Document No. 148
Economic and Social Council, 5th Session, 1947, Official
Records, Annex 15f, Trade union rights (freedom of
association), Decisions adopted unanimously by the
International Labour Conference in July 1947
UNITED NATIONS viuäScM/ H NATIONS UNIES
ECONOMIC AND SOCIAL
COUNCIL
OFFICIAL RECORDS
SECOND YEAR : FIFTH SESSION
CONSEIL
ECONOMIQUE ET SOCIAL
PROCES-VERBAUX OFFICIELS
DEUXIEME ANNEE : CINQUIEME SESSION
From the 85th meeting
(19 July 1947)
to the 121st meeting
(16 August 1947)
JN
E/OLj
Q ^
De la 85eme séance
(19 juillet 1947)
à la 121 eme séance
(16 août 1947)
Lake Success, New York
1948
551324
!'Annex No.
Nos des annexes
14e.
15.
15a.
15b.
15c.
15d.
15e.
15f.
15g.
Chapter III of the report of the first session of the Commission
on the Status of Women: report of the Social Committee
to the Economic and Social Council ................... .
Chapitre I I I du rapport de la premiere session de la Commission
de la condition de la femme: rapport du Comite des ajfaires
sociales au Conseil economique et social ... . . . . . . . . . . . . . . . .
Report of Council NGO Committee on applications of nongovernmental
organizations for consultative status with the
Economic and Social Council ......................... .
Rapport du Comite ONG du Conseil sur les demandes que les
organisations non gouvernementales pourront presenter en vue
d'etre admises a etre consultees par le Conseil economique et
social .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Proposal of the delegation of the United States of America
to bring the National Association of Manufacturers into
consultative relationship with the Economic and Social
Council ............................................ .
Proposition de la delegation des Etats-Unis d'Amerique
tendant a faire beneficier la National Association of Manufacturers
du statut consultatif aupres du Conseil economique
et social . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Statement of freedom of association, presented for the
International Federa#on of Christfa.n Trade Unions by
Mr. P. J. S. Serrarens, General-Secretary of the IFCTU ....
Declaration sur la liberte d'association presentee au nom de la
Federation internationale des syndicats chretiens par M. P .J.S.
Serrarens, Secretaire general de la FIS C ................. .
Report of the Council NGO Committee on the requests of
the World Federation of Trade Unions, the International
Co-operative Alliance and the American Federation of
Labor, to be heard by the Council on the agenda items
submitted by them ................................... .
Rapport du Comite ONG du Conseil sur la demande de la
Federation syndicale mondiale, de l'Alliance cooperative
internationale et de l'American Federation of Labor, d'etre
entendues par le Conseil sur les points de l'ordr'e du jour
presentes par elles .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Trade union rights (freedom of association) : draft resolution
submitted by the delegation of Czechoslovakia .......... .
Droits syndicaux (liberte d'association): projet de resolution
presente par la delegation de la Tchecoslovaquie . . . . . . . . . . . .
Trade uniqn rights (freedom of association): draft resolution
proposed by the delegations of the United Kingdom, the
Netherlands, and the United States of America .......... .
Droits syndicaux (liberte d'association): projet de resolution
presente par les delegations du Royaume- Uni, des Pays-Bas et
des Etats-Unis d'Amerique ..... ....... ................ .
Trade union rights (freedom of association).: decisions
adopted unanimously by the International Labour Conference
in July 1947 ... ................................ .
Droits syndicaux (liberte d'association): decisions adoptees a
l'unanimite par la Conference internationale du Travail en
juillet 1947 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Report of the NGO Committee with regard to non-governmental
organizations which have proposed the insertion of
items on the agenda of the Council, and the requests of the
World Federation of Trade Unions .................... .
Rapport du Comite ONG du Conseil concernant les organisations
non gouvertiementales qui ont propose l'inscription de
questions a l' ordre du jour du Conseil, et les demandes de la
Federation syndicale mondiale .. . . . . . . . . . . . . . . . . . . . - . . . . . .
XIV
Document No. Page
Nos des documents Pages
E/521
E/521
E/500
E/500
E/502
E/502
E/C.2/50
E/C.2/50
E/527
E/527
E/534
E/534
E/533
E/533
E/485
E/485
E/566
E/566
409
409
410
410
413
413
413
413
419
419
420
420
420
420
421
421
434
434
421
A waits further reports on the subject to be
transmitted by the International Labour Organisation
and awaits also the report which it will
receive in due course from the Commission on
Human Rights on those aspects of the subject
which might appropriately form part of the bill
or declaration on human rights;
Notes that proposals for the establishment of
international machinery for safeguarding freedom
of association are to be examined by the
Governing Body of the International Labour
Organisation ;
Considers that the question of enforcement
of rights, whether of individuals or of associations,
raises common problems which should be
considered jointly by the United Nations and
the International Labour Organisation, and
Requests the Secretary-General to arrange for
co-operation between the International Labour
Organisation and the Committee on Human
Rights in the study of these problems.
ANNEX 15f
Trade union rights (freedom of association)
DECISIONS ADOPTED UNANIMOUSLY
BY THE INTERNATIONAL LABOUR
CONFERENCE IN JULY 1947
Document E/485 21 July 1947
[Original text: English]
In accordance with resolution 52 (IV),
adopted by the Council on 24 March 1947,
the Secretary-General communicated with the
International Labour Organisation, and has
received the attached letter from the DirectorGeneral
of that organisation transmitting the
report1 requested by the Council.
LETTER
From the Director-General of the I nternational
Labour Office to the SecretaryGeneral
of the United Nations communicating
for the information of the Economic
and Social Council the decisions
concerning freedom of association adopted
unanimously by the thirtieth session
of the Internatiqnal Labour Conference
on 11 July 1947
Sir,
[Original text: English]
Geneva, 16 July 1947.
1. I have the honour to refer further to your
letter of 18 April 1947, by which you transmitted
to me the resolution which was adopted by the
Economic and Social Council at its Fourth
Session concerning guarantees for the exercise
and development of trade union rights and
requested me to arrange for this matter to be
dealt with at the next session of the International
Labour Organisation.
2. In order to give effect to the request Illade
by the Council in its resolution, the Governing
1 The letter arid report are reproduced here as received
without any further editing.
Attend les autres rapports que l'Organisation
internationale du Travail doit lui transmettre
sur le meme sujet, ainsi que le rapport qu'il doit
recevoir en temps voulu de la Commission des
droits de l'homme en ce qui concerne les aspects
de la question qui meritent de figurer dans la
Declaration des droits de l'homme;
Note que les propositions tendant a la creation
d'un organisme international charge de def endre
la liberte d'association' doivent etre examinees
par le Conseil d'administration de !'Organisation
internationale du Travail;
. Estime que la mise en vigueur des droits, qu'il
s'agisse des individus ou des associations, pose
des problemes communs que !'Organisation des
Nations Unies et !'Organisation intemationale
du Travail doivent examiner de concert, et
Invite le Secretaire general a prendre des
mesures pour permettre a !'Organisation internationale
du Travail et a la Commission des
droits de l'homme de collaborer dans l'etude
de ces problemes.
ANNEXE 15e
Droits syndicaux (liberte d'association)
DECISIONS ADOPTEES A L'UNANIMITE
PAR LA CONFERENCE INTERNATIONALE
DU TRAVAIL EN JUILLET 1947
Document E/485 21 juiilet 1947
[Texte original en anglais]
Conformement a la resolution 52(1V), adoptee
par le Conseil le 24 mars 194 7, le Secretaire
general s'est mis en rapport avec !'Organisation
internationale du Travail, et a re!;U de son
Directeur general la lettre ci-jointe transmettant
le rapport1 demande par le Conseil.
LETTRE
Lettre adressee par le Directeur general du
Bureau international du Travail au
Secretaire general des Nations Unies,
communiquant, pour l'information du
Conseil economique et social, les decisions
concernant la liberte d' association adoptees
a l' unanimite par la trentieme
session de la Conference internationale
du travail, le 11 juillet 1947
[Texte original en anglais]
Geneve, le 16 juillet 1947
Monsieur le Secretaire general,
1. J'ai l'honneur de me referer a nouveau a
votre lettre en date du 18 avril 1947, par laquelle
vous avez bien voulu me transmettre une resolution
adoptee par le Conseil economique et social a
sa quatrieme session au sujet des garanties
d'exercice et de developpement du droit syndical
et me demander de prendre les dispositions
necessaires pour que la question soit traitee
par !'Organisation internationale du Travail a
sa prochaine session.
2. Pour donner suite a la demande formulee
par le Conseil dans sa resolution, le Conseil
1 La lettre et le rapport sont reproduits ici tels qu'ils
ont ete re!;US et n'ont subi aucune revision.
422
Body of the International Labour Office included
the item "Freedom of Association and Industrial
Relations" in the agenda of the thirtieth session
of the International Labour Conference
which met in Geneva from 19 June to 11 July
1947. The Conference had before it the documentation
from the World Federation of Trade
Unions and the American Federation of Labor
tansmitted with your letter on behalf of the
Council, together with a report on the subject
prepared by the International Labour Office.
After full examination, the Conference arrived
at a series of unanimous decisions in the matter.
3. I have the honour to transmit herewith
for the information of the Council the text of
the decisions unanimously arrived at by the
Conference, including the programme of further
action which the International Labour Organisation
proposes to follow. I also venture to
add for the information of the Council the following
brief comments, which indicate the relationship
between these various decisions.
4. It will be noted that the Conference unanimously
adopted two resolutions, covering all
the main items in the World Federation of
Trade Unions and American Federation of
Labor memoranda, and proceeded also to
accept a list of points to be embodied in an
international labour convention next year.
5. The first resolution relates to the fundamental
principle on which freedom of association
must be based. The Conference recognized the
need for taking the speediest possible action
to give effect to these principles by embodying
them in an international instrument. It is
therefore intended to embody them in an international
labour convention to be adopted at the
thirty-first session of the International Labour
Conference, which has been convened to meet
in San Francisco on 17 June 1948, and the necessary
steps have been taken to make it possible
for the Conference to take such action at that
session.
6. The action being taken in respect of these
fundamental principles is to be regarded as only
the first stage of the programme of action in
respect of the matter being undertaken by the
International Labour Organisation. The Conference
also agreed unanimously that a number
of other important questions which the International
Labour Organisation regards as forming
an essential part of the whole general subject of
freedom of association and industrial relations
should be placed on the agenda of the 1948
session of the International Labour Conference
for a first discussion with a view to the adoption
of a convention or conventions at subsequent
sessions.
7. These questions include (a) the detailed
methods of applying the principle enunciated
in article 9 of the resolution which relates to the
exercise of the right of freedom of association
without fear of intimidation, coercion, or
restraint from any source, (b) collective agreements,
(c) voluntary conciliation and arbitration,
(d) co-operation between the public authorities
and employers' and workers' organisations.
d'administration du Bureau international du
Travail a inscrit la question «Liberte d'association
et relations industrielles > a l'ordre
de jour de la trentieme session de la Conference
internationale du travail, qui s'est reunie a
Geneve du 19 juin au 11 juillet 1947. La Conference
a ete saisie de la documentation fournie
par la Federation syndicale mondiale et la
Federation americaine du travail que vous
m'aviez transmise de la part du Conseil, avec
votre lettre precitee, ainsi que d'un rapport
sur la question prepare par le Bureau international
du Travail. Apres son examen detaille,
la Conference a abouti a une serie de decisions
unanimes en la matiere.
3. J'ai l'honneur de vous transmettre ci-joint,
pour !'information du Conseil economique et
social, le texte des decisions adoptees unanimement
par la Conference, y compris le programme
que !'Organisation internationale du Travail se
propose de suivre pour son activite future clans
ce domaine. Je me permets d'ajouter, pour
!'information du Conseil, les brefs commentaires
suivants qui indiquent la relation qui existe entre
ces diverses decisions.
;< 4. II convient de noter que la Conference a
adopte a l'unanimite deux resolutions couvrant
tous les points principaux des memoires presentes
par la Federation syndicale mondiale et la
Federation americaine du travail et a egalement
accepte une liste de points qui seraient compris
l'annee prochaine clans une convention internationale
du travail._-\
5. La premiere resolution a pour objet les
principes fondamentaux sur lesquels la liberte
d'association doit etre fondee. La Conference
a reconnu qu'il etait necessaire de prendre aussi
rapidement que possible des mesures pour donner
effet a ces principes en les incorporant clans
un instrument international. En consequence, on
a !'intention de les inclure clans une convention
internationale de travail qui serait adoptee par
la Conference internationale du travail a sa
trente et unieme session, convoquee a San-Francisco
le 17 juin 1948, et les dispositions necessaires
ont ete prises pour permettre a]la Conference
de prendre de telles mesures a Ja session
dont il s'agit.
6. Les mesures prises a l'egard de ces principes
fondamentaux ne doivent re considerees que
comme la premiere etape du programme d'action
clans ce domaine que !'Organisation internationale
du Travail est en voie d'eqtreprendre. La
Conference a ete egalemen t unanime a decider
que plusieurs autres questions importantes que
!'Organisation internationale du Travail considere
comme formant une partie essentielle du
probleme general de la liberte d'association
et des relations industrielles seraient inscrites
a l'ordre du jour de la session de 1948 de la
Conference internationale du travail pour une
premiere discussion, en vue de !'adoption d'une
ou plusieurs conventions a des sessions ulterieures
de la Conference.
7. Ces questions comprennent: a) les methodes
detaillees d'application du principe enonce
a !'article 9 de la resolution au sujet de l'exercice
du droit d'association contre tous actes d'intimidation,
de pression ou de contrainte quelle
qu'en soit la provenance; b) les conventions
collectives; c) la conciliation et l'arbitrage;
d) la. collaboration entre les pouvoirs publics et
{es organisations d'employeurs et de travailleurs.
423
The action to be taken on these questions,
beginning at the 1948 session of the Conference,
is to be regarded as the second stage in the treatment
of the question.
8. The second resolution adopted by the
Conference relates to the question of international
machinery for safeguarding freedom of
association on the lines of the proposals made
by the World Federation of Trade Unions and
the American Federation of Labor. These proposals
were received with much sympathy, and
there was general recognition that this is a
matter of the highest importance calling for
close and detailed examination. The Governing
Body of the International Labour Office has
accordingly been asked to arrange to do this and
to report on all aspects of the matter to the next
session of the International Labour Conference.
9. The Governing Body has decided to be
represented at the next session of the Economic
and Social Council by a delegation consisting
of Mr. David A. Morse, Assistant Secretary of
Labor of the United States of America and
Representative of the Government of the United
States on the Governing Body of the International
Labour Office, who was the Chairman of
the Committee on Freedom of Association of the
thirtieth session of the Conference; Mr. Léon
Jouhaux, Workers' Vice-Chairman of the Governing
Body of the International Labour Office,
who was the- Reporter of the Committee on
Freedom of Association of the thirtieth session
of the Conference; and Mr. H. W. Macdonnell,
Employers^ Deputy Member of the Governing
Body of the International Labour Office. Mr.
Jef Rens, Assistant Director-General of the
International Labour Office, will represent the
Director-General. If Mr. Jouhaux or Mr.
Macdonnell should be unable to attend they
will be replaced by Mr. Paul Finet, Workers'
Member of the Governing Body of the International
Labour Office, and Mr. James David
Zellerbach, Employers' Vice-Chairman of the
Governing Body of the International Labour
Office, respectively.
10. I am also enclosing for the information
of the Council the speech made by Mr. Léon
Jouhaux when presenting the conclusions of the
Committee on Freedom of Association to the
Conference as Reporter, together with the speech
made by the Deputy, Reporter, Mr. Louis E.
Cornil, Belgian Employers' representative. It
will be observed that Mr. Jouhaux suggested in
his speech that the decision taken by the International
Labour Conference on these questions
might be drawn to the attention of the General
Assembly of the United Nations by the Economic
and Social Council.
11. I should add that it was the general
opinion of the Conference that it had made rapid
and substantial progress in dealing with the
matter in the course of its recent session and
that it had mapped out a practicable plan and
programme of action which it is confident will
result in the adoption of binding international
instruments from 1948 onwards.
I have the honour ...
Edward PHELAN,
Director-General
Les mesures qui seront prises sur ces questions,
et qui auront comme point de départ la session
de 1948 de la Conférence, doivent être considérées
comme la deuxième étape de l'examen
de la question.
8. La deuxième résolution adoptée par la
Conférence concerne la question de la création
d'un organisme international pour la sauvegarde
de la liberté d'association, d'après les propositions
présentées par la Fédération syndicale
mondiale et la Fédération américaine du travail.
Ces propositions ont été accueillies avec beaucoup
de sympathie et la Conférence a reconnu
en général qu'il s'agit d'une question de la plus
haute importance, nécessitant un examen attentif
et détaillé. Le Conseil d'administration a en
conséquence été prié de prendre les dispositions
nécessaires à cet effet et à faire rapport sur tous
les aspects du problème à la prochaine session
de la Conférence internationale du travail.
9. Le Conseil d'administration a décidé de se
faire représenter à la prochaine session du Conseil
économique et social par une délégation composée
comme suit: M. David A. Morse, Sous-
Secrétaire d'Etat au Département du travail des
Etats-Unis d'Amérique, représentant du Gouvernement
des Etats-Unis au Conseil d'administration
du Bureau international du Travail et
président de la Commission de la liberté d'association
à la trentième session de la Conférence;
M. Léon Jouhaux, vice-président travailleur
du Conseil d'administration du Bureau international
du Travail, rapporteur de la Commission
de la liberté d'association à la trentième session
de la Conférence; M. H. W. MacDonnell,
membre adjoint employeur du Conseil d'administration
du Bureau international du Travail.
M. Jef Rens, sous-directeur général du Bureau
international du Travail, représentera le Directeur
général. Au cas où M. Jouhaux et
M.MacDonnell ne pourraient assister à la réunion,
ils seraient remplacés respectivement par
M. Paul Finet, membre travailleur du Conseil
d'administration du Bureau international du
Travail, et M. James David Zellerbach, viceprésident
employeur du Conseil d'administration
du Bureau international du Travail.
10. Je vous adresse également sous ce pli, pour
l'information du Conseil, le texte du discours
prononcé par M. Léon Jouhaux lorsque, en sa
qualité de Rapporteur, il a présenté à la Conférence
le rapport de la Commission de la liberté
d'association, ainsi que le texte du discours
prononcé par le Rapporteur adjoint, M. Louis
E. Cornil, délégué des employeurs de Belgique.
Il convient de remarquer que M. Jouhaux a
suggéré dans son discours que les décisions prises
en la matière par la Conférence internationale
du travail pourraient être signalées à l'attention
de l'Assemblée générale des Nations Unies par le
Conseil économique et social.
11. J'ajoute que, d'une manière générale, la
Conférence a été d'avis qu'elle avait progressé
rapidement et substantiellement dans le traitement
de la question au cours de sa récente session
et qu'elle avait dressé un plan et un programme
d'action réalisables, qui, elle en est sûre, conduiront
à l'adoption, à partir de 1948, d'instruments
internationaux de caractère obligatoire.
Veuillez agréer . . .
(Signé) Edward PHELAN
Directeur général
424
REPORT
Decisions concerning freedom of association
· adopted unanimously by the thirtieth
session of the International Labour
Conference on 11 July 1947
RESOLUTION CONCERNING FREEDOM OF ASSO·
CIATION AND PROTECTION OF THE RIGHT TO
ORGANIZE AND TO BARGAIN COLLECTIVELY
The General Conference of the International
Labour Organisation:
Having been convened at Geneva by the
Governing Body of the International Labour
Office, and having met in its thirtieth
session on 19 June 1947,
Whereas the Preamble to the Constitution of
the International Labour Organisation expressly
declares "recognition of the principle of freedom
of association" to be a means of improving conditions
of labour and of establishing peace; and
Whereas the Declaration of Philadelphia
reaffirms that "freedom of expression and of
asso ciation are essential to sustained progress"
and recognises the solemn obligation of the
International Labour Organisation to further
among the nations of the world programmes
which will achieve, among other things: "the
effective recognition of the right of collective
bargaining, the co-operation of management and
labour in the continuous improvement of productive
efficiency, and the collaboration of
workers and employers in the preparation and
application of social and economic measures";
and
Whereas it also affirms that the principles set
forth in this Declaration are fully applicable to
all peoples everywhere and that, while the manner
of their application must be determined
with due regard to the stage of social and economic
development reached by each people, their
progressive application to peoples who are still
dependent, as well as to those who have already
achieved self-government, is a matter of concern
to the whole civilised world; and
Whereas tandards of living, normal functioning
of national economy and social and economic
stability depend to a considerable degree on a
properly organised system of industrial relations
founded on the recognition of freedom of association;
and
Whereas, moreover, in many countries, employers'
and workers' organisations have been
associated with the preparation and application
of economic and social measures; and
Whereas the International Labour Conference,
the Regional Conferences of the American
States members of the International Labour
Organisation and the various industrial committees
have, in numerous Resolutions, called
the attention of the States members of the
International Labour Organisation to the need
for establishing an appropriate system of industrial
relations founded on the guarantee of the
principle of freedom of association,
adopts this eleventh day of July of the year
one thousand nine hundred and forty-seven, the
following Resolution:
RAPPORT
Decisions concernant /,a liberte d' association
adoptees a l'imanimite par la trentieme
session de la Conference internationale
du travail le 11 juiUet 1947
RESOLUTION CONCERNANT LA LIBERTE SYNDICALE
ET LA PROTECTION DU DROIT D'ORGANISATION
ET DE NEGOCIATION COLLECTIVE
La Conference generale de !'Organisation
internationale du Travail convoquee a Geneve
par le Conseil d'administration et s'y etant
• reunie le 19 juin 1947 en sa trentieme session,
Considerant,
Que le preambule de la constitution de
l'Organisation internationale du Travail enonce
expressement, parmi les mQyens susceptibles
d'ameliorer la condition des travailleurs et
d'assurer la paix, "l'affirmation du principe
de la liberte syndicale";
Que la Declaration de Philadelphie a proclame
de nouveau que la "liberte d'expression et
d'association est une condition indispensable
d'un progres soutenu", qu'elle a en outre reconnu
l'obligation solennelle pour l'Organisation
inte rnationale du Travail de seconder la mise en
reuvre parmi les differentes nations du monde de
programmes propres a realiser, entre autres:
"la reconnaissance effective du droit de
negociation collectiv et la cooperation des e·mployeurs
et de la main-d'reuvre pour !'amelioration
continue de 1' organisation de la production,
ainsi que la collaboration des travailleurs et
des employeurs a !'elaboration et a !'application
de la politique sociale et economique";
Qu'elle a affirme egalement que "les principes
enonces clans la presente Declaration sont
pleinement applicables a tous les peuples du
monde et que si, clans les modalites de leur
application, il doit etre dfiment tenu compte du
degre de developpement social et economique
de chaque peuple, leur application progressive
aux peuples qui sont encore dependants, aussi
bien qu'a ceux qui ont atteint le stade ou
ils se gouvernent eux-memes, interesse !'ensemble
du monde civilise";
Que le niveau de vie, le fonctionnement normal
de l'economie nationale et la stabilite
sociale et economique dependent clans une large
mesure d'un systeme bien organise des relations
industrielles, fonde sur la reconnaissance de la
li berte syndicale;
Que, de plus, de nombreux pays ont associe
les organisations des employeurs et des travailleurs
a !'elaboration et a !'application de la
politique economique et sociale;
Que la Conference internationale du travail,
les conferences regionales des Etats d'Amerique
membres de !'Organisation internationale du
Travail., ainsi que les diverses commissions
d'industrie ont, par de nombreuses resolutions,
attire !'attention des Etats membres de !'Organisation
internationale du Travail sur la necessite
d'instituer un systeme approprie de relations
industrielles fonde sur la garantie du princip e
de la liberte syndicale;
Pour ces motifs,
Adopte, ce onzieme jour de juillet 1947, la
resolution suivante:
425
I.fFreedom of association
1. Employers and workers, without distinction
whatsoever, should have the inviolable right
to establish or join organisations of their own
choosing without previous authorisation.
2. Employers' and workers' organisations
should have the right to draw up their constitutions
and rules, to organise their administration
and activities and to formulate their programmes;
there should be no interference on the
part of the public authorities which would
restrict this right or impede the organisations
in the lawful exercise of this right.
3. Employers' and workers' organisations
should not be liable to be dissolved or have their
activities suspended by administrative authority.
4. Employers' and workers' organisations
should have the right to establish federations
and confederations as well as the right of affiliation
with international organisations of employers
and workers.
5. The guarantees defined in paragraphs 1, 2
and 3 herein with regard to the establishment,
functioning, dissolution and suspension of employers'
and workers' organisations should apply
to federations and confederations of such organisations.
6. The acquisition of legal personality by
employers' and workers' organisations should
not be made subject to conditions of such a
character as to restrict freedom of association
as hereinbefore defined.
7. The acquisition and exercise of the rights
as outlined in this part should not exempt the
employers' and workers' organisations from their
full share of responsibilities and obligations.
II. Protection of the right to organise
and to bargain collectively
8. There should be agreement between organised
employers and workers mutually to respect
the exercise of the right of association.
9. (1) Where full and effective protection is
not already afforded, appropriate measures
should be taken to enable guarantees to be
provided for:
(a) The exercise of the right of freedom of
association without fear of intimidation, coercion
or restraint from any source with the
object of:
(i) Making the employment of the worker
conditional on his not joining a trade union
or on his withdrawing from a trade union
of which he is a member;
(ii) Prejudicing a worker because he is a
member or agent or official of a trade union ;
(iii) Dismissing a worker because he is a
member or agent or official of a trade union.
I. Liberté syndicale
1. Les employeurs et les travailleurs, sans
distinction d'aucune sorte, devraient avoir le
droit inviolable de constituer des organisations
de leur choix et de s'y affilier sans autorisation
préalable.
2. Les organisations d'employeurs et de travailleurs
devraient avoir le droit d'élaborer leurs
statuts et règlements administratifs, d'organiser
leur gestion et leur activité, et de formuler
leur programme d'action; il ne devrait y avoir
aucune intervention de la part des autorités
publiques qui serait de nature à limiter ce droit
ou à en entraver l'exercice légal.
3. Les organisations d'employeurs et de
travailleurs ne devraient pas être sujettes à
dissolution ou à suspension par voie administrative.
4. Les organisations d'employeurs et de
travailleurs devraient avoir le droit de constituer
des fédérations et des confédérations, ainsi
que celui de s'affilier à des organisations internationales
d'employeurs et de travailleurs.
5. Les garanties définies par les paragraphes 1,
2 et 3 relatifs à la constitution, au fonctionnement,
à la dissolution et à la suspension des
organisations des employeurs et des travailleurs
devraient s'appliquer aux fédérations et aux
confédérations syndicales.
6. L'acquisition de la personnalité juridique
par des organisations d'employeurs et de
travailleurs ne devrait pas être subordonnée à
des conditions de nature à porter atteinte à la
liberté syndicale définie ci-dessus.
7. L'acquisition et l'exercice des droits prévus
ci-dessus ne devraient pas avoir pour effet
d'exempter les organisations d'employeurs et de
travailleurs de leurs responsabilités et obligations
respectives.
II. Protection du droit d'organisation
et de négociation collective
8. Il devrait y avoir accord mutuel entre les
employeurs et les travailleurs organisés quant à
l'exercice du droit syndical.
9. 1) Lorsqu'une protection pleine et effective
n'est pas déjà assurée, des mesures appropriées
devraient être prises en vue de garantir:
a) L'exercice du droit syndical contre tous
actes d'intimidation, de pression ou de contrainte
quelle qu'en soit la provenance, visant à:
i) Subordonner l'emploi du travailleur à la
condition qu'il ne s'affilie pas à un syndicat
ou se retire d'un syndicat dont il fait partie;
ii) Porter préjudice à un travailleur en raison
du fait qu'il est membre, agent ou dirigeant
d'un syndicat;
iii) Congédier un travailleur en raison du fait
qu'il est membre, agent ou dirigeant
d'yn syndicat.
426
(b) The exercise of the right of association
by workers' organisations in such a way as to
prevent any acts on the part of the employer or
employers' organisations or their agents with
the object of:
(i) Furthering the establishment of trade
unions under the domination of employers;
(ii) Interfering with the'. formation or administration
of a trade union or contributing
financial or other support to it;
(iii) Refusing to give practical effect to the
principles of trade union recognition and
collective bargaining.
(2) It should be understood, however, that
a provision in a freely concluded collective agreement
making membership of a certain trade
union a condition precedent to employment or a
condition of continued employment does not
fall within the terms of this Resolution.
10. Appropriate agencies should be established,
if necessary, for the purpose of ensuring
the protection of the right of association as
defined in paragraph 9 herein.
LIST OF POINTS TO SERVE AS A BASIS FOR THE
ADOPTION OF ONE OR SEVERAL INTERNATIONAL
LABOUR CONVENTIONS IN 1948
I. Freedom of association
1. Desirability of drawing up a proposed
international convention concerning freedom of
association.
2. Need to provide that employers and workers,
without distinction whatsoever, should have
the inviolable right to establish or join organisations
of their own choosing without previous
authorisation.
3. (1) Need to provide that employers' and
workers' organisations should have the right
to draw up their constitutions and rules, to
organise their administration and activities and
to formulate their programmes.
(2) Need to provide further that the public
authorities should refrain from any interference
which would restrict this right or impede the
organisations in the lawful exercise of this right.
4. Need to provide that employers' and
workers' organisations may not be dissolved or
suspended by administrative authority.
5. Need to recognise the right of employers'
and workers' organisations to establish federations
and confederations of such organisations
and to affiliate with international organisations
of employers and workers.
6. Need to provide that the guarantees defined
in paragraphs 2, 3 and 4 with regard to the establishment,
functioning, dissolution and suspension
of employers' and workers' organisations
should apply to federations and confederations
of such organisations.
7. Need to provide that the acquisition of
legal personality by employers' and workers'
organisations should not be made subject to
conditions of such a character as to restrict
freedom of association as hereinbefore defined.
b) L'exercice du droit syndical des organisations
de travailleurs de fa(;on a prevenir, de la
part de l'employeur ou des organisations d'employeurs
ou de leurs agents, tous actes visant
notamment a:
i) Favoriser la constitution de syndicats
places sous le controle d'employeurs;
ii) Intervenir dans la constitution ou la gestion
d'un syndicat ou le soutenir par des
moyens financiers ou autrement;
iii) Refuser de faire porter effet aux principes
de la reconnaissance des syndicats et
des negociat:ions collectives.
2) II devrait toutefois etre entendu qu'une
disposition d'une convention collective librement
conclue, exigeant !'affiliation a un certain syndicat
comme condition prealable a l'emploi ou
comme condition de la continuation de l'emploi,
n'est pas visee par la presente resolution.
10. Les organes appropries devraient, si
necessaire, etre institues pour assurer la protection
de l'exercice du droit syndical defini par
!'article 9 ci-dessus.
LISTE DES POINTS DESTINES A SERVIR DE BASE
A L' ADOPTION D'UNE OU DE PLUSIEURS
CONVENTIONS INTERNATIONALES DU TRAVAIL
EN 1948
I. Liberte syndicale
1. Opportunite d'elaborer un projet de convention
intemationale concernant la liberte
syndical e.
2. Necessite de prevoir que les employeurs
et les travailleurs, sans discrimination d'aucune
sorte, doivent avoir le droit inviolable de constituer
des organisations de leur choix et de s'y
affilier, sans autorisation prealable.
3. 1) Necessite de prevoir que les organisations
d'employeurs et de travailleurs doivent
avoir le droit d'elaborer leurs statuts et reglements
administratifs, d'organiser leur gestion et
leur activite, .et de formuler leur programme
d'action;
2) Necessite de prevoir en outre que les
autorites publiques doivent s'abstenir de toute
intervention qui serait de nature a limiter ce
droit ou a en entraver l'exercice legal.
4. Necessite de prevoir que les organisations
d'employeurs et de travailleurs ne peuvent etre
dissoutes ou suspendues par voie administrative.
5. Necessite de reconnaitre aux organisations
d'employeurs et de travailleurs le droit de constituer
des federations et des confederations, ainsi
que celui de s'affilier a des organisations internationales
d'employeurs et de travailleurs.
6. Necessite de prevoir que les garanties
definies par les paragraphes 2, 3 et 4 relatifs a la
constitution, au fonctionnement, a la dissolution
et a la suspension des organisations des employeurs
et des travailleurs doivent s'appliquer
aux federations et aux confederations syndicales.
7. Necessite de prevoir que !'acquisition de la
personnalite juridique par des organisations
d'employeurs et de travailleurs ne doit pas etre
subordonnee a des conditions de nature a
porter atteinte a la liberte syndicale definie
ci-dessus.
427
8. Desirability of providing that the acquisition
and exercise of the rights as outlined in this
part should not exempt employers' and workers'
organisations from their full share of responsibilities
and obligations.
II. Protection of the right to organise
1. Desirability of drawing up a proposed
conventionj concerning the protection of the
right to organise.
2. Need to provide that where full and effective
protection is not already afforded, appropriate
measures should be taken to enable
guarantees to be provided for the exercise of the
right of freedom of association without fear of
intimidation, coercion or restraint from any
source.
3. Desirability of making such provision as
may be necessary for the establishment of appropriate
agencies for the purpose of ensuring
the protection of the right of association.
RESOLUTION CONCERNING THE AGENDA OF THE
1948 SESSION OF THE INTERNATIONAL LABOUR
CONFERENCE
The Conference,
Having approved the report of the Committee
appointed to consider the seventh item
on its agenda.
Decides:
(1) To place on the agenda of its next general
session, the question of freedom of association
and of the protection of the right to organise
with a view to the adoption of one or several
conventions at that session, and
(2) To place on the agenda of its next general
session, as one item for first discussion: the
application of the principles of the right to
organise and to bargain collectively, collective
agreements, conciliation and arbitration and cooperation
between the public authorities and
employers' and workers' organisations.
RESOLUTION CONCERNING INTERNATIONAL MACHINERY
FOR SAFEGUARDING FREEDOM OF
ASSOCIATION
The Conference,
(1) Recalling the references to freedom of
association in the Declaration of Philadelphia
and the Constitution of the International Labour
Organisation, reaffirms belief in and attachment
to the principle of freedom of association in all
countries as an essential element in those wider
personal freedoms which are the foundation of
peace, prosperity and happiness;
(2) Is concerned at the widespread reports
that conditions may exist prejudicial to freedom
of association in many countries;
(3) Feels that steps should be taken to encourage,
expand and unversally establish freedom
of association both by reminding Governments
of all States, whether members of the ILO or
not, of their obligations in this respect under the
8. Opportunité de prévoir que l'acquisition
et l'exercice des droits prévus ci-dessus ne doivent
pas avoir pour effet d'exempter les organisations
d'employeurs et de travailleurs de leurs
responsabilités et obligations respectives.
II. Protection du droit syndical
1. Opportunité d'élaborer un projet de convention
sur la protection du droit syndical.
2. Nécessité de prévoir que, si une protection
pleine et effective n'est pas déjà assurée, des
mesures appropriées doivent être prises en vue
de garantir l'exercice du droit syndical contre
tous actes d'intimidation, de pression ou de
contrainte, quelle qu'en soit la provenance.
3. Opportunité de prendre les mesures qui
peuvent être nécessaires en vue de l'institution
d'organes appropriés chargés d'assurer le respect
du droit syndical.
RÉSOLUTION CONCERNANT L'ORDRE DU JOUR DE
LA SESSION DE 1948 DE LA CONFÉRENCE
INTERNATIONALE DU TRAVAIL
La Conférence,
Après avoir approuvé le rapport de la commission
nommée pour examiner la septième question
à l'ordre du jour;
Décide:
1. D'inscrire à l'ordre du jour de sa prochaine
session générale la question de la liberté syndicale
et de la protection du droit syndical en vue
de l'adoption d'une ou de plusieurs conventions
à ladite session;
2. D'inscrire à l'ordre du jour de sa prochaine
session générale, comme une question en vue
d'une première discussion, l'application des
principes du droit d'organisation et de négociation,
les conventions collectives, la conciliation
et l'arbitrage, et la collaboration entre les
pouvoirs publics et les organisations professionnelles.
RÉSOLUTION CONCERNANT UN ORGANISME INTERNATIONAL
DE SAUVEGARDE DE LA LIBERTÉ
D'ASSOCIATION
La Conférence,
1. Rappelant la mention qui a été faite de la
liberté d'association dans la Déclaration de
Philadelphie et dans la constitution de l'Organisation
internationale du Travail, affirme à
nouveau sa foi et son attachement à l'égard du
principe de la liberté d'association dans tous les
pays, élément essentiel des libertés personnelles
sur lesquelles sont fondés la paix, la prospérité
et le bonheur;
2. Exprime son appréhension au sujet des
renseignements qui lui sont parvenus de plusieurs
côtés, indiquant que des conditions préjudiciables
à la liberté d'association existeraient dans
de nombreux pays ;
3. Estime que des mesures devraient être
prises pour favoriser, développer et instituer
de manière universelle la liberté d'association,
d'une part, en attirant l'attention des Gouvernements
de tous les Etats, membres ou non de
428
Constitution of the ILO and/or the Charter
of the United Nations, and by other practicable
means ;
(4) In this connexion has noted with interest
the proposals made by the WFTU and the
AF of L for the' establishment of international
machinery for safeguarding freedom of association,
and feels that these proposals deserve close
and careful examination;
(5) Recognises that the proposals raise issues
of great complexity and difficulty including, for
example,
(i) Questions involving the sovereignty of
States ;
(ii) The relationship of any such machinery
to the proposals under examination by the
United Nations for giving effect to a bill of
rights and establishing machinery for
supervising the exercise of other fundamental
freedoms, including freedom of
speech, of information and of lawful assembly;
(iii) The composition, scope,' powers (including
powers of inquiry and investigation) and
procedure of the proposed machinery;
(iv) The authority under which the proposed
machinery would act.
(6) Considers it essential to give to such
questions, which may involve changes in the
inter-relationship of States, the detailed examination
and careful preparation which they merit
and without which any international action
would be bound to fail and likely to leave the
situation worse than it is at present;
(7) Recognises however that the establishment
in consultation with the United Nations
of permanent international machinery may be
an indispensable condition for the full observance
of freedom of association throughout the world
and that any such machinery should, if established,
operate under the guarantees provided
by the tripartite Constitution of the International
Labour Organisation;
(8) Accordingly requests the Governing Body
to examine this question in all its aspects and
to report back to the Conference at the thirtyfirst
session in 1948.
Speeches delivered before the International
Labour Conference on 11 July 1947 by
Mr. Léon Jouhaux, Reporter and Mr.
Louis E. Cornil, Deputy-Reporter, of the
Committee on freedom of association
Mr. JOUHAUX, workers' delegate, France;
Reporter of the Committee on freedom of association
(Interpretation): I should like briefly
to submit the report on the question of freedom
of association and industrial relations. In submitting
the report and asking you to accept it
l'OIT, sur les obligations qui découlent pour
eux sous ce rapport de la constitution de
l'OIT ou de la Charte des Nations Unies,
d'autre part, en recourant à tout autre moyen
utile ;
4. A pris note avec intérêt, à cet égard, des
propositions faites par la Fédération américaine
du travail en vue de l'institution d'un organisme
international de sauvegarde de la liberté d'association,
et estime que ces propositions méritent
un examen approfondi et attentif;
5. Reconnaît que ces propositions soulèvent
des problèmes particulièrement complexes et
difficiles, tels que, par exemple:
i) Des questions mettant en cause la souveraineté
des Etats;
ii) Le rapport pouvant exister entre un tel
organisme et les propositions actuellement
examinées par les Nations Unies aux fins
de faire porter effet à une déclaration des
droits de l'homme et d'instituer un organisme
de sauvegarde de l'exercice d'autres
libertés fondamentales, notamment la liberté
de parole, d'information et de la liberté de
réunion pour toutes fins non contraires aux
lois;
iii) La composition, le champ d'activité, les
pouvoirs (y compris les pouvoirs d'enquête
et d'investigation) et la procédure de
l'organisme projeté;
iv) L'autorité en vertu de laquelle l'organisme
projeté exercerait son action.
6. Considère qu'il est essentiel de vouer à ces
questions, qui pourraient entraîner des changements
dans les relations mutuelles des Etats,
l'examen détaillé et la préparation attentive
qu'elles méritent et sans lesquels toute action
internationale serait condamnée à l'échec et
risquerait de rendre la situation encore plus
sérieuse qu'elle ne l'est à présent;
7. Reconnaît, toutefois, que l'établissement,
en consultation avec les Nations Unies, d'un
organisme international permanent paraît être
une condition indispensable pour le respect intégral
de la liberté d'association dans le monde
entier, et que tout organisme de ce genre
devrait, une fois établi, exercer une action sous
les garanties offertes par la constitution tripartite
de l'Organisation internationale du Travail ;
8. En conséquence, invite le Conseil d'administration
à examiner la question sous tous ses
aspects et à faire rapport à la Conférence lors
de sa trente et unième session en 1948.
Discours prononcés le II juillet 1947
devant la Conférence internationale du
travail par M. Léon Jouhaux et par
M. Louis E. Cornil, respectivement
Rapporteur et Rapporteur adjoint de la
Commission de la liberté d'association
M. JOUHAUX, délégué des travailleurs, France,
Rapporteur de la Commission de la liberté
d'association: Je voudrais présenter brièvement
le rapport sur la question de la liberté d'association
et des relations industrielles. En vous
demandant de le voter unanimement, nous
429
unanimously we are not merely asking the
Conference to confirm a principle which has
been affirmed repeatedly and which is solemnly
inscribed both in Part XIII of the Treaty of
Versailles, in the various Declarations which the
International Labour Organisation has subsequently
made during more than twenty years,
and in the Declaration of Philadelphia, a principle
moreover which has been implicitly accepted
in the Declarations of the United Nations at San
Francisco and elsewhere.
If that were all it would be a purely formal
matter which would have very little consequence.
What is important, however, in the
report which is submitted to you is not merely
what is contained in the report but what it represents
and the spirit which inspired the text
that has been adopted.
There can be no doubt that the International
Labour Organisation cannot be static. It must
follow from day to day the development of
human life, because the whole of its activity is
based on daily life and is intended to alter the
conditions of living. It would be of little use for
us to declare that the International Labour
Organisation is a democratic body and that it
must serve democracy, if we do not mean to
declare implicitly that if democracy is the best
of the regimes it is because it is a regime which
is constantly developing and that the necessities
of human life force democracy to adapt itself
to new conditions, and to give effect to the principles
of democracy in legislation which will
ensure strict application and unity of interpretation.
The International Labour Organisation must
obviously act in the same way. It is true that we
must state today—as is mentioned in the
report, and the resolutions take account of
the fact—that unfortunately, in a certain number
of countries the situation calls for criticism
and for a demand that obligations should be
observed. In a certain number of countries, to
put it mildly, there is a certain fanciful interpretation
of what freedom of association means.
There are countries in which freedom of association
is interpreted solely in the light of the political
attitude of the country in question. That
is not a correct or logical interpretation, nor is
it a democratic interpretation. When a freedom
has been recognised and is applied, it is no
longer subject to any limits or restraints because
of political reasons. Provided that that liberty
does not interfere with the general interests of
the collectivity in which it exists, then freedom
of association, must, if I may use a pleonasm,
be free.
There can be no doubt that at the present
time there are still too many Governments
which tend to consider that they should grant
freedom of association only very parsimoniously
and that when freedom of association seems to
become dangerous for certain interests they have
the right to stop it abruptly by suspending its
application, or what is still more serious by
throwing into jail the militant leaders of the
workers who stand for that freedom.
That is a standpoint which the International
Labour Organisation and the International
Labour Conference cannot accept. Consequently,
n'entendons pas demander à la Conférence de
faire un acte de confirmation de principes maintes
fois affirmés, principes qui se trouvent solennellement
inscrits à la fois dans la partie XIII
du Traité de Versailles, dans les différentes
déclarations que le Bureau international du
Travail a eu l'occasion de faire depuis plus de
vingt années,- dans la Déclaration de Philadelphie
et qui, enfin, ont été affirmés aussi — tout
au moins implicitement — dans les déclarations
des Nations Unies à San-Francisco et ailleurs.
S'il ne s'agissait que d'une affirmation, ce
serait un acte purement formel, sans beaucoup
de conséquences. Ce qui importe, dans le
rapport qui vous est présenté, c'est non seulement
ce qui s'y trouve inscrit, mais ce que
représente l'esprit qui se dégage des formules
adoptées.
Il est bien certain que le Bureau international
du Travail ne saurait être une organisation
statique et qu'il doit suivre, au jour le jour, le
développement de la vie, puisque en réalité
toute son activité est basée sur la vie et tend à
améliorer, dans le sens d'une plus grande justice,
les conditions mêmes de la vie. Il ne
servirait à rien de déclarer que le Bureau international
du Travail est une organisation démocratique,
qu'elle doit servir la démocratie, si
nous n'entendions pas déclarer implicitement que,
si la démocratie est le meilleur des régimes, c'est
parce que c'est un régime en perpétuel devenir,
traduisant les nécessités de la vie par plus de
mieux-être et de liberté, et les consacrant par des
textes de loi qui leur donnent autorité d'applica-,
tion en même temps qu'une unité d'interprétation.
Le Bureau international du Travail, sur le
plan international, doit évidemment agir de la
même façon. Nous devons déclarer aujourd'hui
— le rapport le constate et les résolutions votées
en ont tenu compte — qu'il existe encore malheureusement,
dans un certain nombre de pays,
une situation qui appelle la réprobation, car elle
méconnaît les engagements pris. Il y a dans
certains pays une interprétation que j'appellerai,
pour être respectueux, un peu fantaisiste,
de ce que doit être la liberté syndicale. Il est
encore des pays où l'on interprète la liberté
syndicale à la lumière exclusive des positions
politiques que l'on occupe. Ce n'est là, ni une
interprétation exacte et logique, ni une interprétation
démocratique. Une liberté, lorsqu'elle
a été reconnue, lorsqu'elle se trouve appliquée,
ne doit subir aucune contrainte en raison
d'opinions politiques, pourvu qu'elle ne porte
pas atteinte à l'intérêt général de la collectivité
dans laquelle elle s'exprime. La liberté syndicale
— si j'ose employer ce pléonasme — doit être
libre.
Il est bien certain qu'à l'heure actuelle, trop
de Gouvernements encore sont enclins à considérer
qu'ils ne doivent accorder la liberté
syndicale qu'avec parcimonie et qu'ils ont le
droit, lorsque cette liberté devient dangereuse
pour certains intérêts, d'y mettre fin brusquement,
en suspendant son application, ou bien,
ce qui est plus grave encore, en incarcérant les
militants ouvriers qui parlent en son nom.
Ce n'est pas là une notion que le Bureau
international du Travail et la Conférence internationale
du travail peuvent accepter. Il
430
this Organisation must, by a decision of the
Conference, point out that certain sanctions
must exist to guarantee the enforcement of the
liberty which has been granted. The resolutions
which are to be voted on must serve as a basis
for the institution of an international labour
convention because we intend by that means to
provide an international guarantee for the
enforcement of this freedom.
Moreover, we want it to be clearly understood
that the States members of this Organisation
are the Governments which asked to
become members of the Organisation and which
undertake to respect the freedoms which are
at the basis of this institution. They must not
only apply those freedoms which are laid down
in an international convention because of the
obligations to which they have become a party
but, if you will permit the expression, they
must feel themselves obliged to respect them by
that international compulsion which will exist
for them.
It is essential to make some declaration to
this effect when we find that since 1919 there
have been several failures to carry out obligations
which have been accepted. We have found
that freedom of association has not been respected
everywhere. We have been obliged to
note that the interpretation of the obligations
undertaken is sometimes of too political a nature
and not sufficiently liberal. While it is necessary
for men to be subject to certain restraints, it is
also essential for Governments to feel that they
are subject to certain restraints. It is for that
reason that we decided there should be an
international convention and at the same time
ask that the possibility of setting up a supervisory
body to safeguard the enforcement of
that particular convention should be considered.
I should like here to submit an idea to you
which some may think rather original or rather
daring, but which to me seems to be something
that is bound to come in the future. Men's
actions must always anticipate the future, and
I therefore feel myself bound to submit this
idea to you.
The Economic and Social Council transmitted
to us the request drawn up by the World Federation
of Trade Unions. If was the Economic and
Social Council which asked the Office and the
Organisation to consider the question and to
express an opinion. The question having come
before it, the Organisation felt that it was desirable
to go further than giving an opinion, and
that it could solve the problem, within its competence,
not only by doctrine but by legislation.
It has indicated that it is prepared to draw up a
convention on this question. In referring back
the decision of the Conference and the report
which you are about to adopt to the Economic
and Social Council, the International Labour
Organisation has not finished with the question.
It will continue to study it next year. But
would it not be possible in the meantime for the
report and decisions of the Conference to be
transmitted also, by the Economic and Social
Council, to the Assembly of the United Nations,
so that the Assembly can express its opinion on
them ? If that could be done, we should have
convient donc que le Bureau international du
Travail, par une décision de la Conférence, indique
que certaines sanctions doivent accompagner
les engagements pris. C'est la raison pour laquelle
nous avons demandé que les résolutions qui
seront votées servent de base à l'établissement
d'une convention internationale du travail.
Par là, nous entendons apporter la caution internationale
et la garantie internationale à l'application
de cette liberté.
D'autre part, nous entendons également que
les Gouvernements qui adhèrent au Bureau international
du Travail et ceux qui demanderont
leur adhésion prendront par conséquent l'engagement
de respecter les libertés qui sont à la base
de l'institution, demain consacrées par des
conventions internationales du travail, devront
non seulement appliquer ces libertés en raison
même des engagements qu'ils auront souscrits
mais, permettez-moi cette expression, se sentir
obligés d'en respecter le libre exercice par la contrainte
internationale qui pèsera sur eux.
Il est indispensable de faire aujourd'hui
une déclaration car, depuis 1919, nous avons été
obligés de prendre acte des manquements aux
engagements pris, obligés de constater que la
liberté syndicale n'a pas été respectée partout,
obligés de constater que l'interprétation de ces
engagements est quelquefois trop politique et
insuffisamment libérale. Ainsi donc, s'il est
nécessaire pour les hommes de sentir peser sur
eux une certaine contrainte, cela est nécessaire
pour les Gouvernements. C'est la raison pour
laquelle nous avons opiné dans le sens d'une
convention internationale et que nous avons
demandé en même temps que soit examinée la
possibilité de constituer un organe de contrôle
en vue de l'application de cette convention.
J'ouvre ici une parenthèse pour vous faire
part d'une idée que certains estimeront peut-être
originale, que d'autres jugeront peut-être un peu
trop osée, mais qui m'apparaît, à moi, comme une
préfiguration d'un avenir proche. Et comme
l'action des hommes doit toujours anticiper
sur. l'histoire écrite, je me crois tenu de vous
communiquer cette idée.
C'est le Conseil économique et social qui a
transmis au Bureau international du Travail
la demande formulée par la Fédération syndicale
mondiale. C'est le Conseil économique et social
qui a demandé au Bureau international du
Travail d'examiner cette question et de lui donner
un avis. S'étant saisi de cette question, le
Bureau international du Travail a estimé
qu'il devait aller plus loin qu'un avis et qu'il
devait apporter, selon sa compétence même,
une solution à la question posée, non seulement
de doctrine, mais de droit. Il a indiqué qu'il
était prêt à élaborer une convention internationale
du travail sur la question. En renvoyant la
décision de la Conférence et le rapport que vous
allez adopter au Conseil économique et social,
le Bureau international du Travail ne se désiste
pas de la question, puisqu'il continuera à
l'étudier l'année prochaine sous la forme d'une
convention. Mais il n'est pas impossible que,
dans l'intervalle, le rapport et la décision de la
Conférence soient transmis à l'Assemblée générale
des Nations Unies et que celle-ci soit
431
combined action by the International Labour
Organisation and by the United Nations, not
through any intermediary bodies, but by the
sovereign bodies of the two Organisations.
In that way the international convention on
freedom of association could be established on
principles discussed and accepted by this Conference,
and also accepted by the General Assembly
of the United Nations. Therefore, quite
apart from the incomplete constitution of this
Organisation and that of the United Nations,
there would be universal obligations accepted
by the States which would grant us much greater
security than exists at present.
I consider that such a procedure is perfectly
possible and that it could be carried out without
in any way infringing the independence of this
Organisation and the sovereignty of the International
Labour Conference. When we speak of
co-operation, we must think of establishing a
groundwork for such co-operation, and I would
point out that co-operation means joint action.
We can co-operate fully between this Organisation
and the United Nations, and I think the
procedure I have suggested should be considered
and can be applied. I am all the more of this
opinion from the point of view of the future of
freedom of association, which already has been
laid down in the constitution of certain countries,
and which is gradually evolving and being
generally applied. This evolution depends on
economic factors which are largely a matter for
the United Nations.
It is essential that on these points the United
Nations should also be invited to co-operate
with this Organisation. If that were done we
would arrive at a unity of views, and consequently
a unity of action, the influence of which
would be the best possible guarantee of freedom
of association, and would ensure not only the
further development of the rights and responsibilities
of trade unions and their members, but
would be a great step forward towards the establishment
of peace.
What we are doing today is merely a beginning.
I would not say that we on the workers'
side are completely satisfied. There can be no
doubt that the wording included in this report
falls short of what exists in many of our countries.
