerning the election of trade union officers create situations where the employers refuse to negotiate with the union concerned and, more in general, to recognize such a union, problems of compatibility with Convention No. 87 arose.

1. The requirement that the employer have at least 21 employees in order for a union to have recourse to the recognition dispute procedure runs contrary to the principle of free and voluntary collective bargaining.

Determination of the trade union(s) entitled to negotiate

1. Workers and employers should in practice be able to freely choose which organization will represent them for purposes of collective bargaining.

1. Systems based on a sole bargaining agent (the most representative) and those which include all organizations or the most representative organizations in accordance with clear pre-established criteria for the determination of the organizations entitled to bargain are both compatible with Convention No. 98.

1. The requirement to register a trade union as a condition of being able to bargain collectively, if this does not involve excessive delays and the competent authority does not have discretionary power in this regard, does not violate the principles of freedom of association.

1. The requirement of the majority of not only the number of workers, but also of enterprises, in order to be able to conclude a collective agreement on the branch or occupational level could raise problems with regard to the application of Convention No. 98.

1. For a trade union at the branch level to be able to negotiate a collective agreement at the enterprise level, it should be sufficient for the trade union to establish that it is sufficiently representative at the enterprise level.

1. Bargaining at the enterprise level with the most representative higher trade union level organization should only take place if it has a number of members in the company in accordance with the national legislation.

1. In relation to a provision under which a majority union in an enterprise cannot engage in collective bargaining if it is not affiliated to a representative federation, the Committee recalled the importance to be attached to the right to bargain collectively of the majority union in an enterprise.

1. The competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employers recognition of that union for collective bargaining purposes.

1. If a union other than that which concluded an agreement has in the meantime become the majority union and requests the cancellation of this agreement, the authorities, notwithstanding the agreement, should make appropriate representations to the employer regarding the recognition of this union.

1. If the authorities have the power to hold polls for determining the majority union which is to represent the workers for the purposes of collective bargaining, such polls should always be held in cases where there are doubts as to which union the workers wish to represent them.

1. Where, under the system in force, the most representative union enjoys preferential or exclusive bargaining rights, decisions concerning the most representative organization should be made by virtue of objective and pre-established criteria so as to avoid any opportunities for partiality or abuse.

1. While the public authorities have the right to decide whether they will negotiate at the regional or national level, the workers, whether negotiating at the regional or national level, should be entitled to choose the organization which shall represent them in the negotiations.

1. In a case in which, in order to claim to be representative and have the capacity to be the sole signatory to collective agreements, the organizations in question needed to demonstrate national and multi-sectoral representativeness, the Committee considered that the combination of these requirements raises problems with regard to the principles of freedom of association in terms of representativeness. Their application could have the consequence of preventing a representative union in a given sector from being the sole signatory to the collective agreements resulting from the collective negotiations in which it has participated.

1. The association of an organization with the negotiation process, in order to be fully effective and real, implies that the organization should be able to sign, and where necessary to be the sole signatory to, resulting agreements when it wishes, provided that its representativeness in the sector has been objectively demonstrated.

1. Participation in collective bargaining and in signing the resulting agreements necessarily implies independence of the signatories from the employer or employers organizations, as well as from the authorities. It is only when their independence is established that trade union organizations may have access to bargaining.

1. In order to determine whether an organization has the capacity to be the sole signatory to collective agreements, two criteria should be applied: representativeness and independence. The determination of which organizations meet these criteria should be carried out by a body offering every guarantee of independence and objectivity.

1. A minimum membership requirement of 1,000 set out in the law for the granting of exclusive bargaining rights might be liable to deprive workers in small bargaining units or who are dispersed over wide geographical areas of the right to form organizations capable of fully exercising trade union activities, contrary to the principles of freedom of association.

1. A branch of activity threshold (3 per cent) required by legislation, in addition to a workplace threshold (50 per cent) or enterprise threshold (40 per cent) to be able to conclude a collective labour agreement covering a workplace or an enterprise, is not conducive to harmonious industrial relations and does not promote collective bargaining in line with Article 4 of Convention No. 98, as it may result in a decrease in the number of workers covered by collective agreements.

1. In the particular circumstances of one case, the Committee was of the opinion that it may well be excessively difficult for a trade union to receive the support of 45 per cent of employees before the procedure for recognition as a collective bargaining agent.

1. A required 10-per-cent representation for a trade union organization to be able to participate in the negotiating commission is not in violation of the principles of freedom of association and collective bargaining.

1. It is not necessarily incompatible with Convention No. 87 to provide for the certification of the most representative union in a given unit as the exclusive bargaining agent for that unit. This is the case, however, only if a number of safeguards are provided. The Committee has pointed out that in several countries in which the procedure of certifying unions as exclusive bargaining agents has been established, it has been regarded as essential that such safeguards should include the following: (a) certification to be made by an independent body; (b) the representative organizations to be chosen by a majority vote of the employees in the unit concerned; (c) the right of an organization which fails to secure a sufficiently large number of votes to ask for a new election after a stipulated period; (d) the right of an organization other than the certificated organizations to demand a new election after a fixed period, often 12 months, has elapsed since the previous election.

1. If there is a change in the relative strength of unions competing for a preferential right or the power to represent workers exclusively for collective bargaining purposes, then it is desirable that it should be possible to review the factual bases on which that right or power is granted. In the absence of such a possibility, a majority of the workers concerned might be represented by a union which, for an unduly long period, could be prevented either in fact or in law from organizing its administration and activities with a view to fully furthering and defending the interests of its members.

1. While stressing that the appropriate procedure for the verification of facts and alleged irregularities in a ballot process for bargaining rights under the collective agreement between workers or members of rival organizations is primarily the responsibility of the national bodies, the Committee emphasized the importance it attaches, if there is a new ballot, to the authorities providing the safeguards necessary to avoid all alleged irregularities, thus guaranteeing that the affected workers have a full and fair opportunity to participate, in an atmosphere of calm and security.

