Freedom of Association and Collective Bargaining Shigeru Wada Regional Specialist on Workers Education ILO Bangkok
Types of International Instruments Convention Recommendation Protocol Declaration Guidelines Resolution Memorandum
ILS: What Are They? Two Main ILS Instruments Conventions: International Treaties open for ratification, legally binding Adopted by tripartite constituents Ratified by ILO member states Application is supervised by the ILO Recommendations: Adopted by the tripartite constituents - ILC Ratification not necessary, non-binding but good reference Application is supervised thru General Survey
The practical effect of standards
Characteristics of standards
Minimum International Standards National Standards should go above the International National Labour Standards Working Hours Maternity Protection FOA Safety & Health Minimum Age No Discrimination Collective Bargaining International Labour Standards
ILO Declaration 1998 Growing international concerns over unfair globalization ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up 1998 Reaffirmed The ILO member states, by virtue of their membership in the ILO, have an obligation to respect Fundamental Rights at Work
Core Labour Standards Conventions covering the FPRW Conventions Freedom of Association C. 87 Freedom of Association, 1948 C. 98 Right to Collective Bargaining, Ō49 Freedom from Forced Labour Freedom from Discrimination C. 100 Equal Remuneration, 1951 C. 111 Discrimination (Employment & Occupation), 1958 Minimum Age for Employment C. 29 C. 105 C. 138 C. 182 Forced Labour, 1930 Abolition of Forced Labour, 1957 Minimum Age for Employment, 1973 Worst Forms of Child Labour, 1999
FoA & Collective Bargaining C 87 & C 98 - pre-requisites for promoting democratic labour relations part of core labour standards of ILO considered fundamental human rights came into force as early as 1951 All member States are expected to respect this principle even if they have not ratified
Freedom of Association Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) Right to Organize and Collective Bargaining Convention, 1949 (No. 98) Workers Representatives Convention, 1971 (No. 135) Rural Workers Organizations Convention, 1975 (No. 141) Labour Relations (Public Service) Convention, 1978 (No. 151) Collective Bargaining Convention, 1981. (No. 154)
Freedom of Association & Right to Collecive Bargaining Conventions
C87: Freedom of Association and Protection of the Right to Organise Convention, 1948 A system of democracy and the respect of fundamental human rights are essential to full and genuine FOA The interdependence of FOA and civil liberties was reiterated in the ILO 1970 Resolution Concerning Trade Union Rights and Their Relation to Civil Liberties Protection of freedom against potential restrictions or infringements by the State
C87 Four principles of the Convention Right of all workers and employers to set up and join organizations Absence of distiction No need of previous authoriztion Right of organizations to freely decide on their internal matters Right to protect organizations against suspension or dissolution Right to establish and join federations and confederations, and right to affiliate with international organizations
The right to strike Most visible form of collective action in the context of a labour dispute Even if not expressly mentioned in ILO Conventions on FOA, the right to strike is fully recognized and protected Right to strike recognized by other international instruments Legitimate weapon of workers organizations in furtherance of their members interests
C87 This Convention applies to public servants engaged in the administration of the State as well Only exceptions provided are the armed forces and the police interpreted narrowly
C98: Right to Organise and Collective Bargaining Convention, 1949 Three principles of the Convention Protection of workers against anti-union discrimination Protection of workers and employers organizations against interference by each other Promotion of voluntary collective bargaining
Collective Bargaining Obligation to negotiate in good faith: Implies genuine and consistent efforts by both parties to reach an agreement Does not mean that there is an obligation to conclude an agreement Any unjustified delay in the holding of negotiations should be avoided Support measures aiming at promoting collective bargaining (information, statistics, voluntary procedures designed to facilitate bargaining)
Prohibited restrictions on free & voluntary negotiations Compulsory arbitration Intervention of public authorities In the drafting of collective bargaining In the form of administrative approval of freely concluded collective agreements In cancellation of agreements because they are contrary to national economic policy In compulsory extension of the period for which collective agreements are in force
C98 This Convention does not apply to public servants engaged in the administration of the State.
