Compilation of decisions of the Committee on Freedom of Association

Collective bargaining15

Workers covered by collective bargaining

Public servants

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1. The Committee has considered that it is clear that the International Labour Conference intended to leave it to each State to decide on the extent to which it was desirable to grant members of the armed forces and of the police the rights covered by Convention No. 87. It also held that the same considerations apply to Conventions Nos. 98, 151 and 154.

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

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

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

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

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

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

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