1. In order to encourage the harmonious development of collective bargaining and to avoid disputes, it should always be the practice to follow, where they exist, the procedures laid down for the designation of the most representative unions for collective bargaining purposes when it is not clear by which unions the workers wish to be represented. In the absence of such procedures, the authorities, where appropriate, should examine the possibility of laying down objective rules in this respect.

1. In one case a Bill concerning negotiating committees for the public service provided for a count to be taken of the paid-up membership of the trade unions in order to determine their representative character, and for a verification of such representative character to be carried out by a board presided over by a magistrate (every six years or at any time at the request of a union). The Committee considered that although, in general, a vote might be a desirable means of ascertaining how representative trade unions are, the inquiries provided for in the Bill seemed to offer strong guarantees of secrecy and impartiality which are indispensable in such an operation.

1. While providing all relevant ballot information, including how to vote against a union, would be acceptable as part of the process of a certification election, the active participation by an employer in a way that interferes in any way with an employee exercising his or her free choice would be a violation of freedom of association and disrespect for workers fundamental right to organize.

1. In one case where the government, in the light of national conditions, had restricted the right to engage in collective bargaining to the two most representative national unions of workers in general, the Committee considered that this should not prevent a union representing the majority of workers of a certain category from furthering the interests of its members. The Committee recommended that the Government be requested to examine the measures that it might take under national conditions to afford this union the possibility of being associated with the collective bargaining process so as to permit it adequately to represent and defend the collective interests of its members.

1. Given the aim of preserving the independence of investigators tasked with investigating issues of trade union corruption, the Committee considers that it is not necessarily incompatible with the provisions of Article 2 of Convention No. 87 and Article 4 of Convention No. 98 to have created a special collective bargaining unit with a restriction on the choice of unions which the investigators may join, on the condition that they have the right to set up their own organization.

Rights of minority unions

1. The Committee has recalled the position of the Committee of Experts on the Application of Conventions and Recommendations that, where the law of a country draws a distinction between the most representative trade union and other trade unions, such a system should not have the effect of preventing minority unions from functioning and at least having the right to make representations on behalf of their members and to represent them in cases of individual grievances.

1. The granting of exclusive rights to the most representative organization should not mean that the existence of other unions to which certain involved workers might wish to belong is prohibited. Minority organizations should be permitted to carry out their activities and at least to have the right to speak on behalf of their members and to represent them.

1. Where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members.

1. If there is no union covering more than 50 per cent of the workers in a unit, collective bargaining rights should nevertheless be granted to the unions in this unit, at least on behalf of their own members.

1. With regard to a provision that stipulates that a collective agreement may be negotiated only by a trade union representing an absolute majority of the workers in an enterprise, the Committee considered that the provision does not promote collective bargaining in the sense of Article 4 of Convention No. 98 and it invited the government to take steps, in consultation with the organizations concerned, to amend the provision in question so as to ensure that when no trade union represents the absolute majority of the workers, the organizations may jointly negotiate a collective agreement applicable to the enterprise or the bargaining unit, or at least conclude a collective agreement on behalf of their members.

1. The requirement established by law that a union has to establish its authority for all the workers it claims to represent in negotiations for a collective employment contract is excessive and in contradiction with freedom of association principles as it may be applied so as to constitute an impediment to the right of a workers organization to represent its members.

1. In so far as the persons who conclude collective agreements are trade union representatives, the requirement that they be approved by an absolute majority of the workers involved may constitute an obstacle to collective bargaining which is incompatible with the provisions of Article 4 of Convention No. 98.

Determination of employers organizations entitled to negotiate

1. Employers should be able to choose the organization which they wish to represent their interests in the collective bargaining process.

1. The principle of representation for collective bargaining purposes cannot be applied in an equitable fashion in respect of employers associations if membership in the Chamber of Commerce is compulsory and the Chamber of Commerce is empowered to bargain collectively with trade unions.

1. Granting collective bargaining rights to the Chamber of Commerce which is created by law and to which affiliation is compulsory impairs the employers freedom of choice in respect of the organization to represent their interests in collective bargaining.

Representation of organizations in the collective bargaining process

1. Workers organizations must themselves be able to choose which delegates will represent them in collective bargaining without the interference of the public authorities.

1. The right of workers organizations to organize their administration and activities in accordance with Article 3 of Convention No. 87 includes the freedom for organizations recognized as representative to choose their union delegates for the purposes of collective bargaining.

1. Excessively strict prescriptions on such matters as the composition of the representatives of the parties in the process of collective bargaining may limit its effectiveness and this is a matter which should be determined by the parties themselves.

1. The Committee has drawn attention to Paragraph 6 of the Collective Bargaining Recommendation, 1981 (No. 163), according to which parties to collective bargaining should provide their respective negotiators with the necessary mandate to conduct and conclude negotiations, subject to any provisions for consultations within their respective organizations. On the basis of these principles, and with a view to promoting collective bargaining in good faith and the harmonious development of labour relations in the public sector, there must be clarity at the outset on the articulation of the distinct stages of collective bargaining, and the studies on the verification of the financial viability of the contents of negotiations should precede the conclusion of the collective agreement.

1. The right of workers organizations to organize their administration and activities in accordance with Article 3 of Convention No. 87 includes the freedom for organizations recognized as representative to choose their trade union delegates for the purposes of collective bargaining, as well as the possibility of being assisted by advisers of their choice.

1. Organizations of employers and workers should have the right to choose, without any hindrance, the persons from whom they wish to seek assistance during collective bargaining and dispute settlement procedures.

1. With regard to the ban on third party intervention in the settlement of disputes, the Committee is of the opinion that such an exclusion constitutes a serious restriction on the free functioning of trade unions, since it deprives them of assistance from advisers.

