Compilation of decisions of the Committee on Freedom of Association

Collective bargaining15

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.