C135:WORKERS REPRESENTATIVES, 1971 Protection against any prejudicial act based on their status Protection of their union membership and their participation in union activities Facilities shall be afforded to enable them to carry out their functions
C151:LABOUR RELATIONS (PUBLIC SERVICE), 1978 Protection of public employees exercising the right to organize Protection against any interference by public authorities Enjoyment of civil and political rights Encouragement and promotion of negotiation of conditions of employment
ILO Conventions 87 & 98 Out 186 member States of ILO 153 countries have ratified C 87 Only 18 Asia and Pacific countries have ratified; C 98: 164 countries have ratified, including 21 from Asia and Pacific; Important countries like China, India, Iran, Korea, Thailand, Vietnam, etc have not ratified the both.
Collective Bargaining Coverage Low and declining union density in many Asian countries reflected also in limited CB coverage Prohibition or restriction of trade unions in EPZs makes CB impossible Outsourcing, contracting-out and casualization affects the number of workers covered by CB
Supervisory Mechanism ILO has developed the supervisory mechanism to ensure/support the implementation of ratified Conventions by Member States Regular Reporting Mechanism Special Complaint Mechanism Special Mechanism for FOA
Supervisory Mechanism Conventions Must be properly implemented, if ratified, both in laws & practice Freedom of Association Special Procedures Ratified Convention Irrespective of ratification status of C.87/98/135 19-5(e) Not Ratified (no obligation except) Art.26 Complaint Art.24 Representation Art. 22 Annual Report Priority Convention = Every 2 years Regular reporting on the actual situations of implementation of the ratified Conventions General Survey ILO F.P.R.W. Declaration Annual Review Report Annual reporting on un-ratified core conventions Complaint to Committee on Freedom of Association Examination by Commission of Inquiry Examination by a tripartite Committee set up by G.B. Examination by Committee of Experts Serious Cases Examination by the ILO Conference Discussion at G.B. meeting (March) Special Procedure for FOA related violations Examination by Declaration Experts Examination and ruling by CFA
Regular Reporting Mechanism: Article 22 Report Government must send periodic reports to the ILO on the effects given to ratified Conventions based on Article 22 of the ILO Constitution; Workers and employers organizations can send their observations on the Government s report. Trade Unions Employers Government Can send comments directly to the ILO if no tripartite consultation. Tripartite report (ideally) ILO Committee of Experts on Application of Conventions and Recommendations
Value of Art.22 Report Workers observations Tripartite report (ideally) Employers observations ILO Committee of Experts on Application of Conventions and Recommendations Gov. must provide additional information/ explanation to the CEACR Dir. Request Observation Government ILO Conference Committee on Application of Conventions & Recommendations Workers Group 25 selected serious cases Employers Group Annual Report of the Committee of Experts Compilation of observations, interpretations, recommendations of the CEACR on non-observance and specific violation cases
Reporting Cycle for Art.22 Priority Conventions = Every 2 years C.87 C.98 C.29 C.105 C.100 C.122 C.111 C.138 C.182 C.144 C.81 C.129 Non-Priority Convs. = Every 5 years
Special Mechanism 1: Art.24 Representation Representation can be filed, by trade unions or employers, in case of specific incidence of noncompliance or violation of ratified Conventions. Government Non-compliance or Violation of Ratified Conventions Trade Unions Representation Recommendation ILO Governing Body Employers Ad hoc Tripartite Committee
Special Mechanism 2: Art.26 Complaint Complaint can be filed in specific case of non-compliance of ratified Conventions. Art. 33 Non-compliance or Violation of Ratified Conventions Governing Body Delegate to ILC Final Ruling Comply Not comply ICJ Government Recommendation ILO Complaint Governing Body Government (member of the Conv.) Commission of Inquiry
Special Mechanism for FOA: Complaint to CFA If the problem is concerning violation of FOA/CB, irrespective of ratification of C.87/98, unions can file a complaint with CFA Non-compliance or Violation of Freedom of Association Trade Unions Government Employers CEACR CFA Complaint Monitoring Monitoring Government Recommendation ILO Governing Body Committee on Freedom of Association
Summary Government Violation of FOA or ratified Conventions Trade Unions Complaint to CFA Article 22 Report Article 24 Article 26 ILO / Supervisory Bodies