Level of bargaining

1. According to the principle of free and voluntary collective bargaining embodied in Article 4 of Convention No. 98, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and, consequently, the level of negotiation should not be imposed by law, by decision of the administrative authority or by the case-law of the administrative labour authority.

1. The determination of the bargaining level is essentially a matter to be left to the discretion of the parties. Thus, the Committee does not consider the refusal by employers to bargain at a particular level as an infringement of freedom of association.

1. The determination of the bargaining level is essentially a matter to be left to the discretion of the parties.

1. The Committee does not adopt a stance either in favour of bargaining at the level of the branch of activity or at the enterprise level. The fundamental principle concerns the need for the level of collective bargaining to be freely determined by the parties concerned.

1. The elaboration of procedures systematically favouring decentralized bargaining of exclusionary provisions that are less favourable than the provisions at a higher level can lead to a global destabilization of the collective bargaining machinery and of workers and employers organizations and constitutes in this regard a weakening of freedom of association and collective bargaining contrary to the principles of Conventions Nos. 87 and 98.

1. Legislation should not constitute an obstacle to collective bargaining at the industry level.

1. The best procedure for safeguarding the independence of the parties involved in collective bargaining is to allow them to decide by mutual agreement the level at which bargaining should take place. Nevertheless, it appears that, in many countries, this question is determined by a body that is independent of the parties themselves. The Committee considers that in such cases the body concerned should be truly independent.

1. A constitutional court ruling according to which all collective bargaining within the construction sector should take place at the branch level overrides the principles of freedom of the parties and free and voluntary bargaining, both of which cannot be dissociated from the right to collective bargaining as enshrined in Convention No. 98.

1. In the event of disagreement between the parties concerning the level of negotiations, and in place of a general ruling by the judicial authority in favour of branch-level bargaining, it would be more in keeping with the letter and spirit of Convention No. 98 and Recommendation No. 163 for a system to be established by the parties by common agreement in which their interests and points of view can be specifically expressed.

Collective bargaining in the case of subcontracting

1. It pertains to the Government to ensure, through appropriate measures, that subcontracting is not used as a way to evade the application of the freedom of association guarantees provided for in legislation and to ensure that trade unions representing subcontracted workers may effectively seek to improve the living and working conditions of those whom they represent.

1. Although an employer/main contractor may not be under an obligation to negotiate with a trade union representing workers engaged by subcontractors (or a trade union that has not demonstrated its membership among the main contractors workers), nothing should prevent such an employer from negotiating and concluding a collective agreement on a voluntary basis. Moreover, the trade union concerned should also be able to request negotiations with the employer of its choice, on a voluntary basis, especially in cases where it would be impossible to negotiate with each and every one of the subcontractors. In fact, given the main contractors dominant position in the construction site, and the general absence of collective bargaining at the branch or industry levels, the conclusion of a collective agreement with the main contractor would appear to be a viable option allowing for effective collective bargaining and the conclusion of a collective agreement with sufficiently general scope over the construction site.

Restrictions on the principle of free and voluntary bargaining

Compulsory arbitration

1. The imposition of a compulsory arbitration procedure if the parties do not reach agreement on a draft collective agreement raises problems in relation to the application of Convention No. 98.

1. Provisions which establish that, failing agreement between the parties, the points at issue in collective bargaining must be settled by the arbitration of the authority are not in conformity with the principle of voluntary negotiation contained in Article 4 of Convention No. 98.

1. Recourse to compulsory arbitration in cases where the parties do not reach agreement through collective bargaining is permissible only in the context of essential services in the strict sense of the term (i.e. services the interruption of which would endanger the life, personal safety or health of the whole or part of the population).

1. In certain cases, the Committee has regretted that the government has not given priority to collective bargaining as a means of regulating employment conditions in a non-essential service, but rather that it felt compelled to have recourse to compulsory arbitration in the dispute in question.

1. The use of collective bargaining to settle problems of rationalization in undertakings and improve their efficiency may yield valuable results for both the workers and the undertakings. Nevertheless, if this type of collective bargaining has to follow a special pattern which imposes bargaining on the trade union organizations on those aspects determined by the labour authority and stipulates that the period of negotiation shall not exceed a specified time; and failing agreement between the parties, the points at issue shall be submitted to arbitration by the said authority, such a statutory system does not conform to the principle of voluntary negotiation which is the guiding principle of Article 4 of Convention No. 98.

Intervention by the authorities in collective bargaining

1. In cases of government intervention to restrict collective bargaining, the Committee has considered that it is not its role to express a view on the soundness of the economic arguments used by the Government to justify its position or on the measures it has adopted. However, it is for the Committee to express its views on whether, in taking such action, the Government has gone beyond what the Committee has considered to be acceptable restrictions that might be placed temporarily on free collective bargaining

1. In any case, any limitation on collective bargaining on the part of the authorities should be preceded by consultations with the workers and employers organizations in an effort to obtain their agreement.

1. In cases in which governments had, on many occasions over the past decade, resorted to statutory limitations on collective bargaining, the Committee pointed out that repeated recourse to statutory restrictions on collective bargaining could, in the long term, only prove harmful and destabilize labour relations, as it deprived workers of a fundamental right and means of furthering and defending their economic and social interests.

1. Repeated and extensive intervention in collective bargaining can destabilize the overall framework for labour relations in the country if the measures are not consistent with the principles of freedom of association and collective bargaining.

1. State bodies should refrain from intervening to alter the content of freely concluded collective agreements.

1. State bodies should refrain from intervening in free collective bargaining between workers and employers organizations.

1. In general terms, the Committee wishes to underline the importance it attaches to the principle of the autonomy of the parties to the collective bargaining process, a principle generally recognized in the preparatory discussions that led to the adoption by the Conference in 1981 of the Collective Bargaining Convention (No. 154). It follows from this principle that the public authorities should not as a rule intervene in order to modify the contents of collective agreements freely concluded. Such intervention would be justified only for cogent reasons of social justice and the general interest.