It is equally certain that in some countries
the situation falls short of what is included
in the text before you. It cannot, however, be
said that the International Labour Conference
has repeated the old adage and that the mountain
has given birth to a mouse. It has given
birth to an incomplete text, which is not entirely
in harmony with itself because of the hesitations
and reservations, much too timid, that have
been expressed within the Committee and because
of the fact that we cannot see the distant
future. We must remember that in the near
future there must be far greater expansion of the
ideas to which were are giving expression today.
appelée à émettre son opinion quant au rapport
et aux résolutions. S'il pouvait en être ainsi,
nous aurions en quelque sorte une conjugaison
de l'action du Bureau international du Travail
et de celle des Nations Unies, et cela non pas par
des organes interposés, mais par les deux
assemblées souveraines elles-mêmes.
Il serait acquis, de cette façon, que la convention
internationale que nous voterions, l'année
prochaine, sur la liberté syndicale repose sur des
principes approuvés par la Conférence internationale
du travail et par l'Assemblée générale
des Nations Unies. Il y aurait ainsi internationalement,
en dehors du caractère universel incomplet
de notre organisation et de celle des Nations
Unies, des engagements qui donneraient à la
convention une autorité beaucoup plus grande
et, par cela même, des garanties supplémentaires.
Je pense qu'une telle procédure n'est pas exclue
et qu'il peut être possible de la réaliser sans
attenter à l'indépendance du Bureau international
du Travail et à la souveraineté de la Conférence
internationale et de celle des Nations
Unies. Quand nous parlons de collaboration,
il faut bien penser à établir les bases mêmes de
cette coopération qui, permettez-moi de le
dire, s'établit effectivement et efficacement dans
l'action. Pour une action déterminée, nous pouvons.
Bureau international du Travail et
Nations Unies, collaborer pleinement. Je pense
que ce sont là des idées qui doivent être retenues
pour être réalisées. D'autant plus qu'en ce qui
concerne la liberté syndicale, c'est-à-dire l'action
syndicale, l'évolution déjà inscrite dans la constitution
de certains pays et qui devient de plus en
plus générale repose sur des facteurs économiques
relevant en grande partie des Nations Unies.
Il est indispensable que, dans ces domaines.
Nations Unies et Bureau international du
Travail soient appelés à collaborer. S'il en était
ainsi, nous arriverions à une unité de but et,
par voie de conséquence, à une unité d'action
dont l'influence serait prépondérante, à la fois
en ce qui concerne la garantie des libertés syndicales
et le développement même des droits et des
responsabilités nouvelles, dans la gestion économique
des organisations syndicales et de leurs
membres et — je l'affirme avec non moins de
netteté — en ce qui concerne la construction de
la paix.
Ce que nous allons faire aujourd'hui n'est
qu'un commencement. Certes, je ne dirai pas
que ce commencement nous donne, à nous
travailleurs, complète satisfaction. Il est
certain que les formules qui figurent dans ce
rapport sont dépassées de bien loin dans beaucoup
de nos pays. Il n'est pas moins certain que,
pour un certain nombre de pays, elles sont encore
au delà de la situation existante. On peut
toutefois déclarer que la Conférence internationale
du travail a fait mentir l'adage du poète:
la montagne n'a pas accouché d'une souris.
Elle a accouché d'un texte qui n'est pas complet,
qui ne s'harmonise pas de façon totale, en raison
des réticences et des réserves qui ont été exprimées
au sein de la Commission et qui résultent
de ce que l'on ne sait pas voir l'avenir à longue
échéance, qu'on ne le regarde qu'auprès de soi,
dans son ombre même, sans penser que demain
doit être fait d'une audace beaucoup plus
grande.
432
Nevertheless the report as it stands gives us
a certain satisfaction. It establishes once again
the principle of freedom of association, but I
think it also adds the idea of a certain sanction
to guarantee its application and protect us
against those who in the future give a false
interpretation to the principles to which they
are at present giving their support. I hope in the
text of the Convention we may get further progress
and that we will get a greater unity of
view within this Organisation, If according to
the procedure I have suggested we can get
agreement by the United Nations to the principles
in question, then we will have made a
great step forward, and we can look to the
future with much more assurance. Might I venture
to ask you to have rather bolder ideas
than those which have so far guided us ?
Freedom of association began to be acquired
in the middle of the nineteenth century. Since
that time the trade union organisations have
struggled to secure respect for their freedom
and to obtain its respect by Governments and
by employers. That freedom of association
now spreads over a wider field and is concerned
not only with the defence of the interests of the
workers but with the defence of the general
interests of the community and the general
interest of peace because of the responsibilities
it imposes on the trade unions in the part they
play in economic life and in the historical development
of every country.
We are advancing towards a new world. The
new world cannot be born and grow unless freedom
of association is the keystone.
Mr. CORNIL, employers' delegate, Belgium;
Deputy Reporter of the Committee on freedom
of association {Interpretation) : After the brilliant
speech you have just heard, I do not wish to
take up too much of your time. As Assistant
Reporter, however, I have the privilege of
making one or two further comments, and I am
too conscious of the importance of our conclusions
to wish to give up this privilege.
The problem of freedom of association is
absolutely fundamental for this Organisation.
It there were not freedom of association, it could
not survive. This is proved by the fact that
it is those nations which are farthest from respecting
such liberty which are not associated
with this Organisation, or doubt the value of
being members of it.
We need not be surprised, therefore, but
should be very gratified, to find that from the
outset our Committee was unanimous in recognising
the principle of freedom of association.
Unfortunately freedom has no value unless
it is opposed to constraint. In order to see it
and appreciate its meaning, it must be placed
in a frame; in the absence of certain conditions,
it vanishes away like the air from a pricked
balloon. Our task would be simple if it were merely
Il est certain, cependant, que le rapport, tel
qu'il est, nous apporte une certaine satisfaction.
Il consacre une fois de plus la liberté syndicale;
mais il comporte aussi, je pense, l'idée d'une
sanction pour ceux qui considéreraient pouvoir,
demain, interpréter, avec autant de fantaisie
qu'ils l'ont fait hier, les engagements pris.
Le rapport exprime un certain nombre de vues
d'avenir qui, j'espère, pourront être insérées
dans un texte de convention et donneront ainsi,
aux décisions de l'Organisation internationale du
Travail, une unité d'action qu'elles ne lui donnent
pas à l'heure actuelle. Et si, selon la procédure
que j'indique, elles peuvent s'inscrire en
accord avec une décision de principe des Nations
Unies, nous aurons alors atteint un grand but,
réalisé un grand progrès. Oserais-je vous demander.
Messieurs, d'avoir pour ce moment, des idées
un peu plus audacieuses ?
Je veux encore ajouter un mot. La conquête
de la liberté syndicale a commencé depuis le
milieu du xixème siècle. Dès cette époque,
les organisations syndicales ouvrières ont lutté
pour faire respecter leur liberté, pour l'imposer
à leurs Gouvernements, pour obtenir
que les employeurs s'inclinent devant l'exercice
de cette liberté. Aujourd'hui, cette
liberté syndicale s'étend sur un champ plus
vaste; elle ne vise plus seulement à la défense
des intérêts spécifiquement ouvriers; elle vise à
la défense des intérêts généraux des collectivités
et de l'intérêt général de la paix, par l'engagement
de la responsabilité des organisations
syndicales dans la gestion économique nationale
et internationale, c'est-à-dire dans la construction
de l'histoire.
Nous allons vers un monde nouveau. Le
monde nouveau ne peut naître, ne peut se développer
sans que la liberté syndicale, dans son
sens le plus large, en soit la clef de voûte.
M. CORNIL, délégué des employeurs, Belgique,
Rapporteur adjoint de la Commission de la
liberté d'association: Je m'en voudrais, après le
brillant exposé que vous venez d'entendre, d'abuser
de votre patience. Ma qualité de Rapporteur
adjoint me confère cependant le privilège de
formuler ici encore quelques commentaires, et
je suis trop conscient de l'importance des
conclusions de nos débats pour songer à renoncer
à user de ce privilège.
Le problème de la liberté d'association est
absolument fondamental pour l'Organisation
internationale du Travail. Sans liberté d'association,
l'Organisation internationale du Travail ne
pourrait survivre. On en trouve la preuve dans
le fait que ce sont précisément les nations les
moins respectueuses de cette liberté qui ne font
pas partie de notre organisation ou qui mettent
le plus en doute l'utilité d'en faire partie.
On peut donc se réjouir, mais nullement
s'étonner, en constatant que notre Commission
a, dès l'ouverture de ses débats, été unanime à
reconnaître le principe de la liberté d'association.
Malheureusement, la liberté n'a de valeur que
si on l'oppose à la contrainte. Pour qu'elle soit
perceptible, pour qu'elle ait une signification,
cette liberté doit être contenue dans un cadre;
elle doit s'appuyer sur certains impératifs sans
lesquels elle s'évanouirait, tel le gaz d'un ballon
433
to draw up texts which would guarantee complete
freedom of association irrespective of any
restraints. It would be simple, but it would be
pointless, since the exercise of complete freedom
of association can be justified only if there is
respect for other equally essential freedoms.
In asking the International Labour Organisation
to place this question on the Agenda of
the Conference, the Economic and Social Council
of the United Nations fully understood that
by its composition and the scope of its activities
this Organisation was really the most qualified
body to deal successfully with such a complex
problem. It is therefore for us to define the
framework within which freedom of association
can be exercised without prejudicing the other
essential liberties. In my opinion the best definition
of democracy would be to say that it is
the form of government which establishes the
best balance between individual and collective
freedoms.
It is of course possible to have very different
opinions as to the relative value of these different
freedoms. In this connexion there were differences
of views not only between the three groups
in the Committee, but between the differeat
countries. These divergences did not reflect any
insoluble incompatibility, though they meant
that we in some cases had to take what were
inevitably compromise decisions. That, however,
only means the establishment of that
balance which is characteristic of any economic
arrangement.
The resolution and the report which you
have before you represent an important step
forward in clearing the ground, so that we may
next year proceed to adopt a convention which
will contain the essential principles.
Some of us are, perhaps, unduly dominated
by the idea of class struggle or with the desire
to protect our traditional privileges. Such a
spirit can only interfere with the effectiveness
of our work. It is gratifying that there is an
increasing body of opinion here which realises
that we aré all working for a common end and
that we can have confidence in each other.
Our duty is to reconcile the three different
points of view, political, economic and human,
it is perfectly possible to reconcile the three and
each of us is right in defending what it is our
duty to defend, while respecting the just opinions
of others.
I should not like to leave this rostrum without
paying a tribute to the staff of the Office, which
achieved a remarkable feat in letting us have
all the necessary documents in a very short
space of time. And if we can rejoice in the spirit
which reigned- in our Committee, that was due,
as every one of us will agree, to the exceptional
ability of our Chairman, the Hon. David A.
Morse.
dont on aurait crevé la paroi. Notre tâche
serait simple si elle devait consister à rédiger
des textes qui garantissent la liberté d'association
intégrale en dehors de toute contrainte.
Notre tâche serait simple, dis-je, mais elle serait
stérile, car l'exercice du droit de libre association
ne peut se justifier que par le respect d'autres
libertés tout aussi essentielles.
En demandant à l'Organisation internationale
du Travail de mettre cette question à l'ordre du
jour de sa Conférence, le Conseil économique
et social des Nations Unies a parfaitement compris
que, par sa composition, et par le domaine
de ses préoccupations, l'Organisation internationale
du Travail était vraiment l'organisme le
plus qualifié pour mener à bien l'examen d'un
problème aussi complexe. Il nous appartient
ainsi de définir le cadre dans lequel la liberté
d'association peut s'exercer sans compromettre
l'équilibre des libertés essentielles. A mes yeux,
la meilleure définition de la démocratie consisterait
à dire que c'est la forme de gouvernement
qui réalise le meilleur équilibre des libertés
individuelles et collectives.
On peut évidemment avoir des opinions fort
différentes au sujet de la valeur relative de ces
différentes libertés. Des divergences assez nettes
son apparues à cet égard, non seulement entre
nos trois groupes, mais également entre les pays.
Loin d'être le reflet d'incompatibilités irrémédiables,
ces divergences nous permettront d'arriver
à des conclusions qui seront inévitablement
des compromis mais qui, par le fait même,
assureront cet équilibre qui définit toute saine
démocratie.
La résolution et le rapport qui vous sont
soumis constituent déjà un pas fort important
dans cette voie. Le problème est clairement
défini, des jalons sont plantés, le terrain est prêt
pour que, dès l'an prochain, une convention
internationale puisse déjà concrétiser l'essentiel.
Certains d'entre nous sont cependant encore
trop imprégnés par l'esprit de lutte de classe
ou par le souci de sauvegarder des privilèges
traditionnels. Un tel état d'esprit ne peut
qu'entretenir la méfiance et compromettrait, s'il
était général, toute l'efficacité de nos travaux.
Il est réconfortant de constater que nous sommes
de plus en plus nombreux ici à penser que nous
poursuivons tous un but commun et que celui-ci
peut être approché en pleine confiance réciproque.
Notre devoir est de concilier les trois
points de vue, politique, économique et humain.
Ces points de vue sont parfaitement conciliables
et nous pouvons, chacun, défendre celui qu'il
nous appartient de défendre, tout en accordant
aux autres toute la considération qu'ils méritent.
Je ne veux pas quitter cette tribune sans
rendre hommage au personnel du BIT, qui a
réalisé un tour de force en nous fournissant dans
des délais extrêmement courts tous les documents
qui nous étaient nécessaires. Au surplus, si nous
pouvons nous réjouir de l'état d'esprit qui a
régné dans notre Commission, nous le devons,
vous en conviendrez tous, aux qualités exceptionnelles
dont a fait preuve notre Président,
l'Honorable David A. Morse.
Document No. 149
ILC, 30th Session, 1947, Record of Proceedings, Report
of the Committee on Freedom of Association, pp. 299–
308
INTERNATIONAL LABOUR
CoNFERENCE
THIRTIETH
GENEVA,
SESSION
1947
RECORD OF PROCEEDINGS
LABOUR OFFICE
GENEVA, 1948
005576
09616
INTERNATIONAL
Nineteenth Sitting 299
NINETEENTH SITTING
Friday, 11 July 1947, 9.45 a.m.
President: Mr. Hambro
REPORT OF THE COMMITTEE
ON FREEDOM OF AssOcIATION 1
Interpretation: The PRESJpENT —
The meeting is called to order. The
first item on the agenda this morning
is the report of the Committee on freedom
of association.
Interpretation: Mr. JOITRAUX (Workers
delegate, France ; Reporter of the
Committee on freedom of association) —
I should like briefly to submit the report
on the question of freedom of association
and industrial relations. In asking you to
accept it unanimously, we are not merely
asking the Conference to confirm a
principle which has been affirmed repeatedly
and which is solemnly inscribed in
Part XIII of the Treaty of Versailles, in
the various Declarations which the International
Labour Organisation has subsequently
made during more than twenty
years, and in the Declaration of Philadelphia,
a principle moreover which has
been more or less implicitly accepted in
the Declarations of the United Nations at
San Francisco and elsewhere ; if that were
all, it would be a purely formal matter
which would have very little result.
What is important, however, in the report
which is submitted to you is not merely
what it contains but what is represented
by the spirit which emerges from the text
that has been adopted.
There can be no doubt that the International
Labour Organisation cannot be
static. It must follow from day to day
the development of human life, because
the whole of its activity is based on daily
life and is intended to alter the conditions
of living. It would be of little use for
1 See Third -Part: Appendix X.
us to declare that the International
j'Labour Organisation is a democratic
body and that it must serve democracy,
if we do not mean to declare implicitly
that if democracy is best of the
regimes it is because it is a régime which
is constantly developing, expressing the
necessities of human life in increased
welfare and freedom, and giving effect
to them in legislation which will ensure
strict application and unity of interpretation.
• The International Labour Organisation,
at the international level, must obviously
act in the same way. It is true that we
must state today—as is mentioned in the
report, and the Resolutions take account
of the fact—that unfortunately in a
certain number of countries the situation
calls for criticism and for a demand that
obligations should be observed. In a
certain number of countries, to put it
mildly, there is a slightly fanciful interpretation
of what freedom of association
means. There are countries in which
freedom of association is interpreted
solely in the light of the political attitude
of the country in question. That is not
a correct or logical interpretation, nor is
it a democratic interpretation. When a
freedom has been recognised and is
applied, it should not be subject to any
restraint because of political reasons.
Provided that that liberty does not interfere
with the general interests of the
collectivity in which it exists, then
freedom of association must—if I may be
redundant—be free.
There can be no doubt that at the
present time there are still too many
Governments which tend to consider that
they should grant freedom of association
only very parsimoniously, and that, when
freedom of association becomes dangerous
300 Nineteenth Sitting
to certain interests, they have the right
to stop it abruptly, by suspending its
application, or, what is still more serious,
by throwing into jail the militant leaders
of the workers who stand for that freedom.
That is a standpoint which the International
Labour Organisation and the
International Labour Conference cannot
accept. Consequently, this Organisation
must, by a decision of the Conference,
point out that certain sanctions should
exist to guarantee the enforcement of the
liberty which has been granted. The
Resolutions which are to be voted on
must serve as a basis for the institution
of an international labour Convention
because we intend by that means to
provide an international guarantee for
the enforcement of this freedom. Moieover,
we want it to be clearly understood
that the States Members of this Organ-
'isation and the Governments which are
applying for membership, undertake to
respect the freedoms which are at the
basis of this institutiofi. They must not
only apply those freedoms which are laid
down in an international Convention
because of the obligations to which they
have become a party but, if you will%
permit the expression, they must feel
themselves obliged to respect them by
•that international compulsion which will
weigh upon their consciences.
It is essential to make some declaration
to this effect now, when we find that since
1919 there have been several failures to
carry out obligations which have been
accepted. We have found that freedom of
association has not been respected everywhere.
We have been obliged to note that
• the interpretation of the obligations undertaken
is sometimes of too political a
nature and not sufficiently liberal. While
it is necessary for men to. be subject to
certain restraints, it is also essential for
Governments to feel that they are subject
to certain restraints. It is for that reason
that we decided there should be an international
Convention and at the same
time ask that the possibility of setting
up a body to safeguard the
enforcement of that particular Convention
should be considered.
I should like here to submit an idea to
you which some may think rather original
or rather daring, but which to me seems
to be something that is bound to come in
the future. Men's actions must always.
anticipate the future, and I therefore
feel myself bound to submit this idea
to you.
It was the Economic and Social Council
which transmitted to us the request
made by the World Federation of Trade
Unions. It was the Economic and Social
Council which asked the Organisation to
consider the question and to express an
opinion. The question having come before
it, the Organisation felt that it was desirable
to go further than giving an opinion,
and that it should provide a solution of
the question, not only of principle, but
by the adoption of a text. It has indicated
that it is prepared to draw up a Convention
on this question. In referring back
to the Economic and Social Council the
decision of the Conference and the report
which you are about to adopt, the International
Labour Organisation has not
finished with the question. It will continue
to study it next year. But it is not
impossible that in the meantime the
report and decision of the Conference may
be transmitted to the Assembly of the
United Nations, which body will be
called upon to give its opinion on the
report and the Resolutions. If that could
be done, we should have combined action
by the International Labour Organisation
and by the United Nations, not through
any intermediary bodies, but by the sovereign
bodies of the two Organisations. In
that way the international Convention
on freedom of association could be established
on principles discussed. and accepted
by this Conference, and also accepted by
the General Assembly of the United
Nations. Therefore, quite apart from the
incomplete universality of this Organisation
and of the United Nations, there
would be international obligations which
would givq the Convention much greater
authority, and in consequence, additional
safeguards.
I consider that such a procedure is
perfectly possible and that it could be
carried out without in any way infringing
the independence of this Organisation
and the sovereignty of the International
Labour Conference and of the United
Nations. When we speak of co-operation,
we must think of establishing a groundwork
for such co-operation, and I would
point out that co-operation means joint
action. For a determinate action, full
co-operation between this Organisation
and the United Nations can be achieved,
and I think the procedure I have suggested
should be considered and can be
applied. I am all the more of this opinion
from the point of view of the future of
freedom of association, which already has
been laid down in the Constitution of
certain countries, and which is gradually.
evolving and being generally applied. This
evolution depends on economic factors
which are largely a matter for the United
Nations. It is essential that on these
points the United Nations should also be
invited to co-operate with this Organisation.
If that were done we should arrive
at a unity of aims, and consequently a
unity of action, the influence of which
would. be preponderant in guaranteeing
freedom of association, the further development
of the rights and responsibilities
of trade unions and their members,
and in the establishment of peace.
What we are doing today is merely a
beginning. I would not say that we, the
workers side are completely satisfied. It
is certain that the wording included in this
Nineteenth Sitting 301
report falls short of what exists in many of
our countries. It is equally certain that in
some countries the situation falls short
of. what is included in the text before
you. It can not, however, be said that
the International Labour Conthrence has
repeated the old adage and that the
mountain has given birth to a mouse.
It has given birth to an incomplete
text, which is not entirely in harmony
with itself, because of the hesitations
and reservations that were expressed
within the Committee which were caused
by the fact that we do not know how to
see into the distant future, but only see
our near surroundings, forgetting the
distant future. We must remember that
in the near future there must be a far
greater and bolder expansion of the ideas
to which we are giving expression today.
Nevertheless, the report as it stands
gives us a certain satisfaction. It establishes
once again the principle of freedom
of association, but I think it also adds
the idea of a certain penalty for those who
in the future may consider themselves
free to interpret their obligations as
fancifully as they have in the past.
I hope in the text of the Convention
we may get further progress and that
we will get a greater unity of view within
this •Organisation. If, according to the
procedure I have outlined, we can get
agreement by the United Nations to the
principles in question, then we shall have
taken a great step forward. Might I
venture to ask you to have rather bolder
ideas than those which have so far guided
us?
Freedom of association, began to be
acquired in the middle of the nineteenth
century. Since that time the trade union
orgaiiisations have struggled to secure
respect for their freedom and to obtain its
respect by Governments and by employers.
That freedom of association now spreads
over a wider field and is concerned not
only with the defence of the interests of
the workers, but with the defence of the
general interests of the community and
the general interest of peace, because of
the responsibilities it imposes on the trade
unions in the part they play in national
and international economic life, that is,
in the making of history.
We are advancing towards a new
world. The new world cannot be born
and grow unless freedom of association
is its keystone.
Interpretation: Mr. CORNIL (Employers'
delegate, Belgium; .Deputy Reporter
0/the Committee on freedom of association)
— After the brilliant speech you have just
heard, I do not wish to take up too
much of your time. As Deputy IReporter,
however, I have the privilege of making
one or two further comments, and I am
too conscious of the importance of our
conclusions to wish to give up this
privilege.
The problem of freedom of association
• is absolutely fundamental for this Organisation.
If there were not freedom of
association, it could not survive. This is
proved by the fact that it is precisely those
nations which are farthest from respecting
such liberty which are not associated with
this Organisation, or doubt the value of
being members of it. We need not be
surprised, therefore, but should be gratified,
to find that from the outset our
Committee was unanimous in recognising
the principle of freedom of association.
Unfortunately, freedom has no value
unless it is opposed to constraint. In
order to see it and appreciate its meaning,
it must be placed in a frame; in the
absence of certain conditions, it vanishes
away like the air from a pricked
balloon. Our task would be simple if it
were merely to draw up texts which would
complete freedom of association
irrespective of any restraints. It would
be simple, but it would be pointless, since
the exercise of complete freedom of
association can be justified only if there
is respect for• other equally essential
freedoms.
In asking the International Labour
Organisation to place this question on
the agenda of the Conference, the Economic
and Social Council of the United
Nations fully understood that by its
composition and the scope of its activities
this Organisation was really the most
qualified body to deal successfully with
such a complex problem. It is therefore
for us to define the framework within
which freedom of association can be
exercised without prejudicing the other
essential liberties.
In my opinion the best definition of
democracy would be to say that it is the
form of government which establishes
the best balance between individual and
collective freedoms. It is of course
possible to have very different opinions as
to the relative value of these different
freedoms. In this connection there were
• differences of views not only between the
three groups in the Committee, but between
the different countries. These divergences
did not reflect any insoluble incompatibility,
though they meant that in some
cases we had to take what were inevitably
compromise decisions. That, however,
only means the establishment of that
balance which is characteristic of any
healthy democracy.
The Resolution and the report which
you have before you represent an important
step forward in clearing the
ground, so that next year may
proceed to adopt a Convention which
will contain the essential principles. Some
of us are, however, still unduly dominated
by the idea of class struggle or by the
desire to protect our traditional privileges.
Such a spirit can only interfere with the
effectiveness of our work. It is gratifying
that there is an increasing body of
302 Nineteenth Sitting
opinion here which realises that we are
all working for a common end and that we
can have confidence in each other. Our
duty is to reconcile the three different
points of view, political, economic and
human. It is perfectly possible to reconcile
the three, and each of us is right in
defending what it is our duty to defend,
while respecting the just opinions of
others.
I should not like to leave this rostrum
without paying a tribute to the staff of
the Office, who achieved a remarkable
feat in letting us have all the necessary
documents in a very short space of time.
And we can rejoice in the spirit which
reigned in our Committee, that was due,
as every one -of us will agree, to the exceptional
ability of our Chairman, the
Hon. David A. Morse.
Mr. FUYKSCHOT (Workers' adviser,
Netherlands) — There are probably but
few countries in the world which during
the years of the German oppression
suffered more from lack of freedom of
than those of the West European
Continent. My country, the Netherlands,
was one of those countries. The
German civil authorities meddled with
the trade unions in such a way as to
throttle them to death. A specialised
office with a big staff under the auspices
of the German Labour Front was set
up to supervise the trade unions. At
the start a number of the trade union
officials were dismissed without any further
remuneration and during the years
of occupation numerous trade union
officials were put into jail, shot, and placed
in concentration or hostage camps, from
which a number never returned. We
actually know what it means not to
possess freedom from arbitrary arrest,
detention, search and seizure.
The initiative of the World Federation
of Trade Unions and of the American
Federation of Labor, resulting in the
Report of the I.L.O. which is now before
us, is therefore warmly applauded by the
trade unions of my country and by myself.
As is generally known, in my country
there is a variety of organisations,
differing according to religious belief, and
as I am a representative of the Protestant
Christian Labour movement of the Netherlands,
you will doubtless understand
that the draft resolution of the American
Federation of Labor struck me particularly
by its clear and appropriate wording:
"Genuine freedom means the right of
association arid organisation into various
—into differing—educational, religious,
economic, political and trade union organisations,
without fear of direct or
indirect control and compulsion by governmental
or any other agencies."
In this spirit I studied the Office
Report and. the text of the proposed
Resolution and I may say that I sincerely
hope that the Conference will adopt the
report of the Committee. However, the
inviolable right to establish and join
organisations of our own choosing, and
that genuine freedom as described in the
draft resolution of the American Federation
of Labor, is. in my opinion incompatible
with the provision contained in
paragraph (2) of Article 9 of the proposed
text. Whereas the first section of the
Resolution, as well as the points
of the second section, give full security
to the workers as to their right of choosing
their own organisation, paragraph (2)
of Article 9 excludes, under the conditions
mentioned therein, a number
of workers from this right. Under
these conditions a minority may be forced
into a union not of their own choosing.
I do not refer to those workers who even
now do not see their duty to join a trade
union, but to those who honestly and in
full conviction did choose an organisation
which, for some reason or other, is not the
first to conclude a collective agreement
with an employer or with employers in a
branch of industry, and who therefore
do not receive the benefit of this freedom
or organisation.
I know and I regret that I am the only
one on the Workers' side in the Committee
who has taken this stand. This
may not surprise you, as hundreds of
thousands of Christian workers in my
country and elsewhere have joined a
union which, though being in a minority,
in their opinion is the only one acceptable
for them, as it has been based-on Christian
principles. It may not surprise you to
know that during the German occupation
the vindication of this same right to join,
establish and promote organisations of
our own choosing—wholly and fully—
brought us into German camps and
prisons.
This year there is no Convention before
us to decide upon. I hope this will be
the case next year. I reserve the right
to return to this matter at that time, as
I deem it of the utmost importance for
a genuine freedom of organisation.
With this reservation I am in complete
accord with the report of the Committee.
Interpretation: Mr. TESSIER (Workers'
adviser, .1I'rance) — The Christian trade
unionists, who have always held the opinion
that freedom of association furnishes
the best means of organising occupational
relations in an equitable and peaceable
way, in particular by collective labour
agreements, are happy to see this great
idea, the application of which constitutes
for workers the exercise of an essential
right, receive the guarantee provided by
regulation on an international plane.
Nevertheless, we feel it incumbent upon
us to affirm our categorical opposition to
the clause which figures in paragraph (2)
of Article 9 of the proposed Resolution.
We feel indeed that this " closed shop
Nineteenth Sitting
formula is by its very nature absolutely
contrary to freedom of association. It
would therefore be utterly contrary to
good sense to give it any kind of consecration
on the international plane. Our
efforts indeed should tend towards facilitating
the full and effective achievement
of free trade union organisation within
the framework of organised occupations.
Mr. JQSHI (Workers' delegate, India)
— The working classes can achieve their
cherished goal only by their organisation,
and therefore the right of freedom of
association is of fundamental importance
to them. If the International Labour
Organisation succeeds in establishing this
right on a clear and firm basis all over
the world, it will have accomplished a
great task. Its previous efforts in this
direction were not crowned with success,
but I hope this time they will succeed.
• The practical need for an international
regulation on the question of personal
freedom of association is felt in varying
degrees in different parts of the world. In
those countries in which the working
classes have secured adequate political
influence, as in the United Kingdom, its
practical need is not keenly felt, but in
those regions where the workers are not
sufficiently educated and organised, and
where their political influence on the
national Governments and national legislatures
is weak, the establishment of an
international law on the subject is of
great practical usefulness.
In some of the national constitutions
freedom of association is recognised as a
fundamental right, though in some cases
it •is laid down in a qualified form,
as being subject to national laws. I
feel that a fundamental right, to be
of practical value, should be laid down
in unqualified terms. If it is qualified it
becomes subject to varying practical
usefulness. Even if a fundamental right
is laid down in the Constitution in an
unqualified form, the courts which are
to interpret the Constitution, always see,
as in the United States of America, that
the right is not abused so as to become
a danger to the community. But if a
fundamental right is laid down as being
subject to national laws, experience has
shown that its value depends upon the
strength of public opinion.
The Resolution before the Conference
defines the principles involved in the
practical use of the right of freedom of
association, generally speaking, in an
agreed form, but I would like to offer a
few comments on one vital point. Article 2
in Part I, reads thus—" Employers' and
workers' organisations should have the
right to draw up their constitutions and
rules, to organise their administration and
activities and to their programmes
; there should be no interference
on the part of the public authorities which
would restrict this right or impede the
organisations in the lawful exercise of this
right."
Instead of this draft, I would have
preferred that proposed by the Office,
where there is no reference to " lawful
exercise ". I feel that the terms of the
Resolution, by unnecessarily laying emphasis
on the "lawful " nature of the
exercise of the right of freedom of association,
has weakened its value to those
regions where laws are made without the
working classes having sufficient influence
on the national Governments and national
legislatures, so that the laws which
generally affect the right of freedom of
association do not always remain within
reasonable limits, and consequently the
fundamental right itself is endangered.
In saying this, I have no desire to suggest
that the workers' organisations should be
privileged and placed beyond the scope
of the national laws, unreasonable though
they may be. But I feel that the insertion
of the adjective "lawful " in the terms of
the Resolution unnecessarily lays onesided
emphasis on the possibility of unlawful
exercise of the right of freedom of
association by the workers and their
organisations, and ignores the possibility
of the laws themselves going beyond
reasonable limits and thus endangering
the practical exercise of the right of
freedom of association given by an
international regulation.
I maintain that this defect of the Resolution
reduces its practical usefulness to
the workers in regions where they have
not attained adequate political influence
on their national Governments, and on
their national legislators. In my country,
there are several laws which can hinder
the exercise of the right of freedom of association.
Some of these laws are old,
were passed to restrain the movements
for the political freedom of the country
but they were also used to restrain the
right of freedom of association of the
workers. Some of these laws were passed
recently, the justification given for their
enactment being that they are necessary
to deal with what• we call communal
disturbances. But even these recent laws
are wider in their practical application
and constitute a hindrance to the exercise
of the right of freedom of association.
Under these laws, citizens can be jailed
and their movements can be otherwise
restricted, without trial. Previous permission
can be required for the holding of
meetings and processions. Newspapers
and public speakers can be restrained,
without recourse to judicial courts, from
writing and speaking, as a preventive
measure. While such laws exist on the
statute book of a country, there is at least
as much possibility of freedom of association
being hindered by public authOrities
as there is of the workers' organisations
making an unlawful use of the
right of freedom of association.
12 *
304 Nineteenth Sitting
I therefore feel that the unnecessary
and one-sided emphasis caused in the
Resolution by the insertion of the word
"lawful " has reduced -its practical usefulness
and should have been avoided.
I hope that when a Convention on the
subject of freedom of association is
considered in the next session of the Conference,
this defect will be removed.
Sir GUILDHATJME MYRDDINEVANS
(Government delegate, United
Kingdom) — The Conference will have
heard with very great interest the suggestion
made by Mr. Jouhaux that our
work here should in some way be brought
to the notice of the General Assembly
of the United Nations, and not merely
to the Economic and Social Council. I
think—I believe I am right in thinking—
that in fact this Organisation, like the
other specialised agencies, has direct
access to the General Assembly, and that
there should be no difficulty in doing
what Mr. Jouhaux has suggested. This
Organisation has always shown by its
words and by its actions the greatest
possible desire to co-operate with all
other organisations. We have always felt
that the greater, the wider and the more
universal adherence there is to the principles
laid down by this Organisation, the
better for the world at large.
I would only add one word of caution;
although we have gone more than half
way in our desire to co-operate with all
other organisations, it must be remembered
that this is still a sovereign body. Until
agreements are reached to the contrary,
or until the States which are Members
of this Organisation take away that
sovereignty, the Organisation retains that
sovereignty; and I would only say that
the acts and deeds of this Organisation
do not require the concurrence of any
other organisation whatsoever.
I think that this Organisation has done
a fine piece of work in the past three
weeks. We have made more progress in
that short space of time than I believe
would be possible to any other organisation
in the world. Do not let us ignore
the difficulties. They are many and they
are great. But I believe that this Organisation
this year has laid the foundations
of an edifice of international legislation
relating to freedom of association which
will be a blessing to. mankind.
I would just like to add one word
relating to the proposal put forward by
the Australian Government for the inclusion
of an article in the Convention
about freedom of association in nonmetropolitan
territories. I would repeat
that there is no divergence of opinion
on the part of anybody in this hail on
the desirability of the principle embodied
in that proposed addition. The only
reason why the Conference, as I understand
it, did not feel able to agree to
the inclusion of that particular article
in the Convention in question was that
in - its terms as drawn it appeared to
some of us to be unworkable and to give
rise to all those difficulties and complications
which will need much greater study
before it will be possible to obtain words
which will be proper for inclusion in a
Convention. But the fact that the Conference
did not feel able to agree to
include that particular provision in the
Convention in question does lay upon
this Organisation an even greater responsibility
to do its utmost to find words
which will be capable of being put into
a Convention and will embody the principle
of the freedom -of association and
the right to organise which Mr. Ward
put forward. In these further deliberations
which the Organisation must
undertake in order to try to find a sound
and workable form of words, the United
Kingdom Government will make its full
contribution.
Mr. M O'BRIEN (Workers' adviser,
Australia) — I have listened very attentively
to the excellent report that was made
by the Reporter of the Committee, and he
set out in detail the work that was undertaken
by the Committee on freedom of
association and industrial relations. From
the outset of this Committee's work it
was apparent to some of us that attempts
were likely to be made to prevent a
decision being reached on this particular
occasion. The Workers' members of the
Committee—to their credit, let me say—
were insistent that, once this matter was
referred to this body by the Economic
and Social Council, some action should be
taken to give effect to the questions that
had been submitted to that body by the
World Federation of Trade Unions.
This question of freedom of
has been the subject of discussion by the
I.L.O. for over twenty years.- Despite
the fact that we have had considerable
discussion on it, many countries are still
refusing to recognise the rights of the
trade unions to organise and to grant
them freedom of association. Reports,
even at this stage, that were submitted
to the Workers' group on this particular
Committee indicated to us that the
intolerable conditions referred to by the
World Federation of Trade Unions and
in the report of the Committee still exist
in many countries.
Well, the workers believe that, after
having taken part and suffered severely -
in two world wars and in the greatest
depression that this world has ever known,
the time has arrived now when freedom of
association and the right to organise shall
become a practicable possibility and not
merely a pious decision of this or any
other body, because, as we mentioned
during the course of our discussion,
unless practical decisions are taken by
this particular body, the workers of the
world will turn elsewhere for assistance
Sitting
to protect their rights. They have played
their part in defeating the greatest menace
the world has ever known, in fascism,
and, while playing their part, they were
promised a new world order. They
desire that out of these international
conferences shall come a new world
order. They will not be satisfied with
any patched-up old order. Consequently,
• those Governments and others who have
the responsibility and whO accept affiliation
with this particular body have got
to take note of any progressive decisions
that are made, otherwise their affiliation
can only be interpreted to mean that
they are here to prevent and not to
assist in progress.
Affiliation with this or any other body
carries certain responsibilities and, in the
view of the workers of this particular
group of which I have the honour to be
Chairman, if the decisions which we have
arrived at, and which the Reporters have
stated, were not completely satisfactory
to us, they are at the present time our
minimum requests, and unless we can
have our minimum requests granted, then
it must be obvious to us that when we
place our major requests before this or
any other body they will be rejected.
The list of points as set out in the
report is most important. They are, as I
say, minimum demands. To reach that
list of points, many compromise decisions
were taken with a view to having this
question finalised as far as possible at this
particular Session of the Conference, and I
understand from the Standing Orders and
procedure that in this Session we can
only hope to go as far as to adopt the
report of the Committee that has been
set up.
There has been a tendency during the
discussion on this particular matter to
try to separate freedom of association
and the right to organise. From the
workers' point of view, we insist that
freedom of association and the right to
organise should go together. Freedom of
association without the right to organise
would be purely negative, and consequently
that is why, even in the list of
points, reference is made to the right to
organise, while certain other questions
have been stood over. I want to emphasise
that point, because no doubt, at the
1948 Session of the Conference, further—
and I suppose much more bitter—discussion
will take place on these particular
questions. So those who may represent
their countries again will have to recognise
that from the Workers' point of view we
desire both freedom of association and
the right to organise.
Should the I.L.O. fail in its obligations
—and I have listened particularly, on
many occasions, to Sir Guildhaume
Myrddin-Evans, of the United Kingdom,
referring to its responsibilities—should it
fail to accept its responsibilities on this
occasion, then no doubt the Economic
and Social Council and others will assist
those who desire assistance to prevent
the attacks which are being made on
them.
I want to say also that I was astàunded
when listening to a discussion here yesterday,
at the remarks of the representative
of the South African workers. I was
astounded to know that even in that
country today there is discrimination
against members of the working class
because of their particular colour. No
trade union—I want to emphasise that—
in my view can discriminate against any
member of the working class, because it
is necessary for us to have unity if we
intend to make progress: In that respect
I want also to emphasise that the workers
of the world will object to discrimination
against them by anybody on the grounds
of sex, colour, race, creed, nationality or
political opinion. Any decision by this or
any other body that does not recognise
these objections the organised working
class of the world will be unacceptable
to the workers.
I want to give my impressions, in
conclusion, of the working of the I.L.O.
I believe that the decisions made by this
body are extremely valuable as a propaganda
measure against those in authority
who refuse to recognise progressive
decisions made here. I believe also
that, while there are three parties represented
at this particular Conference, we
are reaching a stage where at least
certain people—and I must in fairness
name those whom I mean—where the
Employers' group is attending this Conference
in a block for the purpose of
preventing that progress which the workers
hope to achieve by international cooperation.
Consequently, it will be
incumbent on them as well as on Governments
to recognise the need for freedom
of association and the right to organise.
Unless they do that it will be necessary
for the Governments in charge in the
respective countries to see that they do.
We have always found—or it has been
my experience, both personal, and from
a long study of literature issued by outstanding
members of the working-class
movement—that when the workers do
progress, as some people believe, too
quickly, an immediate attack is made on
them, because it is an accepted fact, so far
as the world labour movement is recognised,
that in some countries and under
some systems unemployment or surplus
labour is necessary if the continued progress
of the workers is to be prevented.
A writer on 30 June 1945 in the financial
columns of the Sydney Morning
Herald, one of the leading journals of
Australia, asked this question: Is a
depression necessary ? And he proceeded
to answer that to prevent the continued
demands of the workers for improved
conditions something was necessary, and
some method must be found by which
Nineteenth Sitting
there would be a surplus army of workers
in the various countries. Now, that statement
was not made idly—it was made by
a paper that has a worldwide circulation
and, consequently, the workers of Australia
are not unmindful of the threat
made there.
In conclusion, therefore, I am going to
ask this Plenary Sitting to endorse the
minimum demands of the Committee on
freedom of association as set out in the
report, and to say that those Workers'
delegates who attend the 1948 Session
of the Conference will be determined, as
far as possible, to see that the balance of
the questions which have been referred
to us are dealt with. And we shall not be
looking for words for that purpose, we
shall be looking for deeds.
It would be unfair if I were to conclude
without paying, on behalf of the Workers'
group, a tribute to the excellent work
performed by the Chairman of the Committee,
the Hon. David Morse, of the
United States of America. The Workers'
group had complete faith in his impartiality,
and valued the assistance which
he gave us in bringing about even our
minimum demands.
Mr. FRASER (Workers' adviser, United
States of America) — I want to speak
for, just a moment about Part II of the
proposed Resolution, and to refer in
particular to Article 9, up to the end of.
clause (i), and paragraph (2), in connection
with a question which was raised
about the inconsistency of paragraph (2).
Article 9 (1) and the succeeding subparagraph
and clause read as follows:
"9. (1) Where full and effective protection
is not already afforded appropriate
measures shOuld be taken to enable
guarantees to be provided for
(a) the exercise of the right of freedom
of association without fear of intimidation,
coercion or restraint from any source
with the object of
(i) making the employment of the
worker conditional on his not joining
a trade union or on his withdrawing
from a trade union of which
he is a member ; ".
In paragraph (2), which has reference
to the sub-paragraph and clause I have
just read and the following clauses, the
statement is made that "It should be
understood, however, that a provision
in a freely concluded collective agreement
making membership of a certain trade
union a condition precedent to employment
or a condition of continued employdoes
not fall within the terms of this
Resolution ".
Someone who spoke from the platform
raised the question of inconsistency
with respect to the paragraph I have
just read. I think there is a confusion
of thought about two essential elements
in the employer-employee relationship.
There is first, the right of freedom of
association, and second, the right of
freedom of contract, and they are separate
and distinct things. I make this
statement because of an acquaintance
with the laws and practices which are in
effect in the United States of America.
We first give men the right to associate
themselves together and to organise;
having accomplished that, we give them
the right to bargain collectively for a
contract or agreement.
A labour union must be responsible.
Unless it is responsible in carrying out
its part of the contract it would be of
little avail for an employer to negotiate
a contract with a labour union. 'So in
connection with this very definite and
very necessary responsibility on the part
of the labour' union, . agreements are
reached which provide for the union
shop, or membership maintenance, or
some other very necessary element in the
carrying on of a labour union's functions.
It costs money to operate a labour union.
A labour union is of definite value to an
employer, and I think there are many
employers in this room—I know there
are literally thousands of them in the
United States—who would not attempt
to operate their plant without some
central body through which they can
handle these very difficult personnel
problems, that is, the labour union.
When we say, or when the Committee
said—unfortunately I did not have any
part in the discussion, but I have discussed
this with the United States member
of the Committee—that it should be
understood that if there was a provision
in a freely concluded collective agreement
making membership of a certain trade
union a condition precedent to employment
or a condition of continued employment,
that does not fall within' this
Resolution generally—we had this one
thought in mind. I think this Conference
should give very careful consideration to
any discussion which attempts to remove
that paragraph from the Resolution. It
is of the highest importance that it be
left in there because, as I said at the
outset, the minute you leave clause (i)
and the succeeding clauses without that
proviso, you invade the field of collective
bargaining and the freedom of contract,
and you leave the field of the right of
association.
Interpretation: Mr. HAUCK (Government
delegate, Prance) — In bringing the
support of the French Government to
the report which is presented to the
Conference by the Committee on freedom
of association, I wish, in my turn, to
render homage to those whose work has
made its success possible, and more
particularly to the Chairman of the CornNineteenth
Sitting 307
mittee, the Hon. David Morse, whose
unwearying good humour permitted the
work to be successfully concluded; and
also to the staff of the I.L.O. who worked
under extremely difficult conditions to
allow the Committee to reach its decisions.
I wish also to render homage to the
Reporters; to the Deputy Reporter,
Mr. Cornil, and even more particularly
to my friend Leon Jouhaux. It is indeed
symbolic that on this question, which was
brought before the Economin and Social
Council by the World Federation of
Trade Unions, and referred by the Council
to the International Labour Organisation,
it is symbolic, I say, that the Conference
should have chosen as •Reporter one of
the Vice-Presidents of the World Federation
of Trade Unions. The I.L.O. wished
thus to show that it remains in close
contact with trade unionism and that it
wishes, as has been said during the
debates in this Conference, to establish
with this great workers' organisation—
which, throughout the world, embraces
more than seventy million organised
workers—relations of the most close and
fraternal kind, inspired by complete confidence.
The French Government, from the very
beginning of the discussions in the Committee—
and certain delegates reproached
us with some bitterness for it—declared
that it was in entire agreement with the
memorandum and the conclusions of the
World Federation of Trade Unions, and
it is precisely because the Resolutions
which are submitted to you answer the
questions brought before us that I wish
to express my satisfaction with the results
of our discussions.
This satisfaction has many solid bases.
Firs.t of all, in spite of the fact that the
problems set before us were difficult and
in spite of the often animated character
of the discussions, a spirit of conciliation
and of mutual understanding prevailed
in the Committee, and was shown by
both the Workers' and the Employers'
members. The result of this has been that
we have proved once more the excellence
of the tripartite formula on which the
I.L.O is based.
A second reason for my satisfaction—
and several speakers have already said
this before me—is that for the first time,
on a large scale, we are entering into
close co-operation with the United
Nations, and this is being done through
the Resolution which we are going to
adopt and the work which we have done.
This is the first example of effective
collaboration, and I am certain that the
whole Conference will subscribe to the
wish which was expressed a few minutes
ago by Mr. Jouhaux, and supported by
Sir Guildhaume Myrddin-Evans, of seeing
not only the Economic and Social Council,
but the General Assembly of the United
Nation,s itself, taking up the conclusions
of our work.
In the third place, I wish to express
my satisfaction because the Resolutions
which are submitted to you answer,
in a comprehensive way, all the questions
which were raised by the World Federation
of Trade Unions, and the Resolutions
as prepared by the Office have
been happily supplemented by the Resolution
drawn up by the United Kingdom
Government to set up international machinery
for safeguarding the of
association. Everyone here is aware of
the very numerous difficulties and the
very complicated problems raised by the
establishment of such an organisation,
but the Conference, in adopting the
British Resolution and in clearly indicating
that it is indispensable to create such
an agency, will show that it intends to
give these Resolutions effective force for
use against those who would wish to
attack freedom of association.
Finally, I must express my satisfaction
because we have the hope of seeing,
next year, the basic principles on which
we are in agreement in this Conference
incorporated in one or in several international
Conventions which will constitute
the international safeguard and the international
guarantee of freedom of association.
In this the International Labour
Organisation is playing its most proper
part. It must adopt Conventions, and
more particularly a Convention on freedom
of association. By the means which
it has and will have at its disposal, thanks
to this international agency the creation
of which so many of us hope for, it will
at last be able to create throughout the
world a proper respect for the fundamental
rights of workers.
By treating the question which it has
taken up this year and which it will
continue to study next year, the International
Labour Organisation has shown
itself to be in contact with the realities
of today. Many of us would have preferred
that the Committee should have
had more time and should have been
able to examine, for instance, Part V
of the text of the Resolution presented,
by the Office, which raises the question
of industrial relations—a question linked
with that of the very structure of the
modern world and with all the problems
which confront workers' organisations in
that modern world. Unfortunately we
have not had the time, but I hope that
we shall be able, to tackle this question
next year.
Certainly—Sir Guildhaume Myrddin-
Evans was right to it a few minutes
ago—prudence is essential, and we must
not draw up texts without due reflection
and discussion. None the less, in the
period in which we live prudence may be
wisdom, but daring is still greater wisdom.
Events march faster than men, and if an
institution 'like ours is not in step with
the march of events and with the evolution
of nations, it risks being left behind
308 Nineteenth Sitting
and failing to play a decisive part in the
direction of human affairs. It seems to
me that this year we have avoided the
danger of too great prudence and that
we have been wise in being courageous
and daring. This is the right path to
follow, and I hope that this Organisation,
having once shown that it can take this
path, will go forward on it in the years
to come.
Mr. TAYLOR (Employers' delegate,
Canada) — The employers, in approaching
this very important subject of freedom
of association and industrial relations,
announced at the very outset that they
accepted the principle of freedom - of
association. At the time we made the
announcement, it was quite clear that
there were, and perhaps would continue
to be, differences of opinion with regard
to the application or the definition of
freedom of association. That was inevitable,
but, as we understand the principle
of freedom of association, we accepted it
then and we accept it now. It was with
that thought that we approached debate in
committee, determined to do our full
share in seeing to it that something would
emerge from the Committee that would
point the way for things to come.
The employers have, I think, exercised
considerable restraint in debate. They
have co-operated. They have not at any
time tried to be obstructionists, and they
have—and I think it is worth repeating—
done their very best to present their point
of view. A subject of this character is
bound to create differences of opinion.
Those differences were evident in committee.
The employers—and I am speaking
on behalf of the group—felt that we
should not undertake too much at one
that it would be far better to take a
portion of the problem and do a good job
than to take a larger portion and do a
poor job.
It was for those reasons that we felt
we ought not to go beyond certain parts
in the text which was before us. However,
in the course of debate we agreed to go
further than we first thought was
possible. Out of this has developed
a Resolution—or, to be more precise,
perhaps—two Resolutions. In some
respects these Resolutions go farther than
the employers would have liked, and in
they do not go far enough. We are
aware of that fact. It is precisely because
of that that we made our position clear,
that we should not at this point discuss or
present for immediate consideration the
details which were involved in Article 8 (2)
of the Office text and related sections.
The employers take the position—and
feel they are justified in taking the position—
that the acceptance of the principle
of freedom of association should surely not
be at the price of individual freedom.
Individual freedom and freedom of association
as such are equally important.
That is the position which we have taken
throughout and which we re-affirm here.
To be more precise, the question which
has been introduced here in this debate by
our colleagues from the Workers' group is
that of the right not to belong to a trade
union. The principle of the" closed shop
and compulsory unionism as such cannot
be accepted by the employers, as we
understand their application. Yet we
have in committee accepted the Resolution
in order that a discussion may be
brought about at the appropriate time
as outlined on those important matters.
But we have repeatedly reminded the
Committee—and we again remind the
Conference—that our acceptance in those
circumstances has clearly been without
prejudice to the position which we may
feel desirable at the appropriate time when
the Convention itself is discussed.
We recognise the importance of having
a unanimous decision from this Conference,
and we do not feel that we wish
to reintroduce debate here on those
subjects, and so I am urging the Employers'
group to accept the Resolution
and the report, as you have them before
you. However, I did feel it important,
as was done in the case of my colleagues
in the Workers' group, to make certain
statements in order that the records
of how we stand and how we stood in
committee may be quite clear; but in
spite of that we are going to support the
Resolution, with that clear understanding.
The PRESIDENT — I will now adjourn
the discussion and take the record
votes as announced on today's agenda;
but befdre we proceed to the record votes,
Mr. Rappard, Government delegate,
Switzerland, wishes to make a brief
statement.
RATIFICATION BY SWITZERLAND OF THE
CONSTITUTION OF THE INTERNATIONAL
LABOUR ORGANISATION INSTRUMENT
OF AMENDMENT, 1946
Interpretation: Mr. RAPPARD (Government
delegate, Switzerland) — What
I wish to say here is not a protest or a
reservation, but good news.
A few days ago Mr. Troclet, the
Minister of Labour of Belgium, told us
that the Belgian Parliament had ratified
the Instrument of Amendment of the
Constitution of the International Labour
Organisation. I am glad to be able to
tell you today that the Swiss Government
has also ratified this amendment. It had
already been approved by our Parliament
in March, but under our democratic
Constitution we had to allow a period
of three months for any possible protest
to be made by public opinion. We call
it a referendum. That period of three
months has elapsed, no protest has been
made, and we are now able to ratify this
amendment.
