Notes on Chapter 4: Freedom of Association and Collective Bargaining
4.1: Freedom of Association
- The struggle for Civil Liberties and democratic participation in Europe and North America in the 19th century, particularly in the context of industrialisation which sparked the need for better working conditions and social protection, thus bringing the need for collective bargaining to the fore. FoA as an international labour standard
- Fundamental Human Right: protected against undue infringement by the state
- Core ILO value
- Main feature is the right to organise, form and join trade unions or employers organisations
- Relevant ILO Conventions [not ratified by India] a. Convention 87: FoA and Protection of the Right to Organise, 1948 [152/183 ratified] b. Convention 98: Right to Organise and Collective Bargaining, 1949 [165/183 nations ratified]
- Though it is the most ratified freedom on paper, it is one of the most contested rights.
- The ILO conventions guarantee individual freedoms a. Right to establish and join an organisation b. Without previous authorisation by an administrative authority c. Organisation should be “of their own choosing”: right to trade union pluralism d. The FoA prohibits anti-union discrimination against individual workers
- Responsibility on the domestic national legislation should ensure these rights to all workers and employers without distinction, no discrimination based on occupation, political opinion, marital status, sex, race, gender, residence, etc. Even public servants are covered, except police and armed forces.
- The ILO conventions guarantee collective freedoms a. Draw up their own constitution and rules b. Freedom to elect their representatives c. Right to organise their administration d. Right to organise their activities and formulate their programmes e. The right of non-interference: by public authorities and state administration, and each other, employers organisations, etc. f. Right to establish and join federations and confederations and affiliate with international organisations of workers or employers.
4.2: The Right to Strike under C87: Interview with ITUC head
- That the right to strike is an ILS protected by C87 a. Is a long held position of the ILO supervisory mechanism b. Supported by the workers’ groups and certain governments c. Accepted as a necessary component of the Freedom of Association (along with collective bargaining).
- 2012: Committee on Application of Standards failed to do their work in the history
- The employers’ representatives a. strongly disputed the existence of the right to strike as an ILS, and b. That it was covered by C87 as the convention does not mention the term “right to strike”. c. Did not allow the Committee to hear C87 matter, so that no Right to Strike disputes were heard d. Questioned the mandate and capability of the Committee of Experts and its members to hear these matters, come to conclusions or interpret the ILS.
- 2012-14: Tripartite processes were unsuccessful
- Nov. 2014: Attempted reference of the dispute to the ICJ as per ILO procedure a. Supported by workers, EU and Latin American governments b. Not successful.
- Feb. 2015: Agreement between workers and employers a. Dispute will not go to the ICJ b. No agreement on the existence on the Right to Strike c. Parties will allow regular supervisory procedures of the Committee to continue d. Parties will allow experts to carry on their work and recognise their mandate to supervise, give their opinion and interpret the standards.
4.3: Collective Bargaining
- 1944 Declaration of Philadelphia [part of the ILO Constitution]: First instrument that recorded the ILO mandate to promote and protect collective bargaining
- Right of Collective Bargaining: Workers and employers or their organisations regulate terms and conditions of work by agreement among themselves.
- 1949: Convention 98 Right to Organise and Collective Bargaining Convention: Main ILO instrument. Core ILO Convention a. 1951: Recommendation 91 on Collective Agreements supplements C98, among others b. Core standard identified by the ILO
- Right closely linked to the Freedom of Association under C87, C98 [for rights protected refer 4. Video 1: 8, 10]
- Right of Collective is the most typical activity of a Trade Union C87
- Article 4: Enshrines two important aspects of collective bargaining a. Action by the public authority to promote collective bargaining, and b. The voluntary nature of the negotiation process: Autonomy of parties
- National legislation should respect the following: a. Who the parties of collective bargaining/agreement are, on workers’ side usually an independent trade union or elected workers’ representatives of a union In some countries, direct agreements between employers and non-unionised worker groups, not their representatives, are more numerous, though this is not in line with the convention b. Issues that fall under Collective Bargaining: i. Terms and conditions of employment, ii. Relationship between workers and employers c. Collective agreements are binding on parties, and the workers and employers who fall under their scope i. Refer to the binding nature of agreements/settlements in India on future employees. ii. Prevails over less favourable individual contracts d. There is a tendency to give preference to individual right over collective rights in employment matters by legislature, though this is contrary to ILO principles e. Rules for negotiating parties may be set by the national legislation. For example, i. Giving recognition to representative union [50%+1 worker] of preferential bargaining rights ii. protection of minority unions’ bargaining rights.
- Negotiation should be in good faith
- Procedure for dispute resolution
4.4: The right to strike in the public sector
Importance of C151 and C154 for Public Service Workers
- Actually, most are covered by C87 and C98
What is what?:
[[[a. Right to Organise covered by C87, which made it clear that it covers public sector workers as well. Committee of Experts has agreed
b. Right to Organise if covered by C98, though the States can express reservations and exclude workers engaged in the administration of the State.]]]]
- C151 and C154 enhance and develop these rights and unambiguously cover public sector workers a. C154 includes workers left out of C98 and encourages government to negotiate terms and conditions of employment with those workers b. Develops Article 4 of C98 Differences in right to Strike of Public Sector Workers
- Public Services: All services provided to sustain the wellbeing of each citizen and of society as a whole, by state/private company/combination: ex. health, police, etc.
- Right to strike may be restricted or prohibited for a. Public servants exercising authority b. In essential services, whose interruption would endanger the life, health ot safety of the whole or part of the population
- In practice, governments expand the definition of “essential services” a. Ex. transportation and construction b. India: SEZ units
- The rise in mechanisation would pose a threat to the effectiveness of the strike as a mechanism of protest as its effectiveness lies in the denial of service. If human labour is non-essential to production, then strikes will no longer be effective as a negotiating tool.
4.5: Practical Experiences: Freedom of Association in Turkey
Turkey has signed C87 and C98. Violations are common and has been worsening since the change in regime in 2002. For example, 15 days after a strike in the aviation sector commenced, the Parliament passed a bill prohibiting any strike in the aviation sector and 305 workers were dismissed from their jobs.