1. Respect for the rule of law implies avoiding retroactive intervention in collective agreements through legislation.

1. The intervention by a representative of the public authorities in the drafting of collective agreements, unless it consists exclusively of technical aid, is inconsistent with the spirit of Article 4 of Convention No. 98.

1. The Committee recognizes that there comes a time in bargaining where, after protracted and fruitless negotiations, the authorities might be justified in stepping in when it is obvious that the deadlock in bargaining will not be broken without some initiative on their part.

1. The Committee has expressed the view that the mere existence of a deadlock in a collective bargaining process is not in itself a sufficient ground to justify an intervention from the public authorities to impose arbitration on the parties to the labour dispute. Any intervention by the public authorities in collective disputes must be consistent with the principle of free and voluntary negotiations; this implies that the bodies appointed for the settlement of disputes between the parties to collective bargaining should be independent and recourse to these bodies should be on a voluntary basis, except where there is an acute national crisis.

1. Where intervention by the public authorities is essentially for the purpose of ensuring that the negotiating parties subordinate their interests to the national economic policy pursued by the government, irrespective of whether they agree with that policy or not, this is not compatible with the generally accepted principles that workers and employers organizations should enjoy the right freely to organize their activities and to formulate their programmes, that the public authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, and that the law of the land should not be such as to impair or be so applied as to impair the enjoyment of such right.

1. Legislation which permits the refusal to approve a collective agreement on grounds of errors of pure form is not in conflict with the principle of voluntary negotiation. If this legislation, however, implies that the filing of a collective agreement may be refused on grounds such as incompatibility with the general policy of the government, it would amount to a requirement that prior approval be obtained before a collective agreement can come into force.

1. While the Committee appreciates that the introduction of wage restraint measures must be timed in order to obtain the maximum impact on the economic situation, it nevertheless considers that the interruption of already negotiated contracts is not in conformity with the principles of free collective bargaining because such contracts should be respected.

1. While it is not its role to express a view on the soundness of the economic arguments invoked to justify government intervention to restrict collective bargaining, the Committee must recall that measures that might be taken to confront exceptional circumstances ought to be temporary in nature having regard to the severe negative consequences on workers terms and conditions of employment and their particular impact on vulnerable workers.

1. The harmonious development of labour relations would be facilitated if the public authorities, when dealing with the problems concerning the workers loss of purchasing power, adopted solutions which did not involve modifications of agreements without the consent of the parties.

1. Giving by law a special incentive encouraging one of the parties to denounce/cancel collective agreements by which pension funds were set up constitutes interference with the free and voluntary nature of collective bargaining. Moreover, the Committee considers that after the collective agreements by which pension funds were set up were denounced by one of the parties, it pertained to the parties themselves to determine whether and under which terms and conditions the funds would be dissolved and what would become of their assets. Nothing in Convention No. 98 enables the Government to step in and unilaterally determine these issues, much less to unilaterally determine that the assets of a private pension fund, established by collective agreement, would be appropriated and automatically transferred to a public pension scheme. These measures are contrary to Article 3 of Convention No. 87 and Article 4 of Convention No. 98.

1. The Committee has highlighted the importance, in the context of an economic crisis, of maintaining permanent and intensive dialogue with the most representative workers and employers organizations.

1. Making the validity of collective agreements signed by the parties subject to the approval of these agreements by the authorities is contrary to the principles of collective bargaining and of Convention No. 98.

1. Legal provisions which make collective agreements subject to the approval of the ministry of labour for reasons of economic policy, so that employers and workers organizations are not able to fix wages freely, are not in conformity with Article 4 of Convention No. 98 respecting the promotion and full development of machinery for voluntary collective negotiations.

1. The Government must ensure that the process of registration and publication of collective agreements only involves checks on compliance with the legal minima and questions of form, such as, for example, the determination of the parties and the beneficiaries of the agreement with sufficient precision and the duration of the agreement.

1. The requirement of Cabinet approval for negotiated agreements and of conformity with the policy and guidelines unilaterally set for the public sector are not in full conformity with the principles of freedom of association, which apply to all workers covered by Convention No. 98.

1. The requirement of previous approval by a government authority to make an agreement valid might discourage the use of voluntary collective bargaining between employers and workers for the settlement of conditions of employment. Even though a refusal by the authorities to give their approval may sometimes be the subject of an appeal to the courts, the system of previous administrative authorization in itself is contrary to the whole system of voluntary negotiation.

1. Objections by the Committee to the requirement that prior approval of collective agreements be obtained from the government do not signify that ways could not be found of persuading the parties to collective bargaining to have regard voluntarily in their negotiations to considerations relating to the economic or social policy of the government and the safeguarding of the general interest. But to achieve this, it is necessary first of all that the objectives to be recognized as being in the general interest should have been widely discussed by all parties on a national scale through a consultative body in accordance with the principle laid down in the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113). It might also be possible to envisage a procedure whereby the attention of the parties could be drawn, in certain cases, to the considerations of general interest which might call for further examination of the terms of agreement on their part. However, in this connection, persuasion is always to be preferred to constraint. First, instead of making the validity of collective agreements subject to governmental approval, it might be provided that every collective agreement filed with the ministry of labour would normally come into force a reasonable length of time after being filed; if the public authority considered that the terms of the proposed agreement were manifestly in conflict with the economic policy objectives recognized as being desirable in the general interest, the case could be submitted for advice and recommendation to an appropriate consultative body, it being understood, however, that the final decision in the matter rested with the parties to the agreement.