Document No. 150
ILC, 30th Session, 1947, Record of Proceedings, Record
vote on Resolution to place on the agenda of the next
Session of the Conference: (1) the questions of freedom
of association and of the protection of the right to
organise, with a view to the adoption of one or several
Conventions at that Session, and (2) the questions of the
application of the principles of the right to organise and
to bargain collectively, of collective agreements, of
conciliation and arbitration and of co-operation between
the public authorities and employers’ and workers’
organisations, for first discussion, p. 319
INTERNATIONAL LABOUR
CoNFERENCE
THIRTIETH
GENEVA,
SESSION
1947
RECORD OF PROCEEDINGS
LABOUR OFFICE
GENEVA, 1948
005576
09616
INTERNATIONAL
Nineteenth Sitting .319
We would next have been going on
to deal with the report of the Committee
on freedom of association, which is a
unanimous report, but as a good many
delegations are on the point of leaving
Geneva and so we may have difficulty
in finding the necessary quorum this
afternoon, I propose, to continue the
discussion this afternoon, and, if there is
no objection, to take the record vote
now on the Resolution concerning:
(1) The placing on the agenda of the next
General Session of the Conference of the
questions of freedom of association and
of the protection of the right to organise
with a view to . the adoption of one or
several Conventions at that session and
(2) The placing on the agenda of the
next General Session of the. Conference,
for first discussion, of the questions of
the application of the principles of the
right to organise and to bargain collectively,
of collective agreements, of conciliation
and arbitration, and of cooperation
between the public authorities
and employers' and workers' organisations.
Record Vote on the Resolution to place on the Agenda of the next Session of the Conference
(1) the Questions of Freedom of Association and of the Protection of the Right to Organise,
with a view to the Adoption of one or several Conventions at that Session, and (2) the Questions
of the Application of the Principles of the Right to Organise and to Bargain Collectively, of
Collective Agreements, of Conciliation and Arbitration, and of Co-operation between the Public
Authorities and Employers' and Workers' Organisations, for first Discussion
1I'or (124)
Afghanistan:
Mr. Akram(G)
United States
Mr. Morse (G)
Mr. Thomas (G)
Mr. Zellerbach (E)
Mr. Watt (W)
Argentina:
Mr. Grether (B)
Australia:
Mr. Ward (C)
Mr. Amour (C)
Mr. Hawkins (B)
Mr. King (W)
Austria:
Mr. Hainmerl (G)
Mr. Hofmann (C)
Mr. Roth (B)
Mr. BOhm (W)
Belgium:
Mr. Troclet (C)
Mr. Heyman (C)
Mr. Cornil (B)
Mr. Finet (W)
Bolivia:
Mr. Capriles Rico (C)
Brazil:
Mr. Parmigiani (W)
Bulgaria:
Mr. Mitovsky (C)
Mr. Nikolov (G)
(Janada:
Mr. Renaud (G)
Mr. Hereford (C)
Mr. Taylor (E)
Mr. Berg (W)
Chile:
Mr. Araya (W)
China:
Mr. Li (C)
Mr. Pao (G)
Chwang (B)
Mr. An (W)
Colombia:
Mr. ilerrera (G)
Cuba:
Mr. Sanchez (C)
Mr. Pi (C)
Mr. Fernández Pla (B)
Denmark:
Mr. Bramsnaes (C)
Mr. Koch (C)
Mr. Oersted (B)
Mr. Jensen (W)
Dominican Republic:
Mr. Franco (C)
Ecuador:
Mr. Gastelá (C)
Egypt:
Radi Bey (C)
Mr. Boutros (G)
Rinland:
Mr. Mannio (C)
Mr. Järvenpaä (G)
Mr. Karikoski (B)
Mr. Huunonen (W)
France:
Mr. Godart (C)
Mr. Hauck (G)
Mr. Waline (B)
Mr. Jouhaux (W)
United Kingdom:
Sir GuildhaumeMyrddiii-
Evans (C)
Mr. Buckland. (C)
Sir John Forbes Watson
(B)
Sir Joseph Hallsworth
(W)
Greece:
Mr. Raphael (C)
Mr. Paviakis (C)
Mr. Tsatsos (B)
Mr. Makris (W)
Haiti:
Mr. Addor (C)
Hungary:
Mr. Tóth (C)
Iceland:
Mr. Gudrnundsson (C)
India:
Mr.
Mr.
Mr.
Mr.
Iran:
Mr. Naficy (C)
Mr. Gheselbach (W)
Iraq:
Mr. Jawad (C)
Ireland:
Mr. MacWhite (G)
Mr. Williams (C)
Mr. O'Brien (B)
Mr. Hynes (W)
Fanfani (G)
Villani (G)
Campanella (E)
Lizzadri (W)
Luxembourg:
Mr. Huberty (C)
Mr. Krier (W)
Mexico
Mr. Serra Rojas (C)
Mr. MartInez Bdez (C)
Mr. Noriega (E)
Mr. Joekes (C)
Fr. Stokman (C)
Mr. Fennema (B)
Mr. Vermeulen (W)
Bew Zealand:
Mr. Jordan (C)
Mr. Bockett (C)
Mr. Mountjoy (B)
Mr. Herring (W)
Korway:
Mr. Frydenberg (C)
Miss Aarum (C)
Panama:
Mr. Amado (G)
Mr. Morn (C)
Mr. Lopez Zapata (W)
Peru:
Mr. Bielich (C)
Mr. Cassinelli (B)
Mr. Lopez Aliaga (W)
Poland.
Mr. Rusinek (C)
Mr. Altman (G)
Mr. Saper (B)
Portugal:
Mr.
Mr.
Mr.
Sweden:
Mr. Björck (C)
Mr. Nystrom (C)
Mr. Kugelberg (B)
Mr. Vahlberg (W)
Switzerland:
Mr. Rappard (G)
Mr. Kaulmanri (G)
Mr. Kuntschen (B)
Turkey:
Mr. Yeniay (0)
Mr. Kardam (C)
Mr. Ipekman (B)
Mr. Bjrol (W)
Uruguay:
Mr. Perotti (C)
Mr. Pons (B)
Mr. Damonte (W)
Venezuela:
Mr. Milldn (E)
Mr. Perez Salinas (W)
Against (0)
The PRESIDENT — The result of the
vote is as follows : for, 124 ; against, 0
abstentions, 0. The Resolution is therefore
adopted.
(The (Jonjerence at .1 p.m.)
Ram (C)
Nanda (C)
Tata (E)
Joshi (W)
Italy:
Mr.
Mr.
Mr.
Mr.
Caetano (G)
Veiga (C)
Calheiros. Lopes (B)
Africa:
van der Horst (C)
Hannah (C)
Gemmill (B)
Venter (W)
South
Mr.
Mr.
Mr.
Mr.
Document No. 151
ILC, 30th Session, 1947, Record of Proceedings, Report
of the Committee on Freedom of Association, pp. 322–
329
INTERNATIONAL LABOUR
CoNFERENCE
THIRTIETH
GENEVA,
SESSION
1947
RECORD OF PROCEEDINGS
LABOUR OFFICE
GENEVA, 1948
005576
09616
INTERNATIONAL
322 Twentieth Sitting
Just think of it. Hundreds of millions
of people living on or below a bare subsistence
level and without the opportunity
of doing anything better for themselves.
Tens of thousands of new factories of all
kinds waiting to be built and equipped
to give them the opportunity of remunerative
employment. Tens of thousands
• of miles of roads and railways waiting
to be built 15o carry the traffic. Millions
of houses wanted; millions of homes to
be furnished and equipped. What a
chance for the Trade and Labour Conference!
What a chance for the I.L.O.
What a chance for the big industrial
powers of the world to become arsenals
of productive machinery, exporting to
the ends of the earth not only the machinery
and equipment, but the skill and
experience of efficient industrial organisation
and management instead of—or as
well as, if you like—tearing the flesh from
the bones of multilateral trade and biting
each other in the process.
Are not these the directions in which
world prosperity lies, for new countries
and for the old, each country being
encouraged to satisfy its own needs first
—agriculturally and industrially—so far
as that is possible, and then to draw from
the outside world the maximum, not the
minimum, of external goods, and to send
forth to the world home-made commodities
particularly suited to the country's
production or the skill of its workpeople.
And all the time the I.L.O. writing
standards of safety and prptection and
a code of business and commercial standards
of work and living.
I am very happy to be associated with
the message which the President proposes
to send.
The PRESIDENT I presume there
is no opposition to the proposal to
authorise me to send a message to the
Conference on Trade and Employment,
and I consider that proposal adopted.
(The proposal is adopted.)
REPORT OF TIlE COMMITTEE ON FREEDOM
OF ASSOCIATION (contd.) 1
The PRESIDENT — We will continue
the discussion on the report of the Committee
on freedom of association.
Mr. NANDA (Government delegate,
India) — My esteemed friend Mr. Joshi
chose this morning to bring into the
discussions of the report of the Committee
on freedom of association the
issue of civil liberty in India, the relevance
of which appears to me to be doubtful.
' See Third Part Appendix X.
Mr. Joshi reiterated here his opposition
to the insertion of the words "lawful
exercise " in Article 2 of the Resolution
submitted by the Committee. He was
the only person in that Committee who
could see the appropriateness of his stand
in the matter, namely, that the exercise
of freedom of association should not be
subject to the usual legal limitations on
the ground of apprehension that the laws
of a country may in certain cases constitute
a hindrance to this freedom. His
remarks may create an erroneous impression
that in India the labour movement
is subjected, under the guise of lawful
administration, to treatment of a depressing
character. I gave an answer in the
Committee, and repeat it now, that the
peaceful exercise of the workers' right to
organise and conduct the business of their
organisation is not obstructed by law or
in practice in any territory for which the
present Government of India is responsible.
Mr. Joshi has mentioned certain old
legal provisions that have been cancelled
and some new enactments which, according
to him, invest the administration
with arbitrary powers curbing the freedom
of individuals in organisation. He points
to the use of these powers as depriving
the labour leaders and citizens of their
liberty, and suppressing the working class
movement in the country. The fact is
that there is not a single piece of legislation
in the country which is designed or
operated for restricting the activities of
any labour organisation as such. I may
still be questioned as to the many extraordinary
legal proceedings which Mr. Joslii
has brought to the notice of the Conference.
My answer is that not one of them
has any reference to labour.
It is the great misfortune of my country
that they have had to resort to such
powers and to cancel old laws and create
some fresh enactments. My country is
passing through a most difficult period
in its history. In the process men, women
and children have perished by hundreds
of thousands from want of food. Our
position in this respect is still precarious
there are still shortages of food, cloth,
building materials, textiles and every
commodity the people want. Prices are
several times higher than before the war.
This is the aftermath of the war. At the
same time a violent political transition
is in progress. The country is suffering
the ravages of communal strife. Assaults,
arson, murders in the streets, are taking
a heavy toll of life and property from
day to day.
What the Governments of India are
faced with are not ordinary problems of
law and order which can be dealt with
in the normal way. They are encountering
disorders on the scale of a civil war,
which dislocates economic activity and
paralyses the life of the community.
This is a state of urgency comparable to
Twentieth Sitting 323
a war situation. What must happen in
the circumstances in any country, even
with the highest democratic tradition,
can easily be realised. It explains fully
the recourse to exceptional powers which
under compulsion become at times unavoidable,
but protect life and property.
This emergency legislation will, I am
sure, lapse or be done away with as soon
as abnormal conditions cease to exist.
The point of the matter is that it
would not be reasonable to lay down
that the workers and their leaders should
be immune from the operation of the
laws of the land, framed according to
democratic procedures, which are not
aimed against the working class, nor
would it be reasonable to single them
out for exceptional treatment. The use
of the words "lawful exercise " in the
context in which they appear do not take
anything away from the potency of the
fundamental right so far as it relates to
the workers' or employers' freedom tb
organise and to conduct their activities
fully in keeping with the requirements of
freedom of association.
I have a suspicion that in the very
grave view which Mr. Joshi has taken of
the proposal before the Conference, he
was perhaps consciously or unconsciously
influenced by certain words which are to
be found in the Committee's report, at
the end of the discussion on the amendment
submitted by the Employers' members
of the Committee to Article 1 of
the Besolution. . Those words are as
follows : "After an exchange of views
between the different groups in the
Committee, the Employers' members withdrew
their amendment, it being understood
that freedom of association—like
every other freedom—is bound by national
laws, as is envisaged in the Constitution
of the International Labour Organisation,
which in Article 41, clause 2,
cites among principles of special and
urgent importance: ' the right of association
for all lawful purposes by the
employed as well as by the employers '
I would add in conclusion that the
labour policy and legislation in India are
actually in full accord with the requirements
of the proposals embodied in the
Committee's report. I can give this
assurance to the Conference, that India
will not lag behind any country in the
world in extending the fullest measure of
protection to the workers in the exercise
of their right of freedom of association.
Interpretation: Mr. RAPPARD (Government
delegate, — I should
- like first of all, on behalf of a country
which has not taken a large part in the
discussions in the Committee, to express.
our very great gratitude to the Chairman
of the Committee and to Sir Guildhaume
Myrddin-Evans, who was the moving
spirit and also the moderating spirit of
our meetings.
All members of a Committee should
be grateful for an impartial Chairman
and for a wise and conscientious fellow
member. A small country has, to some
extent, to bow to the views of the larger
countries, and we are very grateful to
those important. countries for the attitude
that they take. I feel sure that
the future historians of this Conference
will not fail to pay a just tribute to the very
important part played by the wisdom,
impartiality and patience of Mr. Morse
and to the ingenious spirit and moderation
of Sir Guildhaume Myrddin-Evans.
I would say in passing that it was the
representatives of those two countries,
the United States and United Kingdom,
and of the Netherlands to which
the International Labour Organisation
owes the opportunity to undertake this
study and to draft these Resolutions.
With regard to the substance of this
important discussion, I will confine myself
to three comments. The Swiss Confederation
will celebrate next year the centenary
of the Constitution it adopted in
1848. It is the Constitution which still
governs us, and it contains a provision
concerning freedom of association which
was included ninety-nine years ago. It
says that citizens have the right to form
associations provided that the purpose
of those associations and the means that
they employ involve nothing illegal or
dangerous for the State.
Switzerland is much attached to
freedom of association, just as it is to its
other public liberties—freedom of speech,
freedom of the Press, freedom of voting
and freedom of asserting all the fundamental
rights of humanity. It is indeed
too much attached to freedom to permit
any restriction to be imposed on
minority, whether occupational, religious,
or political. That is why Switzerland—I
can say this right at the outset—can
never accept an international Convention
the provisions of which would exclude
freedom of minorities. -
I was very much surprised to learn
that the American Federation of Labor
was a champion of the "closed shop ",
because at the beginning of the memorandum
which it communicated to our
Organisation. it said that every human
being has the right to carry on his activity
in freedom and in dignity. Should we be
respecting that freedom and dignity for
the worker if we face him with the alternative
of joining an association contrary
to his convictions, or plunging his family
into poverty '? That is really the dilemma
which too often results from the system
of the shop ". In saying-this, I
am not speaking merely on behalf of the
Government of my country, but on behalf
of our whole delegation, and more particularly
of the Workers' representatives.
In a recent publication of the Gorrespondance
syndicale suisse, I find, under
the title of "Closed Shop ", the follow324
Twentieth Sitting
ing statement: "We must not lose sight
of the fact that the establishment of any
monopoly means the oppression of a
minority. Consequently, trade unions
must not attempt to have a monopoly.
Where a majority exists the minority
must still have freedom of expressions
otherwise you have legal dictatorship.
From the ideological point of view such
a dictatorship be justified, but it is
contrary to the idea of liberty."
This leads me to my second point,
which was suggested to me by certain
remarks in the Committee, and particularly
the statement made to the Committee—
and repeated here in the Conference—
by the venerable and sympathetic
representative of the Indian
workers, Mr. Joshi. As the Government
representative of India has said, Mr. Josh
seems to be very much afraid of the law.
There are two kinds of countries in this
world. On the one hand, there are those
in which the law is the free expression of
the will of the majority. On the other
hand, there are those in which the
majority are subject to laws imposed
either by a minority or by a single tyrant.
In countries of the first kind one has a
democracy, and under the democratic
system the majority can expect the fullest
assistance and have nothing to fear from
the law. In a liberal democracy any
revolt is a revolt against the general
interest and is a negation of public
liberty.
On the other hand, if you are living
under a dictatorship the law does not
protect you, and only revolution can
serve the cause of liberty. Those who are
subject to the law of a minority or of
a single tyrant cannot hope to find in an
international Convention protection
which is refused to them by national
legislation. Do you think that totalitarian
Governments would in good faith
sign, ratify and apply a Convention by
which the international community would
have the right to require that they apply
within their frontiers the rights which
they refuse to their own citizens ? I
cannot conceive that that can be expected
of regimes which do not apply a democratic
system in their own countries.
You can hardly expect them to bow to
the will of an international community.
My third and last observation is this.
Political freedom in our days and in our
countries has two classes of enemies;
on the one hand, those who deny it,
who violate it, who trample on it, and on
the other hand, those who take advan
tage of it in order to sacrifice the prosperity
and even the life of their State.
Political freedom, if I may say so, speaking
as a professor of long standing, is one
of the most precious flowers, but one of
the most delicate flowers, of civilisation.
Its hereditary enemy is violence and
thsorder. It is always chaos and violence
which uproot the flower of liberty from
the soil of free peoples, and it is only by
disorder and violence that dictatorships
succeed in depriving peoples of the right
to govern themselves.
I am not talking about distant countries,
I am talking only of Western
Europe, which is our own Continent. If
you go back to the origin of the Napoleonic
dictatorship, one hundred and fifty
years ago, or if you look at Italy at the
beginning of the fascist period, or at
Germany at the beginning of the nazi
period, it was poverty and disorder that
enabled ambitious people to get into power
and to pose as the saviours of their
countries. Too often it is people who
claim to be respecting liberty who take
advantage of it to lead their peoples
astray and to destroy their liberty.
In conclusion, therefore, while I fully
appreciate this discussion that we have
had on freedom of association, I should
like to express the hope that sooner or
later we shall have an international
Convention on the subject which will be
designed not to flatter demagogues or
to pave the way for those who want to
destroy freedom, but to extend freedom
of association throughout the world.
We all applauded this morning when
Mr. Jouhaux, a veteran speaker in this
Conference, declared that freedom was a
condition of peace. I agree entirely with
that statement, hut we must not give
freedom of association a definition which
makes it synonymous with tyranny, and
the rights which we demand in the name
of freedom of association must not be
demands which would lead our countries
into disorder, chaos and, finally, dictatorship.
In order to safeguard freedom of
association we must put it under the
protection of legislation which is freely
accepted by free peoples, for it is only
the nations which are truly free which
will never become aggressive.
Interpretation: Mr. ALTMAN (Government
delegate, Poland) — At this time,
when the Conference has before it the
report of the Committee on freedom of
association, after three weeks of discussion
in the Committee, I wish to make
clear the attitude of my Government. It
adheres to the principle of freedom of
association, which is guaranteed by our
Constitution and was recently re-affirmed
in a Declaration of Bights of the citizen
adopted by our Parliament last February,
rights which are strictly applied in practice.
We attach very particular importance
to a guarantee, on the international
level, of respect of freedom of association,
which we consider a basic element
of peace and collaboration among the
nations of the world.
Two years after the end of the victorious
war of the. United Nations against
fascism, which tried to stifle freedom, and
in particular the freedom of association
of the working classes, we observe with
Twentieth Sitting 325
anxiety the tendency which is showing
itself in certain countries to destroy the
bases of trade union legislation. The facts
brought out in the memorandum submitted
by the World Federation of
Trade Unions to the Economic and Social
Council, and some of the facts quoted in
the appendices to the report Of the
Credentials Committee of our Conference,.
show that certain policies which were well
known at the time of the fascist regimes
to be applied in certain parts of
the world against the trade union movement.
This is all the more to be deplored
at a time when in other countries which
respect trade union freedom, the trade
union movement is growing in extent
and importance, and assuming an ever
greater role in social and economic affairs.
In my own country, as in many others
in Central and Western Europe, the trade
unions, which are independent, are taking
part to an ever greater extent in the
general direction of the national economy
and in the control of undertakings.
Trade unions exercise a direct influence
on the preparation of social legislation,
and on its application, and conclude
collective agreements, which are often
extended to all workers in a given branch
of industry. Such activities by the trade
unions are having a great and beneficial
influence on the reconstruction of my
country.
The initiative of the World Federation
of Trade Unions in attempting to ensure,
at the international level, respect for
freedom of association, was and is altogether
appropriate and opportune. The
decision of the Economic and Social
Council to refer this question to the
International Labour Organisation, with
a view to having it placed on the agenda
of the next session of the Conference,
and to request the I.L.O. to send a report
to the Economic and Social Council for
its next meeting, gives the International
Labour Organisation an exceptional opportunity
to take decisions which will
give effect to the principles of its Constitution
and of the Declaration of Philadelphia,
which recognise freedom of association
as a basic condition of continued
progress.
The long discussions in the Committee
on freedom of association, and the results
of these .discussions as described in the
report which is before us, show that unfortunately
the I.L.O. has not taken full
advantage of this exceptional opportunity
to reinforce its authority with the working
masses of the world organised in the
World Federation of Trade Unions, which
now has seventy million members. Notwithstanding
my respect for the members
of the Committee, especially its Chairman,
Mr. Morse, and its Reporter, Mr.
Jouhaux, I must point out that the
problem has been side-tracked by using
compromise texts and in some cases
ambiguous legal terms. This is particularly
the case in the elimination, from the
list of points which are to come before the
Conference in 1948, of those out
in more detail the provisions of the
present Article 9 of the Resolution,
which contains principles fundamental to
the whole problem of freedom of association.
This solution is not satisfactory to my
Government, which, as I pointed out
during the discussion in the Committee,
supports without any reservation whatsoever
the memorandum of the World
Federation of Trade Unions. Nevertheless,
we shall vote in favour of the adoption
of the report of the Committee, expressing
the hope that the work to be done later
by the International Labour Organisation
to establish satisfactory international
standards concerning freedom of association
will follow more closely the commitments
laid down in the Constitution and
in the Declaration of Philadelphia.
The Employers' and Workers' delegations
of Poland have asked me to inform
the Conference that they associate themselves
with my declaration.
(sir John Forbes Watson takes the
Chair.)
Interpretation: Mr. FERNÁNDEZ
(Workers' delegate, Cuba) The declaration
made this morning by Mr. Taylor in
the name of the Employers' group is a
repetition of the standpoint maintained
by the employers all through the discussion
in the Committee on freedom of association.
If you read the report carefully
as submitted by the Committee, you will
see that the opposition to Article 8 (2),
which was put forward this morning in
the form of. a reservation, was defeated
by a large majority in two successive
votes in the Committee.
We workers have done all in our power
to ensure that the foundations were
this year so that next year's session of
the Conference can adopt a Convention
guaranteeing the principle of freedom of
association. all over the world. Because
we wanted this session of the Conference
notto fail, because we wanted it tohave
real definite results, and because, as the
French workers' leader, Mr. Jouhaux,
said this morning, we did not want the
mountain of this Conference ,to bring a
mouse into the world, we have done all
we possibly could so that the report and
Resolutions submitted by the Committee
should express in the fullest sense the
principle of freedom of association.
Although we are not fully satisfied with
the report, because it does notcover completely
all our aspirations, we accept it
as a step forward to the end that freedom
of association and collective bargaining
—which are inseparably united—may be
affirmed as a fundamental right which
should be applied and respected in all
the countries of the world. So, although
326
we did not agree with the compromise
suggested by Sir Guildhaume Myrddin-
Evans, we accepted it so that this session
of the Conference shall not fail with
regard to freedom of association. We
accepted it and believed that the employers
would also accept it unreservedly.
The workers of Latill America, where
many Constitutions recognise the right
of freedom of association, but where we
have seen it very often attacked, believe
it necessary to arrive as soon as possible
at an international Convention giving
greater force and effect to this fundamental
principle for, without its practical
enforcement, we can have no social
progress and improvement. This explains
the great interest of the workers in Cuba
and in Latin America as a whole, and
particularly of our continental trade
union central Organisation, the Confederation
of Workers of Latin America,
which has been struggling so tirelessly
for freedom of association, constantly
threatened despite the constitutional
laws and the offIcial'declarations of representatives
of many Governments, which
speak of democracy for export but do
not practise it inside their own countries.
The ILL.O., as a specialised agency of
the United Nations,- has received a charge
from the Economic and Social Council to
submit a report on freedom of association
throughout the world. It has now a
great opportunity of giving force and
practical effect to this principle which
appears in the Constitution of the I.L.O.
and has been brought to our notice now
by the World Federation of Trade Unions.
As a member of the Workers' group, I
should like in closing to express my gratitude
to Mr. Morse, Chairman of the
Committee, to Comrade Jouhaux, the
IReporter, and to Mr. O'Brien, the Viceof
the Committee for the
Workers' group, for the way in which
they did everything possible to enable
the Committee to obtain concrete results.
The seventy million workers represented
by the World Federation of Trade
'Unions legitimately hope that the I.L.O.
will not disappoint their expectations and
that next year we shall adopt an international
Convention affirming and guaranteeing
freedom of association throughout
the world. Only thus will the I.L.O.
show itself to be equal to its duties and
responsibilities, and its social work during
the twenty-eight years of its existence
will not have been sterile or in vain if the
general principle affirmed in 1918 can be
carried into effect next year.
Interpretation: Mr. ALCOBA (Workers'
delegate, Bolivia) — The Workers' delegation
from Bolivia supports with enthusiasm
the proposed Resolution drawn up
with such pains by the Committee. Even
though it does not completely satisfy the
aim which the Committee had set before
Twentieth Sitting
itself—that of drafting a Convention for
adoption next year, the workers believe,
nevertheless, that with this Resolution
we shall in the near future find a better
solution to ensure the freedom of trade
union organisation.
In my country, in spite of its industrial
backwardness, we have full and unrestricted
freedom of association for all
intellectual and manual workers without
political or other discrimination or interference
on the part of the Government.
The coup d'Etat of a group of fascists in
1943 tried to limit this freedom and the
Government openly interfered with the
trade union organisations and thus repudiated
the working class and public
opinion generally, for, in addition to
restricting trade union liberties, they
restricted human liberties, wiping out all
forms of freedom of speech and of the
Press. The Government organised a
typically fascist policy, and exiled or
executed democratic people who would
not collaborate with its fascist methods
of administration. Nevertheless, the
heroic people of Bolivia never ceased to
fight for its liberty, and, on 21 July 1946,
they succeeded in overthrowing the most
powerful ruthless Government of
recent. times. The greatest merit of this
revolution was that it was carried out
without arms, without money, without
any political direction, although the forces
of the Left took the most active part.
The total losses on the people's side during
the revolution were some 450 dead
and 600 wounded ; the President, Villaroel
was executed in the public square, together
with seven of his most fanatical
servants, to satisfy the wrath of the
people.
This hard lesson which the Bolivian
people had to learn serves, we think,
as a warning to all those Governments
who wish to practise dictatorship and
annul human liberties, particularly the
liberties, of' the workers. Now, after
a short-lived provisional
the destiny of my country is governed
by a real democrat, Dr. Enrique Hertzog.
Thus, the people and the working class
of Bolivia have recovered their' full
liberty, and in this atmosphere the trade
unions and federations have made a notable
recovery. Even though this Conference
is discussing questions which are
already covered by Bolivian legislation
and our Magna Charta, we support the
decisions and ask for your approval of
them, as we wish all the workers of the
world to have the same liberties.
The social legislation enjoyed by workers
in my country is of great importance.
Bolivia is one of the countries which
closely follows the technical decisions of
the International Labour Office and is
one which most fully carries out its
recommendations. We have therefore
incorporated in the political Co,nstitution
of the State' a whole chapter on social
Twentieth Sitting 327
matters, which provides for the right of
association and the right to strike, for
protection and insurance, for "trade
union immunity ", so-called because it
guarantees union officials freedom of
action during their term of office and
prohibits them from being dismissed or
interfered with by the authorities.
On the basis of this experience I submitted
a paragraph for Part II, Article 8,
to the Committee, providing for the same
guarantees for union officials in all countries.
TJufortunately the draft was not
fully understood and was not adopted.
In addition to these basic laws, the
workers in my country are protected by
subsidiary laws such as those providing
compensation for years of service, benefit
on compulsory or voluntary retirement,
protection for working mothers, with
sixty days' holiday with pay, maternity
grant, annual bonuses, and the recognition
of past service with retroactive
effect, which is now being debated in
Parliament.
Since the revolution of 21 July the
workers have strengthened their organisations.
Three national central bodies with
some independent unions have a membership
of 200,000 workers. The Trade
Union Confederation of Bolivian workers,
which is the largest and oldest central
organisation, and is affiliated to the
Federation of Latin-American Workers
and to the World Federation of Trade
Unions, has now held its third general
meeting in the last eight years. Another
Congress is already being prepared and. it
is hoped to bring about the unification of
the three central bodies in one single
body, so as to work for the most satisfactory
conditions for the working classes
in Bolivia.
In this modest way my country is
moving along the path of social progress,
and I may say that it is always one of
the first to accept and apply the Conventions
and Recommendations of the
International Labour Organisation. Seeing
that we are so backward in industry,
while at the same time possessing vast
unexplored and unexploited natural
riches, our proletariat is still far too
small in numbers. Though Bolivia is a
mining country, it has no metal industries.
As tin producers, we contribute
something like 40 per cent. of the total
world consumption. This percentage
could be even higher but for the lack of
capital, which would be well placed in
Bolivia, as we have great agricultural
and timber wealth as well as mineral
wealth. Industrial initiative would have
a great future, and we can say without
exaggeration that our country is one of
the greatest reserves of wealth for humanity.
I wish to say once more that I am in
entire agreement with the proposed Resolution
and respectfully ask you to approve
it so that the working classes of the world
may enjoy, in the near future, the fullest
freedom of association without odious
discriminations based on race, colour, or
political or religious belief.
I wish also to express my appreciation
to the Chairman and Workers' Vice-
Chairman of the Committee, Mr. Morse
and Mr. O'Brien, who understood so well
how to guide the work of the Committee
and of the Workers' group.
Mr. V. CYRIL PHELAN (Government
adviser, Canada) — The Canadian Government
delegation proposes to vote in
support of the report, but feels that its
vote should not only be recorded but
should be vocal, in the sense that a brief
statement of our position in regard to the
matter should be made.
The proposal made by our delegation is
not only that w&should vote for the report,
but that in voting for it we should feel
that the Committee and the Conference
have really accomplished something by
the report, and should feel that they are
voting for a report which they agree with
and strongly support in all particulars.
In Canada we are fortunate in being -
one of those countries where freedom of
all sorts is traditional, ana has been for
generations. Our battles for freedom
were won by our forefathers—perhaps
abroad rather than at home—many years
ago. One of the benefits today handed
down by those earlier peoples is the feeling
on the part of Government and on the
part of the public that the workers and
the employers of Canada, as elsewhere,
have every right to organise within the
law. And when I add the qualification
"within the law" that is subjeët only to
very general limitations as to public order.
The Chairman of the Committee has
already been complimented by many
speakers on his handling of the work of
the Committee, and I wish to associate
myself with the words already spoken in
regard to Mr. Morse, as also indeed with
the kindly and well-deserved references
to Sir Guildhaume Myrddin-Evans, whose
wisdom and sagacity saved the Committee
a great deal of effort and certainly
assisted the Chairman of the Committee
in producing the report now before us.
We feel that the present report and
the work of the Committee represents a
very timely and very sound summing up
of the attitude of the I.L.O. as previously.
expressed on the whole matter of freedom
of association. At the same time we feel
that the groundwork this year has been
laid, and well laid, for a Convention next
year, and for deliberations and further
instruments in later years to modify and
clarify the views held by I.L.O. Members
in regard to this fundamental subject.
I would like to point out that many
speakers have made reference to compromises
effected during the course of the
deliberations of the Committee. I think
those representing Governments on the
13
328 Twentieth Sitting
Committee were perhaps in a position to
gauge fairly well the sentiment in all
quarters, and certainly it was my view
that the compromises were not as to
principle, but rather as to the wording or
the expression 'to be given to those
principles. It was heartening to see that
there was no fundamental difference
within the Committee on the general and
over-all question of freedom of association.
That, I submit, is as it should be in
an I.L.O. gathering. The arguments
centred mainly around details and the
wording to be used in giving expression to
the principles, and more particularly to
the details.
I do suggest that with the follow-up
work which will have to be carried out
by the Governing Body and the Office,
with the subsequent consideration to
be given to this subject, the I.L.O.
should in 1948 and in 1949 be able to
effect, in a manner not previously attempted,
a setting forth of its views on
this fundamental subject, securing the
agreement . and concurrence of Governments
for subsequent domestic legislation
•which has hitherto not been so easily
- possible.
The Committee .was disturbed, as one
of the Resolutions recites, by reports that.
'in several countries at the present time
freedom of association' may not be receiving
the recognition in practice that they
feel it should. In some cases it was felt
by. many of us that laws may pay lip-.
service to the right to though in
practice that right' is restricted by ad-
• ministrative prescription. Therefore the
I.L.O.: should—and does, I am sure—
welcome the opportunity it has had this
year to .aecomplish something. substantial
• in opening the way to those nations which
do not' yet give full and practical recognition
to the freedom of association, in
the 'hope . that jts precept may' result in
benefit for all.citizens.
In Canada,. as in many other countries,
we have 1found it hecessary in late years
to embody in law the right to orgariise,
• although previously that right was fairly
generally recognised in practice. We have
• found that embodying this principle in
laws, rules. and regulations has had a
beneficial influence, and certainly gives
verbal effect to the widely held—I might
say the unanimously held—view of our
Governments and our people.
Interpretation: Mr. MOCHAVER
(Workers' adviser, Iran) — I do not wish
to repeat what has been said before, .but
I feel I must express my thanks to the
Chairman of our Committee, and to our
comrade Leon Jouhaux, with whom I
have had the honour to collaborate for
the first time in this Conference.
I should like to come immediately to
one important problem. While agreeing
entirely, in principle, with the report of
the Committee on freedom of association,
the Workers' delegation of Iran thinks it
necessary to make a few :remarks which
•we consider of fundamental importance.
• Mr. Leon J'ouhaux,with his.unparalleled
'eloquence, expounded the question of
freedom of association in 'its historical
and philosophical aspects. We have heard
how the Economic ,and Social Council, at
the request of the World' Federation of
Trade Unions, decided to refer the question
of' freedom of association to this
Organisation, and at the same time
referred part of the question to the
Commission on Human' Rights. If we
try to examine the reasons for this procedure,
we must conclude that in the
view of the Economic and Social Council
the individual liberty of every human
being is linked up with his right freely to
become a member of any trade'union, or
to withdraw from it at will. The Economic
and, Social Council, as far as can,
be seen, was considering the incorporation
of this right in a declaration on
human rights.
The text which we are now discussing
is not, in my opinion', sufficiently clear to
meet. the aims of the Economic and
Social Council. There is still a certain
confusion. 'We must choose clearly
between the different conceptions of
liberty, and decide which is the better,
and we must, state: categorically who is
the person who is tO benefit by . this
freedom ; is it the individual, or is it the
trade union If we grant freedom to the
individual, then we are remaining faithful
to the classic.concèption of liberty, according
to which the 'individual is free to
become a member of, or to withdraw from,
an organisation ,at will ; if, on the other
hand,,, we say that freedoiri of association
is something different, I think we must be
perfectly clear on this point, because
this may lead 'us to. a sort of trade union
monopoly, and a State-controlled or
fascist kind of trade union such as was
defended ten years ago on this rostrum
by 'the Government delegate of Italy.
We who are true to the classical concept
of freedom think that freedom of association
is an attribute of the individual,
who must, irrespective of race, colour,
religion, political or other opinions, be
absolutely free to join or not to join a
trade union. If the amendment of the
Workers' group were accepted, I think
that most of these difficulties would be
overcome. We must give some definition,
and it must be a clear definition, of freedom
of association; and we must fix the
limits of that freedom because mere freedom
as such might well lead us to anarchy.
If liberty were taken to mean that every
man could do exactly what he wished,
that would result in chaos. Therefore we
must define liberty and fix its limits;
)5ut in the proposed Resolution before us,
these limits have not been fixed.
Another point which is not without
importance is that we are going to
Twentieth Sitting 329
recognise freedom of association for all
individuals without distinction as to•
nationality. The immediate consequence
of that principle is that trade unions
must have no political bias, because in
many countries nationals and foreigners
alike are admitted to employment, and
consequently all these workers• will be
free to. become members of trade unions.
There are in fact trade unions the majority
of whose members are nationals, bñt the
remainder are foreigners. In our case, many
of our workers are not of Iranian nationality,
but come from India or Iraq; these
have formed a trade union. If this trade
union adopts a political tone, what happens
l The members of this union have
no political rights, any more than a
foreign worker in France has the right to
vote. How can a union, formed of individuals
without political rights, adopt a
political tone ? If we are not very careful,
I am afraid that, instead of granting
freedom of association, we are going
to destroy it, because in such cases
it will no longer exist.
We desire freedom for the individual,
without distinction of race or
but what happens if a union, composed of
individuals without political rights, is
granted political rights, can take political
action, and has a voice in national politics
? Either the union represents its
members, or it does not. In the first
case, it can have no political rights. We
must take a choice, and take a very
definite stand on this question of principle.
It would be a good thing if the
Conference . and the Office took note of
this statement and made a clear definition
of the fundamental principles on
which freedom of association is based,
and at the same time determined its
limits, as was advocated by Professor
Kelsen in his well-known book on demo-
• cracy..
I should like to add just one word.
In our country we have had a rather
unfortunate experience. It is a very young
country as far as the trade union movement
is concerned. In 1942 trade union
organisations were established, and very
soon adopted the political views of an
extremist party. This party, and the
unions with it, fell out of favour, because
it was in league with the separatist
movement in Azerbaidjan. All the
workers resigned and formed new trade
unions. There is now in Iran a general
federation of more than seventy-one
unions with no political tone. It is this
experience that has led me to make this
statement. The workers of Iran do not,
of course, claim to point out the way to
workers in other countries. I am merely
explaining what happened to them over
a period of five years.
In conclusion, I would add that the
principles to which I have drawn attention
here are fundamental and condition
the economic peace of the world. We
know that economic peace conditions
social peace and political peace. Since
the beginning of the last world war, economic
peace has been profoundly disturbed,
and the continuance of disorder adds to
therisk of economic and consequently. of
political disputes, particularly in the
East. If we are to establish and maintain
peace, the first thing is to re-establish
economic order on the basis of complete
freedom of association. That is clearly a
difficult task, but the risk which humanity
is now running justifies the greatest
efforts. It is our most ardent wish that
the International Labour Organisation
should have the honour of showing the
world the way which will lead to peace
and everlasting democracy.
(The President takes the Chair.)
The PRESIDENT — The report of the
Committee on freedom of association,
together with: the Resolutions. contained
in the report, will now be put to the vote.
The first Resolution concerns freedom of
association and protection of the right to
organise and to bargain collectively. If
there are no objections, I shall, consider
it adopted.
(The Resolution is adopted.)
The PRESIDENT — A vote will now
be taken on the recommended list of
points which might form a basis of discussion
by the Conference. If there are
no objections, I shall consider the list
adopted.
• (The List of Points is adopted.)
The PRESIDENT — The third Resolution
concerns international machinery
for safeguarding freedom of association.
If there no objections, I shall consider
it adopted, and, together with it, the
report as a whole.
(The Resolution and the report as a
whole are adopted.)
The PRESIDENT I wish to express
the thanks of the Conference to the
Chairman and to the two Reporters of
the Committee. Many speakers have
already complimented them, but I consider
that the thanks of the Conference
should be conveyed officially now that
we have adopted a report of such great
importance.
CLOSING SPEECHES
Interpretation: Mr. SERRA ROJAS
(Government delegate, Mexico; Chairman
of the Government group) — In the name
of the Government group it gives me
great pleasure to express our pleasure at
Document No. 152
ILC, 30th Session, 1947, Record of Proceedings,
Appendix X, Freedom of Association and Industrial
Relations, pp. 561–578
INTERNATIONAL LABOUR
CoNFERENCE
THIRTIETH
GENEVA,
SESSION
1947
RECORD OF PROCEEDINGS
LABOUR OFFICE
GENEVA, 1948
005576
09616
INTERNATIONAL
Appendix X : Freedom of Association 561
APPENDIX 'X
Seventh Item on the Agenda : Freedom of Association
and Industrial Relations
(1) Text of proposed Resolution concerning
Freedom of Association and
Industrial Relations, prepared by the
International Labour Office.
Whereas the Preamble to the Constitution
of the International Labour
Organisation expressly declares "recognition
of the principle of freedom
of association " to he a means of
improving conditions of labour and
of establishing peace; and
Whereas the Declaration of Philadelphia
reaffirms that "freedom rof
expression and of association are
essential to sustained progress " and
recognises the solemn obligation of
the International Labour Organisation
to further among the nations
of the world programmes which will
achieve, among other things : "the
effective recognition of the right of
collective bargaining, the co-operation
of management and labour in
the continuous improvement of productive
efficiency, and the collaboration
of workers and employers in
the preparation and application of
social and economic measures"; and
Whereas standards of living, normal
functioning of national economy and
social and economic stability depend
to a considerable degree on a properly
organised system of industrial
relations founded on the recognition
of freedom of association ; and
Whereas, moreover, in many countries,
employers' and workers' organisations
have been associated with
the preparation and application of
economic and social measures ; and
Whereas the General International
Labour Conference, the regional conferences
of the American States
Members of the International Labour
Organisation and the various industrial
committees have, in numerous
iResolutions, called the attention of
the States Members of the International
Labour Organisation to the
need for establishing an appropriate
system of industrial relations founded
on the guarantee of the principle of
freedom -of association,
The General Conference of the International
Labour Organisation,
Having been convened at Geneva by
the Governing Body of the International
Labour Office, and having
met in its Thirtieth Session on
19 June 1947, -
adopts, this day of of
the year one thousand nine hundred and
forty-seven, the following Resolution
I. FREEDOM OF ASsOCIATIoN
1. Employers and workers, public or
private, without distinction as to occupation,
sex, colour, race, creed or
nationality, should have the inviolable
right to establish organisations of their
own choosing without previous authorisation.
2. Employers' and workers' organisations
should have the right to draw up
their constitutions and rules, to organise
their administration and activities and
to formulate their programmes without
interference on the part of the public
authorities.
3. Employers' and workers' organisations
should not be liable to be dissolved
by administrative authority.
4. Employers' and workers' organisations
should have the right to establish
federations and confederations as well as
the right of affiliation with international
organisations of employers and workers.
5. The guarantees defined in Paragraphs
1, 2 and 3 herein with regard
to the establishment, functioning and
dissolution of employers' and workers'
organisations should apply to federations
and confederations of such organisations.
562 Appendix X: Freedom ol Association
6. The acquisition of special privileges
by employers' and wage-earners' organisations
(as, for example, the acquisition
of legal personality) should not be made
subject to conditions of such a character
as to restrict freedom of association as
hereinbefore defined.
II. PROTECTION OF THE RIGHT
TO ORGANISE AND TO BARGAIN
COLLECTIVELY
7. The central organisations of employers
and workers should agree to
recognise each other as the authorised
representatives of the interests of employers
and workers, and should undertake
mutually to respect the exercise of
the right of association.
8. (1) In the absence of agreement
between the central organisations of employers
and workers, appropriate regulations
should be prescribed to guarantee —
(a) the exercise' of the right of association
by the workers by measures
designed to prevent any acts on'the
part of the employer or of his agents
with the object of —
(1) making.the employment of the
worker' conditional on his not
joining a trade union or on his
withdrawing from a trade union
of which he is a member;
(ii) prejudicing a worker because he
is a member or agent or official
of a trade union;
(iii) dismissing a worker because he
is a member or agent or official
of a trade union;
(b) the exercise of the right of association
by workers' organisations should
be guaranteed by measures designed
to prevent any acts on the part of the
employer or employers' organisations
or their agents with the object of —
(i) furthering the establishment of
trade unions under the domination
of the employer;
(ii) interfering with the formation or
administration of a trade union
or contributing financial or other
support to it
(iii) refusing to recognise trade unions
or to bargain collectively with
them for the purpose of concluding
collective agreements.
(2) It should be understood, however,
that a provision in a freely concluded collective
agreement making compulsory
membership of a certain trade union a
condition precedent to employment or a
condition of continued employment does
not fall within the terms of this Resolution.
9. Appropriate agencies should be
established for the purpose of ensuring
the protection of the right of association
as defined in Paragraph 8 herein.
• III. COLLECTIVE AGREEMENTS
10. Employers' and workers' Organisations,
appreciating the great value of
voluntary negotiation, should undertake
to determine wages and other conditions
of employment by collective agreements.
II. Appropriate agencies (as, for
example, joint committees or labour relations
boards) should be established, where
necessary, to lend their good offices to
employers' and workers' organisations to
aid in the conclusion of collective agreements.
12. The provisions of a collective agreement
should override the terms contained
in individual contracts concluded between
employers and workers bouhd by the collective
agreement, except in so far as the
said terms are more favourable to the
workers than the provisions of the collective
agreement.
13. The provisions of a collective agreement
should apply to all the workers in
the service of the employer or employers
bound by the collective agreement, even
though such workers may not be members
of the workers' organisation party to such
collective agreement.
14. (1) Where voluntarily concluded
collective agreements bind the majority
of the workers and the majority of the
employers (who should also employ the
majority of the workers) coming within
their scope, appropriate measures should
be taken to extend the application of such
collective agreements to all the employers
and workers whose activities are carried
on within the industrial and territorial
scope of the collective agreements.
(2) The employers and workers to
whom the terms of a collective agreement
are so made applicable should be authorised
to submit their' observations and
objections beforehand to the competent
authorities.
15. Disputes arising as to the interpretation
or application• of an existing
collective agreement should be settled by
a conciliation and arbitration procedure
mutually agreed upon by the parties to the
collective agreement.
16. Labour inspectors should be competent
to supervise the application of collective
agreements in all establishments
included within the scope of such agreements.
IV. VOLUNTARY CONCILIATION'
AND ARBITRATION
Voluntary Conciliation
17. Regional and national conciliation
bodies should be established to lend their
assistance to the parties for the purpose
of preventing or settling labour disputes.
18. The employers' and workers' organisations
concerned in the disputes should
Appendix X : Freedom of Association 563
be associated with each stage in the procedure.
19. The conciliation procedure should
be free and expeditious ; the time allowed
for the appearance of the parties, the
hearing of witnesses and production of
proofs should be prescribed in advance
and reduced to a minimum.
20. Recourse to conciliation procedure
should be voluntary, but once a dispute
has been referred to conciliation by the
consent of all the parties concerned, the
parties should be obliged to refrain from
strike or lockout during the procedure of
conciliation.
21. The parties should retain the right
to accept or to reject the recommendations
of conciliation bodies, but, once a
recommendation has been accepted, it
should become binding on the parties.
22. Agreements reached by the parties
during the procedure, as well as such
recommendations by the conciliation bodies
as may be accepted by the parties,
should have the same legal validity as
voluntarily concluded collective agreements.
Voluntary Arbitration
23. Voluntary arbitration machinery
should be established to which the parties
may have recourse, either at the outset
or after conciliation procedure has failed.
24. Recourse to arbitration should be
voluntary, but, once a dispute has been
referred to arbitration by the consent of
all the parties concerned, the parties
should be obliged to accept the award.
V. Co-OPERATION BETWEEN THE PUBLIC
AUTHORITIES AND EMPLOYERS' AND
• WORKERS' ORGANISATIONS
25. In all public or private establishments
where a given number of persons
are employed, agencies representing the
staff (as, for instance, works committees,
production committees, staff delegates,
etc.) should be set up, either by agreement
between the parties or by legislation,
for the purpose of co-operating with
the management of such establishments
in the progressive betterment of the working
and living conditions of the staff and
in the continuous improvement of productive
efficiency.
26. In all branches of industry and
commerce, joint committees of employers
and workers should be established, either
by agreement between the employers' and
workers' organisations concerned or by
legislation, for the purpose of co-operating
in the solution of social, technical or
economic problems affecting such industry
or commerce.
27. The States Members of the International
Labour Organisation shOuld consider
the desirability of establishing machinery
for co-operation at the national
level (such as national economic councils
or national labour councils, etc.) for the
purpose of giving advice to the competent
authorities with regard to the preparation
and application of economic and social
measures.
(2) List of Points which mi9ht Form
a Basis for Discussion by the Conference,
prepared by the International
Labour Office.
DESIRABILITY
OF INTERNATIONAL REGULATION
AND FORMS OF SUCH REGULATION
1. Desirability of adopting international
regulations concerning:
A. Freedom of association;
B. Protection of the right to organise
and to bargain collectively;
C. Collective agreements;
in the form of a proposed Convention.
2. Desirability of drawing up proposed
separate Conventions concerning:
A. Freedom of association;
B. Protection of the right to organise and
• to bargain collectively;
C. Collective agreements.
3. Desirability of drawing up, in addition,
one or several Recommendations
concerning voluntary conciliation and
arbitration.
A. FREEDOM OF ASSOCIATION
4. Need to provide that employers
and workers, public or private, without
distinction as to occupation, sex, colour,
race, creed or nationality, should have the
right to establish organisations of their
own choosing without previous authorisation.
5. Need to provide that employers'
and workers' organisations should have
the right to draw up their constitutions
and rules, to organise their administration
and activities and to formulate their
programmes without interference on the
part of the public authorities.
6. Need to stipulate that employers'
and workers' organisations should not be
liable to be dissolved by administrative
authority.
7. Need to recognise the right of
employers' and workers' organisations to
establish federations and ëonfederations
of such organisations and to affiliate with
international organisations of employers
arid workers.
8. Need to stipulate that the
tees defined by paragraphs 4, 5 and 6 with
regard to the establishment, functioning
and dissolution of employers' and workers'
organisations should apply to federations
and confederations of such organisations.
564 AppendIx X Freedom of Association
9. Need to stipulate that the acquisition
of special privileges by employers'
and workers' organisations (as, for example,
the acquisition of legal personality)
may not be made subject to conditions
of such character as to restrict freedom
of association as hereinbefore defined.
B. PRoTECTIoN OFTHE RIGHT
TO ORGANISE AND TO BARGAIN
COLLECTIVELY
10. Need tO provide that the exercise
of the right of association of the workers
and of, workers' organisations should be
guaranteed, either by means of agreements
between the central organisations
of employers and workers or by appropriate
legislation.
ii. Need to provide that in the
absence of agreement between the central
organisations of employers and workers,
appropriate regulations should be prescribed
to guarantee —
(a) the exercise of the right of association
by the workers by measures designed
to prevent any acts on the part of the
employer or of his agents with the
object of —
1. making the employment of the worker
conditional on his not joining a trade
union or on his withdrawing from a
trade union of which he is a member;
2. prejudicing a worker because he is a
member or agent or official of a trade
union;
3. dismissing a worker because he is a
member or agent or official of a trade
union;
(b) the exercise of the right of association
by workers' organisations by measures
designed to prevent any acts on the
part of the employer or employers' organor
their agents with the object
of —
1. furthering the establishment of trade
unions under the domination of the
employer
2. interfering with the formation or
administration of a trade, union or
contributing financial or other support
to it;
3. refusing to recognise trade unions or -
to bargain collectively with them for
the purpose of concluding collective
agreements.
12. Desirability of providing that any
provision in a collective agreement freely
concluded between representative organisations
of employers and workers making
compulsory membership of a certain
trade union a condition precedent to
employment or a condition of continued
employment does not fall within the terms
of 11 above. -
13. Desirablity of providing that
appropriate agencies should be established
for the purpose of ensuring the protection
of the right of association as defined above.
C. COLLECTIVE AGREEMENTS
14. Desirability of providing that
appropriate agencies (as, for example,
joint committees or labour relations
boards) should be established to lend their
good offices to employers' and workers'
organisations to aid in the conclusion of
collective agreements.
15. Need to define the collective agreement
as being an agreement relating to
conditions of employment concluded between
one or several workers' organisations
on the one hand, one or several employers'
associations, or any other group of employers,
or one or several employers
individually, on the other hand.
16. Need to stipulate that the provisions
of a collective agreement should
override the terms contained in individual
contracts concluded between employers
and workers bound by the collective
agreement, except in so far as the said
terms are more favourable to the workers
than the provisions of the collective
agreement.
17. Need to stipulate that the provisions
of a collective agreement should
apply to all the workers in the service of
the employer or employers bound by the
collective agreement, even though such
workers may not be members of the
workers' organisation, party to such
collective agreement.
18. Desirability of providing that
voluntarily concluded collective agreements,
binding the majority of the
workers arid the majority of the employers
(who should also employ the majority of
the workers) may be extended to apply
to all the employers and workers whose
activities are carried on within the industrial
and territorial scope of the collective
agreement as determined by the contracting
parties.
19. Desirability of providing that the
employers and workers to whom the terms
of a collective agreement are so made
applicable should be authorised to submit
their observations and objections beforehand
to the competent authorities.
20. Desirability of providing that disputes
arising as to the interpretation or
application of a collective agreement
should be referred to a procedure for
settlement mutually agreed upon by the
parties to the collective agreement and,
in the event of the failure of this procedure,
should be referred to a system of compulsory
arbitration or to an appropriate
judicial procedure.
Appendix X : Freedom of Association 565
21. Desirability of providing that
labour inspectors should be competent
to supervise the application of collective
agreements in all establishments included
within the field of application of such
agreements.
D. CoNCILIATIoN AND ARBITRATION
Voluntary Conciliation
22. Desirability of recommending the
establishment of regional and national
conciliation bodies to lend their assistance
to the parties for the purpose of preventing
or settling 'labour disputes.
23. Desirability of providing that employers'
and workers' organisations concerned
in the disputes should be associated
with each stage in the
24. Desirability of providing that the
conciliation procedure should be free and
expeditious and that, accordingly, the
time allowed for the appearance of the
parties, the hearing of witnesses and
the production of proofs should be prescribed
in advance and reduced to a
minimum.
25. Desirability of providing that
recourse to conciliation procedure should
be voluntary; but that once a dispute
has been referred to conciliation by the
consent of all the parties concerned, the
parties should be obliged to refrain from
strike or lockout during the procedure of
conciliation.
26. Desirability of providing that the
parties should retain the right to accept
or to reject 'the recommendations
conciliation bodies ; but that, once a
recommendation has been accepted, it
should become binding on parties.
27. Desirability of providing that
agreements reached by the parties during
the procedure, as well as the recommendations
of the conciliation bodies whiCh
are accepted by the parties, should have
the same legal validity as voluntarily
concluded, collective agreements.
TToluntary Arbitration
28. Desirability of recommending the
establishment of a system of voluntary
arbitration ,to which the parties might
have recourse, either at the outset or after
conciliation procedure has failed.
29. Desirability of providing that
recourse to arbitration should be voluntary,
but that, once a dispute has been
referred to arbitration by the consent of
all the parties concerned, the parties
should be obliged to accept the award.
E. FEDERAL STATES
30. Desirability of including in the
Conventions concerning freedom of association,
protection of the right to organisc
and to bargain collectively, and collective
agreements, appropriate provisions to
facilitate the adherence to such Conventions
of federal States.
(3) Report of the Committee on Freedom
of Association. 1
The Committee on freedom of association
and industrial relations, appointed
by the Conference at its Fourth
bitting, on Zo June was composed
of 88 members (44 Governm'ent members,
22 Employers' members, 22 Workers'
members). The Committee held fifteen
sittings.
The Officers of the Committee were
appointed as follows
Chairman: Mr. Morse, Government
member, United States of America;
Vice-Chairmen: Mr. Taylor, Employers'
member, Canada, and Mr. O'Brien, Workers'
member, Australia.
Representative of the Secretary- General:
Mr. Rens,. assisted by Mr. Bessling, Mr.
Price and Mr. Herz.
Mr. Stanczyk, representing the United
Nations, attended the meetings of the
Committee.
• The Drafting Committee of the Committee
consisted, in addition to the
Officers of the Committee, of Sir Guildhaume
Myrddin-Evans, United Kingdom•
Government member, Mr. Finet, Belgian
Workers' member, assisted by Mr. Bravo,
Venezuelan Workers' member, and Mr.
O'Brien, Irish Employers' member.
'The Riddell system of voting was
applied, that is to say, each Government
member had one vote and each Workers'
member and each Employers' 'member
had two votes.
The Conference will remember that it
was at the request of the Economic and
Social Council of the United Nations that
the problem of freedom of association
and industrial relations came before the
International Labour Organisation. The
Economic and Social Council took this
decision in accordance with the terms of
the Agreement concluded between the
United Nations and the International
Labour Organisation, which was formally
ratified both by the Assembly of the
United Nations and by the International
Labour Conference.
Article III of that Agreement provides
that "Subject to such preliminary consultation
as may be necessary, the International
Labour Organisation shall include
on the agenda of the Governing
Body items proposed to it by the United
Nations. Similarly, the Council and its
commissions and the Trusteeship Council
1 See Second Part, pp. 299 and 322.
Reporter
member,
Mr. Cornil,
Mr. Jouhaux, Workers'
France; Deputy Reporter:
Employers' member, Belgium.
566 AppendIx X Freedom of Association
shall include on their agenda items proposed
by the International Labour Organisation".
In view of the that this was the
first time that the Agreement had become
applicable, it is important to recall
briefly the circumstances under which the
problem of freedom of association was
first brought before the Economic and
Social Council and then transmitted to
the International Labour Organisation.
It was at its Fourth Session (February-
March 1947) that the Economic and
Social Council of the United Nations had
been called upon to consider the question
of " guarantees for the exercise and
development of trade union rights "which
had been placed before it by the
World Federation of Trade Unions. The
American Federation of Labor, also, had
submitted to the Economic and Social
Council a memorandum on the same
question. These two documents, which
the Office took fully into account when
preparing the texts which it submitted to
the Conference, were set forth in full as
an Appendix to the Report prepared by
the Office.
It is desirable, however, to recall very
shortly the actual circumstances which
gave rise to such a procedure on the part
of the American Federation of Labor and
the World Federation of Trade Unions.
The World Federation of Trade Unions
itself refers to them in the memorandum
which it submitted to the Economic and
Social Council. It declares that
Ever since the end of the Second World War'
one notes that certain interventions tend, in
various countries, to destroy the very foundations
of trade union rights. The means employed to
hinder the progress of the trade union movement
are principally as follows : the large-scale dismissal
of trade unionist workers, the arrest of
active trade unionist and trade union leaders, the
occupation of trade union premises, the revocation
by the Government of bodies democratically
chosen by the trade unions, the nomination of
trade union leaders by the Government, the
prohibition of all coloured or native workers
against forming occupational organisations, the
prohibition on occupational organisations against
forming any federal occupational or inter-occupational
organisations, whether locally, nationally,
or internationally, etc.
Such attacks on trade union rights can demonstrate
the persistence in certain countries of
nefarious ideologies which have placed the world
in deadly peril. The respect for trade union rights
as an element of peace and co-operation between
the peoples should be assured on the international
level.
Thus, the World Federation of Trade
Unions, like the American Federation
of Labor, had referred to the Economic
and Social Council a concrete problem
which required a solution on the international
level.
By setting in motion the machinery
of international regulation which is appropriate
to it—that is to say, by adopting
an international labour Convention
on freedom of association and industrial
relations—the Labour Organisation
is without doubt best able to
offer to the workers this safeguard of
an international character. In fact,
countries which had ratified a Convention
on freedom of association could no
longer question this right by means of
amendments to their internal legislation.
An international Convention is well understood
as being nothing less than a veritable
international treaty binding on all the
parties.
The Resolution adopted by the Economic
and Social Council reads as follows:
The Economic and Social Council,
Having taken note of the items regarding trade
union rights placed on its agenda at the request
of the World Federation of Trade Unions, and the
memoranda submitted by the World Federation
of Trade Unions and the American Federation of
Labor,
Resolves to transmit these documents to the
International Labour Organisation with a request
that the question may be placed upon the agenda
of its next session and that a report be sent to
the Economic and Social Council for its consideration
at the next meeting of the Council,
The Economic and Social Council,
Further resolves to transmit the documents to
the Commission on Human Rights in order that
it may consider those aspects of the subject which
might appropriately form part of the Bill or
Declaration on Human Rights.
Following the communication of this
Resolution, the Governing Body of the
International Labour Office, having been
consulted by telegraph by the Director-
General, decided to place the question
of freedom of association and industrial
relations on the agenda of the 30th Session
of the Conference.
In the short time available to it, the
Office prepared a report on the general
question of freedom of association and
industrial relations.
The first part of the report relates to
the history of the problem of freedom
of association and industrial relations
before the International Labour Organisation.
The report begins by recalling
that the Constitution of the International
Labour Organisation clearly underlines
its competence in this matter. Indeed,
the preamble to the Constitution of the
International Labour Organisation expressly
declares "recognition of the principle
of freedom of association" to be
one of the means of improving the conditions
of the workers and of securing
peace, and Article 41, paragraph 2,
includes among the principles of special
and urgent importance "the right of
association for all lawful purposes by the
employed as well as by the employers ".
The Declaration of Philadelphia reaffirms
these same principles with particular
emphasis. It speéifies iii its first
article, as one of the fundamental principles
on which the International Labour
Organisation is based, that "freedom of
expression and of association are essential
to sustained progress ". And among the
programmes which it is the solemn obligation
of the International Labour OrganAppendix
X Freedom of Association 567
isation to further, the Declaration refers,
in Article III, paragraph (e), to "the
effective recognition of the right of
collective bargaining, the co-operation of
management and labour in the continuous
improvement of productive efficiency, and
the collaboration of workers and employers
in the preparation and application
of social and economic measures ".
The report goes on to refer to the
action taken in the interval between the
two world wars by the International
Labour Organisation to secure the international
regulation of the right of occupational
association. The report notes
in this connection that if, in spite of all
these efforts, it has not been possible
to reach agreement in the period between
the two world wars, this has been due
solely to political reasons which, as the
Director of the International Labour
Office declared in 1927, have paralysed
the action of the Governing Body and
of the International Labour Conference.
The second part of the report contains
a survey of legislation and practice with
reference to freedom of association, the
protection of the right to organise and
to bargain collectively, collective agreements,
conciliation and arbitration, and
co-operation between the public authorities
and employers' and workers' organisations
at the level of the undertaking, at
the level of the industry and at the
national level.
By adopting this broad conception of
the problem of association as a whole,
the Office intended to call the attention
of the Conference to the fact that, by
reason of the structural changes which
have come about in a number of countries,
occupational associations have no
longer merely to defend material interests,
but have also to assume their share of
responsibility in the direction of national
economy. And it is this wider cOnception
of the part to be played by the organised
movements which has inspired the texts
submitted by the Office to the Conference,
the scope of which was analysed in the
third part of the report.
These texts included not only a proposed
Resolution concerning : (1) freedom
of association, (2) protection of the right
to organise and to bargain collectively,
(3) collective agreements, (4) conciliation
and arbitration, (5) co-operation between
the public authorities and employers' and
workers' organisations, but also a List of
Points covering the first four heads
mentioned above.
QUEsTIoNs OF PRJNCIPLE CONSIDERED
BY THE COMMITTEE
In the course of the discussions certain
questions of principle which are of fundamental
importance emerged, on which
members of the Committee stated their
views. These questions were dealt with
in the order below.
1. Competence of the International
- Organisation
When opening the discussion, the Chairman
of the Committee indicated to a
certain extent the general lines of the
discussions which were to be developed
by the representatives of the three.
groups. tie oegan calling tue attention
of the members of the Committee to the
great responsibifity with which they had
been charged and to the great opportunity
which had been presented to them.
The International Labour Organisation,
he declared, was one of the essential
parts of the machinery of the United
Nations, created after the end of the
Second World War for the purpose of
ensuring international co-operation in
every field. It had been the first specialised
agency to enter into relationship
with the United Nations for the
co-operative attainment of the objectives
set forth in the Declaration of Philadelphia,
as it had also been the first
agency to which the Economic and Social
Council had referred a problem. for consideration
and decision.
The problem of freedom of association
and industrial relations was not only
within the competence of the International
Labour Organisation, but the
latter, by reason of its tripartite character,
• was particularly well fitted to find an
appropriate solution for this problem.
Indeed, the three parties associated in
the work of the International Labour
Organisation—Governments, employers
and workers—were most particularly
concerned in giving a definition to the
principles which must form the very
basis of their activities, both on the
national and on the international levels.
The United Kingdom Government
member expressed satisfaction that the
question of freedom of association and
industrial relations—" a question which
was perhaps the most important which
the Conference had ever considered
had been submitted to the International
Labour Organisation.
Referring to the circumstances under
which this question had been raised, first
before the Economic and Social Council,
the speaker declared that the whole
future of the International Labour Organisation
and its relative status with
regard to the Economic and Social Council
might be seriously affected by them. He
emphasised, in this connection, the fact
that the International Labour Organisation
was the only international agency
which, by virtue of its Constitution, was
able to draw up international instruments
—international labour Conventions—
which laid solemn and specific obligations
on the States which ratified them, and
568 Appendix X : Freedom of Association
in the drawing up of which representatives
of employers and workers, together
with representatives of Governments,
could take an active part and so help to
determine international labour law not
merely by their speeches, but their
votes.
The speaker addressed an urgent request
to the representatives of the dif
ferent groups not to neglect such a privilege
and not to sacrifice the independence
and autonomy of the International Labour
Organisation in a field which was properly
its own. The International Labour
Organisation alone, and not some other
body, should deal with this question and
prove that it was capable of finding an
appropriate solution for it.
For his part, the French Workers'
member reminded the Committee that
the Economic and Social Council, by
referring this question to the International
Labour Organisation in pursuance of the
Agreement concluded between the United
Nations and the International Labour
Organisation, had itself formally recognised
the competence of the International
Labour Organisation; The task of the
International Labour Organisation, therefore,
was to draw up international labour
Conventions on the principles contained
in the proposed Resolution and the List
of Points. If the Committee contented
itself with submitting a report to the
Economic and Social Council, it would
be surrendering jurisdiction on a question
which was directly within its competence.
The Economic and Social Council could
not adopt Conventions of this kind; and,
even if it attempted to do so,. it did not.
possess the necessary machinery for supervision
to ensure the application of
such a Convention. On the other hand,
the International Labour Organisation,
by its very Constitution, did possess such
machinery for supervision and was, for
that very reason, able to ensure the
effective application of international
labour Conventions.
Finally, the Canadian Employers' mem-.
ber, speaking on behalf of all the Employers'
members of the Committee,
declared that the International Labour
Organisation was fully competent to deal
with the problem of the right of occupational
association (to the exclusion of the
problem of the general right of association
considered as a fundamental right of
mankind) and the related problems of
labour-management relations.
The Committee recognised that the
International Labour Organisation was
fully competent to deal with the questions
of freedom of association and industrial
relations.
The Ozechoslovak Government member
emphasised the need for full and complete
collaboration between the International
Labour Organisation and the United
NatiOns.
2. International Regulation
The second question of principle on
which the Committee had to take a decision
was that of determining what effect
should be given to the proposals laid
before it by the Office.
The Workers' members of the Committee
particularly urged the necessity
for prompt international regulation, both
as regards the problem of freedom of
association in the strict sense of the term
and as regards industrial relations. They
pointed out to the Committee the fact
that in several countries there still existed
restrictions on freedom of association
which could be removed only by international
regulation.
They proposed, therefore, that the
Committee should not confine itself to the
adoption of the proposed Resolution, but
should also adopt the List of Points, in
order that the 1948 Conference should be
able to adopt Conventions and Recommendations
on all those questions which
appeared to it to be suitable for imniediate
international regulation.
The position first taken up by the
Employers' members was that it was expedient
to adopt a Resolution based on
the discussion of the Preamble and of
Part I of the proposed Resolution, and to
place the question of freedom of association
on the agenda of the 1948 Conference
for a first discussion, with a view to the
adoption of a Convention at the following
session of the Conference. The other
parts of the proposed Resolution might,
so far as time permitted, form the
subject of a general discussion and report.
The Government members of the United
States, France, the United Kingdom,
Argentina, Belgium, Colombia, India, etc.,
all declared themselves to be in favour of
the international regulation of the question
of freedom of association and of
certain.aspects of the problem of industrial
relations. While a satisfactory solution
of the question of industrial relations did
not, ipso facto, imply industrial peace
and social justice, as the Indian Government
member declared, the failure to
find such a solution, on the other hand,
would constitute a permanent threat to
economic and social stability.
The United Kingdom Government
member thought, for his part, that it
was desirable first of all to reach agreement
on certain basic principles and then
to decide whether those principles should
take the form of a Resolution or of a
report, or a combination of both.
Finally, it would be necessary to decide
whether these principles might be included
in the texts of one or several Conventions
and, if so, which of those texts might be
suitable to be included in a Convention
to he adopted next year, and which could
more appropriatel.y be considered for Conventions
to be adopted in future years.
The Committee reached agreement on
a common programme of
Appendix X : Freedom of Association 569
regulation the extent of which will be
explained in the Conclusions.
3. International Machinery for Supervising
Freedom of Association
The Government members of France,
Poland and Czechoslovakia, declaring
themselves to be in complete agreement
with the proposal submitted to the Economic
and Social Council by the World
Federation of Trade Unions, particularly
called the attention of the members of
the Committee to the suggestion made
in the Federation's Resolution, which proposed
the establishment of a Committee
for Trade Union Bights, with the task
of exercising permanent supervision over
respect for trade union rights.
The Belgian Government member, while
approving this proposal, thought nevertheless
that any committee set up to
supervise respect for trade union rights
should come directly under the International
Labour Organisation. On the
other hand, the Polish and Czechoslovak
Government members expressed the view
that such a body would be able to act
with greater efficiency if it was attached
to the Economic and Social Council.
The United Kingdom Government
member pointed out to the Committee
the practical difficulties which would be
encountered by a committee of this
kind by reason of the fact that States,
as experience had shown, were hardly
inclinedto surrender part of their national
sovereignty.
In order to give effect to the proposal
made by the World Federation of Trade
Unions, the Workers' members had proposed
the inclusion in the proposed
Resolution on freedom of association of
a new clause in the following terms
Adequate permanent international machinery
should be set up to safeguard respect for freedom
of association.
After a long exchange of views, the Committee
unanimously adopted a Resolution
submitted by the United Kingdom
Government member inviting the Governing
Body of the International Labour
Office to consider the question of the
establishment of international machinery
for supervising freedom of association
under all its aspects and to report to the
Conference at its 31st Session in 1948.
The text of this Resolution is contained
in the chapter on Conclusions.
II
DISCUSSION OF THE PROPOSED RESOLUTION
AND LIST OF POINTS
Proposed Resolution Preamble
The Office text of the Preamble was as
follows
Whereas the Preamble to the Constitution of the
International Labour Organisation expressly
declares " recognition of the principle of freedom
of association " to he a means of improving
conditions of labour and of establishing peace;
and
Whereas the Declaration of Philadelphia reaffirms
that "freedom of expression and of association
are essential to sustained progress " and recognises
the solemn obligation of the International
Labour Organisation to further among the
nations of the world programmes which will
achieve, among other things : "the effective
recognition of the right of collective bargaining,
the co-operation of management and labour in
the continuous improvement of productive
efficiency, and the collaboration of workers and
employers in the preparation and application
of social and economic measures" ; and
Whereas standards of living, normal functioning
of national economy and social and economic
stability depend to a considerable degree on a
properly organised system of industrial relations
founded on the recognition of freedoni of association;
and -
Whereas, moreover, in many countries, employers'
and workers' organisations have been associated
with the preparation and application of econoithc
and social measures; and
Whereas the General Labour Conference, the
Regional Conferences of the American States
Members of the International Labour Organisation
and the various Industrial Committees
have, in numerous Resolutions, called the attention
of the States Members of the International
Labour Organisation to the need for establishing
an appropriate system of industrial relations
founded on the guarantee of the principle of
freedom of association,
The General Conference of the International
Labour Organisation,
Having been convened at Geneva by the Governing
Body of the International Labour Office.
and having met in its Thirtieth Session oti
19 June 1947,
adopts, this day of of the
year one thousand nine hundred and forty-seven,
the following Resolution
The Employers' members submitted the
three following amendments to the Preamble
: (1) to substitute the word " develop
" for the word " orgañise "in the
third paragraph ; (2) to substitute the
word "developing" for the word "establishing
" in the fifth paragraph; (3) to
add the following passage from the
Declaration of Philadelphia at the end
of the second paragraph:
and affirms that " the principles set forth in this
Declaration are fully applicable to all peoples
everywhere and that, while the manner of their
application must be determined with due regard
to the stage of social and economic development
reached by each people, their progressive application
to peoples who are still dependent, as well
as to those who have already achieved self -government,
is a matter of concern to the whole civilised
world
The first two amendments were withdrawn.
With regard to the third amendment,
the South African Employers' member
considered that it was an essential adclition
to the Resolution, which might otherwise
appear to be applicable only to those
countries which had reached a fair stage
of development in industrial relations.
The South African Government member
also supported the amendment, since it
would enable his Government to apply
the principles of the Declaration progress570
Appendix X : Freedom ot Association
ively, that being the only possibility for a
country in the unique position of the
Union. The United Kingdom Workers'
member stated that the Workers' members
would not oppose the amendment,
but would reserve the right to direct their
endeavours to seeing that the text of the
Resolution, rather than the Preamble,
should be applied.
The amendment, and the Preamble as
a whole, as amended, were adopted.
Proposed Resolution. I. Freedom of
Association
1. Right to establish Organisations.
Paragraph 1 of the proposed Office
text reads as follows
Employers and workers, public or private'
without distinction as to occupation, sex, colour,
race, creed or nationality, should have the inviolable
right to establish organisations of their own
choosing without previous authorisation.
This paragraph, which had the object
of ensuring freedom of association to all
social classes without distinction, was
the subject of several amendments relating
in particular to : (a) the field of application
of regulations ; (b) the objects
of organisations; and (c) the right to
join or not to join organisations.
(a) Field of application of regulations.
The Committee considered on the one
hand an amendment submitted by the
Workers' members proposing to insert
the words " or political opinion " after
the word "nationality ", and on the other
hand an amendment submitted by the
United Kingdom Government member
proposing: (1) to delete the words "publie
or private " ; and (2) to replace the
phrase "as to occupation, sex, colour,
race, creed or nationality " by the. word
"whatsoever ".
After an exchange of views, the Committee
adopted the proposal. of the United
Kingdom member. It was clear to the
Committee that this proposal, far from
limiting the number of persons to whom
trade union rights might apply, would,
on the contrary, express more adequately
the universality of the principle of freedom
of association. Inorder to leave no
doubt of the real significance of this
article, it was understood that the report
of the Committee would stress the fact
that according to the terms of Paragraph 1
freedom of association was to be guaranteed
not only to employers workers
in private industry, but also to public
employees, and . without distinction or
discrimination of any kind as. to occupation,
sex, colour, race, creed, nationality
or political opinion.
The Mexican Workers' member opposed
the adoption of this formula, which he
considered was not only contrary to the
spirit of the United Nations Charter and
of the Declaration of Philadelphia, but
was also susceptible of restrictive interpretation
on the part of States.
The Indian Government member had
submitted an amendment proposing to
replace the words " public or private
by the words " private or public except
the armed forces and the police ". In
his opinion the armed . forces and the
police could not be included in the field
of application of freedom of association,
because they were not authorised to
take part in collective negotiations and
had not the right to strike.
Several Government members drew
the attention of the Committee to the
fact that, in certain countries, the members
of the police force and of the public
services were organised in the same way
as workers in private undertakings ; in
other countries their organisations were
either forbidden or merely tolerated ; it
was also pointed out that in some countries
the armed forces have the right to
organise.
The French Workers' member warned•
the Committe again.st the adoption of a
text which did not recognise the principle
of trade union organisation in force in
the most advanced countries. A restrictive
Convention could not. serve as a model
for less advanced countries. Public employees
should enjoy full freedom of association,
including members of the police
force under municipal authorities not
directly under the State.
The amendment was rejected by 1 vote
to 57. The Government members of Belgium,
Peru, and Portugal, as well as the
Employers' members, abstained from
voting.
(b) Objects of organisations. The Employers'
members an amendment
proposing to insert between the
word "establish " and the word "organisations
" the following words: "for purposes
of regulating relations between employers
and employees and all other purposes
not contrary to the gene:al laws".
Several members of the Committee
observed that this amendment was unnecessary
and dangerous. It was unnecessary
because trade unions, in common
with other organisations and with
ordinary citizens, had to be conducted
according to general laws which were
imposed on the whole population. The
amendment was dangerous because it
could enable a Government to declare
illegal a trade union object which in itself
was perfectly legitimate.
After an exchange of views between
the different groups in the Committee,
the Employers' members withdrew their
amendment, it being understood that
freedom of association—like every other
freedom—is bound b.y national laws, as
is envisaged in the Constitution of the
International Labour Organisation, which
in Article 41, clause 2, cites among principles
of special and urgent importance
Appendix X Freedom of Association 571
the right of association for all lawful
purposes by the employed as well as by
the employers ".
(c) Right to join or not to join organisations.
An amendment submitted by the Workers'
members to add the words "or join"
after the word "establish" was intended
to complete paragraph 1 by assuring to employers
and workers not only the right
to establish organisations but also the
tn mm
The Enployers' members proposed a
sub-amendment by which the words "or
not to join " were to be added.
After a short discussion the Employers'
members' sub-amendment was rejected by
41 votes to 50.
The Workers' members' amendment
was adopted without opposition, and the
paragraph, as amended, was adopted.
2. Antonomy of Organisations.
Paragraph 2 of the Office text read as
follows
Employers' and workers' organisations should
have the right to draw up their constitutions and
rules, to organise their administration and activities
and to formulate their programmes without
interference on the part of the public authorities.
This paragraph had the effect of coinpleting
the first article by guaranteeing
to organisations freedom to organise their
activities without fear of State interference.
The Employers' members proposed an
amendment by which the word "public"
would be replaced by the word "administrative
". In their opinion organisations
could not be exempted from intervention
by the legislative or judicial authorities,
and in consequence it was necessary to
limit the protection of trade union autonomy
against interference by administrative
authorities oniy.
The Workers' members were opposed
to this amendment principally on the basis
of the three following points
(1) It was necessary to protect trade
unions against interference by political
authority. Under totalitarian regimes,
political authority entirely dominated all
other types of authority.
(2) The value of a guarantee would
be lessened if legislation could authorise
a Government to interfere with the activities
of trade unions.
(3) The intervention of tribunals, especially
by means of injunctions—as was the
practice in the United States—would be
not less dangerous for trade unions than
intervention on the part of administrative
authorities.
While admitting complete trade union
autonomy, several Government members
observed that the State could not abstain
from all intervention, if only for the purpose
of ensuring that the trade unions
carried on their activities within the limits
of the law.
In order to make their intentions
clearer, the Employers' members proposed
a sub-amendment to their first
amendment: delete the words "on the
part of the public authorities " and add
after the words "without interference
the words " except by due process of
law ".
The sub-amendment was rejected by
44 votes to 61 and the original amendment
by 44 votes to 63.
An amendment submitted by the Cuban
Government member proposed adding to
the end of Paragraph 2 the words "provided
that the effective exercise of such
rights shall be subject to compliance with
the formalities decreed by law ".
Several Government members stated
that in practice organisations had to
observe certain rules laid down by legislation
such as, for example, provisions concerning
the registration or depositing of
rules.
The Workers' members, however, considered
that the text if thus modified
would be susceptible of a wide interpretation
by certain Governments which would
permit them to control the organisations.
In order, on the one hand, to safeguard
respect for the legal position and on the
other hand, to ensure full recognition
of trade union rights, the United Kingdom
Government member proposed to retain
the first part of the Office text, but to
replace the words " without interference
•on the part of the public authorities" by
• the following words:
there should be no interference on the part of
the authorities which would restrict this
right or impede the organisations in the lawful
exercise of this right.
The Peruvian Government member proposed
to add to this amendment the following
words: "provided that in every
case the general provisions of a legal
• character are fulfilled ".
The Committee rejected this subamendment
by 39 votes to 54, and adopted
with three dissenting votes the amendment
proposed by the United Kingdom
Government member.
After this vote the Cuban Government
member withdrew his amendment. Similarly,
the Indian Government member
withdrew an amendment which he had
submitted proposing to add at the end
of Paragraph 2 the words "except to the
extent necessary to protect the interests
of the members of the organisation ".
Paragraph 2 was adopted, as amended.
3. Dissolution of Organisations.
The Office text of Paragraph 3 reads as
follows
Employers' and workers' organisations should
not be liable to be dissolved by administrative
authority.
572 Appendix X : Freedom of Association
This provision was intended to exclude
the possibility of the dissolution of an
organisation by administrative authority.
It did not cover, on the other hand, the
case of dissolution by judicial process.
The Workers' members proposed to
add after the word " dissolved "the words
"or have their activities suspended ".
The Committee adopted this amendment
without discussion, and the paragraph,
as amended, was adopted.
4. Federations and Confederations.
Paragraph 4 of the Office text read as
follows
Employers' and workers' organisations should
have the right to establish federations and confederations
as well as the right, of affiliation with
international organisations of employers and
workers.
An amendment presented by the Employers'
members, proposing to insert the
words "for lawful purposes " was withdrawn
under the same conditions as the
similar amendment presented under Paragraph
1.
An amendment submitted by the Turkish
Government member, indicating the
terms under which affiliation of a trade
union to an international organisation
should be subject to previous governmental
authorisation where national legislation
provided that this was necessary,
was also withdrawn.
The paragraph was adopted without
change.
5. Guarantees relating to Federations and
Confederations.
The Office text of Paragraph 5 was as
follows
The guarantees defined in Paragraphs 1, 2 and
3 herein with regard to the establishment, functioning
and dissolution of employers' and workers'
organisations should apply to federations and
confederations of such organisations.
This paragraph did not give rise to any
discussion and was adopted unanimously.
6. Legal Personality of Organisations.
Paragraph 6 of the Office text read as
follows
The acquisition of special privileges by employers'
and wage-earners' organisations (as, for
example, the acquisition of legal personality)
should not be made subject to conditions of such
a character as to restrict freedom of association
as hereinhefore defined.
The Workers' members asked the Committee
to adopt this paragraph in the
following form :
The acquisition or granting of civil and legal
personality or of any other rights to employers'
and workers' organisations should not be. made
subject to conditions of such a character as to
restrict freedom of association.
Following discussion, the Committee
adopted the paragraph with the following
text:
The acquisition of legal personality by employers'
and workers' organisations should not be
made subject to conditions of such a character
as to restrict freedom of association as hereinbefore
defined.
7. Responsibilities of Organisations.
The Employers' members proposed that
the following new paragraph should be
added to the Office text:
The acquisition and exercise of the rights as
outlined in this Part should not exempt the
organisations from their full share of responsibil.
ities and obligations.
The Workers' members considered that
such a provision was too general and
lacked precision. The Committee adopted
the new paragraph by 54 votes to 51,
and it became Paragraph 7 of the Cornmnittee's
text.
List of Points: A. Freedom of Association
Immediately after the adoption of
Part I of the Resolution concerning freedom
of association and industrial relations,
the Committee decided to examine
the corresponding part - of the list of
points.
The Committee adopted, unanimously
and without discussion, the list of points
relating to freedom of association in the text
as revised in conformity with the decisions
taken by the Committee.
Propose.d Resolution. II. Protection of the
Right to Organise and to Bargain Collectively.
Part II of the proposed Resolution
completes the guarantee of freedom of
association.
In its form as presented by the Office,
the text included three principal parts
the first was intended to ensure the protection
of the right of association by means
of mutual agreement between organisations
; the second provided, in the absence
of agreement between the organisations
concerned, for legal guarantees of the right
to organise and to bargain collectively,
and the third provided for the establishment
of appropriate agencies if necessary
for the purpose of ensuring the exercise
of the right of association.
The Canadian Government member
proposed that the Office text should be
replaced by a single paragraph in the
following terms
As a corollary of the rights of employers and
workers to organise, the right of organisations of
employers and workers to bargaimi collectively
should be recognised fully, and should be assisted
by mutual, as well as governmental, recognition
and respect of. the exercise of the right of association,
and by the elimination of penalties designed
to curtail the right of the individual worker, in
respect of joining an organisation of his
Appendix X: Freedom of Association - 573
choosing; it being understood, however, that
collective agreements entered into freely, specifying
membership in a certain trade union as a
condition precedent to employment, do not
constitute violation of the principles herein set
forth.
The author of this amendment explained
that the right of collective bargaining
which gives substance to the right o.
association was at present recognised in
many countries, but the methods of collective
bargaining might give rise to differences
of opinion. It was, not
necessary to enter into detail, but to simplify
the text of the Besolution.
Several Government members, as well
as the Workers' members, opposed this
amendment which they considered, in
view of its lack of adequate preciseness
of detail, could not serve as the basis for
a future international Convention.
The amendment was withdrawn.
1. Mutual Recognition of Organisations.
Paragraph 7, as proposed by the Office,
was as follows
The central organisations of employers and workers
should agree to recognise each other as the
authorised representatives of the interests of
employers and workers, and should undertake
mutually to respect the exercise of the right
of association.
The French Government member proposed
that after the words " of employers
and workers "the words "of a representative
character" should be inserted.
In order to make this paragraph of
general application without any restriction,
the United Kingdom Government
member proposed that the following text
should replace the text of Paragraph 7
There should be agreement between organised
employers and workers mutually to respect the
exercise of the right of association.
• The Committee adopted this amendment
and the amendment of the French
Government member was withdrawn.
Paragraph 7 was adopted in the amended
text form, and became Paragraph 8 of
the Committee's text.
2. Legal Guarantee of the Right to Organise
and to Bargain Collectively.
Paragraph 8, as proposed by the Office,
was as follows
(1) In the absence of agreement between the
central organisations of employers and workers,
appropriate regulations should he prescribed to
guarantee—
(iii) dismissing a worker because lie is a
member or agent or official of a trade
union.
(b) the ciercise of the right of• association by
workers' organisations by measures designed
to prevent any acts on the part of the employer
or employers' organisations or their agents
with the object of—
(i) furthering the establishment of trade
unions under the domination of the
employer;
(ii) interfering with the formation or administration
of a trade union or contributing
financial or other support to it
L101125 %flJ S UI
bargam collectively with them for the
purpose of concluding collective agreements.
(2) It should be understood, however, that a
provision in a freely concluded collective agreement
making compulsory membership of a certain
trade union a condition precedent to employment
or a condition of continued employment does not
fall within the terms of this Resolution.
In order to safeguard, so far as. possible,
the right to organise and to bargain
collectively, the United Kingdom Government
member proposed that sub-paragraph
(1) of. Paragraph 8 should he replaced
by the following' text:
Where full and effective protection is not
already afforded, appropriate measures should he
taken to enable guarantees to be provided for—
The Committee adopted this amendment
-by 101 votes tO 0.
- The Employers' members proposed that
clause (a) of sub-paragraph (1) shOuld be
replaced by the following text :
the exercise of the right of freedom of association
without fear of intimidation,, coercion or restraint
from any source with the object of—
The amendment was adopted by' 86
votes to 22.
Several amendments submitted by the
Turkish Government member on the one
hand, and by the Employers' members
on the other hand, suggested putting on
an equal footing both the guarantee of
the right to join and the guarantee of the
right to refrain from joining an organisation.
The Turkish Government member, in
this connection, proposed• to add to
Paragraph 8 the following provision:
Each employer and each worker should be
free to join or to withdraw from an organisation.
This amendment was rejected by 53
votes to 57. -
Following this vote, the Employers'
members withdrew the amendments of a
similar nature which they had submitted,
on the clear understanding that the withdrawal
did not prejudice their right to
raise the questions involved in these
amendments at such a time as a .Convention
should be under discussion.
The Colombian and Venezuelan Government
members proposed that the following
new sub-clause (iv) should he inserted:
(iv) to guarantee -the stability of employment of
the substantive and substitute members of
executive committees of trade union organisa-
(a) the. exercise of the right of association by the
workers by measures designed to prevent
any acts on the part of the employer or of
his agents with the object of—
(i) making the employment of the worker
conditional on his not joining a trade
union or on his withdrawing from a
trade union of which he is a member;
(ii) prejudicing a worker because he is a
member or agent or official of a trade
union;
574 - Appendix X Frecloin of Association
tions during their statutory period of office,
in the sense that they shall not be dismissed
on grounds other than those for which there
is legal sanction or which are authorised by
competent judicial or administrative authorities.
The Employers' members were opposed
to this amendment. The Workers'
members expressed themselves as satisfied
with the protection assured by
Paragraph 8 (1) (a), in the form adopted
by the Committee.
The amendment was withdrawn.
The Employers' members proposed that
clause (b) of sub-paragraph (1) should
be replaced by the following:
it should be recognised that the exercise of the
right of association by workers' organisations
precludes any acts on the part of the employer or
employers' organisations or their agents with the
object of—
After an exchange of views this amendment
was withdrawn.
The French Government member proposed
that in sub-clause (I) of clause (b)
the words "of the employer" should be
deleted : the words "direct or indirect"
should be inserted before the word
"domination" : the word "employers"
should be substituted for the word
"employer".
After a short discussion the French
Government member withdrew his
amendment on the understanding that the
words "the employer " would be replaced
in the final text by the word "employers
".
The Employers' members proposed that
sub-clause (iii) of clause (b) should be
deleted. In their opinion such a provision
would be better placed in that part of the
text relating to collective agreements
rather than to freedom of association.
The Workers' members were opposed
to this amendment. They considered
that the right to associate would become
null and void if recognition of trade
unions and their right to negotiate did
not figure in the text of the Besolution.
Several Government members directed
the attention of the Committee to the
necessity of guaranteeing the right of
negotiation exclusively to representative
organisations, but they did not insist on
this point in view of the previous decision
taken by the Committee on this subject.
On the proposal of the United Kingdom
Government member, the Committee
adopted the following text in substitution
for sub-paragraph (1) (b) (iii) of
the Office text
refusing to give practical effect to the principles
of trade union recognition and collective bargaining.
The Employers' members withdrew
their amendment.
An amendment submitted by the Turkish
Government member suggested that
sub-paragraph (2) should be deleted.. In
the opinion of this member, no worker
should be obliged to belong to any given
trade union in order to obtain or
in employment. The majority of the
Workers' members were opposed to this
amendment. They emphasised the necessity
of ensuring to trade unions the right
to maintain and enter into collective
agreements which include such a provision.
The view was also expressed that it
would be unfair to protect a worker who
wished to enjoy all the advantages
obtained by the trade unions but who
refused to join the union. Some countries
possessed legislation providing for compulsory
trade union membership and the
position would be seriously prejudiced
if the amendment were carried.
The Employers' members, in supporting
the amendment, urged that this
was not a fit subject for discussion at this
juncture, nor was it opportune to prejudge
what a future Convention might
contain. They further stressed the point
that the principle involved was one of
freedom and the liberty of the individual
was directly involved.
The amendment was rejected by 53
votes to 57. On the taking of a record
vote, at the request of the Employers'
members, the amendment - was rejected
by 51 votes to 64.
After the rejection of this amendment,
an amendment to the same effect, presented
by the Employers' members, was
declared by the Chairman to be unacceptable.
The United Kingdom Government
member proposed that in the same subparagraph
the word" compulsory "should
be deleted. The Australian Workers'
member observed that the deletion of this
word should not be interpreted to mean
that joining a trade union should not
necessarily be compulsory.
The amendment was adopted on this
understanding.
Paragraph 8, with the amendments, was
adopted as a whole, and became Paragraph
9 of the Committee's text.
3. Establishment of Appropriate Agencies
for the Pnrpose 01 ensnring the Protection
of the Right of Association.
Paragraph 9 of the Office text read
as follows
Appropriate agencies should be established for
the purpose of ensuring the protection of the right
of association as defined iii Paragraph 8 herein.
The Employers' members proposed the
deletion of this paragraph, but withdrew
their amendment after the English text
had been corrected. so that the words
"if necessary " were included, after the
word " established ", as in the French
text..
With this correction Paragraph 9 was
adopted, and became Paragraph 10 of
the Committee's text.
Appendix X: Freedom ol AssocIation 575
List of Points: B. Protection of the Right
to Organise
The Committee limited itself to inserting
in Section B of the list of points the
principles included in Paragraphs 7 and 9
of Part II of the Resolution (Paragraphs 8
and 10 of the Committee's text) and the
principles of Paragraph 8 (Paragraph 9
of the Committee's text). It considered
that Paragraph 8 was incomplete from
several points of view, and'that later discussions
would be necessary. Consequently,
the detailed clauses of that paragraph
of the Resolution were not suitable
for inclusion in a proposed Convention
to he discussed by the Conference in 1948.
III
CONCLUSIONS AND DECISIONS
OF THE COMMITTEE
The Committee included 44 Government
members and thus included representatives
of the very great majority of the
Governments attending the Cdnference.
It also included 22 Employers' members
and Workers' members, as well as a
considerable number of substitute menlbers.
The Committee was therefore of a
truly representative character and its
decisions, which are set forth below, are
a clear reflectiOn of the opinions of the
majority of the Committee.
PROPOSED RESOLUTION CONCERNING
FREEDOM OF ASSOCIATION
AND PROTECTION OF THE
RIGHT TO ORGANISE AND TO
BARGAIN COLLECTIVELY
Whereas the Preamble to the Constitution
of the International Labour Organisation
expressly declares "recognition of
the principle of freedom of association"
to be a means of improving conditions of
labour and of establishing peace; and
Whereas the Declaration of Philadelphia
reaffirms that "freedom of expression
and of association are essential to sustained
progress" and recognises the solemn
obligation of the International Labour
Organisation to further among the nations
of the world programmes which will
achieve, among other things: "the effective
recognition of the right of collective
bargaining, the co-operation of management
and labour in the continuous improvement
of productive efficiency, and
the collaboration of workers and employers
in the preparation and application
of social and economic mesasures" ; and
Whereas it also affirms that "the principles
set forth in this Declaration are fully
applicable to all peoples everywhere and
that, while the manner of their application
must be determined with due regard
to the stage of social and economic
development reached by each people,
their progressive application to peoples
who are still dependent, as well as to those
who have already achieved self-government,
is a matter of concern to the whole
civilised world"1; and
Whereas standards of living, normal
functioning of national economy and social
and economic stability depend to a
considerable degree on a properly organised
system of industrial relations founded
on the recognition of freedom of association;
and
Whereas, moreover, in many countries,
employers' and workers' organisations
have been associated with the preparation
and application of economic and
social measures ; and
Whereas the International Labour Conference,
the regional conferences of the
American States Members of the International
Labour Organisation and the
various industrial committees have, in
numerous Resolutions, called the attention
of the States Members of the International
Labour Organisation to the need
for establishing an appropriate system of
industrial relations founded on the guarantee
of the principle of freedom of
association.
The General Conference of the International
Labour Organisation:
Having been convened at Geneva by
the Governing Body of the Intèrnational
Labour Office, and having met
in its Thirtieth Session on 19 June
1947,
adopts this day of of the
year one thousand nine hundred and
forty-seven, the following Resolution:
I. FREEDOM OF ASSOCIATION
1. Employers and workers, without
distinction whatsoever, should have the
inviolable right to establish or join
organisations of their own choosing without
previous authorisation.
2. Employers' and workers' organisations
should have the right to draw up
their constitutions and rules, to organise
their administration and activities and to
formulate their programmes ; there should
be no interference on the part of the
public authorities which would restrict
this right or impede the organisations in
the lawful exercise of this right.
3. Employers' and workers' organisations
should not be liable to be dissolved
or have their activities suspended by
administrative authority.
4. Employers' and workers' organisations
should have the right to establish
federations and confederations as well as
1 This paragraph was inserted as the jesuit an
amendment submitted by the South African Employers'
member on behalf of the Employers'
members of the Committee.
576 Appendix X Freedom of Association
the right of affiliation with international
organisations of employers and workers.
5. The guarantees defined in Paragraphs
1, 2 and 3 herein with regard to
the establishment, functioning, dissolution
and suspension of employers' and workers'
organisations should apply to federations
and confederations of such organisations.
6. The acquisition of legal personality
by employers' and workers' organisations
should not be made conditions
of such a character as to restrict freedom
of association as hereinbefore defined.
7. The acquisition and exercise of the
rights as outlined in this part should not
exempt the employers' and workers'
organisations from their full share of
responsibilities and obligations.
II. PROTECTION OF THE RIGHT
TO ORGANISE AND TO BARGAIN
COLLECTIVELY
8. There should be agreement between
organised employers and workers
mutually to respect the exercise of the
right of association.
9. (1) Where full and effective protection
is not already afforded appropriate
measures should be taken to enable
guarantees to be provided for—
(a) the exercise of the right of freedom
of association without fear of intimidation,
coercion or restraint from any
source with the object, of—
(1) making the employment of the worker
conditional on his not joining
a trade union or on his withdrawing
from a trade union of which lie is a
member;
(ii) prejudicing a worker because he is a
member or agent or official of a trade
umon;
(iii) dismissing a worker because he is a
member or agent or official of a trade
umon
(b) the exercise of the right of association
by workers' organisations in such a way
as to' prevent any acts on the part of the
employer or employers' organisations or
their agents with the object of—
(i) furthering the establishment of trade
unions under the domination of
employers
(ii) interfering with the formation or
administration of a trade union or
contributing financial or other support
to it
(iii) refusing to give practical effect to the
principles of trade union recognition
and collective bargaining.
(2) It should be understood, however,
that a provision in' a freely concluded
collective agreement making membership
of a certain trade union a condition
precedent to employment or a condition
of continued employment does not fall
within the terms of this Resolution.
10. Appropriate agencies should be
established, if necessary, for the purpose
of ensuring the protection of the right of
association as defined in 'paragraph 9
herein.
The Committee, considering that certain
questions were already suitable to
form the subject of one or several international
Conventions in 1948, adopted
the two following lists of points and
recommended their adoption by the
Conference
A. FREEDOM OF ASSOCIATION
1. Desirability of drawing up a proposed
international Convention concerning
freedom of association.
2. Need to provide that employers and
workers, without distinction whatsoever,
should have the inviolable' right to
establish or join organisations of their
own choosing without previous autliorisation.
3. (1) Need to provide that employers'
and workers' organisations should
have the right to draw up their constitutions
and rules, to organise their administration
and activities and to formulate,
their programmes.
(2) Need to provide further that the
public authorities should refrain from any
interference which would restrict this
right or impede the organisations in the
lawful exercise of this right.
4. Need to provide that employers'
and workers' organisations may not
dissolved or suspended by administrative
authority.
5. Need to recognise the right of
employers' and workers' organisations to
establish federations and confederations
of such organisations and to affiliate with
international organisations of employers
and workers.
6. Need to provide that the guarantees
defined in paragraphs 2, 3 and 4 with
regard to the establishment, functioning,
dissolution and suspension of employers'
and workers' organisations should apply to
,federations and confederations of such
organisations.
7. Need to provide that the acquisition
of legal personality by employers' and
workers' organisations should not be
made subject to conditions of such a
character as to restrict freedom of association
as hereinbefore defined.
8. Desirability of providing that the
acquisition and exercise of the rights as
LIST OF
FORM A
BY
POINTS WHICH MIGHT
BASIS OF DISCUSSION
THE CONFERENCE
Appendix X : Freedom ot Association 577
outlined in this Part should not exempt
employers' and workers' organisations
from their full share of responsibilities
and obligations.
B. PROTECTION OF THE RIGHT
TO ORGANISE
1. Desirability of drawing up a proposed
Convention concerning the protection
of the right to organise.
2. Need to provide that where full and
effective protection is not already afforded
appropriate measures should be taken to
enable guarantees to be provided for the
exercise of the right of freedom of association
without fear of intimidation,
coercion or restraint from any source.
3. Desirability of making such provision
as may be necessary for the establishment
of appropriate agencies for the purpose
of ensuring the protection of the
right of association.
PROPOSED RESOLUTION CONCERNING
THE AGENDA OF THE NEXT
SESSION OF THE CONFERENCE
It was agreed that the questions included
in the list of points should be
placed on the, agenda of the Conference
of 1948 for the adoption of a Convention
under the procedure of a single discussion.
It was recognised, however, that the
questions of detail contained in Paragraph
9 of the Committee's text of the
Resolution were not appropriate for inclusion
in a Convention in 1948 since they
would require much fuller consideration
and would need to be amplified and
extended. It was accordingly decided that
they should form the subject of a first
discussion in 1948. It was also decided
to place the parts concerning collective
agreements, conciliation and arbitration
and co-operation between the public
authorities and and workers'
organisations on the agenda of the 1948
Session of the Conference for first discussion.
Consequently, the Committee submits
to the Conference the following proposed
Resolution
The Conference,
Having approved the report of the
Committee appointed to consider the
seventh item on its agenda,
Decides
(1) to place on the agenda of its next
general session, the question of freedom
of association and of the protection of the
right to organise with a view to the
adoption of one or several Conventions
at that session,, and
(2) to place on the agenda of its next
general session, as one item for first
discussion: the application of the principles
of the right to organise and to
bargain collectively, collective agreements,
conciliation and arbitration, and
co-operation between the public authorities
and employers' and workers' organisations.
PROPOSED RESOLUTION CONCERNING
INTERNATIONAL MACHINERY
P(YD Q A A J L' J4,LJJ_?',,JflI
OF ASSOCIATION
The Committee submits the following
text for approval by the Conference:
The Conference,
(1) Recalling the references to freedom
of association in the Declaration of
Philadelphia and the Constitution of the
International Labour Organisation, reaffirms
belief in and attachment to the
principle of freedom of association in all
countries as an essential element in those
wider personal freedoms which are the
foundation of peace, prosperity and
happiness;
(2) Is concerned at the widespread
reports that conditions may exist prejudicial
to freedom of association in many
countries
(3) Feels that steps should be taken
to encourage, expand and universally
establish freedom of association both by
reminding Governments of all States,
whether Members of the International
Labour Organisation or not, of their obligations
in this respect under the Constitution
of the International Labour Organisation
and/or the Charter of the United
Nations, and by other practicable means;
(4) In this connection has noted with
interest the proposals made by the
World Federation of Trade Unions and
the American Federation of Labor for the
establishment of international machinery
for safeguarding freedom of association
and feels that these proposals deserve
close and careful examination.
(5) Recognises that the proposals raise
issues of great complexity and difficulty
including for example—
(i) questions involving the sovereignty
of States;
(ii) the relationship of any such machiiicry
to the proposals under examination
by the United Nations for giving
effect to a Bill of Rights and establishing
machinery for safeguarding
the exercise of other fundamental
freedoms, including freedom of
speech, of information and of lawful
assembly;
(iii) the composition, scope, powers (including
powers of enquiry and investigation)
and procedure of the proposed
machinery;
578 Appendix X : Freedom of Association
(iv) the authority under which the proposed
machinery would act.
(6) Considers it essential to give to such
questions, which may involve changes in
the inter-relationship of States, the detailed
examination and careful preparation
which they merit and without which
any international action would be bound
to fail and likely to leave the situation
worse than it is at present.
(7) however that the establishment
in consultation with the United
Nations of permanent international machinery
may be an indispensable condition
for the full observance of freedom of
association throughout the world and that
• any such machinery should, if established,
operate under the guarantees provided by
the tripartite Constitution of the International
Labour Organisation.
(8) Accordingly requests the Governing
Body to examine this question in all
its aspects and to report back to the
Conference at the 31st Session in 1948.
- The mere enumeration of the decisions
taken shows that the Committee has
accomplished a considerable amount of
work, since the machinery for international
regulation has been set in motion
with regard to all the questions submitted
to it for consideration.
The Committee has afforded once more
proof of the excellence of the method of
tripartite collaboration which is the essential
characteristic of the Internationa'
Labour Organisation.
• Geneva, 9 July 1947.
($igned) DAVID A. MOBSE,
Chairman.
JOUHAUX,
• Reporter,
LOUIS E. COBNIL,
Deputy Reporter.
Document No. 153
ILC, 30th Session, 1947, Resolution concerning the
Agenda of the 1948 Session of the International Labour
Conference
Resolutions Adopted by the
International Labour Conference
at its 30th Session
67
D
Resolution concerning the Agenda of the 1948 Session
of the International Labour Conference
( Adopted on 11 July 1941)
The Conference,
Having approved the report· of the Committee appointed to
consider the seventh item on its agenda,
68
Decides :
(1) to place on the agenda of its next general session
the question of freedom of association and of the protection of
the right to organise with a view to the adoption of one or
several Conventions at that Session, and
(2) to place on the agenda of its next general session,
as one item for first discussion, the application of the principles
of the right to organise and to bargain collectively, collective
agreements, conciliation and arbitration, and co-operation
between the public authorities and employers' and workers'
organisations.
After having adopted the Resolution concerning the agenda of
the 19^8 Session of the International Labour Conference, the Conference
adopted the two following lists of points, which enumerate a
number of questions already suitable to serve as a basis for the
adoption of one or several international labour Conventions in 19^8 :
LISTS OF POINTS TO SERVE AS A BASIS FOR THE ADOPTION
OF ONE OR SEVERAL INTERNATIONAL LABOUR
CONVENTIONS IN 1948
(Adopted on 11 July 19^7)
I. FREEDOM OF ASSOCIATION
1. Desirability of drawing up a proposed international Convention
concerning freedom of association.
2. Need to provide that employers and workers, without distinction
whatsoever, should have the inviolable right to establish or join organisations
of their own choosing without previous authorisation.
3. (1) Need to provide that employers' and workers' organisations
should have the right to draw up their constitutions and rules, to
organise their administration and activities and to formulate their
programmes.
(2) Need to provide further that the public authorities should
refrain from any interference which would restrict this right or impede
the organisations in the lawful exercise of this right.
4. Need to provide that employers' and workers' organisations may
not be dissolved or suspended by administrative authority.
5. Need to recognise the right of employers' and workers' organisations
to establish federations and confederations of such organisations
and to affiliate with international organisations of employers and
workers.
6. Need to provide that the guarantees defined in paragraphs 2, 3
and 4 with regard to the establishment, functioning, dissolution and
suspension of employers' and workers' organisations should apply to
federations and confederations of such organisations.
7. Need to provide that the acquisition of legal personality by
employers' and workers' organisations should not be made subject to
conditions of such a character as to restrict freedom of association as
hereinbefore defined.
8. Desirability of providing that the acquisition and exercise of the
rights as outlined in this Part should not exempt employers' and
workers' organisations from their full share of responsibilities and
obligations.
69
IT. PROTECTION OF THE RIGHT TO ORGANISE
1. Desirability of drawing up a proposed Convention concerning the
protection of the right to organise.
2. Need to provide that where full and effective protection is not
already afforded appropriate measures should be taken to enable
guarantees to be provided for the. exercise of the right of freedom of
association without fear of intimidation, coercion or restraint from any
source.
3. Desirability of making such provision as may be necessary for
the establishment of appropriate agencies for the purpose of ensuring
the protection of the right of association.