1. The requirement of ministerial approval before a collective agreement can come into effect is not in full conformity with the principles of voluntary negotiation laid down in Convention No. 98. In cases where certain collective agreements contain terms which appear to conflict with considerations of general interest, it might be possible to envisage a procedure whereby the attention of the parties could be drawn to these considerations to enable them to examine the matter further, it being understood that the final decision thereon should rest with the parties. The setting up of a system of this kind would be in conformity with the principle that trade unions should enjoy the right to endeavour to improve, by means of collective bargaining, the conditions of living and of work of their members and that the authorities should refrain from any interference which might limit this right.

1. A provision which establishes as a ground for refusing approval the existence in a collective agreement of a clause which interferes with the right reserved to the State to coordinate and have the overall control of the economic life of the nation involves the risk of seriously restricting the voluntary negotiation of collective agreements.

1. The interruption by law of provisions in already concluded collective agreements is not in conformity with the principles of free collective bargaining.

1. A legal provision which modifies unilaterally the content of signed collective agreements, or requires that they be renegotiated, is contrary to the principles of collective bargaining, as well as to the principle of the acquired rights of the parties.

1. In a case in which, in the context of a stabilization policy, the provisions of collective agreements relating to remuneration were suspended (in the public and private sectors), the Committee emphasized that collective agreements which were in force should be applied fully (unless otherwise agreed by the parties).

1. The suspension or derogation by decree without the agreement of the parties of collective agreements freely entered into by the parties violates the principle of free and voluntary collective bargaining established in Article 4 of Convention No. 98. If a government wishes the clauses of a collective agreement to be brought into line with the economic policy of the country, it should attempt to persuade the parties to take account voluntarily of such considerations, without imposing on them the renegotiation of the collective agreements in force.

1. Repeated recourse to legislative restrictions on collective bargaining can only, in the long term, prejudice and destabilize the labour relations climate, if the legislator frequently intervenes to suspend or terminate the exercise of rights recognized for unions and their members. Moreover, this may have a detrimental effect on workers interests in unionization, since members and potential members could consider it useless to join an organization the main objective of which is to represent its members in collective bargaining, if the results of such bargaining are constantly cancelled by law.

1. The question of whether serious economic problems of enterprises may, in certain cases, call for the modification of collective agreements must be addressed, and, since it can be handled in various ways, the way to proceed should be determined within the framework of social dialogue.

1. Legislation which obliges the parties to renegotiate acquired trade union rights is contrary to the principles of collective bargaining.

1. In examining allegations of the annulment and forced renegotiation of collective agreements for reasons of economic crisis, the Committee was of the view that legislation which required the renegotiation of agreements in force was contrary to the principles of free and voluntary collective bargaining enshrined in Convention No. 98 and insisted that the government should have endeavoured to ensure that the renegotiation of collective agreements in force resulted from an agreement reached between the parties concerned.

1. It would not be objectionable if, once it became clear that the implementation of an agreement concerning pension funds dependent on the State budget would be practically impossible, and after having exhausted all good faith efforts to achieve the implementation of the agreement, the Government undertook concrete efforts to renegotiate the agreement in order to find a solution that would be commonly acceptable to the parties.

1. Referring to an Act on the extension of collective agreements which followed other government interventions in collective bargaining, the Committee pointed out that such action, involving as it did statutory intervention in the collective bargaining process, should only be taken in cases of emergency and for brief periods of time. The Committee hoped that in future no similar measures would be taken to interfere with free collective bargaining or to restrict the right of workers to defend their economic and social interests through industrial action.

1. If, as part of its stabilization policy, a government considers that wage rates cannot be settled freely through collective bargaining, such a restriction should be imposed as an exceptional measure and only to the extent that is necessary, without exceeding a reasonable period, and it should be accompanied by adequate safeguards to protect workers living standards.

1. A three-year period of limited collective bargaining on remuneration within the context of a policy of economic stabilization constitutes a substantial restriction, and the legislation in question should cease producing effects at the latest at the dates mentioned in the Act, or indeed earlier if the fiscal and economic situation improves.

1. Restraints on collective bargaining for three years are too long.

1. Where wage restraint measures are taken by a government to impose financial controls, care should be taken to ensure that collective bargaining on non-monetary matters can be pursued and that unions and their members can fully exercise their normal trade union activity.

1. The Committee is not mandated to decide on acceptable amounts of financial restraint, but where possible these measures should only extend to the sectors actually facing an emergency situation.

1. As regards the obligation for future collective agreements to respect productivity criteria, the Committee recalled that if, within the context of a stabilization policy, a government may consider for compelling reasons that wage rates cannot be fixed freely by collective bargaining (in the present case the fixing of wage scales excludes index-linking mechanisms and must be adjusted to increases in productivity), such a restriction should be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period and it should be accompanied by adequate safeguards to protect workers living standards. This principle is all the more important because successive restrictions may lead to a prolonged suspension of wage negotiations, which goes against the principle of encouraging voluntary collective negotiation.

1. The impossibility of negotiating wage increases on an ongoing basis is contrary to the principle of free and voluntary collective bargaining enshrined in Convention No. 98.

1. Legislative provisions prohibiting the negotiation of wage increases beyond the level of the increase in the cost of living are contrary to the principle of voluntary collective bargaining embodied in Convention No. 98; such a limitation would be admissible only if it remained within the context of an economic stabilization policy, and even then only as an exceptional measure and only to the extent necessary, without exceeding a reasonable period of time.

1. In a case where government measures had fixed the base reference for the indexation of wages, whereas the parties had fixed another indexation system, the Committee recalled that the intervention of a government in areas which traditionally have always been negotiated freely by the parties could call into question the principle of free collective bargaining recognized by Article 4 of Convention No. 98, if it is not accompanied by certain guarantees and in particular if its period of application is not limited in time.

1. The determination of criteria to be applied by the parties in fixing wages (cost-of-living increases, productivity, etc.) is a matter for negotiation between the parties and it is not for the Committee to express an opinion on the criteria that should be applied in fixing pay adjustments.