Document No. 154
Economic and Social Council, 5th Session, 1947,
Resolution 84 (V) on Trade union rights (freedom of
association)
Document No. 155
United Nations General Assembly Resolution 128 (II) on
Trade union rights (Freedom of association), 1947
Document No. 156
Minutes of the 103rd Session of the Governing
Body, December 1947, Fourth Supplementary
Note, Freedom of Association (Trade Union
Rights), pp. 123–125
INTERNATIONAL LABOUR OFFICE
MINUTES
OF THE
103RD SESSION
OF
THE GOVERNING BODY
GENEVA — 12-15 DECEMBER 1947
003475
123
14. The temporary addition of one executive director for the Fund and the Bank
respectively was approved. The new directors are to be elected as soon as possible after the
first of the year by those members who, as of 31 December 1947, are not entitled to appoint
directors, and whose votes are not entitled to be cast by directors holding office.
15. The Governor from China, Mr. 0. K. Yui, was elected Chairman of the Joint Boards
of Governors for the following year, and the Governors from France, India, the United Kingdom
and the United States were elected Vice-Chairmen.
16. The annual meetings of the Boards of Governors will be held in Washington next year.
Supply of Statistical Information to the International Monetary Fund
17. The International Labour Office has agreed to supply the International Monetary
Fujid each month with cost-of-living indices for various countries. The data supplied to the
United Nations for the Monthly Bulletin of Statistics are also communicated to the Fund. In
addition, the supplementary data received too late to be published in the Monthly Bulletin of
Statistics, but in time to be included in the International Financial Statistics, are sent directly
to the Fund.
18. These arrangements have been made in order to avoid duplicating requests addressed
to Governments and to eliminate sources of divergencies in the published figures. The
arrangements at present in force may be extended so as to cover other elements of labour
statistics, should the Fund wish to include them in the International Financial Statistics.
Fourth Session o/the Interim Conjinission of the World Health Organisation
19. The Fourth Session of the Interim Commission of the World Health Organisation was
held in Geneva from 30 August to 13 September 1947. The I.L.O. was represented at this
meeting.
20. The World Health Organisation is not yet in existence, as the ratifications of 26 States
Members of the United Nations necessary to bring its constitution into force have not yet been
received. Ratifications have been received from 16 States Members of the United Nations and
from nine other States. Sixty-four States have expressed their desire to become Members of
the World Health Organisation, and it is expected that the constitution will be brought into
force in the first half of 1948.
21. Two committees of the Interim Commission dealt with epidemiology and quarantine,
together with other medical questions, and with the priority to be assigned to projects of a
medical nature to be carried out by the World Health Organisation when established.
22. The minimum standards of health and safety in the construction of the United Nations
headquarters were discussed. It was pointed out that the I.L.O. is the competent agency in
the field of the protection of the health of working and it therefore was decided to
establish a small committee of experts, to be appointed in agreement with the 1.1÷0., to consider
this question.
23. The relations of the World Health Organisation with other international organisations
were discussed and Agreements with the United Nations, U.N.E.S.C.O. and F.A.O. were
approved. A separate paper on the Agreement between the 1.1÷0. and the World Health
Organisation is being circulated to the Governing Body.
FOURTH SUPPI,EMENTARY NOTE
Freedom of Association (Trade Union Rights)
1. The decisions concerning freedom of association adopted by the International Labour
Conference at its 30th Session were communicated to the United Nations, for the information
of the Economic and Social Council, immediately after the close of the session of the International
Labour Conference in July. The action taken by the I.L.O. in response to the request of the
Economic and Social Council was discussed by the Council on 8 August 1947 during its Fifth
Session at New York.
2. The International Labour Organisation was represented at the Fifth Session of the
Economic and Social Council by a tripartite Governing Body delegation consisting of Mr. David
A. Morse (United States Government member), Mr. H. \V. Macdonnell (Employers' Deputy
member) and Mr. Paul Finet (Workers' member), and by Mr. Jef Rens, Assistant Director-General
of the International Labour Office. Mr. Jouhaux was unable to attend the session of the Council
and was replaced by Mr. Finet.
1 ')
3. The Council adopted on 8 August 1947 the following resolution:
TRADE UNION RIGHTS (FREEDOM OP ASSOCIATION)
The Economic and Social Council,
Having received the report transmitted by the International Labour Organisation in
pursuance of the Council's request at its Fourth Session that the memoranda on the subject
of trade union rights submitted to the Council by the World Federation of Trade Unions
and the American Federation of Labor might be placed on the agenda of the International
Labour OrganisatiOn at its next session, and that a report might be sent for the consideration
of the Economic and Social Council at its next session,
Takes note of the report and observes with satisfaction the action taken and proposed
• by the International Labour Organisation within its recognised competence,
Decides:
(a) To recognise the principles proclaimed by the International Labour Conference;
(b) To request the International Labour Organisation to continue its efforts in order
that one or several international Conventions may be quickly adopted;
(c) To transmit the report to the General Assembly;
Awaits further reports on the subject to be transmitted by the International Labour
Organisation and awaits also the report which it will receive in due course from the
Commission on Human Rights on those aspects of the subject which might appropriately
form part of the bill or declaration on human rights;
Notes that proposals for the establishment of international machinery for safeguarding
freedom of association are to be examined by the Governing Body of the International
Labour Organisation;
Considers that the question of enforcement of rights, whether of individuals or of
associations, raises common problems which should be considered jointly by the United
Nations and the International Labour Organisation, and
Requests the Secretary-General to arrange for co-operation between the International
Labour Organisation and the Commission on Human Rights in the study of these problems.
4. In accordance with paragraph (c) of this resolution, the report of the International
Labour Organisation was transmitted to the General Assembly of the United Nations at its
Second Session, which opened in New York on 16 September 1947.
5. The International Labour Organisation was represented at the Second Session of the
General Assembly by a tripartite Governing Body delegation consisting of the Chairman, Sir
Guildhaume Myrddin-Evans, the Employers' Vice-Chairman, Mr. J. B. Zellerbach and the
Workers' Vice-Chairman, Mr. Leon Jouhaux, and by the Director-General.
6. The General Assembly referred the question to its Third Committee on Social, Humanitarian
and Cultural Questions, where a lengthy discussion took place. The report of the
International Labour Organisation was vigorously defended by Mr. Jouhaux, who was also the
representative of France on the Third Committee, and by a number of other delegates.
7. After considering the report of a subcommittee to which a number of resolutions
submitted by various delegations had been referred, the Third Committee adopted, by 31 votes
to 5 with 6 abstentions, a resolution for submission to the plenary meeting of the General
Assembly.
8. Several amendments to this resolution were proposed when it came before the General
Assembly. After considerable discussion, the General Assembly adopted, with certain modifications,
by 45 votes to 6 with 2 abstentions the resolution submitted by the Third Committee.
The text of the resolution adopted by the General Assembly is as follows:
TRADE UNION RIGHTS (FREEDOM OP ASsoCIATIoN)
The General Assembly
Taking note of resolution 52 (IV) adopted by the Economic and Social Council at its
Fourth Session, whereby it was decided to transmit the views of the World Federation of
Trade Unions and the American Federation of Labor on "Guarantees for the Exercise and
Development of Trade Union Rights" to the Commission on Human Rights, "in order
that it may consider those aspects of the subject which might appropriately form part of
the bill or declaration on human rights ";
Taking note also of resolution 84 (V) adopted by the Council at its Fifth Session,
• whereby it was decided to transmit to the General Assembly of the United Nations the report
of the International Labour Organisation entitled "Decisions concerning freedom of
association adopted unanimously by the Thirtieth Session of the International Labour
125
Conference on 11 July 1947 ", to recognise the principles proclaimed by the International
Labour Conference and to request the International Labour Organisation to continue its
efforts in order that one or several international conventions may be adopted,
Approves these two resolutions;
Considers that the inalienable right of trade union freedom of association is, as well
as other social safeguards, essential to the improvement of the standard of living of workers
and to their economic well-being;
Declares that it endorses the principles proclaimed by the International Labour
Conference in respect of trade union rights as well as the principles the importance of which
to labour has already been recognised and which are mentioned in the Constitution of the
International Labour Organisation and in the Declaration of Philadelphia and, in particular,
subsection (a) of Section II and subsections (a) to (j) inclusive of Section III which are
given in the annex to this resolution 1;
Decides to transmit the report of the International Labour Organisation to the
Commission on Human Rights with the same objects as those stated in resolution 52 (IV)
of the Economic and Social Council; and
Recommends to the International Labour Organisation on its tripartite basis to pursue
urgently, in collaboration with the United Nations and in conformity with the resolution
of the International Labour Conference concerning international machinery for safeguarding
trade union rights and freedom of association, the study of the control of their practical
application.
FIFTH SUPPLEMENTARY NOTE
The Economic and Social Council and its Commissions and Committees
I. Fifth Session of the Economic and Social Council
1. The Fifth Session of the Economic and Social Council was held at Lake Success from
16 July to 16 August 1947.
2. The International Labour Organisation was represented at this session of the Council
by a tripartite Governing Body delegation consisting of Mr. David A. Morse (United States
Government member), Mr. H. W. Macdonnell (Employers' deputy member), and Mr. Paul Finet
(Workers' member), and by Mr. Jef Rens, Assistant Director-General of the International Labour
Office. Mr. Jouhaux was unable to attend the session of the Council and was replaced by Mr.Finet.
Freedom of Association (Trade Union Rights).
3. The decisions concerning freedom of association adopted by the International Labour
Conference at its 30th Session were communicated to the United Nations for the information
of the Economic and Social Council. A separate paper has been circulated to the Governing
Body on this question.2
Protection of Migrant and Immigrant Labour.
4. The American Federation of Labor requested the Council to consider the question of
the protection of migrant and immigrant labour and submitted a memorandum on the subject,
together with a draft resolution recommending that : "The Economic Commissions for Europe
and Asia promote the use of standards recommended by the International Labour Organisation
in expediting efficient mobilisation of manpower in the reconstruction of countries ", and urging
the International Labour Organisation "to expedite its reconsideration of its Conventions and
Recommendations concerning migrant workers ". In an introductory statement, the representative
of the American Federation of Labor stressed the fact that, owing to post-war conditions,
large migratory movements were taking place and protection should be afforded to the migrant
workers, when they have settled abroad, by international action. On 13 August the Council
adopted the following resolution by 15 votes to nil with 3 abstentions:
The Economic and Social Council,
Having taken note of the item regarding the protection of migrant and immigrant
labour placed on its agenda at the request of the American Federation of Labor, and the
memorandum submitted by the Federation;
Noting also that the International Labour Organisation is now considering the revision
of its existing Convention and Recommendations on migration;
Resolves to transmit this memorandum to the International Labour Organisation as
the competent specialised agency concerned and, in view of the urgency of the problem;
For the text of the Declaration of Philadelphia, see Official Bulletin, Vol. XXVI, No. 1, p. 1.
See above, p. 123.
Document No. 157
ILC, 31st Session, 1948, Questionnaire, Freedom of
Association and Protection of the Right to Organise
1948
3l8t SESSION
VII
QUESTIONNAIRE
International Labour Conference
THIRTY-FIRST SESSION
SAN FRANCISCO, 1948
FREEDOM OF ASSOCIATION
AND PROTECTION OF THE RIGHT
TO ORGANISE
Seventh Item on the Agenda
GENEVA
International Labour Office
1947
PBINTED BY " IMPRIMEBIES POPULAIRES ", GENEVA (SWITZERLAND )
INTRODUCTION
The International Labour Conference decided, at its 30th
Session (June-July 1947), to place on the agenda of its 31st Session
the questions of "freedom of association" and of the "protection
of the right to organise", with a view to their consideration under
the single-discussion procedure.
Article 31 of the Standing Orders of the Conference provides
that, in the case of single-discussion procedure, the Office shall
circulate to the Governments a summary report of the question
under consideration, containing a statement of the law and practice
in the different countries, together with a questionnaire.
The statement of law and practice referred to in Article 31
of the Standing Orders is contained in Report VII, Freedom
of Association and Industrial Relations, which the Office submitted
to the 30th Session of the Conference. This Report has already
been communicated to the Governments.
Accordingly, it will be sufficient to recall briefly the circumstances
under which the question of freedom of association and industrial
relations came to be placed on the agenda of the 30th Session
of the Conference, to indicate the decisions taken by the Conference,
and to explain, in the light of the discussions which took
place in the Committee on Freedom of Association and Industrial
Relations, the scope of the principles which form the basis of this
questionnaire.
History of the Question
The problem of freedom of association and industrial relations
was brought before the International Labour Organisation at the
request of the Economic and Social Council of the United Nations.
The Economic and Social Council had been called upon, at its
4th Session (February-March 1947), to examine the question
of "guarantees for the exercise and development of trade union
rights", which had been referred to it by the World Federation of
Trade Unions. The American Federation of Labor had also submitted
to the Council a memorandum concerning this matter.
2 FREEDOM OF ASSOCIATION
The Economic and Social Council adopted the following Resolution,
which the Secretary-General of the United Nations officially
communicated to the Director-General of the International
Labour Office on 18 April 1947 :
The Economic and Social Council,
Having taken note of the items regarding trade union rights placed
on its agenda at the request of the World Federation of Trade Unions,
and the memoranda submitted by the World Federation of Trade
Unions and the American Federation of Labor,
Resolves to transmit these documents to the International Labour
Organisation with a request that the question may be placed upon the
agenda of its next session and that a report be sent to the Economic
and Social Council for its consideration at the next meeting of the
Council.
The Economic and Social Council,
Further resolves to transmit the documents to the Commission
on Human Rights in order that it may consider those aspects of the
subject which might appropriately form part of the Bill or Declaration
on Human Rights.
The Economic and Social Council referred this question to
the International Labour Organisation, under the terms of the
Agreement between the United Nations and the International
Labour Organisation, which was formally ratified both by the
Assembly of the United Nations and by the International Labour
Conference.
Article I I I of that Agreement provides that "subject to such
preliminary consultation as may be necessary, the International
Labour Organisation shall include on the agenda of the Governing
Body items proposed to it by the United Nations. Similarly, the
Council and its commissions and the Trusteeship Council shall
include on their agenda items proposed by the International Labour
Organisation".
Following the communication of this Resolution, the Governing
Body decided to place the question of "freedom of association
and industrial relations" on the agenda of the 30th Session of the
Conference, which met in Geneva from 19 June to 11 July 1947.
The Report which the Office submitted to the Conference
contained in its conclusions two series of texts :
1. A proposed Resolution covering : (1) freedom of association;
(2) protection of the right to organise and to bargain collectively;
(3) collective agreements; (4) voluntary conciliation and arbitration;
(5) co-operation between the public authorities and employers'
and workers' organisations.
2. A list of points relating only to the first four subjects indicated
above.
INTRODUCTION 3
Decisions of the Conference
At the conclusion of its discussions, the Conference unanimously
adopted a series of important decisions to which it is desirable to
call the attention of the Governments.
In the first instance, the Conference adopted a Resolution
concerning freedom of association and protection of the right to
organise and to bargain collectively, which defines the fundamental
principles on which freedom of association should be
based. This Resolution was as follows :
RESOLUTION CONCERNING FREEDOM OF ASSOCIATION
AND PROTECTION OF THE RIGHT TO ORGANISE AND TO
BARGAIN COLLECTIVELY
Whereas the Preamble to the Constitution of the International
Labour Organisation expressly declares "recognition of the principle
of freedom of association" to be a means of improving conditions of
labour and of establishing peace; and
Whereas the Declaration of Philadelphia reaffirms that "freedom
of expression and of association are essential to sustained progress"
and recognises the solemn obUgation of the International Labour
Organisation to further among the nations of the world programmes
which will achieve, among other things : "the effective recognition of the
right of collective bargaining, the co-operation of management and
labour in the continuous improvement of productive efficiency, and the
collaboration of workers and employers in the preparation and application
of social and economic measures"; and
Whereas it also affirms that "the principles set forth in this Declaration
are fully applicable to all peoples everywhere and that, while the
manner of their application must be determined with due regard to the
stage of social and economic development reached by each people, their
progressive application to peoples who are still dependent, as well as to
those who have already achieved self-government, is a matter of concern
to the whole civilised world"; and
Whereas standards of living, normal functioning of national economy
and social and economic stability depend to a considerable degree on a
properly organised system of industrial relations founded on the recognition
of freedom of association; and
Whereas, moreover, in many countries, employers' and workers'
organisations have been associated with the preparation and application
of economic and social measures; and
Whereas the International Labour Conference, the Regional Conferences
of the American States Members of the International Labour
Organisation and the various Industrial Committees have, in numerous
Resolutions, called the attention of the States Members of the International
Labour Organisation to the need for establishing an appropriate
system of industrial relations founded on the guarantee of the principle
of freedom of association;
4 FREEDOM OF ASSOCIATION
The General Conference of the International Labour Organisation :
Having been convened at Geneva by the Governing Body of the
International Labour Office, and having met in its Thirtieth Session
on 19 June 1947,
adopts this eleventh day of July of the year one thousand nine hundred
and forty-seven, the following Resolution :
I. FREEDOM OF ASSOCIATION
1. Employers and workers, without distinction whatsoever, should
have the inviolable right to establish or join organisations of their own
choosing without previous authorisation.
2. Employers' and workers' organisations should have the right
to draw up their constitutions and rules, to organise their administration
and activities and to formulate their programmes; there should be no
interference on the part of the public authorities which would restrict
this right or impede the organisations in the lawful exercise of this
right.
3. Employers' and workers' organisations should not be liable to
be dissolved or have their activities suspended by administrative authority.
4. Employers' and workers' organisations should have the right
to establish federations and confederations as well as the right of affiliation
with international organisations of employers and workers.
5. The guarantees defined in paragraphs 1, 2 and 3 herein with
regard to the establishment, functioning, dissolution and suspension
of employers' and workers' organisations should apply to federations
and confederations of such organisations.
6. The acquisition of legal personality by employers' and workers'
organisations should not be made subject to conditions of such a
character as to restrict freedom of association as hereinbefore defined.
7. The acquisition and exercise of the rights as outlined in this
Part should not exempt the employers' and workers' organisations from
their full share of responsibilities and obligations.
I I . PROTECTION OF THE RIGHT TO ORGANISE AND TO
BARGAIN COLLECTIVELY
8. There should be agreement between organised employers and
workers mutually to respect the exercise of the right of association.
9. (1) Where full and effective protection is not already afforded
appropriate measures should be taken to enable guarantees to be provided
for :
(a) the exercise of the right of freedom of association without fear
of intimidation, coercion or restraint from any source with the object of :
(i) making the employment of the worker conditional on his not
joining a trade union or on his withdrawing from a trade union
of which he is a member;
(ii) prejudicing a worker because he is a member or agent or official
of a trade union;
(iii) dismissing a worker because he is a member or agent or official
of a trade union.
INTRODUCTION 5
(b) the exercise of the right of association by workers' organisations
in such a way as to prevent any acts on the part of the employer or
employers' organisations or their agents with the object of :
(i) furthering the establishment of trade unions under the domination
of employers;
(ii) interfering with the formation or administration of a trade union
or contributing financial or other support to it;
(iii) refusing to give practical effect to the principles of trade union
recognition and collective bargaining.
(2) It should be understood, however, that a provision in a freely
concluded collective agreement making membership of a certain trade
union a condition precedent to employment or a condition of continued
employment does not fall within the terms of this Resolution.
10. Appropriate agencies should be established, if necessary, for
the purpose of ensuring the protection of the right of association as
defined in paragraph 9 herein.
Secondly, the Conference, being of the opinion that it was
necessary for measures to be taken as rapidly as possible in order
to give effect to these principles by embodying them in an international
instrument, decided to place on the agenda of its next
general session the question of freedom of association and of the
protection of the right to organise with a view to the adoption of
one or several Conventions at that session.
Accordingly, it approved a list of points which should form
the basis on which the Convention or Conventions should be.
drawn up.
This list of points is set forth below :
LIST OF POINTS
I. FBEEBOM OF ASSOCIATION
1. Desirability of drawing up a' proposed international Convention
concerning freedom of association.
2. Need to provide that employers and workers, without distinction
whatsoever, should have the inviolable right to establish or join organisations
of their own choosing without previous authorisation.
3. (1) Need to provide that employers' and workers' organisations
should have the right to draw up their constitutions and rules, to
organise their administration and activities and to formulate their programmes.
(2) Need to provide further that the public authorities should refrain
from any interference which would restrict this right or impede the organisations
in the lawful exercise of this right.
4. Need to provide that employers' and workers' organisations may
not be dissolved or suspended by administrative authority.
5. Need to recognise the right of employers' and workers' organisations
to establish federations and confederations of such organisations
and to affiliate with international organisations of employers and workers.
6 FREEDOM OF ASSOCIATION
6. Need to provide that the guarantees defined in paragraphs 2,
3 and 4 with regard to the establishment, functioning, dissolution and
suspension of employers' and workers' organisations should apply to
federations and confederations of such organisations.
7. Need to provide that the acquisition of legal personality by
employers' and workers' organisations should not be made subject to
conditions of such a character as to restrict freedom of association as
hereinbefore defined.
8. Desirability of providing that the acquisition and exercise of the
rights as outlined in this Part should not exempt employers' and workers'
organisations from their full share of responsibilities and obligations.
II. PROTECTION OF THE RIGHT TO ORGANISE
1. Desirability of drawing up a proposed Convention concerning the
protection of the right to organise.
2. Need to provide that where full and effective protection is not
already afforded appropriate measures should be taken to enable
guarantees to be provided for the exercise of the right of freedom of
association without fear of intimidation, coercion or restraint from
any source.
3. Desirability of making such provision as may be necessary for
the establishment of appropriate agencies for the purpose of ensuring
the protection of the right of association.
Thirdly, the Conference, considering that the measures
taken with regard to the fundamental principles of freedom of
association should be deemed to be nothing more than the first
stage in the programme which the International Labour Organisation
had to undertake in this connection, decided, also unanimously,
to place on the agenda of its next general session, as one
item for first discussion, the application of the principles of the
right to organise and to bargain collectively, collective agreements,
conciliation and arbitration, and co-operation between the public
authorities and employers' and workers' organisations.
This involves a series of very important questions, which, in
the opinion of the Conference, form an essential part of the general
problem of freedom of association and industrial relations. The
measures which will be taken with regard to these questions, and
for which the 1948 Session of the Conference will be a point of
departure, must be considered as being the second stage in the
realisation of the programme of the International Labour Organisation.
Finally, the Conference adopted a Resolution concerning
the question of establishing international machinery for safeguarding
freedom of association, in accordance with the proposals
INTRODUCTION 7
put forward by the World Federation of Trade Unions and the
American Federation of Labor.
The Conference recognised that this involved a question of the
highest importance, requiring careful and detailed examination.
Consequently, the Resolution requests the Governing Body to
examine this question in all its aspects and to report back to the
Conference at the 31st Session in 1948.
Observations on the Decisions taken by the Conference
The questions concerning the application of the principles of the
right to organise and to bargain collectively, collective agreements,
conciliation and arbitration, and co-operation between the public
authorities and employers' and workers' organisations, which have
been placed on the agenda of the 1948 Session of the Conference
for first discussion, will form the subject of separate reports and
questionnaires which will be transmitted to Governments at a
later date. This questionnaire, therefore, relates only to the questions
of freedom of association and protection of the right to organise,
which are to be the object of international regulation at the
next session of the International Labour Conference.
In view of the fact that the points adopted by the Conference
with regard to these two questions are to serve as the basis on which
the questionnaire should be drawn up, it has been deemed necessary
to explain their significance in the following pages.
I. FREEDOM OF ASSOCIATION
1. Establishment of Organisations
The text proposed by the Office was as follows :
Employers and workers, public or private, without distinction as to
occupation, sex, colour, race, creed or nationality, should have the inviolable
right to establish organisations of their own choosing without
previous authorisation.
The Committee unanimously took the view that freedom of
association should be guaranteed in general terms. Two opposing
views were expressed : first, whether it would be desirable to formulate
the guarantee in explicit terms by adding to the Office
text a new clause concerning non-discrimination, in respect of
the right of association of employers and workers, on the grounds
of their "political opinions"; secondly, whether it would be prefer8
FREEDOM OF ASSOCIATION
able to adopt a formula of completely general application which
would have the advantage of avoiding the dangers inherent in a
detailed enumeration, which might in any event be incomplete
and, therefore, limitative.
The Committee approved the latter view, and adopted the point
in the following form :
Employers and workers, without distinction whatsoever, should
have the inviolable right to establish or join organisations of their own
choosing without previous authorisation.
However, in order to avoid such a general text serving as a
pretext for any restrictive interpretation, it was agreed that the
report of the Committee should stress the fact that, according
to the terms of this clause, freedom of association should be
guaranteed, without distinction or discrimination of any kind as to
occupation, sex, colour, race, creed, nationality or political opinion,
not only to employers and workers in private industry, but also
to public officials or employees. Recognition of the freedom of
association of officials by means of international regulation should
not, however, in any way prejudge the question of the right of
such officials to strike.
In view of the differences of opinion which were made manifest
in the Committee with regard' to the precise field of application
of the guarantee of freedom of association, the Office has thought
it desirable to submit for the choice of the Governments two alternative
formulas defining the right of employers and workers to
establish organisations.
2. Functioning of Organisations
The text submitted by the Office was as follows :
Employers' and workers' organisations should have the right to
draw up their constitutions and rules, to organise their administration
and activities and to formulate their programmes without interference
on the part of the public authorities.
The object of this clause was to complete the guarantee with
regard to the establishment of organisations by a guarantee of
the functioning of such organisations in full freedom.
The Committee, while unanimously recognising the need
for such a guarantee, considered, however, that this object would
best be realised if the right of organisations to organise their
internal and external life in full autonomy was completed by an
INTRODUCTION 9
obligation, on the part of the public authorities, to refrain from
any interference which would restrict this right or impede the
organisations in the lawful exercise of this right.
By including in the text the word "lawful", the Committee
merely intended to declare that employers' and workers' organisations,
like any other organised collectivities, are bound, in the
exercise of their rights, to respect the general laws of the country,
which, by definition, are binding upon everyone.
Thus amended, the point relating to the functioning of organisations
was adopted in the following terms :
Employers' and workers' organisations should have the right to
draw up their constitutions and rules, to organise their administration
and activities and to formulate their programmes; there should be no
interference on the part of the public authorities which would restrict
this right or impede the organisations in the lawful exercise of this
right.
3. Dissolution and Suspension of Organisations
The text submitted by the Office was intended to protect
employers' and workers' organisations against arbitrary dissolution
by administrative authority. The Committee decided to extend
this guarantee equally to the question of suspension of an organisation
by administrative authority.
With this amendment, the point adopted by the Conference
is as follows :
Employers' and workers' organisations should not be liable to be
dissolved or have their activities suspended by administrative authority.
4. Federations, Confederations and International Organisations
of Employers and Workers
The text proposed by the Office was intended to assure to
employers' and workers' organisations, first, the right to establish
federations and confederations and, secondly, the right of affiliation
with international organisations of employers and workers.
After the rejection of an amendment which sought to make
the affiliation of a national to an international organisation subject
to previous authorisation by the Government, the Office text
was adopted, without alteration, in the following terms :
Employers' and workers' organisations should have the right to
establish federations and confederations as well as the right of affiliation
with international organisations of employers and workers.
10 FREEDOM OF ASSOCIATION
5. Guarantees relating to Federations and Confederations
The Conference adopted with a slight alteration the Office
text, as follows :
The guarantees defined in the paragraphs relating to the establishment,
functioning, dissolution and suspension of employers' and workers'
organisations should apply to federations and confederations of
such organisations.
6. Acquisition of Legal Personality
The text proposed by the Office was intended to provide that
the acquisition of special privileges by employers' and workers'
organisations (as, for example, the acquisition of legal personality)
should not be made subject to conditions of such a character as to
restrict freedom of association. This was a saving clause intended
to prevent the attribute of legal personality or other similar privileges
from serving as a pretext for certain States to reintroduce
by this means any prohibitive régime concerning associations (for
example, by making the acquisition of legal personality subject to
previous authorisation or by subjecting the functioning of associations
to permanent control by the administrative- authorities).
The Committee deleted the phrase "the acquisition of special privileges"
in the Office text and adopted the point in the following
form :
The acquisition of legal personality by employers' and workers'
organisations should not be made subject to conditions of such a character
as to restrict freedom of association as hereinbefore defined.
7. Responsibilities of Organisations
On the proposal of the Employers' members of the Committee,
the following point was adopted by 54 votes to 51 and was added
to the list of points prepared by the Office :
The acquisition and exercise of the rights as outlined in this Part
should not exempt employers' and workers' organisations from their
full share of responsibilities and obligations.
The view was expressed in the Committee that such a clause
appeared to lack the necessary precision for inclusion in a Convention
on freedom of association, which should lay down clearly
defined rights and obligations. Its real scope could be determined
INTRODUCTION 11
only in relation to the obligations which employers' and workers'
organisations are called upon to assume in respect of collective
agreements or the settlement, of labour disputes. It might, therefore,
appear preferable to reserve such a provision for inclusion
in due course in the international regulation of collective agreements
or conciliation and arbitration. It is for this reason that the
Office has thought it useful to consult the Governments on this
point also.
II. PROTECTION OF THE RIGHT TO ORGANISE
The texts proposed by the Office under this heading were intended
to complete the guarantee of freedom of association in relation
to the State by a guarantee of the exercise of the right to organise
in relation to the other party to the labour contract. Freedom
of association, even where it is recognised by the State, might be
prejudiced by the other party to the labour contract, if the latter
should use his economic strength to hinder the exercise of a right
formally recognised by the law.
The Office, taking into account the fact that the recognition
of freedom of association might result either from agreements
freely concluded between the parties concerned or from formal
legal provisions, proposed two alternative methods of regulation,
namely :
(1) regulation by agreement; or
(2) in the absence of appropriate contractual regulation, the
guarantee of the exercise of the right of association by legislation.
The Office text with regard to the recognition of the right of
association by agreement was as follows :
The central organisations of employers and workers should agree
to recognise each other as the authorised representatives of the interests
of employers and workers, and should undertake mutually to respect
the exercise of the right of association.
The Committee, while fully supporting the method of contractual
regulation, nevertheless laid down the relevant provisions in
the following terms :
There should be agreement between organised employers and workers
mutually to respect the exercise of the right of association.
The text proposed by the Office concerning the legal guarantee
of the right to organise was as follows :
12 FREEDOM OF ASSOCIATION
1. In the absence of agreement between the central organisations
of employers and workers, appropriate regulations should be prescribed
to guarantee :
(a) the exercise of the right of association by the workers by measures
designed to prevent any acts on the part of the employer or of his agents
with the object of :
(i) making the employment of the worker conditional on his not joining
a trade union or on his withdrawing from a trade union of which he
is a member;
(ii) prejudicing a worker because he is a member or agent or official of
a trade union;
(iii) dismissing a worker because he is a member or agent or official of
a trade union.
(b) the exercise of the right of association by workers' organisations
by measures designed to prevent any acts on the part of the employer
or employers' organisations or their agents with the object of :
(i) furthering the establishment of trade unions under the domination
of the employer;
(ii) interfering with the formation or administration of a trade union
or contributing financial or other support to it;
(iii) refusing to recognise trade unions or to bargain collectively with
them for the purpose of concluding collective agreements.
2. It should be understood, however, that a provision in a freely
concluded collective agreement making compulsory membership of
a certain trade union a condition precedent to employment or a condition
of continued employment does not fall within the terms of this Resolution.
Under the terms of this provision, the acts enumerated in the
text were judged to be unlawful simply because they were such as
to prevent the exercise of the right of association of the workers or
of workers' organisations. The Committee considered that the
question was too complicated to be regulated as a whole by means
of an international labour Convention at the next session of the
Conference. It decided, therefore, for the purposes of international
regulation in 1948, to take only the principle of the legal protection
of the right to organise, and to refer to the next session of the
Conference, in accordance with the double-discussion procedure,
the questions of the application of the principle of the right to
organise.
Consequently, the Committee adopted the point relating to
the principle of the protection of the right to organise in the
following terms :
Where full and effective protection is not already afforded, appropriate
measures should be taken to enable guarantees to be provided
for the exercise of the right of freedom of association without fear of
intimidation, coercion or restraint from any source.
INTRODUCTION 13
Finally, the Committee approved without alteration the
following point submitted by the Office :
Appropriate agencies should be established, if necessary, for the
purpose of ensuring the protection of the right of association.
* * *
Article 31, paragraph 1, of the Standing Orders of the Conference
defines the procedure for the consultation of Governments
by means of a questionnaire. It prescribes, in particular, that
"this questionnaire shall request Governments to give reasons
for their replies". The Office calls the attention of the Governments
to this provision and requests them to be good enough to
indicate, at least briefly, in every case in which it may be useful,
the reasons for their replies.
On the basis of the replies from the Governments, the Office
will draw up a final report which will be placed before the Conference
at its 31st Session (1948) for final discussion and decision.
In order that the Office may study these replies, draw up the report
mentioned above and communicate it to the Governments so that
they may receive it sufficiently early for them to be able to consider
it and to hold the necessary consultations before the departure of
their delegations, it is important that, in accordance with the Standing
Orders of the Conference, the replies from the Governments should
reach the International Labour Office, in Geneva, not later than
1 December 1947.
Geneva, August 1947.
QUESTIONNAIRE
I. Desirability and Form of International Regulation
1. Do you consider that the Conference should adopt international
regulations concerning freedom of association and the protection of
the right to organise in the form of one or several Conventions?
2. If the answer to Question 1 is in the affirmative, do you consider
that the Conference should adopt two separate Conventions, one
concerning freedom of association and the other concerning the protection
of the right to organise?
A. FREEDOM OF ASSOCIATION
I I . Establishment of Organisations
3. (a) Do you consider that it would be desirable to provide that
employers and workers, without distinction whatsoever, should have
the inviolable right to establish or join organisations of their own
choosing without previous authorisation?
or, alternatively,
(b) Do you consider that it would be preferable to enumerate descriptively
the persons to whom the right of association should apply and,
therefore, to provide that employers and workers, public or private,
without distinction as to occupation, sex, colour, race, creed, nationality
or political opinion, should have the inviolable right to establish or
join organisations of their own choosing without previous authorisation
?
(c) Do you consider that it would be desirable to provide that the
recognition of the right of association of public officials by international
regulation should in no way prejudge the question of the right of such
officials to strike?
I I I . Functioning of Organisations
4. (a) Do you consider that it would be desirable to provide that
employers' and workers' organisations should have the right to draw
up their constitutions and rules, to organise their administration and
activities and to formulate their programmes?
16 FREEDOM OF ASSOCIATION
(b) Do you consider that it would be desirable to provide further
that the public authorities should refrain from any interference which
would restrict this right or impede the organisations in the lawful
exercise of this right?
IV. Dissolution and Suspension of Organisations
5. Do you consider that it would be desirable to provide that
employers' and workers' organisations should not be liable to be
dissolved or have their activities suspended by administrative authority ?
V. Federations, Confederations and International Organisations
of Employers and Workers
6. Do you consider that it would be desirable to provide that
employers' and workers' organisations should have the right to establish
federations and confederations and to affiliate with international
organisations of employers and workers?
VI. Guarantees relating to Federations and Confederations
7. Do you consider that it would be desirable to provide that the
guarantees with regard to the establishment, functioning, dissolution
and suspension of employers' and workers' organisations referred
to in Questions 3, 4 and 5, should apply to federations and confederations
of such organisations ?
VII. Legal Personality of Organisations
8. Do you consider that it would be desirable to provide that the
acquisition of legal personality by employers' and workers' organisations
should not be made subject to conditions of such a character as to
restrict freedom of association as hereinbefore defined?
VTII. Responsibilities of Organisations
9. (a) Do you consider that it would be desirable to provide, in
the international regulations concerning freedom of association, that
the acquisition and exercise of the rights defined above should not
exempt employers' and workers' organisations from their full share
of responsibilities and obligations?
or, alternatively,
(b) Do you consider that it would be preferable to reserve such a
provision for inclusion in international regulations concerning
collective agreements or conciliation and arbitration?
QUESTIONNAIRE 17
B. PROTECTION OF THE RIGHT TO ORGANISE
IX. Guarantee of the Exercise of the Bight to Organise
10. Do you consider that international regulations should guarantee
the exercise of the right to organise?
11. / / the answer to Question 10 is in the affirmative, do you
consider that the protection of the right to organise should be effectively
assured by means of mutual agreement between organised
employers and workers?
12. Do you consider that, in the absence of full and effective
guarantee by means of mutual agreements, appropriate measures
should be taken to protect the exercise of the right to organise without
fear of intimidation, coercion or restraint from any source?
X. Establishment of Agencies for the Purpose of Ensuring Respect
of the Right to Organise
13. Do you consider that international regulations should include
the obligation of establishing appropriate agencies for the purpose
of ensuring the respect of the right to organise?
* * *
14. Have you any proposal or suggestion to make on any point
relating to the questions of freedom of association and of protection
of the right to organise, to which no reference has been made in this
questionnaire ?
Document No. 158
ILC, 31st Session, 1948, Report VII, Freedom of
Association and Protection of the Right to Organise
MOB Si
REPORT VH
International Labour Conference
THIRTY-FIRST SESSION
SAN FRANCISCO, 1948
FREEDOM OF ASSOCIATION
AND PROTECTION OF THE RIGHT
TO ORGANISE
Seventh Item on the Agenda
GENEVA
International Labour Office
1948
PRINTED BY THE "JOURNAL DE GENÈVE"
GENEVA, SWITZERLAND
CONTENTS
Page
INTRODUCTION 1
The Question of Freedom of Association before the United
Nations 2
CHAPTER I :
Replies of the Governments 8
CHAPTER II :
Analysis of the Replies of the Governments 60
CHAPTER III :
Conclusions 83
CHAPTER IV :
Proposed Text:
Proposed Convention concerning Freedom of Association
and Protection of the Right to Organise 98
INTRODUCTION
The International Labour Conference decided, at its
30th Session, to place on the agenda of its 31st Session (San
Francisco, June-July 1948) the questions of freedom of association
and of the protection of the right to organise, with a view
to their consideration under the single-discussion procedure.
In accordance with the first paragraph of Article 31 of the
Standing Orders of the Conference, the Office circulated to the
Governments a summary report, together with a questionnaire,
requesting that the replies of the Governments should reach the
Office not later than 1 December 1947.1
In accordance with paragraph 2 of the same Article 31, the
Office, on the basis of the replies from the Governments, has to
draw up a final report which may contain one or more Conventions
or Recommendations.
As the question was not placed on the agenda of the Conference
eighteen months before the opening of its 31st Session,
this report, in accordance with paragraph 3 of Article 31 of the
Standing Orders—adopted by the Conference at its 30th Session
—has to be communicated to the Governments within a period
determined by the Governing Body or, under exceptional
circumstances, decided by the Officers of the Governing Body,
in agreement with the Director-General. In accordance with
this last provision, it was agreed that the final report should
reach the Governments by 15 February 1948.
By 25 January 1948, the Office had received replies from the
following Governments : Australia, Austria, Belgium, Bulgaria,
Canada, China, Denmark, Ecuador, Finland, France, Hungary,
India, Mexico, the Netherlands, Sweden, Switzerland, the Union
of South Africa, the United Kingdom and the United States.
In order to be in a position to communicate the report to
the Governments sufficiently early to enable them to hold the
necessary consultations before the departure of their delegations,
1 International Labour Conference, 31st Session, Questionnaire :
Freedom of Association and Protection of the Right to Organise, Geneva
(I.L.O.), 1947.
2 FREEDOM OF ASSOCIATION
the Office, in preparing the report, has been able to take account
only of the replies of the nineteen Governments referred to above.
Any replies which arrive at a later date will be published in a
brief supplementary report.
Before considering the replies of the Governments, it is
necessary to recall very briefly the action taken by the United
Nations agencies concerned with regard to the decisions of the
last session of the Conference.
THE QUESTION OF FREEDOM OF ASSOCIATION BEFORE
THE UNITED NATIONS
The Conference will remember that the question of freedom
of association and industrial relations came before the International
Labour Organisation at the request of the Economic
and Social Council, applying the provisions of the Agreement
entered into between the United Nations and the International
Labour Organisation.1
In the Resolution by which the Economic and Social Council
referred these problems to the International Labour Organisation
2, the Council expressed the desire that it should have
before it, at its next session, a report from the International
Labour Organisation on the action taken in accordance with its
request.
In deference to this wish, the International Labour Organisation,
immediately after the close of the 30th Session of the Conference,
in July 1947, sent to the Economic and Social Council a
report which set forth, inter alia, the decisions unanimously
taken by the Conference concerning freedom of association. s
The Office report gave rise to an extensive discussion on the
part of the Economic and Social Council, on 8 August 1947, in
the course of its fifth session, which was held in New York.4
1 See International Labour Conference, 30th Session, Geneva, 1947,
Report VII : Freedom of Association and Industrial Relations, pp. 1-12,
Geneva (I.L.O.), 1947.
2 Op. cit., p. 1.
3 Cf. INTERNATIONAL LABOUR OFFICE : Decisions concerning Freedom
of Association adopted unanimously by the Thirtieth Session of the International
Labour Conference on 11 July 1947, and Speeches delivered
before the Conference by Mr. Léon Jouhaux, Reporter, and Mr. Louis
E. Cornil, Deputy Reporter, of the Committee on Freedom of Association,
Geneva (I.L.O.), 1947.
4 Cf. UNITED NATIONS, ECONOMIC AND SOCIAL COUNCIL: E/533, etc.
INTRODUCTION 3
The International Labour Organisation was represented
at this session by a tripartite delegation of the Governing
Body, consisting of Mr. David A. Morse (United States Government
member), Mr. H. W. Macdonnell (Employers' deputy
member) and Mr. Paul Finet (Workers' member), substitute
for Mr. Jouhaux, together with Mr. Jef Rens, Assistant Director-
General of the International Labour Office.
At the close of its discussion, the Economic and Social
Council, by 15 votes to 2, with one abstention, adopted the
following resolution :
The Economic and Social Council,
Having received the report transmitted by the International
Labour Organisation in pursuance of the Council's request at its
fourth session that the memoranda on the subject of trade union
rights submitted to the Council by the World Federation of Trade
Unions and the American Federation of Labor might be placed on the
agenda of the International Labour Organisation at its next session
and that a report might be sent for the consideration of the Economic
and Social Council at its next meeting,
Takes note of the report and observes with satisfaction the action
taken and proposed by the International Labour Organisation within
its recognised competence,
Decides :
(a) to recognise the principles proclaimed by the International
Labour Conference ;
(b) to request the International Labour Organisation to
continue its efforts in order that one or several international Conventions
may be quickly adopted ;
(c) to transmit the report to the General Assembly ;
Awaits further reports on the subject to be transmitted by the
International Labour Organisation and awaits also the report which
it will receive in due course from the Commission on Human Rights
on those aspects of the subject which might appropriately form part
of the Bill or Declaration on Human Rights ;
Notes that proposals for the establishment of international
machinery for safeguarding freedom of association are to be examined
by the Governing Body of the International Labour Organisation ;
Considers that the question of enforcement of rights, whether of
individuals or of associations, raises common problems which should
be considered jointly by the United Nations and the International
Labour Organisation ; and
Requests the Secretary-General to arrange for co-operation
between the International Labour Organisation and the Commission
on Human Rights in the study of these problems.
In accordance with sub-paragraph (c) above, the report of
t h e International Labour Organisation was transmitted to the
4 FREEDOM OF ASSOCIATION
General Assembly of the United Nations, whose Second Ordinary
Session opened on 16 September 1947, in New York.
The International Labour Organisation was represented
at this session by a tripartite delegation of the Governing Body,
consisting of its Chairman, Sir Guildhaume Myrddin-Evans,
the Employers' Vice-Chairman, Mr. J. D. Zellerbach, and the
Workers' Vice-Chairman, Mr. Léon Jouhaux, together with the
Director-General.
The General Assembly referred the question to its Third
Committee (the Committee dealing with social, humanitarian
and cultural questions), which further referred the matter to a
specially constituted subcommittee in order to reconcile the
different proposals submitted by a number of delegates.
On the report of the subcommittee, the Third Committee,
by 31 votes to 5, with six abstentions, adopted a resolution
to be submitted to the Assembly. After a long discussion \
the Assembly adopted, with slight modifications, by 45 votes
to 6, with 2 abstentions, the resolution submitted by the
Third Committee.
The text of the rerolution adopted by the Assembly is
as follows :
The General Assembly, >
Taking note of resolution 52 (IV) adopted by the Economic and
Social Council at its fourth session, whereby it was decided to transmit
the views of the World Federation of Trade Unions and the American
Federation of Labor on " Guarantees for the Exercise and Development
of Trade Union Rights " to the Commission on Human Rights,
" in order that it may consider those aspects of the subject which
might appropriately form part of the Bill or Declaration on Human
Rights " ;
Taking note also of resolution 84 (V) adopted by the Council
at its fifth session, whereby it was decided to transmit to the General
Assembly of the United Nations the report of the International
Labour Organisation entitled " Decisions concerning Freedom of
Association adopted unanimously by the Thirtieth Session of the
International Labour Conference on 11 July 1947 ", to recognise the
principles proclaimed by the International Labour Conference, and
to request the International Labour Organisation to continue its
efforts in order that one or several international Conventions may
be adopted ;
Approves these two resolutions ;
Considers that the inalienable right of trade union freedom of
association is, as well as other social safeguards, essential to the
1 See UNITED NATIONS, GENERAL ASSEMBLY: A/C. 3/166, etc., and
A/444, etc.
INTRODUCTION 5
improvement of the standard of living of workers and to their economic
well-being ;
Declares that it endorses the principles proclaimed by the International
Labour Conference in respect of trade union rights as well
as the principles the importance of which to labour has already been
recognised and which are mentioned in the Constitution of the
International Labour Organisation and in the Declaration of Philadelphia
and, in particular, subsection (a) of Section II and subsections
(a) to (j) inclusive of Section III of the Declaration of
Philadelphia 1 ;
Decides to transmit the report of the International Labour
Organisation to the Commission on Human Rights with the same
objects as those stated in resolution 52 (IV) of the Economic and
Social Council ; and
Recommends to the International Labour Organisation on its
tripartite basis to pursue urgently, in collaboration with the United
Nations and in conformity with the resolution of the International
Labour Conference concerning international machinery for safeguarding
trade union rights and freedom of association, the study of
the control of their practical application.
The importance of the Resolutions adopted, both by the
Economic and Social Council and by the Assembly of the United
Nations, will certainly not escape the notice of the Conference.
I t is important to emphasise, in the first place, that the
Economic and Social Council, as well as t h e Assembly, " observes
with satisfaction the action taken and proposed by the International
Labour Organisation within its recognised competence".
Thus, the proper competence of the International Labour
Organisation, in questions concerning the regulation of trade
union rights and industrial relations, has been formally recognised
by the various agencies of the United Nations.
Secondly, t h e Economic and Social Council and the Assembly
of the United Nations have endorsed the principles proclaimed
in respect of trade union rights by the International Labour
Conference and have, therefore, requested the International
Labour Organisation to continue its efforts with a view to the
adoption of one or several international Conventions. This
official sanctioning, by the United Nations, of the decisions taken
at its 30th Session by the International Labour Conference
enhances their character of universality, as it associates with
them a number of countries, Members of the United Nations,
which are not as yet Members of the International Labour
Organisation. The Economic and Social Council expressed once
1 Sub-paragraphs (a) to (j) of Section III of the Declaration of Philadelphia
are quoted in the annex to the Resolution.
6 FREEDOM OF ASSOCIATION
more on this occasion a desire to receive further reports on the
progress of the activities undertaken in this field by the International
Labour Organisation.
Thirdly, the Economic and Social Council and the Assembly
of the United Nations have given prominence to the importance
of the problem of international supervision of the effective
application of freedom of association. In this connection, it
may be recalled that, in accordance with the suggestions made
on this matter by the World Federation of Trade Unions and
the American Federation of Labor, the 30th Session of the
Conference adopted a Resolution concerning international
machinery for safeguarding freedom of association. 1 In this
Resolution, the Conference recognised that the question was one
of paramount importance which required careful and detailed
examination and, therefore, requested the Governing Body to
examine the question in all its aspects and to report back to the
Conference at the 31st Session in 1948.
The Economic and Social Council, in its resolution of
8 August 1947, while noting that proposals for the establishment
of international machinery for safeguarding freedom of association
are to be examined by the Governing Body of the International
Labour Office at the same time expressed the opinion
that the question of enforcement of rights, whether of
individuals or of associations, raises common problems which
should be considered jointly by the United Nations and
the International Labour Office. Consequently, the Council
requested the Secretary-General of the United Nations to arrange
for co-operation between the International Labour Organisation
and the Commission on Human Rights in the study of these
problems.
For its part, the General Assembly of the United Nations
recommended to the International Labour Organisation, on its
tripartite basis, to pursue urgently, in collaboration with the
United Nations and in conformity with the Resolution of the
International Labour Conference concerning international
machinery for safeguarding trade union rights and freedom of
association, the study of the control of their practical application.
In the light of the decisions taken by the Economic and
Social Council and in accordance with the Resolution adopted
1 See INTERNATIONAL LABOUR OFFICE : Official Bulletin, 31 July 1947,
Volume XXX, No. 1, p. 69.
INTRODUCTION 7
by the 30th Session of the International Labour Conference, the
Governing Body, therefore, will have to examine the question
in its entirety in order that, at the appropriate time, concrete
proposals concerning this matter may be placed before the
Conference and the United Nations.
Finally, the Assembly of the United Nations decided to
transmit the report of the International Labour Organisation
on freedom of association to the Commission on Human Rights.
It is important to emphasise, in this connection, that the
Commission on Human Rights, which met in Geneva in its
second session from 2 to 17 December 1947, included, among
the objects which associations may pursue, " trade union "
objects, which were not referred to in the draft submitted
by the Drafting Committee. On the other hand, taking into
account the special competence of the'^International Labour
Organisation with regard to the question of regulation of trade
union rights, the Commission orí Human Rights refrained from
dealing with this problem in the Draft International Covenant
on Human Rights. /"'
The Conference^ill no doubt observe with satisfaction
that a particularly fruitful collaboration has been established
between the United Nations and the International Labour
Organisation with regard to a question of vital importance both
for the Governments and for the workers and employers of all
countries in the world.
CHAPTER I
REPLIES OF THE GOVERNMENTS
General Observations
AUSTRIA
At the present day, it would not be possible to imagine a
democratic régime without the participation of employers'
and workers' associations in the field of social and economic
policy ; these associations are the determining factors whose
objective and responsible co-operation, free from outside
influence, and directed towards the best interests of the community,
constitutes the best guarantee of the harmonious
development of social and economic legislation and of that social
peace which is necessary for such development.
In Austria, where the right of workers and employers to
form associations in full freedom has been guaranteed for
decades under the Constitution (leaving aside the latest years
of the totalitarian régime), both the legislative and administrative
authorities have always attached the greatest importance
to the extensive co-operation of workers' and employers'
associations in the field of social and economic policy. Particular
progress has been made in the case of collective agreements, on
which new legislation was enacted in 1946 to correspond with
present-day circumstances.
NETHERLANDS
In replying to the questions contained in the questionnaire,
it has been taken as a matter of course that freedom of association—
like every other freedom—is bound by the requirements
of public order, as defined by national legislation.
REPLIES OF THE GOVERNMENTS 9
SWITZERLAND
Switzerland prides itself on being a country in which the
spirit of freedom is ever alive and could not be extinguished.
It therefore attaches very great importance to freedom of
association, although the right to combine has not, in Switzerland,
given rise to extensive legislation. The right is laid down in
the Federal Constitution ; Article 56 provides that " citizens
have the right to form associations, provided that the objects
and methods of such associations are not unlawful or dangerous
to the State ". However, this constitutional provision governs
only relations between the citizen and the State and does not,
therefore, protect freedom of association against interference on
the part of individuals. In the latter case, private law is applicable,
and, in particular, the provisions of the Swiss Civil Code
concerning protection of civil status (Article 27 f.) and those of
the Swiss Code of Obligations concerning the liability resulting
from unlawful acts (Article 41 ff.). It should be added that the
Civil Code allows great freedom with regard to the formation
of associations ; it imposes only a minimum number of requirements
in this connection.
In order to guarantee even more effectively the right of
association, the competent authorities are at present considering
a proposed Federal Decree concerning the protection of the
right of association of workers and salaried employees. Moreover,
it may be observed that the recent adoption by the Swiss people,
on 6 July 1947, of the Federal Decree concerning the Articles of
the Federal Constitution relating to the economic field (4 April
1946) may have a favourable influence on the activities of
associations. Article 34 ter (b) of the Constitution confers on the
Confederation henceforth the right to legislate regarding the
relations between employers and workers or salaried employees,
and especially on the joint regulation of questions concerning the
undertaking or the occupation.
UNION OF SOUTH AFRICA
In approaching this question it should be constantly borne
in mind that the International Labour Organisation is composed
of a large number of Member States of varying national practices
and traditions and involving peoples at widely varying stages
10 FREEDOM OF ASSOCIATION
of social and economic development, these variations sometimes
being evident as between the population of one Member State
and another, sometimes as between the population of the
metropolitan Member State and the population of its dependent
territories, and sometimes as between different sections of the
population in the territory of the same Member State.
Furthermore, some States have " Constitutions " in which
certain principles are enunciated. While setting out to ensure the
fundamental rights, for the protection of which any Convention
which may be adopted is designed, great care should be exercised
in ensuring, if at all possible, that the text of any Conventions
adopted should not involve the amendment of the " Constitution
" of any State as a preliminary to ratification.
What is desired is results from the adoption and subsequent
ratification of any such Conventions, and it is suggested that
in the approach to this question the International Labour
Organisation should constantly bear in mind the principles set
out in the Resolution adopted at the New York Conference of
1941 on the question of collaboration between public authorities
and workers' organisations and employers' organisations—a
principle which it is considered applies with equal force to the
fundamental questions of freedom of association, the protection
of the right to organise and collective bargaining, all of which
constitute the foundation on which any such collaboration must
be built.
The relevant paragraph of the Resolution reads as follows :
The Conference,
Recognises that methods of collaboration vary . . . from
country to country and within the experience of a single nation . . .
and that positive results can best be assured by development along
the lines of national experience, always provided that collaboration
is based on the principles enunciated above and subject to the fundamental
necessity for full participation of employers' and workers'
organisations through representatives of their own designation being
fully assured. 1
A perusal of the Director-General's report on the earlier
attempts to regulate these matters and a perusal of the reports
to and discussions of various regional conferences indicate that,
while fundamental rights should be clearly stated, any Conven-
1 See Report VII, 1947, op. cit., p. 27.
REPLIES OF THE GOVERNMENTS 11
tions adopted will fail in their purpose, and positive results
will not be obtained unless the terms of such Conventions
permit of development along the lines of national experience.
I. Desirability and Form of International Regulation
1. Do you consider that the Conference should adopt international
regulations concerning freedom of association and the
protection of the right to organise in the form of one or several
Conventions ?
2. // the answer to Question 1 is in the affirmative, do you
consider that the Conference should adopt two separate Conventions,
one concerning freedom of association and the other concerning the
protection of the right to organise ?
AUSTRALIA
1. Yes. Freedom of association, coupled with the right of
employers and workers to organise, is already firmly established
as a way of life in Australia. The proportion of the working
population already organised in trade unions is believed to be
higher than in any other country in the world, excepting the
Soviet Union, and it is doubtful whether it would ever be
necessary, unless in exceptional circumstances, to protect this
right in Australia. The adoption of international regulations
would not involve any alteration of the position in% Australia,
except in a matter of form, but in other countries international
regulation may be of concrete value in furthering freedom of
association and the protection of trade unions.
2. If protection of the right to organise, as well as the right
of freedom of association, is to be provided for by international
regulation, then a single Convention, rather than separate.
Conventions, is favoured.
AUSTRIA
1. In view of the importance of " freedom of association "
and of the " protection of the right to organise " as outlined in
the introduction to this reply1, it would seem necessary that.
1 See above, under " General Observations ", p. 8.
12 FREEDOM OF ASSOCIATION
the international regulation of these two legal questions should
take the form of a Convention.
2. The international regulation of the matters mentioned
under Question 1 should be dealt with not by two separate
Conventions, but by a single Convention. The protection of the
right to organise is a necessary complement to freedom of
association ; these two legal questions are so closely related
to each other and bear upon each other in so many ways that
it appears desirable to adopt a single Convention for their
international regulation.
BELGIUM
1. International regulations concerning freedom of association
and protection of the right to organise should be adopted
by the Conference in the form of a Convention.
2. These two questions seem to be so closely related that
it appears reasonable to contemplate only a single Convention.
BULGARIA
1. Yes.
2. Yes.
CANADA
1. Yes.
2. Yes.
CHINA
1. Yes, the Conference should adopt international regulations
concerning freedom of association and protection of the
right to organise in the form of one or several Conventions.
2. It is recommended that the Conference should adopt one
Convention concerning freedom of association and protection
of the right to organise, because, although these are two separate
questions, they are closely related.
DENMARK
1. Yes.l
2. No.
1 In its reply to the Questionnaire, the Danish Government communicated
to the Office the opinions of the Danish Employers' Confederation
and of the Confederation of Danish Trade Unions with regard to each
question, indicating that the Government was of the same opinion as
these organisations in respect to Questions 1-4, 6-9 and 11-14. The
replies to these questions, therefore, should be considered as an expression
of the views jointly held by the Danish Government and the employers'
and workers' organisations.
REPLIES OF THE GOVERNMENTS 13
ECUADOR
1. The Government of Ecuador considers that the international
regulations concerning freedom of association and
protection of the right to organise should be adopted under
the form of a single Convention, as these two questions are
closely related to each other.
2. As already indicated, only a single Convention should
be contemplated, in view of the close connection between
freedom of association and protection of the right to organise.
FINLAND
1. The reply is in the affirmative.
2. The Conference should adopt two separate Conventions
which should be discussed at the same time.
FRANCE
1. Yes.
2. Yes.
HUNGARY
1. Yes.
2. It would be sufficient to adopt a single Convention.
% INDIA
1. Yes.
2. The Conference should adopt two separate Conventions,
one concerning the freedom of association and the other concerning
the protection of the right to organise.
MEXICO
1. Yes.
2. It would be sufficient to have one Convention on freedom
of association.
NETHERLANDS
1. The reply to this question is not in the negative, but it
may be doubted whether without effective international supervision
the practical realisation of this laudable principle will
be achieved. Experience shows that the virtual situation in a
country may lead to the impairment of freedom, against which
international Conventions as such are of little avail.
14 FREEDOM OF ASSOCIATION
2. If the suggestion made in the reply to Question 10 is
not adopted, the subject matter of both parts of the questionnaire
could be embodied in one Convention.
SWEDEN
1. Yes.
2. To the Swedish Government it seems desirable that
freedom of association and the protection of the right to organise
should be dealt with in a single Convention.
SWITZERLAND
1. Inasmuch as freedom of association constitutes an
element in the basic freedoms of the individual, it is considered
that freedom of occupational association, as well as the protection
of the right to organise, should be guaranteed by international
regulation.
2. A single Convention should suffice to include both these
questions, which are closely related to one another. Perhaps
it might be advisable for it to be supplemented by a Recommendation
dealing with certain points which cannot be set forth
in detail in a Convention.
UNION OF SOUTH AFRICA P
1. No. It is considered preferable that, in the first instance,
the international regulations should take the form of Recommendations.
Conventions could follow in the light of experience of
reports on Recommendations. If, however, the Organisation
decides upon the form of Conventions, then it is considered
desirable that there should be two or more Conventions, unless
one Convention divided into parts can be devised with the
right vesting in Members to ratify one or more parts.
2. Subject to what has been stated in reply to Question 1,
the answer is in the affirmative.
UNITED KINGDOM
1. Yes ; provided that the regulations do not require the
enactment of legislation concerning freedom of association
or the protection of the right to organise in cases where this
REPLIES OF THE GOVERNMENTS 15
freedom and right exist under current law or are satisfactorily
secured in other ways.
2. The two subjects might be dealt with in a single Convention.
UNITED STATES
1. Yes.
2. Yes.
The drafting of the Convention relative to the protection
of the right to organise will be complicated by the need to make
it effectively responsive to widely varying conditions with
respect to the actual security and power of employers' and
workers' organisations and with respect to the existing machinery
of the Government members for protecting the right to organise.
Problems arising from these varying circumstances should not
be allowed to complicate or delay the adoption of a Convention
formulating the nature of the right whose recognition should
guide us and whose exercise it should be our duty fully to
protect.
A. FREEDOM OF ASSOCIATION
II. Establishment of Organisations
3. (a) Do you consider that it would be desirable to provide
that employers and workers, without distinction whatsoever, should
have the inviolable right to establish or join organisations of their
own choosing without previous authorisation ?
or, alternatively,
(b) Do you consider that it would be preferable to enumerate
descriptively the persons to whom the right of association should
apply and, therefore, to provide that employers and workers, public
or private, without distinction as to occupation, sex, colour, race,
creed, nationality or political opinion, should have the inviolable
right to establish or join organisations of their own choosing without
previous authorisation ?
(c) Do you consider that it would be desirable to provide that
the recognition of the right of association of public officials by
international regulation should in no way prejudge the question
of the right of such officials to strike ?
16 FREEDOM OF ASSOCIATION
AUSTRALIA
3. (a) Yes. This has been, and still is, the policy in Australia
both in public and in private employment.
(b) No.
(c) Yes.
AUSTRIA
3. (a) and (b) It would be preferable to adopt the formula
set forth in Question 3 (b), as the words " without distinction
whatsoever " might, in view of their having too general a
meaning, lend themselves to different interpretations and,
therefore, to a restricted interpretation, with the result that
there might be grounds for fearing that, when the Convention
is applied by the States Members, the categories of persons
protected would come to be defined in a different way and the
real objects of the international regulations would not be fully
realised. The wording adopted under Question 3 (b) has the
advantage of specifying clearly the categories of employers and
workers to whom the Convention shall apply.
It is evident that the establishment of workers' and employers'
associations should not be made subject to " previous
authorisation ". But this should not mean that, when associations
are being established, the administrative formalities in
force in the various States may be disregarded. In Austria,
associations both of employers and of workers are established
in accordance with the Associations Act of 15 November 1867
(R.G.B1. 1. Nr. 134), under the provisions of which the proposal
to establish an association (occupational organisation) must
be notified in writing to the competent administrative authority
(provincial governor) and copies of the rules submitted. The
administrative authority has power to prohibit the formation
of the association only within four weeks of receiving the
notification, and only if its objects or constitution render the
organisation contrary to law or dangerous to the State. If
the administrative authority does not issue any prohibition
within a period of four weeks, or if the authority declares,
before the expiration of this period, and after considering the
rules which have been submitted, that it does not prohibit
the establishment of the association, such association may
commence to operate. A decision to prohibit the association may
REPLIES OF THE GOVERNMENTS 17
be appealed against within sixty days to the Minister of the
Interior.
Under the provisions of the Austrian Associations Act, in
order to establish a workers' or employers' association, it is
necessary, therefore, in principle, merely to make a declaration
to that effect to the administrative authority, but there is no
need to obtain previous authorisation. If the words " without
previous authorisation " relieved associations of any obligation
to comply with formal requirements such as those indicated
above, it would be necessary, in order not to render the ratification
of the Convention more difficult, to take account of this
aspect of the question by inserting supplementary clauses.
(c) In view of the fact that in many countries, under the
legal regulations governing the public services, officials are
placed in a situation of particular responsibility in relation to
the State, and because by virtue of that situation certain officials
may themselves frequently represent the State authority, it
seems desirable to specify in the Convention that the recognition
of the right of association of these officials in no way prejudges
the question of their right to strike.
BELGIUM
3. (a) The inviolable right to establish or join organisations
of their own choosing without previous authorisation should be
guaranteed to employers and workers, without distinction
whatsoever ; this is the corollary to freedom of association,
the principle of which was solemnly affirmed in the Preamble to
Part XIII of the Treaty of Versailles and reaffirmed by the
Declaration of Philadelphia in 1944.
(b) See reply to (a) above.
(c) Freedom of association being recognised for all workers,
whoever they may be, it is desirable, in accordance with the
decision of the International Labour Conference in 1947, to
defer for the time being questions of application of this principle,
one of which is necessarily the question of the exercise of the
right to strike by public officials.
BULGARIA
3. (a) Yes.
(b) No.
(c) Yes.
18 FREEDOM OF ASSOCIATION
CANADA
3. (a) Yes.
(c) It is considered that recognition of right of association
of public officials should not carry with it recognition of any
right to strike.
CHINA
3. (a) The Chinese Government agrees with this, but
would like to point out that these organisations should be set
up in conformity with the national laws or regulations concerned.
DENMARK
3. (a) Yes.
(b) No.
(c) Yes.
ECUADOR
3. (a). Yes, provided that this does not cover public
employees, in the case of whom national legislation must be
left free to grant or regulate or refuse this right according to
circumstances.
(b) It is considered that this right should be accorded
and ensured as a full and general right, except for the reservations
which each country may make with regard exclusively
to public employees and officials, as indicated in the reply to
(a) above.
(c) In view of the fact that each country should be left
free to legislate with regard to the right of association of public
officials, it is considered that each country should also have the
right to regulate or prohibit the right to strike of such officials ;
the international regulations, therefore, should in no way
prejudge this question.
FINLAND
3. (a) The reply is in the affirmative, but the right of
association should also mean that employers and workers might,
if they so choose, refrain from joining organisations. The State
and municipal authorities, in the rôle of employers, should not
be members of the organisations of private employers.
(b) The reply is in the negative.
(c) The reply is in the affirmative.
REPLIES OF THE GOVERNMENTS 19
FRANCE
3. (a) and (b) The formula of (a), being in general terms,
appears to be preferable to that of (b).
(c) Yes. It may be recalled in this connection that the
French Constitution provides that the right to strike shall
be exercised within the limits of the laws regulating that right.
A reservation of this kind might be contemplated in the circumstances.
HUNGARY
3. (a) and (b) The solution contemplated under (a) appears
to be preferable by reason of its clarity, which excludes the
possibility of any distinction. It is of paramount importance,
however, that the rights provided by the Convention should be
ensured only to those organisations which satisfy the standards
of democracy. Moreover, workers' organisations should benefit
from the application of these rights only if they include a
specified proportion of the workers in the occupation concerned,
a proportion which might be fixed by national legislation.
(c) The provision suggested under head (c) should be
included in the Convention.
INDIA
3. (a) Yes, but the regulations should be so framed as to
make clear that the right to establish or join organisations should
be in conformity with the provisions in the national Constitution
regarding the freedom of speech and combination, the right to
form associations and the right of assembly.
(c) Yes, but it should be made clear that the recognition
of the right of association of public officials in no way implies
any recognition, directly or indirectly, of the right of such
officials to strike.
MEXICO
3. (a) Yes.
(c) No.
NETHERLANDS
3. (a) This is preferred to 3 (b).
(c) Questions relating to the right to strike have not yet
been under consideration for the purposes of the proposed
20 FREEDOM OF ASSOCIATION
Convention ; a provision concerning the right to strike should
therefore not be included.
SWEDEN
3. (a) Yes.
(c) Since the question of the right of public officials to
strike does not appear to be directly connected with the right
of association, this question should not be dealt with in the
Convention.
SWITZERLAND
3. (a) Employers and workers, without distinction
whatsoever, should have the inviolable right to establish or
join organisations of their own choosing without previous
authorisation.
(b) Any enumeration such as is set forth under (b) could
only be limitative, and might have the effect of giving rise to
controversies likely to disturb social peace.
It is suggested that the two following rights might be dealt
with in the Convention ; that of employers and workers to
associate and, as a kind of corollary to that right, the right to
refrain from association. Admittedly, it has been urged that the
simple affirmation of the right to associate fully safeguards
the right not to associate. However, it would appear desirable
that this principle should be clearly laid down. This question
has, in fact, already given rise to discussion in the Committee
on freedom of association last summer in Geneva.
(c) It is considered necessary to provide that the recognition
of the right of association of public officials should in no way
prejudge the question of the right to strike of such officials.
The Federal Act respecting the conditions of service of officials
of 30 June 1927 provides specifically that the right of association
is guaranteed to officials within the limits prescribed by the
Federal Constitution. However, they are forbidden to strike.
UNION OF SOUTH AFRICA
3. For the reasons which follow in detail it is considered
that any provision in a Convention dealing with this principle
should be phrased somewhat as follows :
REPLIES OF THE GOVERNMENTS 21
Employers and workers shall have the right, without previous
authorisation, to establish or join organisations for the furtherance
of their interests as such and for membership of which they are eligible
subject only to such minimum compulsory statutory requirements
of the national authority as will ensure :
(a) adequate adaptation to the pattern of the legislative system
of wage regulation and collective bargaining and industrial regulation
; and
(b) protection of the organisation's assets against misappropriation
and misapplication to non-lawful or non-constitutional purposes ;
and
(c) non-participation of organisation in fields of activity not
sufficiently closely connected with the purpose for which such
organisation was primarily established, for example compulsory
political activities.
It is considered that in framing measures of this nature the
use of adjectives such as " inviolable " should be avoided.
There is a likelihood of a meaning being read into the word
other.than that intended by the contracting parties. More
particularly is it undesirable to utilise such unqualified phraseology
and to proceed thereafter to whittle down the scope, as,
for example, was done in the Resolution adopted at the 30th
Session, where it was necessary to exclude a provision in a
collective agreement stipulating compulsory membership of a
particular organisation. Such compulsory membership seems
in conflict with the phrase " the inviolable r i g h t . . . to establish
or join . . . organisations of their own choosing ".
The term " establish organisations " is also too wide. What
is apparently intended by the Resolutions adopted at the
30th Session is to recognise the right of workers as such to
establish " trade unions " to protect their interests as
" workers ", and of " employers " to establish "employers'
organisations " to regulate relations between themselves and
their employees. The right of both employers and workers to
establish organisations for any other purpose should be the same
as for the ordinary citizen.
It is considered that any Convention should relate only to
workers' and employers' organisations in their capacity as
representatives of workers and employers as such. Their
purpose should be to further the interests of workers or employers
in the particular undertaking, industry, trade or occupation and
to regulate relations between them. It would be preferable to
define what is intended. The phrase " of their own choosing "
is unreal and should be deleted. In actual practice considerable
2 2 FREEDOM OF ASSOCIATION
limits on the right of choice are imposed by the employers or
workers who themselves form the various organisations. This
right of choice would apply equally to the formation of new
organisations.
It is quite impracticable to concede the complete freedom
of any employers or workers to establish organisations of their
own just when and how they choose. The fundamental right
of both the workers and the employers to associate to further
and protect their respective interests must be maintained, but
orderly regulation is essential if the objective of successful
collective bargaining is to be attained, and any Convention
adopted should specifically recognise this. Differences in race,
custom, stage of social and economic development and education
between various population groups are such that in some
countries the interpénétration of various groups within the
same geographical areas renders the intermingling of the
members of such groups within the same organisation
impracticable. This is the more so when a large section of a
population is slowly emerging into a more socially and
economically developed state. If there existed an " inviolable
right " to join an organisation " of their own choosing " the
less developed sections of the population in such lands having
little or no experience of such matters but which might nevertheless
be numerically the largest group could take over the
control of long-established organisations of many years' experience.
The freedom of choice should be restricted to organisations
established according to the pattern upon which industrial
relations in a country are organised inasmuch as the main
function of employers' organisations and trade unions is collective
bargaining. Jurisdictional disputes dissipate the energies
and revenues of such organisations and give rise to an atmosphere
in which collective bargaining is seriously impeded.
The right of the worker and the employer to organise should
be guaranteed.
3. (c) The right of servants of the State to association
should be subject to similar principles as apply in the case
of non-servants of the State, in so far as grouping of different
racial and cultural elements is concerned, but distinctions must
be drawn between associations of State employees and other
associations of public officials. The former should not participate
in the ordinary legislative pattern of collective bargaining nor
REPLIES OF THE GOVERNMENTS 23
should they have the right to strike. Public officials in the
employ of municipal or other local authorities should generally
fall within the ambit of collective bargaining but should not be
permitted to strike if employed upon " essential services ",
i.e. services to the community such as the supply of light, power,
water, sanitation and the extinguishing of fires.
UNITED KINGDOM
3. A general formula such as that suggested in 3 (a) is
considered to be preferable to an enumeration, as in 3 (b),
for the reasons given on pages 7-8 of the Questionnaire. The
provision should be so framed as to preserve the right of organisations
to decide whether or not to accept applications for
membership.
3. (c) There appears to be no reason why the recognition
of the right of association of public officials by international
regulation should prejudge the question of their right to strike,
but no objection is seen to the inclusion of a provision stating
that it does not do so.
UNITED STATES
3. (a) and (b) It is considered preferable to state generally
that employers and workers should have the stated right, and
not to state that employers and workers, public or private,
should have the stated right. The term " employers and
workers " if unaccompanied by limitation would encompass
both public employers and workers and private employers and
workers and would not exclude, or create doubt with respect
to the inclusion of, any worker who might not seem to fall
properly under the category of either " public " or " private ".
It is likewise considered preferable to provide generally
against discrimination, and not to attempt to enumerate the
types of discrimination which ought to be prohibited. It would
be unfortunate if, in our concern to give more definite content
to the provision against discrimination, we should actually
limit the concept and fail to provide against other forms of
discrimination which might be the occasion for an equally
serious threat to the right of free association.
The phrasing of paragraph (a) was designed to fulfil the
objective which the United States approves. The wording
24 FREEDOM OF ASSOCIATION
" employers and workers, without distinction whatsoever "
may, however, be somewhat ambiguous, in that it may not be
clear whether it means (1) only that no distinction is to be made
between employers' rights to establish or join employers'
organisations and workers' rights to establish or join workers'
organisations, or (2) primarily that no distinction is to be
made in either group on any ground whatsoever with respect
to individual workers and individual employers. It is clear,
of course, that the second of these meanings was intended when
the proposed language was selected. It is suggested that the
latent ambiguity would be eliminated and that the phrasing
would be more apt if it were stated :
Employers and workers without distinction as to occupation,
sex, colour, race, creed, nationality or political opinion, and
without any other distinction, should have the inviolable right to
establish or join organisations of their own choosing without previous
authorisation.
(c) Yes.
There are at present in Member countries limitations on
the right of public officials to strike, supported by the belief
that special considerations apply to this problem which do not
apply to the general recognition and protection of the right
of freedom of association and organisation. It is felt that this
belief has substantial basis and that it would, therefore, be
undesirable to attempt to resolve this problem under the
Convention.
III. Functioning of Organisations
4. (a) Do you consider that it would be desirable to provide
that employers' and workers' organisations should have the right
to draw up their constitutions and rules, to organise their administration
and activities and to formulate their programmes ?
(b) Do you consider that it would be desirable to provide
further that the public authorities should refrain from any interference
which would restrict this right or impede the organisations
in the lawful exercise of this right ?
REPLIES OF THE GOVERNMENTS 25
AUSTRALIA
4. (a) Yes. This is fundamental to the concepts underlying
the right of freedom of association as understood in Australia.
(b) Yes. It is noted that the Resolution of the Committee
at the 30th Session, upon which this, question is based, was
adopted with only three dissentients " in order to safeguard
on the one hand respect for the legal position and to ensure,
on the other hand, full recognition of trade union rights ".
AUSTRIA
4. (a) and (b) In principle, the reply to both questions
must be in the affirmative, for otherwise the complete independence
of employers' and workers' organisations which is
desired would not be ensured.
However, the provisions contemplated under (a) and (b)
should not relieve organisations of their obligation to observe
the administrative formalities prescribed by national legislation,
as for instance, those concerning the matters which must in
any event be covered by the rules, the communication of
the names of the executive officers of the organisation, the
notification of general meetings. These administrative formalities
which are prescribed by the Austrian Associations Act in
no way restrict freedom of association. The words " lawful
exercise " included under (b) appear adequate to ensure the
observation of such administrative formalities.
BELGIUM
4. (a) Employers' and workers' organisations should have
the right to draw up their constitutions and rules, to organise
their administration and activities and to formulate their
programmes, this right giving effect to the principle of freedom
of association.
By their constitutions and rules, which the members should
be able to adopt or accept in full freedom, they must have the
opportunity to determine how they will make use of their
right to organise.
By freely appointing the agencies which, on various levels,
will be entrusted with management and supervision, they
must have every opportunity to participate effectively in the
26 FREEDOM OF ASSOCIATION
life of their organisation and to influence the direction of its
activities in accordance with the views of the majority of the
members.
By the formulation of their programmes, the employers'
and workers' organisations should be able to progress and to
recruit new members who will co-operate in the realisation
of their aims.
(b) It would be desirable to provide that the public authorities
should refrain from any interference which would restrict
this right or impede the exercise thereof.
BULGARIA
4. (a) Yes.
(b) Yes.
CANADA
4. (a) Yes.
(b) Yes.
CHINA
4. (a) Yes.
(b) No. In the event of any interference which restricts
this right or impedes the exercise thereof, employers and workers
respectively have the right to request the public authorities to
intervene.
DENMARK
4. (a) Yes.
(b) Yes.
ECUADOR
4. (a) Yes.
(b) Yes, provided that the exercise of this right does not
endanger the security of the State and that organisations
pursue their objects by means which are lawful and not contrary
to the Constitution and to public morals.
FINLAND
4. (a) The reply is in the affirmative, provided that the
term " legal " in the text is intended to imply (in accordance
with the understanding in the Committee) that occupational
organisations, like other organised collectivities, are bound,
when exercising their rights, to observe the general law of the
country which, by definition, is binding on everyone.
REPLIES OF THE GOVERNMENTS 27
FRANCE
4. (a) Yes, provided that occupational organisations undertake
to respect the fundamental rules of public law.
(b) Yes.
HUNGARY
4. (a) Yes.
. (b) Yes.
INDIA
4. (a) and (b) Yes ; it would be desirable to provide that
employers' and workers' organisations should have " the right
to draw up their constitutions and rules, to organise their
administration and activities and to formulate their programmes
", provided the methods followed are open, strictly
peaceful and within the law, and are not in any way calculated
to interfere with the exercise of similar rights by other people
and organisations.
MEXICO
4. (a) Yes.
(b) Yes.
NETHERLANDS
4. (a) Yes.
(b) Yes.
SWEDEN
4. (a) Yes.
(b) Yes.
The term " lawful exercise " is rather vague, however,
and might not exclude the adoption of special legislation under
which public authorities could interfere with the functioning
of organisations. The text of the Convention should be drafted
so as to eliminate the possibility of such an interpretation and
application of the term.
SWITZERLAND
4. (a) It is considered that it would be desirable to provide
that employers' and workers' organisations should have the
right to draw up their constitutions and rules, to organise
their administration and activities and to formulate their
programmes. Moreover, this right is fully recognised in Switzerland,
provided that, by the terms of Article. 56 of the Federal
28 FREEDOM OF ASSOCIATION
Constitution, the objects and methods of such associations are
not unlawful or dangerous to the State.
(b) It is considered that the public authorities should
refrain from any interference which would restrict this right
or impede the lawful exercise thereof, on the understanding
that the term " lawful " is to be interpreted as meaning that
occupational organisations, like other organised collectivities,
are bound, when exercising their rights, to observe the general
law of the land. Moreover, this basic principle is expressed in
the second paragraph of Article 41 of the Constitution of the
International Labour Organisation.
UNION OF SOUTH AFRICA
4. (a) and (b) Clearly employers' organisations and workers'
organisations should have the right to draw up their constitutions
and rules. Similarly they should have the right to organise
their administration and activities and to formulate their
programmes, provided these fall within the terms of their own
constitutions and rules and conform to legitimate activities
for organisations of this nature.
If by the proposal it is meant that employers' organisations
and trade unions should be free to include in their constitutions
provisions unrelated to the main purpose of such organisations,
then the Union Government is fundamentally opposed to any
such provision. Having regard to the real purpose of the whole
structure—namely, representative organisations regulating
conditions of employment by means of collective agreements—it
is essential that there should be orderly regulation of the purpose
and administration of such organisations. Otherwise the whole
structure would be endangered.
It is of interest to note that the W.F.T.U. in its representations
to the Economic and Social Council appreciated the
necessity for some such regulation. In paragraph 2 of the
Resolution as printed on pages 138 and 139 of Report VII—
Freedom of Association and Industrial Relations—considered by
the 30th Session of the International Labour Conference, the
following view is expressed by the W.F.T.U. :
Trade union organisations should be able to administer their
own affairs, to deliberate and freely decide on all questions falling
within their competence, in conformity with the law and with their
constitution, without interference in their duties from governmental
or administrative bodies.
REPLIES OF THE GOVERNMENTS 29
As " employers' organisations " and " trade unions ",
when they collaborate in the negotiation of collective agreements,
become quasi-legislative bodies and, in fact, perform
functions of a semi-judicial character, it is considered to be
essential that there should be orderly regulation and that their
constitutions and rules should conform to certain main principles.
The legislation for the Union of South Africa, for example,
provides that in order to obtain registration the constitution of
an " employers' organisation " or " trade union " must provide
for certain matters, such as : the qualification for membership ;
the determining of the amount of subscriptions ; the appointment,
removal and powers of officials ; the calling and conduct
of meetings ; the keeping of books of account, auditing of
accounts, and submission of audited accounts to members once
a year ; the circumstances in which a member ceases to be
entitled to membership ; the alteration of the constitution,
etc. All those matters are aimed at the orderly regulation
of bodies which perform an important function. There is an
overriding authority permitting of refusal of registration if any
of the provisions of a constitution are unreasonable in relation
to the members or the public. Against such a decision there is
an appeal to the Courts.
All these provisions are aimed at orderly regulation and
do not appear to fall within the phrase " interference which
would restrict the right or impede the organisations in the
lawful exercise of their rights ". If there is any doubt on the
question it is considered that any Convention should make the
position clear, as the Union Government from long experience
is convinced that without such orderly regulation the whole
system would be endangered.
There is a further aspect of the question. The South African
Industrial Conciliation Act forbids any employers' organisation
or trade union to delegate to any other person or body the power
to take any ballot or to take part in or to continué or discontinue
any lockout or strike. It is considered that in such matters
the proper democratic method is for the organisations themselves
in terms of their constitutions to take the decision. It would, for
example, be quite wrong for it to be possible for a federation of
employers' organisations to be empowered to decide that a
particular employers' organisation should declare a lockout.
Similarly a federation of trade unions should not have the right
3 0 FREEDOM OF ASSOCIATION
to call a strike in any one or more industries. In both cases the
members of the organisation concerned should reach their
own decision.
In any Convention, paragraph 2 of the Resolution on
freedom of association should be phrased somewhat as follows :
Employers' and workers' organisations shall, in conformity with
national law, have the right to draw up their constitutions and rules,
etc.
The answer to the question is thus in the affirmative, subject
only to such minimum compulsory statutory requirements as
will ensure—
(a) adequate adaptation to the requirements of the
legislative pattern of wage regulation, collective bargaining
a,nd industrial regulation ;
(b) protection of the organisation's assets against, misappropriation
or misapplication to unlawful or unconstitutional
purposes, or to such purposes, directions or other activities (in
particular the compulsory participation in political activities)
not sufficiently closely connected with the purposes for which
such organisations primarily exist, namely to deal with matters
connected with or arising from employment.
UNITED KINGDOM
4. (a) Yes.
(b) Yes.
UNITED STATES
4. (a) Yes.
The rights specified seem inherent aspects of the right freely
to associate. Unless the members of associations can decide for
themselves the basis for their association and can determine
democratically how their association shall be constituted and
how it shall function, any right of free association would seem an
empty theory, of little substantive import or practical value.
(b) Yes.
If the members of associations are to be allowed the rights
specified under 4 (a) above, then the Governments of the
Members must refrain from a negation of those rights. Expressly
stating that they " should refrain from any interference which
would restrict this right," therefore, seems appropriate and
desirable. Similarly, it seems advisable to indicate expressly
REPLIES OF THE GOVERNMENTS 31
that Member Governments cannot effect the same object
indirectly by impeding the organisations in their actual operation.
It is considered, also, that the word " lawful " should be
included (as it is under the proposed phrasing) because, in the
opinion of the United States Government, it is important to
recognise that organisations of freely associated individuals,
democratically instituted and operated, are, otherwise, like
individuals themselves, subject to the general laws of the
community, State or nation.
IV. Dissolution and Suspension of Organisations
5. Do you consider that it would be desirable to provide that
employers' and workers' organisations should not be liable to be
dissolved or have their activities suspended by administrative
authority ?
AUSTRALIA
5. Yes, on the understanding set out in the report of the
Committee at the 30th Session. Under the Commonwealth
Conciliation and Arbitration Act, and some of the Arbitration
Acts of the States, provision has been made, in certain circumstances,
for suspension or cancellation by the Court of the awards
and orders applicable to organisations, and even for the de-registration
of organisations, the effect of such action being to deprive
the organisations, until such time as the Court rescinds its order,
from continuing their activities in obtaining terms and conditions
of employment through awards of the Court, which, under the
Australian system, is a normal union activity.
AUSTRIA
5. It is not possible to give an affirmative reply to this
question in the general form in which it is drafted at present.
It must be possible for employers' and workers' organisations,
like any other associations of individuals, to be dissolved or
suspended when they contravene the national law which is in
force. Under the Austrian Associations Act, an association
(occupational organisation) may be dissolved by the administrative
authority when it takes decisions or measures which contravene
the penal law or by which, owing to their substance or form,
it assumes powers over matters in the competence of the legis3
2 FREEDOM OF ASSOCIATION
lativé or executive authority, or when the association exceeds
the limits of the sphere of activity prescribed by its rules, or, in
a general way, whèii it no longer fulfils the conditions to which
its legal existence is made subject. The decision of dissolution
or suspension taken by the administrative authority may be
appealed against before the Constitutional Court.
In view of these obligations, which certainly exist in other
countries also, it appears desirable that the provision dealing
with this question to be included in the Convention should be
drafted in the following terms :
Employers' and workers' organisations should not be liable to
be dissolved or have their activities suspended by administrative
authority except when their activities are contrary to the national
laws in force.
BELGIUM
5. It would be desirable to provide that employers' and
workers' organisations should not be liable to be dissolved or
have their activities suspended by administrative authority.
BULGARIA
5. Yes.
GANADA
5. Yes.
CHINA
5. Yes, it would be desirable to provide that employers'
and workers' organisations should not be liable to be dissolved
or have their activities suspended by administrative authority,
but special cases should be exempt from this provision.
DENMARK 1
5. It is pointed out that Article 65 of the Danish Constitution
Act runs as follows :
Citizens have thé right, without preliminary authority, of forming
associations having a legal object. No association may be dissolved
by Governmental action. Nevertheless, an association may be temporarily
forbidden, but proceedings to affect its dissolution should
at once be taken against it.
1 Employers' and workers' organisations answer in the affirmative^
REPLIES OF THE GOVERNMENTS 33
As it appears from this provision, an association may be
temporarily forbidden, but, if so, proceedings should be instituted
immediately in the courts against the association, demanding
its dissolution. The Government will have to reserve its position
on the question whether according to Danish conditions there is
a case for affording the organisations of employers and workers
a protection in this respect going beyond that of Article 85 of the
Danish Constitution Act.
ECUADOR
5. Yes ; provision should be made for invoking judicial
procedure in order to bring about the suspension or dissolution
of organisations.
FINLAND
5. The reply is in the affirmative.
FRANCE
5. Yes. (This provision implies that employers' and
workers' organisations may not be dissolved except by judicial
procedure.)
HUNGARY
5. Yes.
INDIA
5. The employers' and workers' organisations should not
be liable to be dissolved or have their activities suspended
except by a due process of law.
MEXICO .
5. Yes.
NETHERLANDS
5. Yes, it being understood that in this context administrative
authority means any other authority than the legislative
and judicial authorities. :.
34 FREEDOM OF ASSOCIATION
SWEDEN
5. Yes.
SWITZERLAND
5. We consider that the dissolution and suspension of
employers' and workers' organisations should not be permitted
except, of course, where the existence of the State is imperilled
or where certain associations attempt to obtain an unlawful
monopoly of rights to the detriment of other organisations, and
also in those cases provided for by civil law. Thus, Articles 77
and 78 of the Swiss Civil Code provide for the automatic dissolution
of an association when it is insolvent, when the executive
can no longer be constituted according to the rules, or when the
objects of the association are unlawful or contrary to public
morals.
UNION OF SOUTH AFRICA
5. Yes, except where suspension or dissolution is effected
in terms of specific legislative authority under the statutes of
the country concerned which shall set out clearly the grounds
upon which suspension or dissolution shall be effected and which
provide for the right of appeal against such administrative
decisions to the Courts of Justice.
The above remarks do not relate to what is known as
" de-registration ". In the Union of South Africa employers
and workers have always been free to form organisations.
They are, however, not fitted into the legislative pattern of
statutory agreements unless they are " registered "—i.e. unless
they are in fact representative and conform to the orderly
regulation prescribed by legislation. There is, for example, no
reason why an employers' organisation or a trade union, if it
becomes insolvent, should not be subject to the national laws for
liquidating any insolvent concern.
Subject to the above, the Union Government agrees that
such organisations should not be subject to arbitrary dissolution
or suspension by administrative authority alone. Any such
action should rest upon legislative authority and be appealable
to the Courts of the State concerned.
REPLIES OF THE GOVERNMENTS 35
UNITED KINGDOM
5. Yes.
UNITED STATES
5. Yes. This provision seems a suitable precaution under
the principles of 4 (a) and 4 (b) above.
If administrative authority could be used to dissolve the
employers' or workers' organisations or to suspend their
activities, the protection of the rights already guaranteed would --
seem inadequately safeguarded. Rights of such fundamental
importance should not be subject to denial without opportunity
for public presentation of the facts and arguments.
Y. Federations, Confederations and International Organisations
of Employers and Workers
6. Do you consider that it would be desirable to provide that
employers' and workers' organisations should have the right to
establish federations and confederations and to affiliate with international
organisations of employers and workers ?
AUSTRALIA
6. Yes. This is a logical extension of the rights which
should be granted in the local and national sphere.
AUSTRIA
6. Yes. The inclusion of such a provision merely legalises
the de facto position which has existed for a long time.
BELGIUM
6. The Government cannot conceive that the reply to this
question could be in the negative, for that would amount, on
the national level, to the negation of every possibility of organisation.
The right of affiliation with international organisations
of employers and workers should also be accorded to employers'
and workers' organisations.
3 6 FREEDOM OF ASSOCIATION
'. BULGARIA
6. Yes.
CANADA
6. Yes.
CHINA
6. Yes.
DENMARK
6. Yes.
ECUADOR
6. Yes. The right to establish federations and confederations
within each country should be guaranteed to employers'
and workers' organisations. They should also be accorded the
right to affiliate with international confederations, provided that
the sovereignty, security and dignity of their country are safeguarded
and that the trade unions and associations shall not
be bound to follow the instructions of international organisations
which might be of a character to injure the country to which the
association, trade union or organisation concerned belongs. If
any dispute should arise between a confederation and an
affiliated body, it should be for an international tribunal to
adjudicate thereon.
FINLAND
6. The reply is in the affirmative.
FRANCE
6. Yes.
HUNGARY
6. Yes.
INDIA
6. Yes, provided the exercise of this right does not in any
way injure the security of the State.
6. Yes.
MEXICO
REPLIES OF THE GOVERNMENTS 37
NETHERLANDS
6. Yes.
SWEDEN
6. Yes.
SWITZERLAND
6. Provided always that they do not exceed the limits
prescribed by law, employers' and workers' organisations
should have the right to establish federations and confederations
and to affiliate with international organisations of employers
and workers.
UNION OF SOUTH AFRICA
6. Yes, provided that it is made amply clear that any such
federation is consultative in its purpose and is concerned
substantially with the achievement of the objects of the trade
unions and employers' organisations. It must have no power to
direct the policy of any affiliated body, nor should the basis of
the affiliation derogate from the independence of action of such
organisations. For example, it would be quite wrong for a
federation of employers' organisations to be in a position to
decide that any constituent organisation should declare,a lockout
or refuse to agree to increased wages. Similarly, a federation of
trade unions should not be competent to call a strike. In each
and every case the decision should rest with the organisation
itself.
Where the federation exists to any substantial extent for
purposes other than those for which the organisations exist,
then obviously affiliation may involve the expenditure of the
organisations' assets on purposes to which all members may well
not subscribe, and where such factors are involved in the affiliation
it should be open to the national authority to require
cancellation of the affiliation or, failing such cancellation, to
withdraw statutory recognition to the organisation concerned.
Any provision included in a draft Convention might read :
Employers' and workers' organisations shall have the right to
establish federations and confederations as well as the right of affiliation
with international organisations of employers and workers
provided such federation or affiliation in no way imposes upon such
organisation any limit as to freedom of action in terms of its own
3 8 FREEDOM OF ASSOCIATION
constitution or in determining its programme and provided that such
organisations exist substantially for the purpose of furthering the
same objects as such organisations themselves.
UNITED KINGDOM
6. Yes.
UNITED STATES
6. Yes. This seems to be only a logical extension of the
previous provisions, if employers' and workers' organisations
are to enjoy the same rights internationally as nationally. We
believe that such organisations should enjoy the right of free
association on an international basis and that the recognition
of this right is important and in accordance with the general
approval of international association in political affairs.
VI. Guarantees relating to Federations and Confederations
7. Do you consider that it would be desirable to provide that
the guarantees with regard to the establishment, functioning,
dissolution and suspension of employers' and workers' organisations
referred to in Questions 3, 4 and 5, should apply to federations and
confederations of such organisations ?
AUSTRALIA
7. Yes.
AUSTRIA
7. Yes. However, the reservations made in the replies
to II, 3, and III, 4, must apply in this case also.
BELGIUM
7. Everything which applies to workers' and employers'
organisations should also apply in the case of their federations
and confederations.
It is for the organisations themselves to decide whether they
wish to limit their activities to the regional, occupational or
industrial field, to form or affiliate with a central federation or to
affiliate with a confederation.
REPLIES OF THE GOVERNMENTS 39
Each of these organisations should have the same right
to draw up its constitutions and rules, to organise its administration
and activities and to formulate its programmes.
7.
7.
7.
7.
Yes.
Yes.
Yes.
Yes.
BULGARIA
CANADA
CHINA
DENMARK
ECUADOR
7. It is considered that there is no practical objection to
these rights being accorded to federations and confederations.
FINLAND
7. The reply is in the affirmative.
FRANCE
7. Yes, subject to the reservations expressed under 4 (a)
and 5.
7.
7.
7.
7.
Yes.
Yes.
Yes.
Yes.
HUNGARY
INDIA
MEXICO
NETHERLANDS
SWEDEN
7. Yes.
4 0 FREEDOM OF ASSOCIATION
SWITZERLAND
7. The guarantees accorded to employers' and workers'
organisations referred to in the repues to Questions 3, 4 and 5
should apply to federations and confederations of employers
and workers except where this is contrary to national legislation.
UNION OF SOUTH AFRICA
7. No.
UNITED KINGDOM
7. Yes.
UNITED STATES
7. Yes.
The answers of the United States Government to Questions 3,
4 and 5, in conjunction with the answer to Question 6, adequately
explain the reasons for the affirmative reply to Question 7.
It is assumed that it is uniformly understood that the
provisions discussed under Questions 4 (b) and 5 apply to
Member Governments and do not apply to international public
authorities. If there is not such uniform understanding, the
Government would like to express the opinion (1) that it is
clearly beyond the power of the International Labour Organisation
to limit, in any respect whatsoever, the power of the United
Nations or such other public international authorities as exist
in connection with it, or may exist ; and (2) that it is clearly
inappropriate, likewise, for a Convention to enunciate any
principle with respect to the limitation of such power.
VII. Legal Personality of Organisations
8. Do you consider that it would be desirable to provide that the
acquisition of legal personality by employers' and workers' organisations
should not be made subject to conditions of such a character
as to restrict freedom of association as hereinbefore defined ?
AUSTRALIA
8. Yes.
REPLIÉS OF THE GOVERNMENTS 41
AUSTRIA
8. Yes.
Under Austrian law, employers' and workers' organisations
automatically acquire legal personality when they are legally
and effectively established. (See the explanation given under II,
3 (a) and (b).)
BELGIUM
8. It is evident that the authority which would make the
acquisition of legal personality by employers' and workers'
organisations subject to any condition of such a character as to
restrict freedom of association—even if free organisations
retained the right not to acquire legal personality—would be
acting in a manner contrary to the principle of freedom of association
by conferring on those organisations which agreed to conform
to the conditions prescribed the benefit of the advantages
resulting from civil personality.
It is therefore desirable to prevent any possibility of States
permitting any inequality to arise in this way between employers'
and workers' organisations, which must remain entirely free
and the sole arbiters of their destiny.
BULGARIA
8. Yes.
CANADA
8. Yes.
CHINA
8. No.
DENMARK
8. Yes.
ECUADOR
8. It is considered that the enjoyment of legal personality
should not be limited except under conditions determined by
each State in order to protect its own security and the wellbeing
of its citizens. The most simple and practical measures
should be adopted, so as not to restrict the right of freedom
of association as above defined, inasmuch as the purpose is to
guarantee it.
42 FREEDOM OF ASSOCIATION
FINLAND
8. The reply is in the affirmative, but account should also
be taken of those formal provisions in national legislation which
impose conditions by which the acquisition of legal personality
by organisations is governed.
FRANCE
8. Yes.
HUNGARY
8. Yes.
INDIA
8. Yes.
MEXICO
8. Yes.
NETHERLANDS
8. Yes.
SWEDEN
8. Yes.
SWITZERLAND
8. It would be desirable to provide that the acquisition
of legal personality by employers' and workers' organisations
should not be made subject to conditions of such a character
as to restrict freedom of association. However, the interpretation
of legal personality varies so much from one country to another
that the Swiss Government wonders whether it would not be
preferable for the international regulations to omit this question
or for it to be dealt with only in a Recommendation.
In Switzerland, the great majority of trade unions are
constituted in the form of associations in the sense of Articles 60
et seq. of the Swiss Civil Code. Article 60 provides :
Political, religious, scientific, artistic or charitable associations
and those formed for purposes of recreation or other purposes, whose
aims are not of an economic character, acquire legal personality as
soon as the intention to organise themselves on a corporate basis
has been explicitly expressed in their constitution.
REPLIES OF THE GOVERNMENTS 43
UNION OF SOUTH AFRICA
8. No—on the contrary, if such organisations are to fulfil
a statutory rôle in a national legislative system of labour regulation,
then recognition must necessarily be on a basis of
association consistent with the pattern of the legislation, and
organisations which do not conform to such basis should be
denied legal personality. Only in this manner is it possible to
control demarcation and jurisdictional disputes between organisations
and prevent the exploitation of a majority by an
organised minority.
" Freedom of association ", if it means " freedom " in the
true sense, obviously also connotes freedom not to associate
if the individual, or at any rate the majority, so desires.
UNITED KINGDOM
8. No objection is seen to the inclusion of such a provision
if this is felt to be generally desirable.
UNITED STATES
8. Yes. This provision seems to be a natural corollary
of 4 (a) above.
Yin. Responsibilities of Organisations
9. (a) Do you consider that it would be desirable to provide,
in the international regulations concerning freedom of association,
that the acquisition and exercise of the rights defined above should
not exempt employers' and workers' organisations from their full
share of responsibilities and obligations ?
or, alternatively,
(b) Do you consider that it would be preferable to reserve such
a provision for inclusion in international regulations concerning
collective agreements or conciliation and arbitration ?
AUSTRALIA
9. (a) No. It would be preferable to reserve such a provision
for inclusion in the international regulation of collective
4 4 FREEDOM OF ASSOCIATION
agreements or conciliation and arbitration, when endeavour
could be made to lay down clearly defined rights and obligations.
(b) Yes. See 9 (a).
AUSTRIA
9. (a) and (b) The Convention should be limited to the
international regulation of those questions which are funda-^
mental to freedom of association and the protection of the right
to organise, that is to say, to questions of a purely organisational
character, while the rights and obligations of employers' and
workers' organisations and, therefore, their responsibilities
should be left to be dealt with by other international Conventions.
BELGIUM
9. (a) It would be difficult to accept a provision which did
no more than declare that the acquisition and exercise of the
right to organise should not exempt employers' and workers'
organisations from their respective responsibilities and obligations
; it would be necessary to specify and define these responsibilities
and obligations.
(b) It would be preferable to reserve such a question for
inclusion in international regulations concerning collective
agreements or conciliation and arbitration.
9. (a) Yes.
(b) Yes.
9. (a) Yes.
BULGARIA
CANADA
CHINA
9. The Government agrees with (b).
DENMARK
9. (a) Yes.
ECUADOR
9. (a) The acquisition and exercise of the rights defined
above should not exempt employers' and workers' organisations
from their responsibilities and obligations.
REPLIES OF THE GOVERNMENTS 45
(b) It does not seem necessary to reserve such a provision
for inclusion in other international regulations and, therefore,
the question should be dealt with in the general regulations
guaranteeing freedom of association and organisation.
FINLAND
9. (a) The reply is in the affirmative.
FRANCE
9. (a) and (b) It would be preferable to reserve such a
provision for inclusion in international regulations concerning
collective agreements or conciliation and arbitration, subject
to it being redrafted in more definite terms than were adopted
by the Committee.
HUNGARY
9. The solution contemplated under (a) appears to be the
more reasonable, as occupational organisations have to assume
certain responsibilities as a direct result of the rights accorded.
INDIA
9. (a) Yes. Every right has its counterpart in obligations.
The recognition of a right should be, therefore, balanced by a
recognition of corresponding responsibilities.
MEXICO
9. The Government would prefer that this matter should
not be dealt with by international legislation, but that the States
should be left to take appropriate measures.
NETHERLANDS
9. (a) The wording of this provision is too vague. The
suggestion of (b) is preferred.
SWEDEN
9. (a) and (b) If the question under (a) refers only to the
obligations of organisations to comply with existing legislation,
such an obligation would seem so evident that special provisions
4
4 6 FREEDOM OF ASSOCIATION
on this matter in the Convention should be superfluous. Since,
however, the purport of this question is not quite clear, it would
seem preferable to refer the question of responsibilities of
organisations to further examination in connection with the
preparations for a Convention concerning collective agreements,
conciliation and arbitration.
SWITZERLAND
9. (b) In the opinion of the Government, a clause relating
to the responsibilities and obligations of employers' and workers'
organisations should be included in international regulations
concerning collective agreements or conciliation and arbitration.
It should be observed, however, that certain influential circles
in Switzerland are inclined to favour the solution under (a).
In fact, the regulation contemplated under (b) would exclude
from its scope many associations which are not covered by collective
agreements or by provisions on conciliation and arbitration.
UNION OF SOUTH AFRICA
9. (a) No.
(b) It is not clear exactly what is intended by the phrase
" not exempt employers' and workers' organisations from their
full share of responsibilities and obligations". They would, of
course, be subject to the common law of the land and the mere
fact that they are associated together would not affect the
position. They would, for example, have the responsibility of
remaining solvent.
UNITED KINGDOM
9. It is considered that a provision on the subject might
be included in the international regulations concerning freedom
of association.
UNITED STATES
9. The Government approves alternative (b).
The clause, as stated under 9 (a), seems to lack the necessary
precision of meaning for inclusion in a Convention. Any
attempt to render its meaning exact and definite would involve
us. prematurely in the detailed problems with respect to the
international regulations concerning collective agreements or
conciliation and arbitration.
REPLIES OF THE GOVERNMENTS 47
B. PROTECTION OF THE RIGHT TO ORGANISE
IX. Guarantee of the Exercise of the Right to Organise
10. Do you consider that international regulations should
guarantee the exercise of the right to organise ?
11. // the answer to Question 10 is in the affirmative, do you
consider that the protection of the right to organise should be effectively
assured by means of mutual agreement between organised
employers and workers ?
12. Do you consider that, in the absence of full and effective
guarantee by means of mutual agreements, appropriate measures
should be taken to protect the exercise of the right to organise without
fear of intimidation, coercion or restraint from any source ?
AUSTRALIA
10. Yes. See answers to Questions 1 and 2.
11. Yes.
12. Yes.
AUSTRIA
10. Yes. See reply to Question 2.
11 and 12. To ensure the protection of the right to organise,
it would be quite inadequate to rely only on mutual agreements
between organisations of employers and workers. The protection
of the right to organise, free from any constraint, which is so
important for the employers and above all for the workers,
should be internationally guaranteed by special provisions to
be included in the Convention.
BELGIUM
10. International regulations should guarantee the exercise
of the right to organise.
11. This guarantee may be effectively assured by means
of mutual agreement between organised employers and workers.
The international regulations, therefore, should take account
of appropriate methods of facilitating the making of such
agreements.
4 8 FREEDOM OF ASSOCIATION
The convocation of a national labour conference, the consultation
of a central joint council, agencies within which representatives
of employers' and workers' organisations may discuss and
define their respective rights and obligations, may result in the
drawing up of a national agreement laying down the general
principles governing the exercise of the right to organise.
On the basis of these general directives, joint industrial
committees could then conclude separate agreements which
would take account of the requirements and circumstances in
each of the branches of industry concerned.
12. Even in those cases where the protection of the right to
organise is ensured by means of mutual agreements between
organised employers and workers, provision should be made to
protect the exercise of the right to organise against any intimidation,
coercion or restraint from any source.
Freedom of association should guarantee the indefeasible
right of the members of an employers' or workers' organisation
to meet peacefully without previous authorisation, without being
obliged to admit representatives of authority, and solely on the
decision of the executive which they have elected in full freedom.
States should also protect the exercise of the right to organise
within the undertaking.
In view of the fact that the representatives of organisations
of workers work in an undertaking under the terms of a contract
for hire of services which confers on them the legal position of
a subordinate, States should agree that the trade union representative
should benefit from a special guarantee as regards the
period of notice of dismissal to be given, so that an employer
may not, of his own free will and by making use of his rights
under a contract, rid himself over easily of a worker whom he
might consider to be too strong an advocate of the claims of
those whom he represents.
10. Yes. BULGARE
11. Yes.
12. Yes.
10. Yes. CANADA
11. Yes, where established practice and' the degree of
organisation would make this feasible.
12. Yes.
REPLIES OF THE GOVERNMENTS 49'
CHINA
10. Yes.
11. Yes.
12. Yes, in this case, appropriate measures should be
taken to protect the exercise of the right to organise without
fear of intimidation, coercion or restraint from any source.
DENMARK
10. The Danish Government reserves its opinion—having
regard also to the replies of the employers' and workers' organisations1
to this question—until more concrete particulars of the
guarantee suggested are available.