1. In one case it was alleged that Article 4 of Convention No. 98 had been infringed because, when lengthy negotiations had reached a deadlock, the Government gave effect to the claims of the union by an enactment. The Committee pointed out that such an argument would, if carried to its logical conclusion, mean that, in nearly every country where the workers were not sufficiently strongly organized to obtain a minimum wage, and that this standard was prescribed by law, Article 4 of Convention No. 98 would be infringed. Such an argument would clearly be untenable. If a government, however, adopted a systematic policy of granting by law what the unions could not obtain by negotiation, the situation might call for reappraisal.

1. In a case in which general wage increases in the private sector were established by law, which were added to the increases agreed upon in collective agreements, the Committee drew to the Governments attention the fact that the harmonious development of industrial relations would be promoted if the public authorities, in tackling problems relating to the loss of the workers purchasing power, were to adopt solutions which did not entail modifications of what had been agreed upon between workers and employers organizations without the consent of both parties.

1. It is not contrary to Conventions Nos. 87 and 98 for a minister to urge the social partners, within the framework of the encouragement and promotion of the full development and utilization of collective bargaining machinery, to find a mutually acceptable solution to the conflict.

1. The presence of police forces in close proximity to the room where minimum wage negotiations take place is liable to unduly influence the free and voluntary nature of negotiations. Any police presence in the vicinity of meeting rooms where negotiations are taking place must be strictly justified by the circumstances.

1. Obliging the parties to a collective agreement to meet the extremely high cost of publication of that agreement in the Official Journal seriously impedes the application of Article 4 of Convention No. 98, which enshrines the principle of promotion of collective bargaining.

Collective bargaining in the public sector

General principles

1. The special modalities of application provided by Convention No. 154 with regard to public service should nevertheless not be of such a kind as to entirely negate the principle of promoting collective bargaining in the public administration or render meaningless the subject matter of such collective bargaining, in accordance with Article 5 of the Convention.

1. In order to maintain harmonious professional relationships in the public sector, respect of the principles of non-interference, the recognition of the most representative organizations and party autonomy in negotiations is required.

1. A legislative provision which prohibits public authorities and public employees, even those not engaged in the administration of the State, from concluding an agreement, even if they are willing to do so, is contrary to the principle of free and voluntary negotiations.

1. Legislative intervention is not a substitute for free and voluntary negotiations over the terms and conditions of employment of public employees who are not engaged in the administration of the State.

1. The principle of collective bargaining allows for negotiations between public servants and the government in its quality as employer and not as the executive; it concerns more specifically the terms and conditions of employment of public servants and would not necessarily include questions of public policy which might concern the citizenry more generally.

1. In the event of conflicting interpretations of a collective agreement in the public sector, the definitive interpretation should not be that of the public administration, which would be acting as judge as well as party in the case, but rather that of an independent authority.

1. Control of allegedly abusive clauses of collective agreements in the public sector should not be up to the administrative authority (which in the public sector is both judge and party), but rather to the judicial authority, and then only in extremely serious cases.

1. The Committee expressed concern that a provision, adopted without consulting the relevant organizations, imposes a unique structure of representation of workers interests for sharing and negotiating with the administration. Such a situation does not ensure peaceful professional relationships.

1. The practice of granting certain improvements in conditions to public servants, not within the framework of a collective agreement, but as unilateral decisions, even though they relate to bargaining matters (which makes it more a consultation than bargaining) is problematic. In the Committees view, this practice does not promote collective bargaining and should be avoided.

1. The public authorities should promote free collective bargaining and not prevent the application of freely concluded collective agreements, particularly when these authorities are acting as employers or have assumed responsibility for the application of agreements by countersigning them.

Economic situation, budgetary powers and collective bargaining

1. Adequate mechanisms for dealing with exceptional economic situations can be developed within the framework of the public sector collective bargaining system.

1. Possible avenues for constructive engagement can be based in the elaboration of adequate mechanisms for dealing with exceptional economic situations within the framework of the public sector collective bargaining system.

1. The reservation of budgetary powers to the legislative authority should not have the effect of preventing compliance with collective agreements entered into by, or on behalf of, that authority.

1. The Committee has considered that the exercise of financial powers by the public authorities in a manner that prevents or limits compliance with collective agreements already entered into by public bodies is not consistent with the principle of free collective bargaining.

1. A fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the bargaining parties, on the one hand, and measures which must be taken by governments to overcome their budgetary difficulties, on the other.

1. In so far as the income of public enterprises and bodies depends on state budgets, it would not be objectionable after wide discussion and consultation between the concerned employers and employees organizations in a system having the confidence of the parties for wage ceilings to be fixed in state budgetary laws, and neither would it be a matter for criticism that the Ministry of Finance prepare a report prior to the commencement of collective bargaining with a view to ensuring respect of such ceilings.

1. With regard to the principle relating to the fixing of wage ceilings, the Committee was of the opinion that it was vital for workers and their organizations to have the possibility of participating fully and significantly in the determination of this wider bargaining framework. That would mean their having access to all financial, budgetary or other information to allow them to assess the situation in full knowledge of the facts.

1. With regard to the requirement that draft collective agreements in the public sector must be accompanied by a preliminary opinion on their financial implications issued by the financial authorities, and not by the public body or enterprise concerned, the Committee noted that it was aware that collective bargaining in the public sector called for verification of the available resources in the various public bodies or undertakings, that such resources were dependent on state budgets and that the period of duration of collective agreements in the public sector did not always coincide with the duration of the State Budgetary Law a situation which could give rise to difficulties. The body issuing the above opinion could also formulate recommendations in line with government economic policy or seek to ensure that the collective bargaining process did not give rise to any discrimination in the working conditions of the employees in different public institutions or undertakings. Provision should therefore be made for a mechanism which ensured that, in the collective bargaining process in the public sector, both trade union organizations and the employers and their associations were consulted and could express their points of view to the authority responsible for assessing the financial consequences of draft collective agreements. Nevertheless, notwithstanding any opinion submitted by the financial authorities, the parties to collective bargaining should be able to conclude an agreement freely.

1. The Committee has endorsed the point of view expressed by the Committee of Experts in its 1994 General Survey: While the principle of autonomy of the parties to collective bargaining is valid as regards public servants covered by Convention No. 151, the special characteristics of the public service described above require some flexibility in its application. Thus, in the view of the Committee, legislative provisions which allow Parliament or the competent budgetary authority to set upper and lower limits for wage negotiations or to establish an overall “budgetary package” within which the parties may negotiate monetary or standard-setting clauses (for example: reduction of working hours or other arrangements, varying wage increases according to levels of remuneration, fixing a timetable for readjustment provisions) or those which give the financial authorities the right to participate in collective bargaining alongside the direct employer, are compatible with the Convention, provided they leave a significant role to collective bargaining. It is essential, however, that workers and their organizations be able to participate fully and meaningfully in designing this overall bargaining framework, which implies in particular that they must have access to all the financial, budgetary and other data enabling them to assess the situation on the basis of the facts. This is not the case of legislative provisions which, on the grounds of the economic situation of a country, impose unilaterally, for example, a specific percentage increase and rule out any possibility of bargaining, in particular by prohibiting the exercise of means of pressure subject to the application of severe sanctions. The Committee is aware that collective bargaining in the public sector “calls for verification of the available resources in the various public bodies or undertakings, that such resources are dependent on state budgets and that the period of duration of collective agreements in the public sector does not always coincide with the duration of budgetary laws – a situation which can give rise to difficulties”. The Committee therefore takes full account of the serious financial and budgetary difficulties facing governments, particularly during periods of prolonged and widespread economic stagnation. However, it considers that the authorities should give preference as far as possible to collective bargaining in determining the conditions of employment of public servants; where the circumstances rule this out, measures of this kind should be limited in time and protect the standard of living of the workers who are the most affected. In other words, a fair and reasonable compromise should be sought between the need to preserve as far as possible the autonomy of the parties to bargaining, on the one hand, and measures which must be taken by governments to overcome their budgetary difficulties, on the other.

1. As regards provisions which set a cap on remuneration in the public sector, compensation for unfair dismissal and other causes of termination of the employment relation or prohibit pension schemes which involve contributions of State resources, the Committee stated that it did not doubt the expressed will of the Government to look after the general interest, ensure equality, avoid unreasonable excesses in collective agreements and ensure financial and budgetary balance, but considered that these were permanent and unalterable limitations on the right of collective bargaining of workers organizations incompatible with Convention No. 98, which provides for free and voluntary bargaining of conditions of work. If the Government wishes to pursue a policy which seeks those objectives which, moreover, are legitimate, it can do so in the framework of collective bargaining without resorting to impositions which limit the content of bargaining by the parties to that bargaining.

1. It is acceptable that in the bargaining process the employer side representing the public administration seek the opinion of the Ministry of Finances or an economic and financial body that verifies the financial impact of draft collective agreements.

1. In context of economic stabilization, priority should be given to collective bargaining as a means of determining the employment conditions of public servants, rather than adopting legislation to restrain wages in the public sector.

1. The Committee deplored that, despite its previous calls to the government to refrain from intervening in the collective bargaining process, it once again failed to give priority to collective bargaining as a means of negotiating a change in the employment conditions of public servants, and that the legislative authority felt compelled to adopt the Public Sector Reduced Work-week and Compensation Management Act, particularly in view of the fact that this Act followed immediately the previous legislative intervention which had frozen public sector wages for one year.

1. Even though the principle of the autonomy of the parties in the collective bargaining process remains valid with regard to public servants and public employees covered by Convention No. 151, this may be applied with a certain degree of flexibility given the particular characteristics of the public administration, while at the same time, the authorities should, to the greatest possible extent, promote the collective bargaining process as a mechanism for determining the conditions of employment of public servants.

1. Special modalities of application may be established for collective bargaining within the public administration, but the right to free and voluntary collective bargaining cannot be considered to exist merely on the basis of the presentation of respectful petitions.

1. A system in which public employees may only present appropriate written representations which are non-negotiable, in particular with regard to conditions of employment, which may only be determined by the authorities who have exclusive competence in this matter, is not in conformity with Conventions Nos. 98, 151 and 154.

Relationship between ILO conventions

1. Convention No. 151, which was intended to complement Convention No. 98, by laying down certain provisions concerning, in particular, protection against anti-union discrimination and the determination of terms and conditions of employment for the public service as a whole, does not in any way contradict or dilute the basic right of association guaranteed to all workers by virtue of Convention No. 87.

1. With regard to the allowed exceptions under Convention No. 151 referred to by the Government, the Committee points out that while Convention No. 151 recognized that certain categories of public servants (including those in highly confidential positions) may be excluded from the more general provisions guaranteeing to public servants protection against acts of anti- union discrimination or ensuring the existence of methods of participation in the determination of their conditions of employment, this exclusion cannot be interpreted as affecting or minimizing in any way the basic right to organize of all workers guaranteed by Convention No. 87.

1. The Committee has drawn attention to the terms of Article 6 of Convention No. 98, which provide that: This Convention does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way. Unlike Article 5 of the Convention (dealing with the armed forces and the police), Article 6, in providing that the Convention shall not be construed as in any way prejudicing the rights or the status of public servants, at the same time removed the possible conflict between the Convention and Convention No. 87 and expressly preserved the rights of public servants, including those guaranteed in Convention No. 87. The argument that the effect of the provisions of Convention No. 87 is limited if reference is made to Article 6 of Convention No. 98 conflicts with the express terms of that Article. Likewise, Article 1, paragraph 1, of Convention No. 151 provides that the Convention applies to all persons employed by the public authorities to the extent that more favourable provisions in other international labour Conventions are not applicable to them. If, therefore, Convention No. 98 left intact the rights granted to public servants by Convention No. 87, it follows that Convention No. 151 has not impaired them either.