11. The Danish Government holds the same views on this
question as do the occupational organisations.3
12. Yes.
ECUADOR
10. The international regulations should guarantee the
exercise of the right to organise to the fullest and most effective
degree.
11. Yes, provided that the two elements in production,
capital and labour, act with the sincere intention of achieving
co-operation and harmony. The agreements reached would
effectively put an end to violent labour disputes.
12. If no such agreement as referred to in Question 11
is reached, and even where the best possible agreement
may be concluded, such measures as may be deemed appropriate
should be taken to render effective the protection of the right to
organise against any desire to interfere with or restrict it or any
other improper intention.
1 The Danish Employers' Confederation replies in the negative to
this question, for it does not see how such an international guarantee can
be made effective. The Confederation of Danish Trade Unions considers
that such a guarantee can hardly be of any value.
2 The Danish Employers' Confederation considers that the right of
association should be safeguarded effectively by mutual agreement
between organised employers and workers ; both it and the Confederation
of Danish Trade Unions point out that this is the case in Denmark
by the Agreement of 5 September 1899.
5 0 FREEDOM OF ASSOCIATION
FINLAND
10. The reply is in the affirmative.
11. The reply is in the affirmative.
12. The reply is in the affirmative.
FRANCE
10. Yes.
11. Yes ; collective agreements, in fact, play an important
part in the protection of the right to organise. But this should
not be the only solution, as in many countries such agreements
would be clearly inadequate.
It is for the democratic State, the protector of public liberties,
to ensure the respect of the right to organise, which is one of the
fundamental liberties of modern society. It would be essential,
therefore, to provide that the State remains in the final instance
the protector of the right to organise and that it is the duty of
the State to ensure the respect of that right whenever it may
be necessary.
However, a law, whether it is constitutional or enacted by
Parliament, can lay down only general principles, and it will be
for collective agreements to determine in greater detail the
conditions under which the right to organise may be exercised
where work is carried on.
12. Yes, and especially in order to guarantee to wageearners
that the question of belonging or not belonging to a
trade union may not be taken into account in relation to engagement,
maintenance in employment, or dismissal.
HUNGARY
10. Yes.
11. No, as there is no guarantee that such an agreement can
suffice to cover all cases or all circumstances.
12. Yes.
INDIA
10. Yes.
11. Yes.
12. Yes.
REPLIES OF THE GOVERNMENTS 51
MEXICO
10. Yes.
11 and 12. Thé Government would prefer that such guarantee
should be left to the legislation in force in each country.
NETHERLANDS
10. Yes. The desirability, however, may be questioned
of embodying in a Convention a number of principles, as
envisaged in Questions No. 11 and No. 12, on the protection of
the right to organise, without including at the same time
provisions for the practical application of these principles, which
provisions will come under first discussion at the 31st Session of
the International Labour Conference. It appears to be more
systematic to embody both the principles and the provisions for
practical application thereof, without which the principles
may hardly be considered as clearly defined, together in one
Convention. In that case one Convention should be adopted
for freedom of association in 1948, whereas Chapter B of the
Questionnaire and related questions could be internationally
regulated in 1949.
11. If not assured, the protection of this right will be
furthered by this provision.
12. Yes.
11 and 12. The only way effectively to assure the right to
organise is by means of legislation securing to every citizen
an unconditional right to establish or join organisations, the
" positive " right to organise. On the other hand, the "negative"
right to organise, i.e. the right of every citizen not to establish
or join organisations, should not be regulated by law. Nor
should the right of employers' and workers' organisations to
conclude mutual agreements concerning the protection of the
right to organise be regulated by law.
SWITZERLAND
10. Yes ; it would not be possible to visualise the recognition
of the right of employers and workers to associate in full
freedom, without ensuring at the same time that their exercise
of this right was guaranteed.
52 FREEDOM OF ASSOCIATION
11. The protection of the right to organise should be
effectively assured by means of mutual agreements between
organised employers and workers. In Switzerland, many
collective agreements or understandings between employers'
and workers' organisations already make express provision
for the recognition of the right to organise.
12. It is considered that, in the absence of full and effective
guarantee by means of mutual agreements, appropriate measures
should be taken to protect the exercise of the right to organise
against any acts of intimidation, coercion or restraint from any
source. However, the adoption and application of such measures
would not appear to be a simple matter.
UNION OF SOUTH AFRICA
10-12. Adequate protection against victimisation in connection
with the right to form organisations (cf. Section 78 (1) of
the Industrial Conciliation Act, No. 36 of 1937) and protection
against victimisation on account of participation in the lawful
activities of any such organisation outside working hours or,
with the consent of the employer, during working hours, should
be provided. Section 78 (1) and Section 66 of the Union's
Act No. 36 of 1937 could usefully be used as a model in framing
any such provisions.
Concurrently, employers' organisations should be free of
pressure or intimidation in their attempts to organise. This
difficulty has been experienced in South Africa.
The protection should find its place in legislation and not
be left to collective agreements, more particularly as, in the
nature of things, organisation must precede the collective
agreement.
UNITED KINGDOM
10-12. Yes, subject to considerations similar to those
stated in the answer to Question 1. In the United Kingdom the
matters referred to in Questions 10-12 rest upon the relations
which have developed between organised employers and workpeople,
and, while international regulations should guarantee
the exercise of the right to organise, the regulations should not
be drafted in such a way as to require the enactment of legislation
in cases where mutual recognition of the right to organise
is achieved in other ways.
REPLIES OF THE GOVERNMENTS 53
UNITED STATES
10. Yes.
11. Yes.
i 12. Yes.
X. Establishment of Agencies for the Purpose of Ensuring Respect
of the Right to Organise
13. Do you consider that international regulations should
include the obligation of establishing appropriate agencies for
the purpose of ensuring the respect of the right to organise ?
AUSTRALIA
13. Yes, subject to the insertion of the words " if necessary "
after the word " establishing ", as recommended by the Committee
and adopted by the Conference at the 30th Session.
AUSTRIA
13. It would be desirable to include in the Convention a
provision imposing on States Members a general obligation to
provide in their national legislation for the establishment of
appropriate agencies for the purpose of ensuring the respect of
the right to organise. However, it would be desirable to refrain
from including in the Convention any detailed provisions dealing
with this question, in order to afford to the States Members,
when applying the Convention, sufficient latitude with regard
to the establishment of such agencies ; in fact, in view of the
differences prevailing with regard to the competence of administrative
and judicial authorities, any other solution might stand
in the way of the ratification of the Convention.
In Austria the protection of the right to organise falls within
the competence of the administrative authorities. But, in view
of the fact that this right is guaranteed by the Constitution,
and in order to avoid any restriction of the right to organise, the
decision of the final administrative authority may be appealed
against before the Constitutional Court.
54 FREEDOM OF ASSOCIATION
BELGIUM
13. The Government considers that the establishment,
under the auspices of the International Labour Organisation,
of an appropriate agency for the purpose of ensuring the respect
of the right to organise should be provided for by international
regulation.
BULGARIA
13. Yes.
13. Yes.
13. Yes.
13. Yes.
CANADA
CHINA
DENMARK
ECUADOR
13. It is considered desirable and necessary that a national
agency should be set up composed of representatives of
employers, workers and the State for the purpose of ensuring the
respect of the right to organise. This agency should be provided
for by regulations.
FINLAND
13. As the organisation and duties of the agencies in
question are still undecided it is difficult to adopt any attitude
concerning this question.
FRANCE
13. It would be desirable to consider whether effect should
not be given to this proposal within the framework of the
International Labour Organisation.
HUNGARY
13. Yes.
13. Yes.
INDIA
MEXICO
13. If a guarantee is established by law, States should
take. appropriate measures to deal with violations of the law.
REPLIES OF THE GOVERNMENTS 55
NETHERLANDS
13. The principle that these agencies should exist in each
country should be laid down in a Convention. It should be
left to each country, however, to decide which agency, independent
of the administration, should be charged with these
duties.
SWEDEN
13. In Sweden, this is in the first instance a matter for the
organisations themselves. The strength of the organisations
is no doubt such as to make them fully capable of ensuring the
respect of the right to organise. In case of dispute it is possible
to have the question examined by a Labour Court, i.e. a special
tribunal dealing mainly with disputes relating to interpretation
and application of existing collective agreements. If the Court
should come to the conclusion that the right to organise has
been violated, the guilty party is liable to pay compensation
for any damages caused thereby. The Swedish Government
is not in a position to judge whether provisions on the lines
suggested would be required in other countries. The Convention
should be drafted in such a way as to allow for exercise of the
supervision in question by existing qualified agencies.
SWITZERLAND
13. The Government is not in favour of the idea that
international regulations should include the obligation of
establishing appropriate agencies for the purpose of ensuring the
respect of the right to organise, if such a conception should result
in the creation of international machinery to supervise the
right to organise.
In Switzerland, it is left to the ordinary courts to adjudicate
with regard to violations of the right to organise in contravention
of the Swiss Civil Code or Penal Code.
UNION OF SOUTH AFRICA
13. The phrase " appropriate agencies " is not clear. The
" right " should be embodied in national legislation, leaving the
Courts of the land to deal with contraventions of the law.
56 FREEDOM OF ASSOCIATION
UNITED KINGDOM
13. Such a provision would not be appropriate to conditions
in the United Kingdom.
UNITED STATES
13. Yes, if they are necessary to ensure the respect of the
right.
* * *
14. Have you any proposal or suggestion to make on any
point relating to the questions of freedom of association and of
protection of the right to organise, to which no reference has been
made in this Questionnaire ?
BELGIUM
14. The Belgian Government reserves the right to put
forward any proposal or suggestion which may appear desirable
during the discussion of the questions by the Conference, in
particular with regard to certain questions to which replies have
been given but which, being not sufficiently clearly defined, can
be answered only in general terms.
FRANCE
14. The French Government would be grateful to the International
Labour Office if it would study more intensively the
question of the representative character of trade union organisations,
especially in those countries where several trade union
movements exist, and in particular :
(a) whether it is not contrary to freedom of association
to accord by law to certain organisations, deemed to be the
most representative, a privilege entitling them to represent the
whole of the wage-earners concerned for the purpose of
concluding collective agreements which, according to a specified
procedure, may become generally binding.
(b) in the negative, what would be the criteria, not contrary
to freedom of association, which would enable the most representative
organisations to be determined.
Finally, it is advisable to point out that it may appear
reasonable enough theoretically to desire to establish, along
REPLIES OF THE GOVERNMENTS 57
the lines of the proposed texts, a constant parallel between.
the organisational rights of trade unions and employers' associations,
whereas the objects pursued and the conditions under
which those rights are exercised by workers and by employers
may present very appreciable differences, and workers' organisations,
in particular, are far more exposed to acts of intimidation,
coercion or restraint.
It is not so much the legal status of the organisations
concerned, but their very objects, that is to say, the defence of
the occupational and social interests of their members, which
calls for the measures of protection contemplated in the present
text.
INDIA
14. The object of the regulations is to secure an effective
functioning of free institutions in democratic communities. It
is, therefore, essential to provide that the rights shall be available
only to organisations of employers and workers which—
(a) do not exclude from their membership any individual
or group of individuals, who may otherwise be eligible, merely
on grounds of sex, colour, race, creed or nationality ;
( b) do not interfere in any way with the right of any individual
or group of individuals to pursue peacefully his or their
trade and vocation and to exercise the right of citizenship, and
(c) conduct their activities according to democratic
procedure.
UNION OF SOUTH AFRICA
14. Yes.
An examination of the earlier Conventions adopted by the
International Labour Conferences indicates that they are
appropriate to States with a homogeneous population.
At the outset it was realised that States which could accept
Conventions for their metropolitan territories would have
difficulty in applying them to dependent territories such as
colonies and mandatory territories, and the Constitution of
the International Labour Organisation made provision for the
ratification in respect of such territories with reservations to
be determined by the competent authority. The same principle
was repeated in the revised Constitution adopted in 1946. The
reason is clear, namely, that Conventions appropriate to highly
58 FREEDOM OF ASSOCIATION
civilised communities could not be applied in their entirety to
populations less socially and economically developed.
In other Conventions it was realised that conditions which
might be appropriate to densely populated industrialised areas
would be incapable of application to scattered thinly populated
areas, and provision was made for regional application.
In yet other Conventions it was realised that certain
countries, on account of the stage of social and economic
development of the general mass of the population, could not,
at the time, subscribe to the proposed conditions, and special
provision was made for somewhat easier conditions.
Attention is, however, invited to the fact that a fourth type
of State exists, and that is the State which within its own borders
contains all these elements, namely, the State whose urban
industrial working population is made up of inter-penetrating
groups which have reached varying stages of social and economic
development (that is to say, groups which although at varying
stages of development, are not separated geographically in so
far as either their domicile or their place of work is concerned)
and in which it is quite impracticable to apply concurrently
identical provisions to all the groups. The Union of South
Africa falls within this classification.
The Declaration of Philadelphia, in Part V, recognised that
it might be necessary to differentiate in the manner of the
application of the principles set out in that Declaration with
due regard to the stage of economic and social development of
the peoples concerned. The 30th Session of the International
Labour Conference saw fit, in its Resolution concerning freedom
of association, to make reference in the preamble to Part V
of that Declaration.
While the Union of South Africa is more directly concerned
with the problems which arise within its own borders, it is also
desirous of ensuring that any Conventions on this question which
may, at this third attempt, be adopted by the International
Labour Conference should have a reasonable prospect of being
generally ratified and achieving " positive results " in the
direction of the betterment of the lives of the peoples of the
world.
It is apparent from a perusal of, for example, the records
and discussions of regional conferences that many States would
have considerable difficulty in proceeding in one step to the
standard expressed in the Resolution referred to, but it is conREPLIES
OF THE GOVERNMENTS 59
sidered that much can be achieved by permitting qualified or
progressive application either to the entire population of a
State or, where the urban industrial working population consists
of inter-penetrating groups at varying stages of economic and
social development, to groups of the population.
It is considered that this principle, which is incorporated
in the preamble to the Resolution, should be included in the
text of any Convention considered by the next session of the
Conference. Only by such measures can real results be achieved.
UNITED STATES
14. The Government has made a suggestion in its reply to
Question 3 above, which is not directly solicited under the
phrasing of the question.
The Government has made a suggestion in its reply to
Question 7 above, which is not directly solicited under the
phrasing of the question.
It is suggested that the scope, functions and powers of the
International Labour Organisation, and the intended purpose
and the implied meaning of the language of the Convention,
support the inclusion of a definition clause in the Convention
stating as follows :
" Employers' and workers' organisations " as used in this
Convention means organisations of employers and workers with
respect to their participation in all matters relating to trade union
affairs and employer-employee relations.
In this connection, the Government wishes to point out that
its affirmative support of a Convention declaring the right of
freedom of association of employers and workers without
qualification is based on its understanding that the Convention
relates solely to trade union affairs and employer-employee
relations, and not to other activities, extraneous to these fields,
in which employer and worker organisations may engage.
It is assumed that the Convention will include the usual
clauses providing for subsequent revision or modification.
This seems desirable if the Convention is to afford leeway for
further amelioration of its terms.
CHAPTER II
ANALYSIS OF THE REPLIES OF THE GOVERNMENTS
The following pages contain an analysis of the replies of the
nineteen Governments set forth in the preceding chapter, made
with a view to arriving at practical conclusions for the drawing
up of proposed international regulations.
In this analysis the same order is followed as in the Questionnaire,
except where the observations of the Governments relate
to several points, or even to the Questionnaire as a whole. In the
latter case, the observations have been grouped together under
the heading to which they most particularly relate.
Preliminary Observations
Several Governments have seen fit to preface their replies by
certain preliminary observations, focusing attention on problems
of a general kind, which, in their opinion, should be specially
considered when drawing up the international regulations.
Some Governments stress, in the first place, the importance
which they attach to freedom of association, a principle
recognised for a long time in their national legislation (Austria
and Switzerland). The Austrian Government declares, inter
alia, that employers' and workers' organisations are the essential
factors in all social progress and that their free co-operation
constitutes the best guarantee of social peace.
In the second place, many Governments observe that the
exercise of freedom of association should naturally be kept
within the limits of the law. They bring up this point either
as a special preliminary observation (Netherlands) or in relation
to Questions 3, 4, 5 and 7 (Austria, Finland, India, Switzerland,
Union of South Africa and United States).
The Netherlands Government points out in particular that
in giving its approval to international regulation by means of
ANALYSIS OF REPLIES OF GOVERNMENTS 61
a Convention it has taken it as a matter of course that freedom
of association, like every other freedom, is subject to the provisions
of national legislation with relation to public order.
The Governments of India and of the Union of South Africa
express the opinion that the guarantee of freedom of association
should be in conformity with national constitutional principles.
The Danish and Swiss Governments refer particularly to the
provisions in their national Constitutions recognising freedom
of association within the limits of the law.
The Governments of Austria, Finland, France and the
Union of South Africa point out that occupational organisations,
when exercising their rights, are obliged, like any other organised
collectivity, to observe the fundamental laws of the country.
The Governments have not made any concrete proposals on
these questions, but from the previous remarks there emerges
the belief that the international regulations, while emphasising
the importance of freedom of association, should make it
perfectly clear that workers, employers and their respective
organisations are just as much subject to the law as any other
person or organised collectivity.
The South African Government calls attention to a third
problem. It emphasises the fact that the degree of social and
economic development of populations varies, not only between
one State and another or between the metropolitan country and
non-metropolitan territories, but sometimes, also, even within
the frontiers of a single State. In its opinion, no Convention
would attain its object or could have positive results if, with
regard to the methods and principles of its application, it did
not take adequate account of the degree of development of each
people and of national conditions. The suggestion made in this
connection by the South African Government is considered
further in relation to Question 14.
I. Desirability and Form of International Regulation
Questions 1 and 2
The first question asked whether the Conference should
,adopt international regulations concerning freedom of association
and the protection of the right to organise in the form of one
or several Conventions. ••„•••.:.•••
62 FREEDOM OF ASSOCIATION
All the Governments have declared themselves to be in
favour of regulations under the form of an international Convention.
However, the South African Government, without formally
opposing this, would prefer the process of regulation by
successive stages. In its opinion, the Conference should first
adopt a Recommendation, and only at a later date, in the light
of the reports which the Governments would forward with
regard to the application of the Recommendation, proceed to
adopt international regulations under the form of a Convention.
The Government of the United Kingdom points out that the
international regulations should not impose an obligation on a
State Member to enact legislation concerning freedom of association
or the protection of the right to organise, where this freedom
and this right are recognised by the legislation in force or are
sufficiently assured by other means.
The second question concerned the point whether the
Conference should adopt two separate Conventions, one
concerning freedom of association and the other concerning the
protection of the right to organise.
The opinions of the Governments are divided. The majority
(Australia, Austria, Belgium, China, Denmark, Ecuador, Hungary,
Mexico, Netherlands, Sweden and United Kingdom)
consider that freedom of association and the protection of the
right to organise should be dealt with in a single Convention,
while the minority (Bulgaria, Canada, Finland, France, India,
Union of South Africa and United States) are of the opinion
that the two questions should be dealt with in two separate
Conventions.
The Austrian, Belgian and Swiss Governments, in favour of
the former alternative, urge in particular that the two questions
are so closely related that they could not be dealt with on a
separate basis.
Supporting the other alternative, the Government of the
United States calls attention to the different circumstances
existing in various countries, both with regard to the protection
of the right to organise by means of agreements and as regards
protection by legislation. In its opinion, these differences might
result in delaying the adoption of a Convention concerning
freedom of association, which is the paramount task of the
Conference. The South African Government, also, as already
pointed out in its preliminary observations, emphasises the
importance of the different national customs and traditions.
ANALYSIS OF REPLIES OF GOVERNMENTS 63
If the Conference, says that Government, should decide in favour
of regulation by international Convention, it should do so by
means of at least two Conventions, or draw up a text which
could be adopted in separate parts.
Finally, the Netherlands Government, while declaring itself
to be in favour of the adoption of a single Convention, expresses
some doubt as to the desirability of regulating separately, as
contemplated by the Conference at its 30th Session, the principles
of the protection of the right to organise and the methods of
application of those principles, that is to say, of settling the first
of these questions by the single-discussion procedure and the
second under the double-discussion procedure, and, therefore,
dealing with the same problem in two separate texts. In its
opinion, it would be more desirable to limit the Convention of
1948 to freedom of association and to unite in a single text all
the questions relating to the protection of the right to organise, a
question on which the Conference will have to take a final
decision in 1949.
To sum up, the Governments are almost unanimous in
recognising the need, and even the urgency, for an international
Convention on freedom of association and the protection of the
right to organise. Their opinions differ, on the other hand,
with regard to the desirability of regulating these two questions
under the form of a single Convention or under the form of two
separate Conventions.
A. FREEDOM OF ASSOCIATION
II. Establishment of Organisations
Question 3
Governments were consulted on thé question whether
provision should be made to accord to employers and workers
the right to establish or join organisations, according to either
of the formulae proposed by Question 3 (a) and (b). Affirmative
replies were received, supporting one formula or the other,
from Australia, Austria, Belgium, Bulgaria, Canada, China,
Denmark, Ecuador, Finland, France, Hungary, India, Mexico,
Netherlands, Sweden, Switzerland, United Kingdom and United
States.
64 FREEDOM OF ASSOCIATION
The only other reply received, that of the Union of South
Africa, expresses a desire to see some qualification of the text
proposed which would take account of the situation in that
country.
The South African Government wishes the word "inviolable "
to be omitted, because of the possibility of its misinterpretation,
e.g., in relation to the question of compulsory membership
of any particular organisation. It also considers that the
phrase " establish organisations " requires some descriptive
addition, as in the Government's proposed text given below, to
show that the right dealt with in the Convention applies onty
to employers' and workers' occupational organisations for the
purpose of regulating their industrial relations, whereas their
right to form organisations for other purposes should be the
the same as that of other citizens. The phrase " of their own
choosing " is considered inadvisable, as it does not correspond
fully with actual practice.
Moreover, the Union of South Africa feels that some " orderly
regulation " is needed and that it is not practicable to allow
employers and workers the complete freedom of establishing
organisations just as they choose. Such orderly regulation
would take account of differences existing in certain countries,
with regard to the race, customs, stage of social and economic
development and education of various groups of the population,
and would prevent an inexperienced majority, before they have
reached a sufficient stage of development, from taking over
control of organisations from the more experienced minority.
Further, the freedom of choice should be restricted to organisations
established according to the industrial pattern of a country,
especially if jurisdictional disputes are to be avoided.
In view of the foregoing considerations, the Union of South
Africa expresses a desire that any such provision as is set forth
in Question 3 (a) and (b), if it is to be included in a Convention,
should be redrafted as follows :
Employers and workers shall have the right, without previous
authorisation, to establish or join organisations for the furtherance
of their interests as such and for membership of which they are
eligible subject only to such compulsory statutory requirements of
the national authority as will ensure :
(a) adequate adaptation to the pattern of the legislative system
of wage regulation and collective bargaining and industrial regulation
; and
ANALYSIS OF REPLIES OF GOVERNMENTS 65
(b) protection of the organisation's assets against misappropriation
and misapplication to non-lawful or non-constitutional
purposes ; and
(c) non-participation of the organisation in fields of activity not
sufficiently closely connected with the purpose for which such
organisation was primarily established, for example, compulsory
political activities.
Leaving aside for the moment the question whether the,
formula (a) or (b) is preferred, certain 'reservations are expressed
in the replies of some of these countries.
Austria, China, Ecuador, Hungary and India wish to see
the right qualified to a certain degree in accordance with national
legislation.
Austria considers that the right should not, in principle,
be made subject to previous authorisation, but that, when
associations are being formed, the administrative formalities
prescribed in certain countries should be observed. In the case
of Austria, an organisation, prior to its formation, must comply
with the provisions of the Associations Act with regard to the
notification of the intention to form the organisation and submission
of the proposed rules to the administrative authority.
Austria points out that if the administrative authority then
prohibits the formation of the organisation, the persons
concerned have a right of appeal, and the Austrian Government
states that this protects the right against any unconstitutional
restriction. The Government proposes that, if the words
" without previous authorisation " would free organisations
from the obligation to comply even with administrative formalities
of the kind described, there would need to be included
supplementary clauses to take account of the situation in
Austria and in countries possessing similar regulations.
China considers that organisations should be set up in
conformity with national laws and regulations, while India
declares that the right to establish or join organisations should
be in conformity with national constitutional provisions
regarding freedom of speech and combination, the right to form
associations and the right of assembly.
Ecuador considers that the Convention should not refuse
the right to establish or join organisations to public employees,
but that their rights to do so should be decided by national
legislation.
Hungary expresses two reservations—first, that the organisations
concerned must be truly democratic, and secondly, that
66 FREEDOM OF ASSOCIATION
a workers' organisation may benefit from the right only if it will
be representative of a sufficient proportion of workers in the
occupation concerned, as fixed by national legislation.
The Governments of Finland, the United Kingdom and
Switzerland wish for certain other points to be made clear in the
provision. In the first place, Finland considers that the State
and municipal authorities, in the rôle of employers, should not
be members of the same organisations as private employers.
Secondly, the United Kingdom wishes to ensure that the right
of organisations to accept or refuse applications for membership
shall be safeguarded. Thirdly, both Finland and Switzerland,
and also the Union of South Africa, wish expression to be given
to the right of employers and workers, not only to establish or
join organisations, but to refrain from membership of organisations
if they choose.
On the question whether the right should be accorded under
the general terms suggested in Question 3 (a) or in the more
specific terminology of Question 3 (b), the majority of the
countries favour the former alternative.
Subject to the general reservations referred to in certain
cases, the following countries are in favour of (a) : Australia,
Belgium, Bulgaria, Canada, China, Denmark, Ecuador, Finland,
France, Hungary, India, Mexico, Netherlands, Sweden, Switzerland
and United Kingdom. Austria favours alternative (b),
and the United States proposes a draft similar to this alternative
but with one slight deletion and one addition designed to prevent
the enumeration from being limitative.
Of those in favour of the former alternative, the United
Kingdom considers that it is preferable to have a general formula,
for the reasons given on pages 7 and 8 of the Questionnaire.
Switzerland considers that any attempt to enumerate, as under
(b), could only be limitative and might give rise to controversy.
Austria, however, consider the words "without distinction
whatsoever ", as under (a), are too general in character and
might, therefore, come to be interpreted in a restrictive sense in
certain countries, whereas alternative (b), having the advantage
of specifying clearly the categories to whom the Convention
should apply, would avoid this possibility.
The United States would accept formula (b) with the
omission of the words " public or private " and the addition,
after the enumeration, of the words " and without any other
distinction ". The United States Government considers that the
ANALYSIS OF REPLIES OF GOVERNMENTS 67
term " employers and workers " itself includes employers and
workers both public and private, whereas the words " public
and private ", if included, might raise doubts as to which persons
fell under either of these two categories. The United States,
while it does not consider it advisable to try to enumerate the
various types of discrimination, feels that ambiguity might be
avoided by the adoption of formula (b) with the modifications
referred to above.
The large majority of the countries which have replied, therefore,
are in favour of the principle that employers and workers,
without distinction whatsoever, should have the right to establish
or join organisations of their own choosing without previous
authorisation, and almost all these countries prefer the provision
to be drawn up in general terms rather than as a descriptive
enumeration.
To the question whether the provision should be included
to the effect that the recognition of the right of association of
public officials does not prejudge the question of their right to
strike—Question 3 (c)—Australia, Austria, Belgium, Bulgaria,
Canada, Denmark, Ecuador, Finland, France, Hungary, India,
Switzerland, Union of South Africa and United States reply in
the affirmative, while the United Kingdom states that it does
not object if it is thought to be necessary. China's reply omits
any answer to this particular question, and Mexico answers in
the negative. Both the Netherlands and Sweden consider that
this Convention should not be concerned with questions relating
to the right to strike, and the United States, while replying in
the affirmative, considers that it would be undesirable to attempt
to resolve this problem under this Convention.
Most countries, therefore, implicitly recognise the right of
association of public officials without prejudice to the question
of the right to strike, which latter question, many countries
point out, is not relevant to the present proposed Convention.
l u . Functioning of Organisations
Question 4
To the question whether it would be desirable to provide
that employers' and workers' organisations should have the
right to draw up their constitution and rules, to organise their
administration and activities and to formulate their programmes
6 8 FREEDOM OF ASSOCIATION
—Question 4 (a)—affirmative replies were received from
Australia, Austria, Belgium, Bulgaria, Canada, China, Denmark,
Ecuador, Finland, France, Hungary, India, Mexico, Netherlands,
Sweden, Switzerland, Union of South Africa, United Kingdom
and United States.
The Union of South Africa qualifies its reply. The Government
agrees to the right in principle, provided that the administration,
activities and programmes fall within the constitution
and rules of the organisation and conform to legitimate activities
for organisations of this kind, but could not accept the principle
if it meant that organisations would be free to include in their
constitutions provisions unrelated to the main purpose of such
organisations. . Further, under South African legislation, an
occupational organisation, in order to obtain registration, must
provide in its constitution for certain matters such as qualification
for membership, keeping and audit of accounts, etc. The
Union of South Africa therefore answers the question in the
affirmative, provided that the words " in conformity with
national law " are inserted in the clause.
Austria agrees, provided that the clause shall not relieve
organisations of the obligation to observe the administrative
formalities prescribed by national legislation, for example,
matters which must be covered by the rules in any event,
communication of the names of the executive officers and
notification of general meetings.
Finland, too, agrees, with the reservation that it assumes
that the word " lawful " in 4 (b) is also implied in 4 (a) and
means that occupational organisations, when exercising their
rights, must observe the general law of the country.
France replies in the affirmative, provided that occupational
organisations undertake to respect the fundamental rules of
public law.
India stipulates that her affirmative reply is dependent on the
methods followed by the organisations being open, peaceful and
within the law and not in any way calculated to interfere with the
exercise of similar rights by other people and organisations.
Switzerland observes that the right is guaranteed by the
Federal Constitution, provided that the objects and methods
of associations are not unlawful or dangerous to the State.
The affirmative replies of the other countries mentioned
contain no reservations. The United States, in fact, states that
the rights specified are inherent aspects of the right of association
ANALYSIS OF REPLIES OF GOVERNMENTS 69
and that their absence would render the right of association of
little value.
All the nineteen countries which have replied, therefore, are
in favour of the principle that employers' and workers' organisations
should have the right to draw up their constitutions and
rules, etc., six of these countries stressing that the right must
be exercised in accordance with the national law or constitution,
or, in the case of Austria, the administrative formalities prescribed
by law.
The question whether it would be desirable to provide that
the public authorities should refrain from any interference
which would restrict the right (i.e. of organisations to draw up
their constitutions and rules, to organise their administration
and activities and to formulate their programmes) or would
impede the organisations in the lawful exercise of this right
—Question 4 (b)—was answered in the affirmative by Australia,
Austria, Belgium, Bulgaria, Canada, Denmark, Ecuador,
Finland, France, Hungary, India, Mexico, Netherlands, Sweden,
Switzerland, Union of South Africa, United Kingdom and
United States.
Similar reservations as in the case of the replies to
Question 4 (a) attach to the replies of Austria, Finland and the
Union of South Africa.
Ecuador stipulates that her answer is in the affirmative,
provided that the organisations exercising their rights do not
endanger the security of the State and do not pursue their
objects by unlawful means or by means contrary to the national
Constitution or public morals.
China points out that in her case, where there is any restriction
of the rights enumerated, employers and workers have the
right to request the public authorities to intervene.
The United States stresses the importance of the word
" lawful " inasmuch as. democratic organisations are, like
individuals, subject to the general law of the community, and
Switzerland attaches a very similar interpretation to this word.
The other countries mentioned do not qualify their
affirmative reply, while Sweden suggests the strengthening of
the guarantee afforded. The Swedish Government considers
that the words " lawful exercise " are vague, and that there
should be some redrafting so as to exclude the possibility of the
adoption of special legislation under which public authorities
might interfere with .the functioning of organisations.
70 FREEDOM OF ASSOCIATION
All the nineteen countries, therefore, have declared themselves
to be in favour of the principle that the public authorities
should refrain from any interference which would restrict the
rights of organisations accorded under 4 (a). Again, a number
of countries stress the importance of the word " lawful " in
the sense that the exercise of these rights must be in accordance
with the law of the land.
IV. Dissolution and Suspension of Organisations
Question 5
Question 5 asked whether it would be desirable for the international
regulations to provide that employers' and workers'
organisations should not be liable to be dissolved or have their
activities suspended by administrative authority.
Denmark points out that under its Constitution associations
having a legal object may be freely formed without preliminary
authority and may not be dissolved by governmental action.
An association may, however, be temporarily prohibited, but
in such a case judicial proceedings against it should be undertaken
at once. Accordingly, Denmark deems it necessary to
reserve its position on the question whether under Danish
conditions trade associations should be afforded a protection
going beyond that of the constitutional provision.
Austria replies that it must be possible for employers' and
workers' organisations, like any other association of individuals,
to be dissolved or suspended when they contravene the national
law in force, and states that its national legislation recognises
certain conditions under which associations may be dissolved or
suspended by administrative authority. The answer explains,
however, that the decision of the administrative authority in
a case of this character may be appealed against to the Constitutional
Court. It suggests, therefore, that the provision in a
Convention should provide that organisations are not subject
to dissolution or suspension by administrative authority
"' except when their activities are contrary to the national laws
in force ".
Switzerland considers that dissolution or suspension should
not be permitted except where the existence of the State is
imperilled, where associations seek to obtain an unlawful end,
and in such cases as are provided for by the Swiss Civil Code.
ANALYSIS OF REPLIES OF GOVERNMENTS 71
The Union of South Africa replies in the affirmative, but
excludes instances where the action of the administrative
authority is taken pursuant to specific legislative authority
under statutes that set forth the grounds for dissolution or
suspension and provide for the right of appeal to the Courts of
Justice. The process of " de-registration " is also excluded from
the scope of the affirmative answer.
China replies in the affirmative, but states that " special
cases " should be exempt from this provision.
India replies that organisations should not be liable to
dissolution or to the suspension of their activities " except by
a due process of law ".
The Netherlands answers in the affirmative, upon the understanding
that in this context " administrative authority "
means any authority other than the legislative and judicial
authorities.
France likewise answers in the affirmative, noting that the
provision implies that organisations may not be dissolved
except by judicial procedure.
The remaining countries, Australia, Belgium, Bulgaria,
Canada, Ecuador, Finland, Hungary, Mexico, Sweden, United
Kingdom and United States, reply in the affirmative without
qualification other than a reference in the Australian answer to
the understanding contained in the report of the Committee on
freedom of association to the 30th Session of the Conference.
As disclosed by the Committee's report, an organisation
having as its object the commission of criminal or immoral acts,
or seeking to undermine the security of the State, would be
unlawful and could not invoke the guarantee of the principle
of freedom of association, for this freedom—like every other
freedom—is bound by national laws, as is envisaged in the
Constitution of the International Labour Organisation. The
proposal contained in Question 5 was intended to exclude the
possibility of dissolution or suspension of organisations by
mere administrative authority. It did not cover the case of
dissolution or suspension by judicial process.
Viewed in the light of this interpretation, the overwhelming
majority of the replies clearly support the principle that
organisations should not be liable to dissolution or suspension
by mere administrative authority.
72 FREEDOM OF ASSOCIATION
V. Federations, Confederations and International Organisations
of Employers and Workers
Question 6
Question 6 asked whether it would be desirable to provide
that employers' and workers' organisations should have the right
to establish federations and confederations and to affiliate with
international organisations of employers and workers. No
country replies in the negative, and only four countries, Ecuador,
India, Switzerland and the Union of South Africa, qualify their
affirmative answers.
The Union of South Africa considers that the character of the
organisation the employers' and workers' organisations might
join should be clarified. To this end it suggests an addition
to the text as proposed, tending to restrict the federation,
confederation or international organisation with which a trade
association might affiliate to those approved by the national
authority. The granting of the proposed right, the answer
suggests, would be acceptable " provided such federation or
affiliation in no way imposes upon such organisation any limit
as to freedom of action in terms of its own constitution or in
determining its programme and provided that such organisations
exist substantially for the purpose of furthering the same
objects as such organisations themselves". Where such conditions
do not prevail the Government would reserve the right to
require cancellation of the affiliation, or failing such cancellation,
to withdraw statutory recognition of the organisation concerned.
The affirmative answer of Ecuador is somewhat similarly
qualified, in that it considers that the right to affiliation with
international organisations should be subjected to safeguards
for the sovereignty, security and dignity of the State and would
not apply in any instance where the organisations are bound
to follow instructions of the international organisations which
might be of a character to injure the State. A conflict arising
between the international and affiliated organisation should be
adjudicated by an international tribunal.
India states that the proposed right should be granted
provided the exercise thereof does not in any way injure the
security of the State. Switzerland considers that such right
should be granted provided always that employers' and workers'
organisations do not exceed the limits prescribed by law.
ANALYSIS OF REPLIES OF GOVERNMENTS 73
Fifteen countries reply to this question in the affirmative,
without qualification : Australia, Austria, Belgium, Bulgaria,
Ganada, China, Denmark, Finland, France, Hungary, Mexico,
Netherlands, Sweden, United Kingdom and United States.
VI. Guarantees relating to Federations and Confederations
Question 7
This question asked whether it would be desirable to provide
that the guarantees with regard to the establishment, functioning,
dissolution and suspension of employers' and workers'
organisations referred to in Questions 3, 4 and 5, should apply
to federations and confederations of such organisations. The
Union of South Africa replies in the negative, three countries
(Austria, Switzerland and France) qualify their affirmative
answers, and the replies of the remaining fifteen countries
are in the affirmative.
The negative reply of the Union of South Africa to this
question is not explained. Austria answers in the affirmative,
but with reservations referred to in its replies to Questions 3
and 4 regarding the necessity of observing administrative
formalities prescribed by national law. Switzerland considers
that such guarantees should apply to federations and confederations
" except where this is contrary to national legislation ".
France replies in the affirmative, subject to the reservations,
expressed in reply to Questions 4 (a) and 5, that occupational
organisations undertake to respect the fundamental rules of
public law and should not be subject to dissolution except by
judicial procedure.
The principle contained in this proposal has been accepted
without qualification by all other responding countries, namely,
Australia, Belgium, Bulgaria, Canada, China, Denmark, Ecuador,
Finland, Hungary, India, Mexico, Netherlands, Sweden, United
Kingdom and United States.
VII. Legal Personality of Organisations
Question 8
Question 8 asked whether it would be desirable to include
-in the international regulations a clause providing that the
acquisition of legal personality by employers' and workers'
74 FREEDOM OF ASSOCIATION
organisations should not be made subject to conditions of such
a character as to restrict freedom of association as defined in
the foregoing provisions.
Only China and the Union of South Africa give a negative
reply to this question. China does not accompany its reply with
any further observations, while the South African Government
declares that only an association established in accordance with
the law should be able to enjoy legal personality; it is only in
this way, says that Government, that jurisdictional disputes
between organisations can be avoided and the exploitation of a
majority by an organised minority be prevented.
In contrast to this view, Belgium considers that " the
authority which would make the acquisition of legal personality
subject to any condition of such a character as to restrict freedom
of association—even if free organisations retained the right not
to acquire legal personality—would be acting in a manner
contrary to the principle of freedom of association by conferring
on, those organisations which agreed to conform to the
conditions prescribed the benefit of the advantages resulting
from civil personality ". The Government declares itself,
therefore, to be in favour of the proposed provision, in order that
States may thus " prevent any possibility of permitting any
inequality to arise between employers' and workers' organisations,
which must remain entirely free and the sole arbiters of
their destiny ".
The majority of the States reply in the affirmative without
further observations (Australia, Bulgaria, Canada, China,
Denmark, France, Hungary, India, Mexico, Netherlands and
Sweden) ; a few Governments, however, have stated briefly the
reasons for their replies.
Ecuador considers that " the enjoyment of legal personality
should not be limited except under conditions determined by
each State in order to protect its own security and the wellbeing
of its citizens ".
Finland considers that account should also be taken of those
provisions in national legislation which impose conditions by
which the acquisition of legal personality by organisations is
governed.
Switzerland wonders whether it would not be preferable,
in view of the fact that the interpretation of legal personality
varies so much from one country to another, for the international
regulation to omit this question or for it to be dealt
ANALYSIS OF REPLIES OF GOVERNMENTS 75
with only in a Recommendation. It points out, moreover, that
under Article 60 et seq. of the Swiss Civil Code " associations . . .
whose aims are not of an economic character, acquire legal
personality as soon as the intention to organise themselves on
a corporate basis has been explicitly expressed in their constitution
".
Austria explains that, under Austrian law, employers' and
workers' organisations automatically acquire legal personality
when they are legally and effectively established.
While not giving a clearly affirmative reply, the United
Kingdom sees " no objection . . . to the inclusion of such a
provision, if this is felt to be generally desirable ".
Finally, the United States Government observes that this
provision appears to be a natural corollary to any affirmative
reply to Question 4 (a).
The analysis of the replies to this question reveals that,
by a very large majority, the Governments consider that the
conditions to which the law may subject the acquisition of
legal personality by employers' and workers' organisations
should not be such as in any way to restrict freedom of association.
VIII. Responsibilities of Organisations
Question 9
Question 9 suggested two alternatives. The Governments
were asked :
(a) whether they considered that it would be desirable to
provide, in the international regulations concerning freedom
of association, that the acquisition and exercise of the rights
defined in the first part of the regulations should not exempt
employers' and workers' organisations from their full share of
responsibilities and obligations ; or, alternatively,
(b) whether they considered that it would be preferable
to reserve such a provision for inclusion in international regulations
concerning collective agreements or conciliation and
arbitration.
The replies to this question are not unanimous, although
they show a clear majority in favour of the solution proposed
under 9 (b).
7 6 FREEDOM OF ASSOCIATION
Mexico considers that it would be preferable that this
matter should not be dealt with in the international regulations,
but that the States should be left to take such measures as they
consider appropriate. Canada, Denmark, Ecuador, Finland,
Hungary, India and the United Kingdom favour the solution
proposed under 9 (a). In their observations, Hungary and India
point out that, as every right has its counterpart in obligations,
occupational organisations have to assume certain responsibilities
as a direct result of the rights accorded to them. It should
be noted that the replies of these two Governments refer to the
moral basis for responsibility and not to the desirability of
including such a provision in the international regulations
concerning freedom of association.
On the other hand, the replies of the Governments which
declare themselves to be in favour of the solution proposed under
9 (b) (Australia, Austria, Belgium, Bulgaria, China, France,
Netherlands, Sweden, Switzerland, Union of South Africa and
United States) indicate, for the most part, not that the Governments
are opposed to the responsibilities and obligations of
employers' and workers' organisations being defined, but that
they consider it more desirable to reserve such a provision for
inclusion in international regulations concerning collective
agreements or conciliation and arbitration.
The United States points out that paragraph 9 (a) as
it exists is not sufficiently clear for inclusion in a Convention,
and that any attempt to render its meaning exact and definite
would involve the Conference prematurely in the detailed study
of problems relating to international regulations concerning
collective agreements or conciliation and arbitration.
Australia, Belgium, the Netherlands, Sweden and Switzerland
accompany their replies with similar remarks ; the lastmentioned
country points out, however, that certain influential
circles in Switzerland are rather inclined to the solution proposed
under 9 (a), as the regulation contemplated under 9 (b) would
exclude from its scope many associations which are not covered
either by collective agreements or by provisions concerning
conciliation and arbitration.
Austria considers that the Convention should be limited to
the international regulation of those questions which are fundamental
to freedom of association and the protection of the right
to organise, that is to say, to questions of a purely organisational
character.
ANALYSIS OF REPLIES OF GOVERNMENTS 77
From this short analysis, it becomes clear that the majority
of the Governments consider that it would be preferable to
reserve, for inclusion in international regulations concerning
collective agreements or conciliation and arbitration, any
provision concerning the respective responsibilities and obligations
of employers' and workers' organisations.
B. PROTECTION OF THE RIGHT TO ORGANISE
IX. Guarantee of the Exercise of the Right to Organise
X. Establishment of Agencies for the Purpose of
Ensuring Respect of the Right to Organise
Questions 10-13
Question 10 asked whether international regulations should
guarantee the exercise of the right to organise.
The Danish Government, considering that this is a question
of the guarantee of the right to organise by an international
agency supervising freedom of association, reserves its opinion,
while awaiting fuller information as regards the particulars of
the international guarantee. The central organisations of
Danish employers and workers, consulted beforehand by the
Government, also declared themsejves to be against an international
guarantee, to which they attribute no practical value.
The use of the term " international guarantee ", both by the
Danish Government and by the central organisations concerned,
appears to indicate, however, that the Danish Government
has in view the problem of international supervision, a question
which is not contemplated under the present regulations. It
is, therefore, permissible not to attribute a negative sense to the
reply of the Danish Government, especially in view of the fact
that affirmative replies are given to the subsequent questions,
which are dependent on Question 10.
The replies of all the other Governments are clearly in the
affirmative. It should be noted, however, that the United
Kingdom Government points out once again that the international
regulations should not impose on a State Member the
obligation to enact legislation in cases where the right to organise
6
7 8 FREEDOM OF ASSOCIATION
is already adequately protected by existing legislation or in
other ways.
There is, therefore, almost complete unanimity as to the
need to embody, the protection of the right to organise in the
international regulations.
Question 11 dealt with the consideration whether the
protection of the right to organise could be effectively assured
by means of mutual agreement between organised employers
and workers.
The Governments of Austria, Hungary, Mexico, Sweden and
the Union of South Africa reply in the negative. They consider
indeed that only the law offers effective guarantees.
In the opinion of the French Government, the international
regulations should take into account all collective agreements,
but should not entrust the protection of the right to organise
solely to such agreements. This obligation falls in the last
resort on the State. The law should lay down general principles,
and collective agreements should prescribe the conditions of
their application.
On the other hand, the replies of the remaining countries
are in the affirmative (Australia, Belgium, Bulgaria, Canada,
China, Denmark, Ecuador, Finland, India, Netherlands, Switzerland,
United Kingdom and United States). The Canadian
Government specifies, however, that the protection of the right
to organise by means of collective agreements should depend
on the existence of an established practice and of organisations
which are sufficiently developed.
The Government of Ecuador emphasises that the two parties
must act together in a sincere intention to co-operate in order
to put an end to disputes.
Question 12 asked whether, in the absence of full and effective
guarantee by means of mutual agreements, the States Members
should take appropriate measures to protect the exercise of the
right to organise without fear of intimidation, coercion or
restraint from any source.
The Governments of Austria, Mexico, Sweden and the Union
of South Africa, in accordance with the replies given to Question
11, consider that legislative measures are indispensable for
ensuring the exercise of the right to organise. The Governments
of Belgium and Ecuador are of the same opinion.
The Swedish Government specifies, in this connection, that
such legislation should be limited to guaranteeing the right
ANALYSIS OF REPLIES OF GOVERNMENTS 79
to establish and join organisations; it should not regulate, on
the other hand, either the right not to associate or the right
of occupational organisations to conclude mutual agreements.
The Governments of Belgium and Ecuador consider that
the State should take protective measures, even where agreements
have been concluded in due and proper form. The
Government of Belgium calls special attention to the importance
of protecting staff delegates against discriminatory dismissal.
The other Governments (Austria, Bulgaria, Canada, China,
Denmark, Finland, France, Hungary, India, Netherlands,
Switzerland, United Kingdom and United States) approve the
text suggested in Question 12. In the view of the French
Government, appropriate measures should be taken especially
in order to guarantee to wage-earners that the question of
membership or non-membership of a trade union may not be
taken into account in relation to engagement, maintenance in
employment or dismissal.
Lastly, the Swiss Government points out that the adoption
and application of protective measures might encounter
difficulties.
Finally, Question 13 dealt with the establishment of appropriate
agencies for the purpose of ensuring the respect of the
right to organise.
The United Kingdom and South African Governments reply
in the negative.
The Government of Finland does not express any view as
yet, on the ground that neither the structure nor the duties of
these agencies would be defined in the regulations.
For the Swiss Government, the provision would not be
acceptable if it should result in the creation of international
machinery to supervise the right to organise.
On the other hand, the Belgian Government is of the opinion
that the establishment, under the auspices of the International
Labour Organisation, of an appropriate agency of supervision,
should be prescribed by the international regulations. Likewise,
the French Government feels that consideration should be
given to the question whether effect might be given to this
proposal within the framework of the International Labour
Organisation. It is desirable, however, once more to point out
that Question 13 related, not to the establishment of international
supervision, but only to the establishment of appropriate
national agencies.
80 FREEDOM OF ASSOCIATION
In the opinion of the Swedish Government, the adoption of
this provision should not involve any modification of existing
national systems which give complete satisfaction to everyone.
In a similar manner, the Mexican Government considers
that it is for the countries which guarantee the right to organise
by legislation to take appropriate measures where such legislation
is contravened.
The Governments of Australia and the United States answer
in the affirmative in principle, but would like to see the words
" if necessary " embodied in the provision.
The other replies are clearly affirmative (Austria, Bulgaria,
Canada, China, Denmark, Ecuador, Hungary, India and
Netherlands).
It becomes clear from the survey of the replies that the
opinions of the Governments are divided as regards the desirability
of a provision which would impose a strict obligation on
States Members to establish supervisory agencies.
Proposals by the Governments
Question 14
Question 14 asked whether the Governments had any
proposal or suggestion to make on any point to which no
reference had been made in the Questionnaire.
An analysis follows of the proposals made to include in the
text provisions not covered in the Questionnaire.
The Governments of France, India, the Union of South
Africa and the United States suggest that certain provisions
should be included in the Convention which, although varying
in form, are intended to define directly or indirectly the scope
of the Convention.
The South African Government urges that Conventions
adopted earlier include provisions granting exemption in the
case of non-metropolitan territories, or of certain States the
mass of whose population has not yet reached the same economic
and social level as in more advanced countries, or again in the
case of States whose territories include sparsely populated
regions. In the South African view, account should also be
taken of the fact that a fourth type of State exists, among
which is the Union of South Africa, in which certain elements
of the population, while sharing in the general industrial life,
ANALYSIS OF REPLIES OF GOVERNMENTS 81
have not attained the same degree of development as the rest
of the community. The Government of South Africa proposes,
therefore, that there should be embodied in the text of the
Convention, as in the Resolution adopted at the 30th Session
of the Conference, the provision contained in Part V of the
Declaration of Philadelphia, according to which due account
should be taken of the stage of social and economic development
of each people in relation to the realisation of the programme
set forth in the Declaration.
In the opinion of the Indian Government, the benefit of the
rights provided by the Convention should be available only to
those organisations of employers and workers which fulfil
the three following conditions :
(a) the organisations must not exclude from membership
any individuals or group of individuals who may otherwise
be eligible, merely on grounds of sex, colour, race, creed or
nationality ;
(b) the organisations must not interfere in any way with
the right of any individual or group of individuals to pursue
peacefully his or their trade or vocation and to exercise the
right of citizenship ;
(c) the organisations must conduct their activities according
to democratic procedure.
The Government of the United States declares that it is in
favour of the adoption of a Convention concerning freedom of
association of workers and employers, on the understanding that
the Convention deals exclusively with trade union affairs and
employer-employee relations, and not with other activities of,
organisations extraneous to these fields. In order to give more
clarity to the proposed text, it suggests that a definition of the
words " employers' and workers' organisations " should be
included, a definition which, in the spirit of the Constitution of
the International Labour Organisation and of the Convention
itself, might be drafted as follows :
" Employers' and workers' organisations " as used in this Convention
means organisations of employers and workers with respect
to their participation in all matters relating to trade union affairs
and employer-employee relations.
The French Government calls attention to the fact that it
is not so much the legal status of the organisations concerned,
8 2 FREEDOM OF ASSOCIATION
but their very object, which calls for the measures of protection
contemplated in the present text. That object is the defence
of the occupational and social interests of their members.
The French Government points out, in this connection, that
it may appear reasonable enough theoretically to desire to
establish a constant parallel between organisations of workers
and employers, whereas the objects pursued and the conditions
under which those rights are exercised by workers and employers
may present very appreciable differences, and workers' organisations,
in particular, are far more exposed to acts of intimidation,
coercion or restraint.
Further, the French Government asks the International
Labour Office to ' study more intensively the question of the
representative character of trade union organisations. It
raises in particular the following questions :
(a) whether it is not contrary to freedom of association
to accord by law to certain organisations deemed to be the
most representative a privilege entitling them to represent the
whole of the wage-earners concerned for the purpose of
concluding collective agreements which, according to a specified
procedure, may become generally binding ;
(b) in the negative, what would be the criteria not contrary
to freedom of association which would enable the most representative
organisations to be determined ?
It should be pointed out that this problem has been examined
by the Office in its report on industrial relations, which question
is Item VIII on the agenda of the present session of the Conference.
1 It appeared to the Office that this problem arose
essentially in connection with industrial relations and, more
particularly, as the French Government itself refers to it, in
connection with collective agreements, and might, therefore, be
more suitably dealt with in relation to that question.
1 International Labour Conference, 31st Session, Report VIII (1) :
Industrial Relations, Geneva (I.L.O.), 1947.
CHAPTER III
CONCLUSIONS
On the basis of the replies analysed in the preceding chapter,
the Office submits for the consideration of the Conference a
proposed Convention concerning freedom of association and
protection of the right to organise, prefaced by a short Preamble.
These texts will be found in Chapter IV.
Preamble to the Proposed Convention
The Office has considered it necessary to include a short
Preamble stating the reasons for the text of the proposed
Convention.