1. Article 4 of Convention No. 98 offers more favourable provisions than Article 7 of Convention No. 151 in a branch of activity such as that of public education, where both Conventions are applicable, since it includes the concept of voluntary negotiation and the independence of the negotiating parties. In such cases, taking into account Article 1 of Convention No. 151, Article 4 of Convention No. 98 should be applicable in preference to Article 7 of Convention No. 151, which calls upon the public authorities to promote collective bargaining either by means of procedures that make such bargaining possible, or by such other methods as will allow public servants to participate in the determination of their terms and conditions of employment.

Time-limits for bargaining

1. In one case where the legislation contained a provision whereby a time- limit of up to 105 days was fixed, within which employers had to reply to proposals by the workers, and a time-limit of six months fixed within which collective agreements had to be concluded (which could be prolonged once for a further six months), the Committee expressed the view that it would be desirable to reduce these periods in order to encourage and promote the development of voluntary negotiation, particularly in view of the fact that the workers in the country in question were unable to take strike action.

Duration of collective agreements

1. The duration of collective agreements is primarily a matter for the parties involved, but if government action is being considered any legislation should reflect tripartite agreement.

1. The Committee has considered that amendments removing the upper limit on the term of collective agreements, and their effect on the time periods for assessing representativity, collective bargaining, change of union allegiance and affiliation, do not constitute a violation of the principles of freedom of association. However, the Committee is aware that, at least potentially, the possibility of concluding collective agreements for a very long term entails a risk that a union with borderline representativity may be tempted to consolidate its position by accepting an agreement for a longer term to the detriment of the workers genuine interests.

1. A statutory provision providing that a collective agreement should be in force for two years when no other period has been agreed by the parties does not constitute a violation of the right to collective bargaining.

Extension of collective agreements

1. The codification by Decree of clauses contained in a collective labour agreement is not inconsistent with the principles of free collective bargaining, which has, as a basis, the notion of agreements that are legally binding on the parties.

1. In a case where the public authorities decreed the extension of collective agreements when current collective agreements had been concluded by minority organizations in the face of opposition by an organization which allegedly represented the large majority of workers in the sector, the Committee considered that the Government could have carried out an objective appraisal of representativity of the occupational associations in question since, in the absence of such appraisal, the extension of an agreement could be imposed on an entire sector of activity contrary to the views of the majority organization representing the workers in the category covered by the extended agreement, and thereby limiting the right of free collective bargaining of that majority organization.

1. Any extension of collective agreements should take place subject to tripartite analysis of the consequences it would have on the sector to which it is applied.

1. When the extension of the agreement applies to non-member workers of enterprises covered by the collective agreement, this situation in principle does not contradict the principles of freedom of association, in so far as under the law it is the most representative organization that negotiates on behalf of all workers, and the enterprises are not composed of several establishments (a situation in which the decision respecting extension should be left to the parties).

1. The extension of an agreement to an entire sector of activity contrary to the views of the organization representing most of the workers in a category covered by the extended agreement is liable to limit the right of free collective bargaining of that majority organization. This system makes it possible to extend agreements containing provisions which might result in a worsening of the conditions of employment of the category of workers concerned.

Relationship between individual employment contracts and collective agreements

1. When in the course of collective bargaining with the trade union, the enterprise offers better working conditions to non-unionized workers under individual agreements, there is a serious risk that this might undermine the negotiating capacity of the trade union and give rise to discriminatory situations in favour of the non-unionized staff; furthermore, it might encourage unionized workers to withdraw from the union.

1. The Committee requested a Government to ensure that a negotiation with individual workers was not detrimental to collective negotiation with the trade union organization.

1. The relationship between individual employment contracts and collective agreements, and in particular the possibility that the former may override certain clauses in the latter under specific conditions, is dealt with differently in the various countries and under the various types of collective bargaining systems concerned. The basic task of the Committee is to decide whether the facts of the case are compatible with the Conventions and principles concerning freedom of association. In a case in which the relationship between individual contracts and the collective agreement seems to have been agreed between the employers and the trade union organizations, the Committee considered that the case did not call for further examination.

1. In one case, the Committee found it difficult to reconcile the equal status given in the law to individual and collective contracts with the ILO principles on collective bargaining, according to which the full development and utilization of machinery for voluntary negotiation between employers or employers organizations and workers organizations should be encouraged and promoted, with a view to the regulation of terms and conditions of employment by means of collective agreements. In effect, it seemed that the Act allowed collective bargaining by means of collective agreements, along with other alternatives, rather than promoting and encouraging it.

Incentives to workers and employers to give up the right to collective bargaining

1. When examining various cases in which workers who refused to give up the right to collective negotiation were denied a wage rise, the Committee considered that it raised significant problems of compatibility with the principles of freedom of association, in particular as regards Article 1, paragraph 2(b), of Convention No. 98. In addition, such a provision can hardly be said to constitute a measure to encourage and promote the full development and utilization of machinery for voluntary negotiation ... with a view to the regulation of terms and conditions of employment by means of collective agreements, as provided in Article 4 of Convention No. 98.

Closure of the enterprise and application of the collective agreement

1. The closing of an enterprise should not in itself result in the extinction of the obligations resulting from the collective agreement, in particular as regards compensation in the case of dismissal.

1. In a case related to insolvency and bankruptcy proceedings, the Committee considered that insisting on full compliance with the provisions of the collective agreement might threaten the continued operation of the enterprise and the maintenance of the workers jobs.