In the first place, it appears desirable to refer to the provisions
of the Constitution of the International Labour Organisation
and of the Declaration of Philadelphia, which determine the
competence of the Organisation in respect of the question of
freedom of association and give prominence to the importance
of this problem in relation to the improvement of conditions of
labour, social progress and maintenance of peace.
It seems no less desirable to emphasise that the Assembly of
the United Nations has endorsed the principles concerning trade
union questions adopted unanimously at the last session of the
Conference and has, therefore, requested the International
Labour Organisation to make every effort to translate these
principles into formal undertakings by means of one or several
international labour Conventions.
Finally, it appears necessary to recall that if workers,
employers and their respective organisations must not be
subject, as they often have been in the past, to discriminatory
treatment, as compared with other persons or organisations,
they are no less obliged, when exercising their rights, to observe
the laws concerning public order laid down by national
84 FREEDOM OF ASSOCIATION
Constitutions, penal codes or civil codes which, by definition,
are binding upon everyone.
The Office thus takes into account the reservations relating
to " legality " and " public order " reaffirmed by a number of
Governments in their replies. It may be recalled in this
connection that such reservations, even if they are not expressly
declared, are nevertheless implicitly included in any text,
national or international, giving sanction to a right or a freedom.
But, in order to avoid any ambiguity, it is necessary to state
specifically that the laws relating to public order in various
countries, whatever they may be, must be compatible with the
provisions of any Convention which may be adopted concerning
freedom of association. The same holds good, of course, with
regard to national legislation concerning occupational organisasations.
Indeed, if the position should be otherwise, the Convention
itself would no longer have any object. And it is for this
reason that account can hardly be taken of any reservation
relating to public order in the actual text of the Convention,
because this would enable the States, according to their interpretation
of this concept, to bring into question once again the
principles to which they had subscribed.
Proposed Convention concerning Freedom of Association and
Protection of the Right to Organise
Before considering the significance of the various provisions
of the proposed Convention concerning freedom of association
and protection of the right to organise, it is important to recall
in a few words the spirit in which this proposed text has been
prepared.
The Office, in full accord with the decisions of the last session
of the International Labour Conference, has endeavoured to
define as concisely as possible the principles determining the
rules governing freedom of association, principles which, be it
remembered, are expressly sanctioned by the legislation and
practice of the great majority of countries.
In other words, all these countries are in a position to ratify
the Convention without having first to amend their legislation
concerning occupational organisations.
On the other hand, any proposed regulation purporting to
regulate even the smallest problems which might arise in
CONCLUSIONS 85
practice in each country would have obliged the majority of
countries first to amend their national legislation, frequently
with regard to points of detail, before they would be in a position
to ratify the international Convention. And it is for this reason
that the Office has purposely refrained from proposing to the
Conference any kind of " code or model regulations " concerning
freedom of association.
In the second place, it is important to remember that, in
accordance with the decisions taken by the 30th Session of the
Conference, the Convention concerning freedom of association
should be considered only as a first stage in the programme for
the international regulation of trade union rights. In fact,
the 31st Session of the Conference also has before it, for first
discussion, several texts relating, inter alia, to the rôle of
workers' and employers' organisations in the field of industrial
relations and in that of social and economic regulation (Item
VIII on the agenda of the Conference).
Moreover, a number of suggestions made in the replies of the
Governments, which relate to the wider problems of industrial
relations and co-operation between public authorities and
employers' and workers' organisations, might more usefully
be discussed in connection with the texts referred to above.
DESIRABILITY AND FORM OF INTERNATIONAL REGULATION
The Conference will need to decide in the first place whether
the international regulations should take the form of a Convention
and, if the decision is in the affirmative, whether there shall
be a single Convention relating both to freedom of association
and the protection of the right to organise, or two separate
Conventions, one concerning freedom of association and the
other concerning the protection of the right to organise.
The Governments have expressed themselves almost unanimously
to be in favour of prompt international regulation by
means of a Convention, and the majority prefer a single Convention.
However, a number of Governments have given preference
to regulation by means of two separate Conventions, for the
reason especially that a text relating to both questions at the
same time might risk entailing delay in the adoption of a
Convention on freedom of association, which should be the
first task of the Conference. It has also been urged that it
86 FREEDOM OF ASSOCIATION
might be undesirable to seek to regulate separately, on the one
hand, the principle of the protection of the right to organise
by the procedure of single discussion, and the methods of
application of the principle by the double-discussion procedure.
The Office has endeavoured to reconcile these opinions by
dividing the proposed regulations into two parts, the first
being concerned with freedom of association and the second
with the protection of the right to organise.
The Conference will thus be in a position to give its decisions
separately on each of the two parts of the proposed Convention.
PART I. FREEDOM OF ASSOCIATION
Article 1 of the proposed Convention provides that each
Member of the International Labour Organisation for which
this Convention is in force undertakes to give effect to the
provisions laid down in the following articles. This text does not
call for any further observations.
Establishment of Organisations
Article 2 of the proposed Convention consists of a definition
of freedom of association of workers and employers as
individuals. It provides accordingly that workers and employers,
without distinction whatsoever, shall have the inalienable right
to establish or join organisations of their own choosing without
previous authorisation.
The observations of the Governments have related to
several points in this definition which it is necessary now to
consider briefly.
The Principle of Non-discrimination.
It may be recalled in the first place that the Governments
were asked to choose between two formulae. The first, that
which has been retained in the proposed Convention, defines
the principle of non-discrimination in quite general terms :
'.' without distinction whatsoever ". The second, on the other
hand, enumerates certain typical examples of organisational
discrimination : " without distinction as to occupation, sex,
colour, race, creed, nationality or political opinion ".
The majority of the replies expressed a preference for the
first formula, for the reason especially that a clause in quite
CONCLUSIONS 87
general terms was actually more comprehensive than a formula
enumerating the different types of discrimination, which always
entails the risk of certain types being omitted.
Hence, in keeping with the spirit of the replies, the general
provision included in the text of the proposed Convention
should be interpreted in the widest sense as meaning that
freedom of association should be recognised without distinction
whatsoever as to occupation, sex, colour, race, creed, nationality,
political opinion, etc., not only for workers and employers in
private industry, but also for officials or employees of the public
service.
It may be observed, in this latter connection, that the
Governments were also consulted on the question whether it
would be desirable to provide in the international regulations
that the recognition of the right of association of public officials
should in no Way prejudge the question of the right of such
officials to strike. Several Governments, while giving their
approval to the formula, have nevertheless emphasised, justifiably
it would appear, that the proposed Convention relates
only to the freedom of association and not to the right to strike,
a question which will be considered in connection with Item VIII
(conciliation and arbitration) on the agenda of the Conference.
In these circumstances, it has appeared to the Office to be
preferable not to include a provision on this point in the proposed
Convention concerning freedom of association.
Guarantee of Freedom of Association without Previous Authorisation.
The real guarantee of freedom of association flows from the
words : " inalienable right of workers and employers to establish
or join organisations . . . without previous authorisation ".
None of the replies have expressly questioned this
fundamental principle, but some Governments have urged
nevertheless that, in the interests of the smooth functioning of
the organisations, they should be obliged to comply, in regard
to their establishment, with the legal formalities prescribed by.
their national legislation.
It should be stressed in this connection that Article 2 merely
lays down a principle and simply places a limit on the intervention
of the State. Therefore, it leaves a certain latitude to
countries to regulate as they wish the conditions under which
88 FREEDOM OF ASSOCIATION
organisations may be established, with the express proviso, of
course, that these conditions shall not be such as to restrict the
right which workers and employers should have to establish
their organisations in full freedom.
The words " without previous authorisation " are sufficiently
explicit to enable countries to distinguish between measures
which are compatible with the principle of the free establishment
of organisations and those which would not be so.
The Right to Associate and the Right Not to Associate.
Article 2 lays down, in positive terms, the right of workers
and employers to establish and join organisations.
The very large majority of the replies have unreservedly
given approval to this principle, but a few Governments have
also expressed the wish that the international guarantee should
refer not only to the positive right to associate but also to the
purely negative right not to associate.
It should be observed in this connection that the very object
of the international regulation is to guarantee freedom of
association as a measure of social protection of outstanding
importance. But the protection of the purely negative right not
to associate could naturally not be viewed as coming under this
head.
Moreover, Article 2 merely lays down a right and not, as
certain countries seem to fear, an obligation. It follows, therefore,
that workers and employers remain completely free either
to make use of this right or not to do so. But the voluntary
renunciation of the positive right to associate could not be
treated on the same basis as the formal guarantee of the purely
negative right not to associate.
Freedom of Choice of Organisations.
By including the words " organisations of their own choosing "
in Article 2, the Office intended to take account of the fact that,
in a number of countries, there exist several organisations
•representative of workers and employers among which the
persons concerned may choose which they shall join, on either
religious or political grounds.
And it is in this sense that the very large majority of replies
have interpreted these words. However, to allay certain
apprehensions which have been expressed in a few replies, it is
CONCLUSIONS 89
important to point out that such a provision leaves the organisations
concerned entirely free to lay down in their rules the
conditions of membership or withdrawal from membership,
subject only to the reservation that such conditions shall not
bring into question the principle of non-discrimination in
relation to organisational rights.
Autonomy of Organisations
Article 3 of the proposed Convention consists of two paragraphs
which supplement each other.
The first provides that workers' and employers' organisations
shall have the right to draw up their constitutions and rules,
to elect their representatives in full freedom, to organise their
administration and activities and to formulate their programmes.
It will be observed that to the formula which was included
in the Questionnaire have been added the words : " to elect
their representatives in full freedom ", which gives precise
detail to the definition of the right of free functioning of organisations.
The second paragraph of Article 3 lays an obligation on the
public authorities to refrain from any interference which would
restrict this right or impede the lawful exercise thereof.
The majority of the replies to this question are not merely
affirmative but emphasise further the fact that the freedom
to establish organisations guaranteed by Article 2 of the proposed
Convention would not be of great value if it was not completed
by the freedom for organisations to administer themselves
according to their wishes.
But here again, certain reservations have been made by
some Governments with regard especially to the definition of
organisations and the limits to be placed on administrative
autonomy.
Definition of Occupational Organisations.
In using the words " workers' and employers' organisations ",
the Office intended to emphasise that the proposed Convention
refers only to occupational organisations whose essential mission
consists in ensuring the defence of the occupational, social and
economic interests of their members. It follows that organisations
of a purely political or purely commercial character, or
9 0 FREEDOM OF ASSOCIATION
public agencies (State agencies, municipalities, etc.), do not
fall within this definition and cannot, therefore, claim to benefit
from the application of the Convention.
But by reason of the very great difference in the definitions
of occupational organisations which is met with in the various
national legislations, it seems impossible to hope to bring all
these definitions down to one formula which would suit all
countries. The words " workers' and employers' organisations '*
appear to be sufficiently definite to distinguish occupational
organisations from other organisations.
In reply to another observation made by certain Governments
on the " representative character of organisations ",
it will be sufficient to point out here that the proposed Convention
concerning freedom of association can hardly discriminate
between organisations according to their numerical importance,
but that this problem will come before the Conference in connection
with the question of industrial relations, which is Item VIII
on its agenda.
Regulation of the Functioning of Organisations.
Some Governments have accompanied their affirmative
reply relating to the administrative autonomy of organisations
by reservations similar to those made in connection with the
preceding article and which relate to certain formalities prescribed
by their national regulations.
But here again, the text under review goes only so far as to
fix a limit to the interference of authorities, and in no way
pretends, therefore, to prohibit legal requirements having as
their exclusive object the assurance of the normal functioning
of organisations.
Thus, for instance, national legislation frequently provides
that organisations must be endowed with rules regulating, in the
interests of the members themselves, such questions as, for
example, the conditions for obtaining or withdrawing from
membership, the organisation of the administration and executive,
trade union contributions, management and supervision
of funds, submission of the balance-sheet to the members, and
other similar questions.
Provisions of this kind, which, moreover, are always included
in the rules which organisations draw up on a voluntary basis,
cannot be considered as being contrary to the principle of
CONCLUSIONS 91
freedom of association if they do not bring into question the
autonomy of organisations as defined by Article 3 of the proposed
Convention. •
But if the national authorities possess in this way a fairly
considerable latitude to regulate the functioning of organisations,
it would appear, nevertheless, that the insertion in Article 3 of
the words " in conformity with national laws " (an insertion
asked for by certain Governments) would be incompatible with
the principle of autonomy of occupational organisations, as
this would give the national public authorities a free hand, so
to speak, to regulate the functioning of the organisations as they
wished.
On somewhat similar considerations the Conference may
wish to discuss the desirability of deleting, at the end of the
second paragraph of Article 3, the word " lawful ", since a
general reservation regarding legality is already included in the
Preamble and applies, therefore, to all the articles of the
proposed Convention.
Dissolution and Suspension of Organisations
Article 4 of the proposed Convention provides that workers'
and employers' organisations shall not be liable to be dissolved
or have their activities suspended by administrative authority.
The object of this clause is to complete the guarantees
relating to the free establishment and free functioning of
organisations, prescribed by Articles 2 and 3 of the proposed
text, by a guarantee against dissolution or arbitrary suspension
of organisations by administrative authority. In other words,
workers' and employers' organisations should benefit from all
the guarantees offered by the judicial procedure if the dissolution
or suspension is prescribed in national regulations as a
penalty for breach of the law.
The very great majority of the replies unreservedly endorse
this principle, for the reason, above all, that it should be for the.
judiciary and not for the administrative authorities to hear
cases of alleged breaches of the law and, where appropriate,
to apply the penalties prescribed.
The Conference will, however, wish to take account of
the fact that, in several countries, the dissolution or suspension
of organisations arises out of an administrative jurisdiction which
offers the parties the same guarantees as judicial procedure
92 FREEDOM OF ASSOCIATION
properly speaking. It seems, therefore, that such administrative
procedure could be assimilated, in the terms of the Convention,
to judicial procedure.
Federations, Confederations and International Organisations
of Employers and Workers
Article 5 provides that workers' and employers' organisations
shall have the right to establish federations and confederations
and to affiliate with international organisations of workers and
employers.
This provision is simply the corollary to the right provided
under Article 2 to establish organisations. It is based on the
recognition of the fact that the solidarity of interests which
unites workers and employers is not limited to one undertaking,
nor to one trade or industry, nor even to one country, but
extends to all countries. It may be recalled in this connection
that both the United Nations and the International Labour
Organisation have formally recognised the status of international
organisations of workers and employers by associating them
directly with their own activities.
The very great majority of the countries have given their
unqualified approval to this provision. Three countries once
more qualify their agreement by general reservations concerning
public order and security of the State, reservations which have
been considered in connection with the Preamble to the Convention.
A single reply raises the problem of the administrative
and financial autonomy of organisations affiliated either to
national federations and confederations or to international
organisations. It may be pointed out, in this latter connection,
that, in fact, the rules of national federations and confederations,
like those of international organisations of workers and employers,
safeguard to the largest possible degree the autonomy
of the organisations which are affiliated to them. But this
problem, indeed, is related to the sovereignty of national
and international congresses of workers and employers and
could not, therefore, be dealt with by an international document.
Guarantees relating to Federations and Confederations
Article 6 is intended to make applicable to federations
and confederations the guarantees relating to establishment,
functioning and dissolution, provided under Articles 2, 3 and
CONCLUSIONS 93
4 of the proposed Convention in respect of workers' and employers'
organisations.
Except for the formal reservations with regard to " legality "
made by three countries, the other replies are in the affirmative
without further observations. One country only replied in the
negative, without giving any reasons for its answer.
This text, therefore, does not call for further remark.
Acquisition of Legal Personality
Article 7 provides that the acquisition of legal personality
by workers' and employers' organisations, federations and
confederations shall not be made subject to conditions of such
a character as to restrict the application of the provisions laid
down in Articles 2, 3 and 4 analysed above.
While the majority of the countries, in this case also, gave
an affirmative reply without comment, a few countries nevertheless
wish to make the acquisition of legal personality subject
to the formalities prescribed by their national legislation.
In order to avoid any misunderstanding of this provision,
it should be pointed out that Article 7 is in no way intended
to impose an obligation on States to confer legal personality
on organisations.
In fact, in very many countries, organisations occupy a
rôle of outstanding importance without, at the same time,
being endowed with legal personality. In other countries,
organisations are free to acquire or not to acquire legal
personality. In yet others, legal personality is acquired as a
right after mere registration.
In a very few countries, the accordance of legal personality
to organisations is deemed to be a condition sine qua non of
their existence and operation. Now if, in this last type of case,
the legislator"was entirely free to make recognition subject to
the conditions which it pleased him to impose (such as, for
instance, previous authorisation, supervision by the authorities
of the internal and external activities of organisations, etc.),
he could in this way nullify all the guarantees relating to freedom
of association provided in the proposed Convention.
And it is for the sole purpose of preventing the accordance
of legal personality from serving as a pretext for a reintroduction,
by this means, of a restrictive régime with regard to
9 4 FREEDOM OF ASSOCIATION
occupational organisation that the Office felt obliged to include
Article 7 in the proposed Convention.
This clause, therefore, is inserted purely as a safeguard,
but it in no way prejudges the question whether countries
shall decide to confer or not to confer legal personality on
occupational organisations.
Responsibilities of Organisations
The Governments were consulted also on the two following
questions :
1. Would it be desirable to provide, in the international
regulations concerning freedom of association, that the acquisition
and exercise of the rights defined above should not exempt
workers' and employers' organisations from their full share
of responsibilities and obligations ?
Or, alternatively,
2. Would it be preferable to reserve such a provision for
inclusion in international regulations concerning collective
agreements or conciliation and arbitration ?
The majority of Governments declared themselves to be
in favour of the solution indicated by the latter formula, urging,
in particular, that the obligation laid down in the first formula
was far too indefinite to be included usefully in an international
Convention.
For the purposes of this question, it would appear that only
two kinds of responsibility can be visualised : (1) a responsibility
of a general kind in respect of breach of the law ; (2) a
specific responsibility resulting, for instance, from the violation
either of a law specially applicable to occupational organisations
or of a contractual undertaking.
. The case of general responsibility is covered by the general
reservation relating to legality, included in the Preamble to the
proposed Convention, while the question of specific responsibility
will only arise when the Conference is considering the
questions included in Item VIII of its agenda and, in particular,
those relating to collective agreements and conciliation and
arbitration.
And it is for these reasons that the Office, in accordance
with the suggestions made by the majority of the countries,
did not feel that it should retain a special provision concerning
the responsibility of organisations in the proposed Convention.
CONCLUSIONS 95
PART II. PROTECTION OF THE RIGHT TO ORGANISE
It will be remembered that the Conference, at its 30th Session,
reserved for possible regulation in 1948, under the singlediscussion
procedure, only the question relating to the guarantee
of the principle of the protection of the right to organise, but
referred the question relating to the application of the principle
of the right to organise and to bargain collectively to its 31st
Session, for consideration under the double-discussion procedure
(Item VIII on the agenda of the Conference).
On the basis of the list of points adopted by the last session
of the Conference in this connection, the Office Questionnaire
consulted the Governments on the following matters :
1. Should international regulations guarantee the exercise
of the right to organise ?
2. Should the protection of the right to organise be effectually
assured by means of mutual agreement between organised
workers and employers ?
3. In the absence of full and effective guarantee by means
of mutual agreements, should appropriate measures be taken to
protect the exercise of the right to organise without fear of intimidation,
coercion or restraint from any source ? And finally,
4. Should the international regulations include the obligation
of establishing appropriate agencies for the purpose of
ensuring the respect of the right to organise ?
It is evident from the analysis made in the preceding chapter,
that the very large majority of the replies of the Governments
are clearly in the affirmative with regard to the need to guarantee
the exercise of the right to organise, but reveal fairly considerable
differences as regards both the methods to be followed in
giving effect to this protection (guarantee by legal means or
guarantee under agreement), and as regards the measures of
supervision which might be contemplated for the purpose of
ensuring protection of the.right to organise (establishment of
national supervisory agencies).
Faced by this divergence in the points of view expressed, it
appeared desirable to the Office to submit to the Conference,
in accordance, moreover, with the wish expressed at the 30th
Session, a text concerned only with the guarantee of the principle
of the protection of the right to organise.
96 FREEDOM OF ASSOCIATION
This appears to be the only possible procedure for the further
reason that the Conference also has before it, for first discussion,
as indicated earlier, a far more detailed text concerning the
application of the principle of the right to organise and to
bargain collectively, a text which takes due account of all the
aspects of the problem.
Article 8 of the proposed Convention provides for the
guarantee of the principle of the protection of the right to
organise in the following terms :
Each Member of the International Labour Organisation for which
this Convention is in force undertakes to take all necessary and appropriate
measures to ensure the exercise of the right to organise of
workers and employers.
It results from this text that, while the Members ratifying
the Convention are of course obliged to ensure in all circumstances
the protection of the right to organise, they are
nevertheless free to choose the methods—legal guarantee or
guarantee by means of mutual agreements—by which this obligation
may be carried out.
It results also from the words " all necessary and appropriate
measures " that those States which already possess an
adequate system of protection of the right to organise, either
by virtue of their national legislation or by virtue of other
means, are not bound to take further measures before being able
to ratify the Convention.
PART III. MISCELLANEOUS PROVISIONS
Articles 9 and 10 of the proposed Convention contain the
usual provisions with regard to the application to nonmetropolitan
territories of any Convention concerning freedom
of association and protection of the right to organise which
may be adopted.
Article 9 is in accordance with the provisions of Article 35,
paragraphs 1-3, of the Constitution, as amended by the Conference
at its 1946 Session. It concerns the application of the
Convention to those non-metropolitan territories for whose
international relations Members of the Organisation are responsible.
.Article 10 takes account of the situation—defined in paragraphs
4-8 of Article 35 of the Constitution as amended in
1946—of the authorities for non-metropolitan territories comCONCLUSIONS
97
pètent in respect of the matters included in the Convention
and of territories placed under the joint authority of two or
more Members or an international authority.
The Conference, bearing in mind the fact that a Convention
concerning the right of association and the settlement of labour
disputes in non-metropolitan territories was adopted in 1947 1,
will decide whether or not it appears desirable to include
provisions relating to non-metropolitan territories in the present
Convention.
Finally, the Conference will wish, perhaps, to consider
whether it is desirable to include—in accordance with the
suggestion made by the Government of the Union of South
Africa—either in the Preamble or in the actual text of the
Convention, the clause contained in Part V of the Declaration
of Philadelphia according to which due account must be taken
of the stage of social and economic development reached by
each people in relation to the progressive application of the
programme laid down in the Declaration.
The Conference will recall that, on the proposal of the
South African Employers' member of the Committee on freedom
of association, a clause based on Part V of the Declaration was
also included in the Preamble to the Resolution concerning
freedom of association unanimously adopted at the last session
of the Conference.
Establishment of International Machinery for Supervising
the Exercise of Freedom of Association
In the Introduction, reference was made to the various
Resolutions adopted by the Conference at its 30th Session,
by the Economic and Social Council at its Fifth Session and
by the Assembly of the United Nations at its Second Session,
concerning the establishment of international machinery for
safeguarding freedom of association.
It is sufficient to mention here that the Conference will no
doubt have before it a special report on this question from the
Governing Body.
1 See Official Bulletin, 31 July 1947, Vol. XXX, No. 1, p. 47.
CHAPTER IV
PROPOSED TEXTS
Proposed Convention concerning Freedom of Association
and Protection of the Right to Organise
The General Conference of the International Labour Organisation,
Having been convened at San Francisco by the Governing
Body of the International Labour Office, and having met
in its Thirty-first Session on 17 June 1948 ;
Having decided to adopt, in the form of a Convention,
certain proposals concerning freedom of association and
protection of the right to organise, which is the seventh
item on the agenda of the Session ;
Considering that the Preamble to the Constitution of the
International Labour Organisation declares " recognition
of the principle of freedom of association " to be a means
of improving conditions of labour and of establishing
peace ;
Considering that the Declaration of Philadelphia reaffirms
that " freedom of expression and of association are
essential to sustained progress " ;
Considering that the International Labour Conference, at
its Thirtieth Session, unanimously adopted the principles
which should form the basis for international regulation ;
Considering that the Assembly of the United Nations, at
its Second Session, endorsed these principles and requested
the International Labour Organisation to
continue every effort in order that it may be possible
to adopt one or several international Conventions ;
Considering that the principle of equality before the law
implies that, in the exercise of their right of association,
workers and employers and their respective organisations,
like other persons or organised collectivities, are under an
obligation to respect the law,
CHAPITRE IV
TEXTES PROPOSÉS
Projet de convention concernant la liberté syndicale
et la protection du droit syndical
La Conférence générale de l'Organisation internationale du
Travail,
Convoquée à San-Francisco par le Conseil d'administration
du Bureau international du Travail et s'y étant réunie le
17 juin 1948, en sa trente et unième session,
Après avoir décidé d'adopter sous forme d'une convention
diverses propositions relatives à la liberté syndicale et la
protection du droit syndical, question qui constitue le
septième point à l'ordre du jour de la session,
Considérant que le Préambule de la Constitution de l'Organisation
internationale du Travail énonce, parmi les moyens
susceptibles d'améliorer la condition des travailleurs et
d'assurer la paix, « l'affirmation du principe de la liberté
syndicale » ; •
Considérant que la Déclaration de Philadelphie a proclamé
de nouveau que la « liberté d'expression et d'association
est une condition indispensable d'un progrès soutenu » ;
Considérant que la Conférence internationale du Travail, à sa
trentième session, a adopté à l'unanimité les principes qui
doivent être à la base de la réglementation internationale ;
Considérant que l'Assemblée des Nations Unies, à sa deuxième
session, a fait siens ces principes et a invité l'Organisation
internationale du Travail à poursuivre tous ses
efforts afin qu'il soit possible d'adopter une ou plusieurs
conventions internationales ;
Considérant que le principe de l'égalité devant la loi implique
qu'à l'instar des autres personnes ou collectivités organisées,
les travailleurs, les employeurs et leurs organisations
respectives sont tenus, dans l'exercice de leur droit
syndical, au respect de la légalité,
100 FREEDOM OF ASSOCIATION
adopts this day of July of the year one thousand
nine hundred and forty-eight the following Convention, which
may be cited as the Freedom of Association Convention, 1948 :
PART I. FREEDOM OF ASSOCIATION
Article 1
Each Member of the International Labour Organisation
for which this Convention is in force undertakes to give effect
to the following provisions.
Article 2
Workers and employers, without distinction whatsoever,.
shall have the inalienable right to establish or join organisations
of their own choosing without previous authorisation.
Article 3
1. Workers' and employers' organisations shall have the
right to draw up their constitutions and rules, to elect their
representatives in full freedom, to organise their administration
and activities and to formulate their programmes.
2. The public authorities shall refrain from any interference
which would restrict this right or impede the lawful exercise
thereof.
Article 4
Workers' and employers' organisations shall not be liable
to be dissolved or have their activities suspended by administrative
authority.
Article 5
Workers' and employers' organisations shall have the right
to establish federations and confederations and to affiliate with
international organisations of workers and employers.
Article 6
The provisions of Articles 2, 3 and 4 hereof apply to
federations and confederations of workers' and employers'
organisations.
Article 7
The acquisition of legal personality by workers' and
employers' organisations, federations and confederations shall
not be made subject to conditions of such a character as to
restrict the application of the provisions laid down in Articles 2,
3 and 4 hereof.
PROPOSED TEXTS 101
adopte, ce jour de juillet 1948, la convention ciaprès,
qui sera dénommée «Convention sur la liberté syndicale,
1948 ».
PARTIE I. LIBERTÉ SYNDICALE
Article 1er
Tout Membre de l'Organisation internationale du Travail
pour lequel la présente convention est en vigueur s'engage à
donner effet aux dispositions suivantes.
Article 2
Les travailleurs et les employeurs, sans distinction d'aucune
sorte, ont le droit inaliénable de constituer des organisations de
leur choix, sans autorisation préalable, ainsi que celui de s'affilier
à ces organisations.
Article 3
1. Les organisations de travailleurs et d'employeurs ont le
droit d'élaborer leurs statuts et règlements administratifs, d'élire
librement leurs représentants, d'organiser leur gestion et leur
activité, et de formuler leur programme d'action.
2. Les autorités publiques doivent s'abstenir de toute intervention
de nature à limiter ce droit ou à en entraver l'exercice
légal.
Article 4
Les organisations de travailleurs et d'employeurs ne sont pas
sujettes à dissolution ou à suspension par voie administrative.
Article 5
Les organisations de travailleurs et d'employeurs ont le droit
de constituer des fédérations et des confédérations ainsi que celui
de s'affilier à des organisations internationales de travailleurs et
d'employeurs.
Article 6
Les dispositions des articles 2, 3 et 4 ci-dessus s'appliquent
aux fédérations et aux confédérations des organisations de
travailleurs et d'employeurs.
Article 7
L'acquisition de la personnalité juridique par les organisations
de travailleurs et d'employeurs, leurs fédérations et confédérations,
ne peut être subordonnée à des conditions de nature à
mettre en cause l'application des dispositions prévues aux articles
2, 3 et 4 ci-dessus.
102 FREEDOM OF ASSOCIATION
PART II. PROTECTION OF THE RIGHT TO ORGANISE
Article 8
Each Member of the International Labour Organisation
for which this Convention is in force undertakes to take all
necessary and appropriate measures to ensure the exercise of
the right to organise of workers and employers.
PART III. MISCELLANEOUS PROVISIONS
Article 9
. 1. In respect of the territories referred to in Article 35 of
the Constitution of the International Labour Organisation as
amended by the Constitution of the International Labour
Organisation Instrument of Amendment, 1946, other than the
territories referred to in paragraphs 4 and 5 of the said Article
as so amended, each Member of the Organisation which ratifies
this Convention shall communicate to the Director-General of
the International Labour Office with or as soon as possible after
its ratification a declaration stating—
(a) the territories in respect of which it undertakes that the
provisions of the Convention shall be applied without
modification ;
(b) the territories in respect of which it undertakes that the
provisions of the Convention shall be applied subject to
modifications, together with details of the said modifications
;
(c) the territories in respect of which the Convention is inapplicable
and in such cases the grounds on which it is
inapplicable ;
(d) the territories in respect of which it reserves its decision.
2. The undertakings referred to in sub-paragraphs (a) and
(b) of paragraph 1 of this Article shall be deemed to be an
integral part of the ratification and shall have the force of ratification.
3. Any Member may at any time by a subsequent declaration
cancel in whole or in part any reservations made in its
original declaration in virtue of sub-paragraphs (b), (c) or (d)
of paragraph 1 of this Article.
4. Any Member may, at any time at which this Convention
is subject to denunciation in accordance with the provisions
of Article x, communicate to the Director-General a declaration
modifying in any other respect the terms of any former declaration
and stating the present position in respect of such territories
as it may specify.
PROPOSED TEXTS 103
PARTIE II. PROTECTION DU DROIT SYNDICAL
Article 8
Tout Membre de l'Organisation internationale du Travail
pour lequel la présente convention est en vigueur s'engage à
prendre toutes mesures nécessaires et appropriées en vue d'assu^
rer l'exercice du droit syndical des travailleurs et des employeurs.
PARTIE III. MESURES DIVERSES
Article 9
1. En ce qui concerne les territoires mentionnés par l'article 35
de la Constitution de l'Organisation internationale du Travail
telle qu'elle a été amendée par l'Instrument d'amendement à la
Constitution de l'Organisation internationale du Travail, 1946,
à l'exclusion des territoires visés par les paragraphes 4 et 5
dudit article ainsi amendé, tout Membre de l'Organisation qui
ratifie la présente convention doit communiquer au Directeur
général du Bureau international du Travail, en même temps que
sa ratification, ou dans le plus bref délai possible après sa ratification,
une déclaration faisant connaître :
a) les territoires pour lesquels il s'engage à ce que les dispositions
de la convention soient appliquées sans modification ;
b) les territoires pour lesquels il s'engage à ce que les dispositions
de la convention soient appliquées avec des modifications et
en quoi consistent lesdites modifications ;
c) les territoires auxquels la convention est inapplicable et, dans
ces cas, les raisons pour lesquelles elle est inapplicable ;
d) les territoires pour lesquels il réserve sa décision.
2. Les engagements mentionnés aux alinéas a) et b) du
premier paragraphe du présent article seront réputés parties
intégrantes de la ratification et porteront des effets identiques.
3. Tout Membre pourra renoncer par une nouvelle déclaration
à tout ou partie des réserves contenues dans sa déclaration
antérieure en vertu des alinéas b), c) et d) du paragraphe 1 du
présent article.
4. Tout Membre pourra, pendant les périodes au cours desquelles
la présente convention peut être dénoncée conformément
aux dispositions de l'article x, communiquer au Directeur
général une nouvelle déclaration modifiant à tout autre égard
les termes de toute déclaration antérieure et faisant connaître
la situation en ce qui concerne les territoires déterminés.
104 FREEDOM OF ASSOCIATION
Article 10
1. Where the subject matter of this Convention is within
the self-governing powers of any non-metropolitan territory,
the Member responsible for the international relations of that
territory may, in agreement with the Government of the territory,
communicate to the Director-General of the International
Labour Office a declaration accepting on behalf of the territory
the obligations of this Convention.
2. A declaration accepting the obligations of this Convention
may be communicated to the Director-General of the
International Labour Office—
(a) by two or more Members of the Organisation in respect
of any territory which is under their joint authority ; or
(b) by any international authority responsible for the administration
of any territory, in virtue of the Charter of the
United Nations or otherwise, in respect of any such
territory.
3. Declarations communicated to the Director-General
of the International Labour Office in accordance with the
preceding paragraphs of this Article shall indicate whether
the provisions of the Convention will be applied in the territory
concerned without modification or subject to modifications ;
when the declaration indicates that the provisions of the Convention
will be applied subject to modifications it shall give
details of the said modifications.
4. The Member, Members or international authority concerned
may at any time by a subsequent declaration renounce
in whole or in part the right to have recourse to any modification
indicated in any former declaration.
5. The Member, Members or international authority
concerned may, at any time at which this Convention is subject
to denunciation in accordance with the provisions of Article x,
communicate to the Director-General of the International
Labour Office a declaration modifying in any other respect the
terms of any former declaration and stating the present position
in respect of the application of the Convention.
PROPOSED TEXTS 105
Article 10
1. Lorsque les questions traitées par la présente convention
entrent dans le cadre de la compétence propre des autorités
d'un territoire non métropolitain, le Membre responsable des
relations internationales de ce territoire, en accord avec le gouvernement
dudit territoire, pourra communiquer au Directeur
général du Bureau international du Travail une déclaration
d'acceptation, au nom de ce territoire, des obligations de la
présente convention.
2. Une déclaration d'acceptation des obligations de la présente
convention peut être communiquée au Directeur général
du Bureau international du Travail :
a) par deux ou plusieurs Membres de l'Organisation pour un
territoire placé sous leur autorité conjointe ;
b) par toute autorité internationale responsable de l'administration
d'un territoire en vertu des dispositions de la Charte des
Nations Unies ou de toute autre disposition en vigueur à
l'égard de ce territoire.
3. Les déclarations communiquées au Directeur général du
Bureau international du Travail conformément aux dispositions
des paragraphes précédents du présent article doivent indiquer
si les dispositions de la convention seront appliquées dans le
territoire avec ou sans modifications ; lorsque la déclaration
indique que les dispositions de la convention s'appliquent sous
réserve de modifications, elle devra spécifier en quoi consistent
lesdites modifications.
4. Le Membre ou les Membres ou l'autorité internationale
intéressée pourront renoncer entièrement ou partiellement par
une déclaration ultérieure au droit d'invoquer une modification
indiquée dans une déclaration antérieure.
5. Le Membre ou les Membres ou l'autorité internationale
intéressée pourront, pendant les périodes au cours desquelles
la convention peut être dénoncée conformément aux dispositions
de l'article x, communiquer au Directeur général du Bureau
international du Travail une nouvelle déclaration modifiant à
tout autre égard les termes de toute déclaration antérieure en
faisant connaître la situation en ce qui concerne l'application de
cette convention.
Document No. 159
ILC, 31st Session, 1948, Report VII (Supplement),
Freedom of Association and Protection of the Right to
Organise
Document No. 160
ILC, 31st Session, 1948, Report VII (Appendix), Freedom of
Association and Protection of the Right to Organise
Document No. 161
ILC, 31st Session, 1948, Record of Proceedings,
First Report of the Committee on Freedom of
Association and Industrial Relations, pp. 229–235
Document No. 162
ILC, 31st Session, 1948, Record of Proceedings,
Second Report of the Committee on Freedom of
Association and Industrial Relations, p. 259
Document No. 163
ILC, 31st Session, 1948, Record of Proceedings, Final
record vote on the Convention concerning Freedom
of Association and Protection of the Right to
Organise, pp. 268-269
Eighteenth Sitting 269
Interpretation: The PRESIDENT
The result of the vote is as follows:
127 for, 0 against, and 11 abstentions. The
Convention is adopted, and with it the
first report of the Committee.
(The report is adopted.)
FINAL RECORD VOTE ON THE CONVENTION
CONCERNING THE ORGANISATION OF THE
EMPLOYMENT SERVICE
Interpretation: The PRESIDENT —
We will now take the final vote on the
Convention concerning the organisation of
the employment service.
Final Record Vote on the Convention concerning the. Organization of the Employment iService
.For (128)
Argentine Republic:
Mr. Suárez (G)
Mr. Borgonovo (E)
Mr. Valerga (W)
Australia:
Mr. Makin (0)
Mr. Bland (0)
Mr. Wilson (E)
Mr. Drummond (W)
Austria:
Mr. Maisel (0)
Mr. Hammerl (G)
Mr. Hoynigg (E)
Mr. Boehm (W)
Belgium:
Mr. Mertens (0)
Mr. Van Den Dade (0)
Mr. Cornil (B)
Mr. Finet (W)
Brazil:
Mr. Battendieri (0)
Mr. Parmigiani (W)
Burma:
Mr. Nyun (0)
Mr. Zaw (G)
Canada:
Mr. Mitchell (0)
Mr. MacNamara (0)
Mr. Taylor (E)
Mi. Bengough (W)
Chile:
Mr. Bustos (0)
Mr. Dafimen (0)
Mr. Dlaz (B)
China:
Mr. Li (G)
Mr. Pao (0)
Mr. Lieu Ong.sung (B)
Mr. Liu (W)
Colombia:
Mr. Mariflo (G)
Mr. Alvarez (0)
Mr. Sarta (B)
Costa Rica:
Mr. Hernández (0)'
Mr. Monge (W)
Czechoslovakia
Mr. Erban (G)
Denmark:
Mr. Bramsnaes (0)
Mr. Koch (0)
Mr. Oersted (B)
Mr. Jensen (W)
Dominican Republic :.
Mr. Rodriguez Lora (G)
Mr. .Aybar (0)
Mr. Ballester (W)
Ecuador:
Mr. Aguirre (0)
Mr. Chaves (W)
Finland:
Miss Korpela (0)
France
Mr. Hauck (G)
Mr. Lambert (0)
Mr. Waline (B)
Mr. Jouhaux (W)
Greece
Mr. Pavlakis (0)
Mr. Chrysanthopoulos
(0)
Mr. Eliopoulos (E)
Mr. Calomiris (W)
Iceland:
Mr. Olafsson (0)
India:
Mr. Sampurnanand (G)
Mr. Lall (0)
Mr. Mehta (B)
Mr. Shastri (W)
Iraq:
Mr. Bakr (0)
Italy:
Mr. Cingolani (0)
Mr. Mascia (0)
Mr. Campanella (B)
Mr. Di Vittorio (W)
Mr. de Alba (0)
Mr. Guzmdn (0)
Mr. Chapa (B)
Mr. Amilpa (W)
Netherlands
Fr. Stokman (0)
Mr. Krijger (0)
Mr. Fennema (B)
Mr. Fuykschot (W)
Yew Zealand:
Mr. Thorn (G)
Mr. Parsonage (G)
Mr. Butland (B)
Mr. Kilpatrick (W)
Norway:
Mr. Berg (0)
Mr. Frydenberg (0)
Mr. Ostberg (B)
Mr. Nordahi (W)
Pakistan:
Mr. Allana (E)
Mr. All (W)
Panama:
Mr. Alemán (0)
Peru
Mr. Alvarado (G)
Mr. Navarro (B)
Mr. Docarmo (W)
Philippines:
Mr. Magsalin (0)
Mr. Lanting (G)
Mr. BeuItez (B)
Mr. Muaña (W)
Poland:
Mr. Altman (0)
Mr. Lieki (G)
Mr. Saper (B)
Mr. Zukowski (W)
Portugal:
Mr. Castro Fernandes
(G)
Mr. Veiga (0)
'Mr. Caiheiros Lopes (B)
Mr. Ferraz (W)
Sweden:
Mr. Björck (G)
Mr. Ohisson (0)
Mr. Söderbiick (B)
Mr. Vahlberg (W)
Switzerland
Mr. Rappard (G)
Mr. Kaufmann (G)
Mr. Kuntschen (B)
Mr. Mon (W)
Turkey:
Mr. Sumer (0)
Mr. Fer (G)
Mr. Barb (B)
Mr. Ozkaner (W)
Union of South Africa:
Maj.-Gen. Buchanan (0)
Mr. Lee (0)
Mr. Gemmifi (B)
Mr. Bniggs (W)
United Kingdom:
Mr. Isaacs (G)
Sir GuildhaumeMyrddin-
Evans (G)
Sir John Forbes Watson
(B)
Mr. Roberts (W)
United States
Mr. Morse (G)
Mr. Thomas (0)
Mn, Zellerbach (B)
Mr. Fenton (W)
Uruguay:
Mr. Pons (B)
Mr. Lopez (W)
Venezuela:
Mr. Meoz (G)
Mr. Pifano (0)
Mr. Rojas (E)
Mr. MalavO (W)
Against (0)
Interpretation: The PRESIDENT —
The result of the vote is as follows:
128 for, 0 against, and 7 abstentions. The
Convention is adopted.
Document No. 164
ILC, 31st Session, 1948, Record of Proceedings,
Appendix X, Freedom of Association and Protection of
the Right to Organise, pp. 473–488
Document No. 165
ILC, 71st Session, 1985, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 147-149 (German Democratic
Republic)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS c. 87
German Democratic Republic (ratification: 1975)
The Committee takes note of the report of the Government. It
points out that its previous comments related to the right of workers
to stablish organisations of tneir own choosing, the rignt to
organise of members of collective farms and the right to strike.
1. In the past, the Committee pointed out that sect ion 44 of
the Constitution and section 6 of the Labour Code expressly mention
the Confederation of Free German Trade Unions (FDGB) as the only
central organisation, recognised, with its affiliated unions, for the
furthering and defence of the interests of workers. The Committee
thus noted that a system of trade union unity is explicitly
established by the legislation, in violation of Article 2 of the
Convention, the principle of which, moreover, is not to favour either
the thesis of trade union unity or that of trade union diversity.
In its report, the Government points out that all citizens, by
virtue of section 29 of the Constitution, enjoy freedom of association
in defence of their interests and that the unification of the trade
union movement within the FDGB is a manifestation of the will of the
workers themselves and the consequence of historical circumstances.
The Government again mentions the participation of the unions at every
level of social and economic life and emphasises that it does not
interfere in their internal affairs. The Committee takes note of
this information but points out that, in the General Survey it
submitted to the 69th (1983) Session of the International Labour
Conference, particularly paragraphs 136 to 138, it stresses that a
system of trade union unity confirmed in the law is incompatible with
the standards of the Convention. Where a de facto monopoly results
from the voluntary grouping together of the workers, the legislation
must not institutionalise this situation by referring by· name to the
single central organisation, and the workers must be able to safeguard
their freedom to set up, should they so wish in the future, unions
outside the established trade union structure. It would appear to
the Committee that it is impossible for workers wishing to establish
another trade union existing legally and carrying on the activities of
furthering and defending the interests of its members to be able to do
so.
The Committee requests the Government to reconsider the situation
in the light of its comments and to ensure that the provisions
establishing a monopolistic trade union system are amended in order to
147
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
enable workers so desiring to establish the organisations of their own
choosing.
2. In its previous comments, the Committee pointed out that the
members of collective farms are. excluded from the scope of the Labour
Code and thus from the provisions on trade union rights. It has
taken note of the information provided by the Government that the
interests of peasant co-operators are represented by the Peasants'
Mutual Assistance Association (VDGB) in political, economic and
cultural matters. The Committee then asked the Government whether
the defence of these interests also affected the social aspect of the
life of these workers, in particular conditions of employment.
The Committee notes that Orders of May 1984 confirmed and
broadened the role of the VDGB in the social field and in respect of
conditions of employment. Furthermore, it notes that workers
employed by agricultural co-operatives (who come under the Labour
Code), and are thus not members of the VDGB, may join the
"Agricultural, Food and Forestry Union", which represents their
political, economic, social and cultural interests, interests that are
different from those of the above-mentioned category of workers.
It would appear to the Committee that agricultural workers,
whether members of the co-operative or not, can belong to an
organisation for the defence of their interests, but only to a single
organisation. The situation prevailing in the other sectors has thus
been established in agriculture in a modified form. The Committee
refers to its above comments and draws the attention of the Government
to the fact that compulsory trade union unity is in conflict with
Article 2 of the Convention. It requests the Government to indicate
any provisions enabling peasants, whether members of agricultural
co-operatives or not, to establish trade unions outside the VDGB and
the Agricultural Union and, if such provisions do not exist, to
reconsider the situation with a view to guaranteeing them this right.
3. With regard to the right to strike, the Committee noted that
it is not expressly provided for in the legislation and that
possibilities have been created of resorting to mutual arrangements
and court procedures to settle collective disputes.
The Committee points out that the Government is repeating its
previous arguments on the constitutional right of the unions to
participation and co-management, which ensures that their interests
are protected and that, as a rule, either disputes cannot arise or
collective disputes are settled by resorting to special forms of
co-management. According to the Government, this system and the
possibility open to the unions of drafting legislation, which ensures
that no laws are adopted without their agreement, make the
establishment by law of the right to strike superfluous.
The Committee takes note of the Government's point of view, in
particular of the statement that no provision of the Convention
expressly mentions the right to strike, but is bound to point out that
it has stressed in paragraphs 199 to 206 of the General Survey that
under Article 3 of the Convention workers' organisations should have a
number of means of furthering and defending their economic and social
interests and that the right to strike is an essential one of these
means.
148
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS c. 87
Since the law neither prohibits nor authorises the right to
strike, the Committee requests the Government to state, in the event
of the failure of conciliation or the dissatisfaction of the workers
with its results, what means are available to them of asserting their
interests.
149
Document No. 166
ILC, 79th Session, 1992, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 206-209 (Colombia)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
Colombia (ratification: 1976)
The Committee notes the Government's report, the discussions at
the Conference Committee in 1991 and the report of the direct contacts
mission which visited Colombia from 16 to 20 September 1991.
The Committee notes with interest the provisions of the new
Constitution (of 18 July 1991) respecting freedom of association,
including the provision under which the cancellation or suspension of
legal personality can only take place by judicial means.
The Committee notes with satisfaction the repeal of the following
legal provisions restricting trade union rights, which results in a
significant improvement in the application of the Convention:
206
section 380 of the Labour Code (the dissolution, winding up and
removal from the trade union register of trade unions by
administrative authority in certain cases) (modified by Act No.
50 of 1990);
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
- Resolution No. 4 of 1952 (administrative interference in trade
union independence) (abrogated by Decree No. 4734 of September
1991);
- Decree No. 1923 of 1978 (respecting national security, which
prohibited any transitory occupation of public places with the
objective of influencing a decision by the legitimate authorities
which is not in force any more);
- Decree No. 1422 of 1989 (administrative intervention in trade
unions' bookkeeping) (abrogated by Ministerial Decree of
September 1991);
- Decrees Nos. 2655 of 1954, 85 of 1956 and 1469 (sections 14-26)
of 1978 (restrictive regulations respecting trade union meetings)
(abrogated by Decree No. 2293 of October 1991);
- section 379(a) of the Labour Code (prohibition of trade unions
from taking part in political matters) (abrogated by Act No. 50
of 1990);
- Decrees Nos. 2200 and 2201 (prohibition of strikes, subject to
administrative penalties and sentences of imprisonment, in cases
where a state of emergency has been declared) (abrogated by
Decree No. 2620 of December 1990).
Notwithstanding the amendments made by the Government, the
Committee is bound to emphasise the provisions of the legislation
which remain in force and are incompatible with the Convention. These
include the following points:
1. The establishment of workers' organisations
(Article 2 of the Convention)
- the requirement that two-thirds of the members are Colombian to
establish a trade union (section 384 of the Labour Code);
- massive dismissals of workers in the public sector and the
extended use of short-term contracts in the private sector aimed
at weakening the
trade union movement, which were brought to the attention of the
direct contacts mission.
2. Interference in the internal administration
of trade unions (Article 3 of the Convention)
- the supervision of the internal management and meetings of unions
by public servants (section 486 of the Labour Code and section 1
of Decree No. 672 of 1956);
- the presence of the authorities at general assemblies convened to
vote upon the calling of a strike (new section 444, last
paragraph, of the Labour Code);
- the requirement that persons be Colombian for election to trade
union office (section 384 of the Labour Code);
the suspension for up to three years, with loss of trade union
rights, of trade union officers who have been responsible for the
dissolution of their unions (new section 380(3) of the Labour
Code);
- the requirement that persons belong to the trade or occupation in
order to be considered eligible for election to trade union
office (sections 388(l)(c) and 432(2) of the Labour Code and
section 422(l)<c) of the Labour Code for federations).
207
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
3. Right of trade unions to further and defend the
interests of the workers (Article 3 of the Convention)
- the prohibition on federations and confederations from calling a
strike (section 417(1) of the Labour Code);
- the prohibition of strikes not only in the essential services in
the strict sense of the term, but also in a very wide range of
public services which are not necessarily essential (section 430
and new section 450(l)(a) of the Labour Code and Decrees Nos. 414
and 437 of 1952; 1543 of 1955; 1593 of 1959; 1167 of 1963; 57
and 534 of 1967);
- various restrictions on the right to strike and the power of the
Minister of Labour and the President to intervene in the dispute
(sections 448(3) and (4) and 450(l)(g) of the Labour Code, Decree
No. 939 of 1966 as amended by Act No. 48 of 1968, and section 4
of Act No. 48 of 1968);
- the possibility of dismissing trade union officers who have
intervened or participated in an illegal strike (new section
450(2) of the Labour Code).
The Committee notes the Government's statement in its report that
there is no ILO Convention in which an ILO position has been adopted
on the right to strike, and that a reading of Article 3 of the
Convention shows that the Article refers to the right of workers to
formulate their programmes of activities, but that such a programme
cannot transgress the Constitution and laws of a country. The
Government adds that Article 2 of the Convention only enshrines the
right of autonomy of trade unions but in no case the right to strike,
which has its own specific characteristics. Finally, with reference
to the prohibition of strikes in the public services, the Government
notes that in the new political Constitution the right to strike is
guaranteed except in the essential public services, as defined by the
legislator.
The Committee emphasises that although it is clear that the
provisions of the Convention do not specifically mention the right to
strike. Article 3 of the Convention provides that workers'
organisations shall have the right to organise their activities and
formulate their programmes in full freedom. The Committee considers
that this right includes recourse to strikes, which are one of the
essential means through which workers and their organisations may
promote and defend ' their economic and social interests. As an
essential means in this respect, it should not be the object of
excessive restrictions. The Committee has considered that the
prohibition of strikes in the public services should be confined to
public servants acting in their capacity as agents of the public
authority or to essential services in the strict sense of the term,
that is, services whose interruption would endanger the life, personal
safety or health of the whole or part of the population. Moreover, if
strikes are restricted or prohibited for public employees and persons
who work in essential services, the Committee has considered that
appropriate guarantees should be afforded such as impartial and speedy
conciliation, mediation and arbitration procedures, in order to
protect those workers who are denied one of the essential means of
defending their occupational interests.
208
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
The Committee notes with interest that Minister of Labour and
Social Security expressed to the direct contacts mission the desire
formally to request the technical assistance of the !LO in the future
process of reforming labour legislation.
The Committee requests the Government to continue taking measures
to adjust its legislation to the requirements of the Convention and to
supply information in this respect.
The Committee is also addressing a request directly to the
Government .
209
Document No. 167
ILC, 83rd Session, 1996, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 146-147 (Chad)
International Labour Conference
83rd Session 1996
Report III
(Part 4A)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
<.:. 87 Report of the Commillee of Experts
Chad (ratification: l 960)
The Committee notes the Government's report.
1. Right to establish organizations without previous authorization. The Committee
notes with interest the Government's statement to the effect that the establishment,
organization and functioning of trade union organizations are not governed by Ordinance
No. 27 /INT /SUR of 28 July 1962 regulating associations, but by the Labour Code (Act
No. 7 /66 of 4 March 1966). The Government adds that occupational trade unions have
henceforth only to submit their by-laws in order to commence functioning and that
supervision by the authorities is carried out subsequently, without bringing into question
the existence of the trade unions. Moreover, the trade unions do not need to comply with
the requirements of declaration and authorization by the Ministry of the Interior for their
operation. In order to dispel any ambiguity in this respect, the Committee requests the
Government to amend Ordinance No. 27 of 28 July 1962 regulating associations in order
to lay down specifically that it does not apply to trade unions. It requests the
Government to provide information in its next report on the measures taken in this
respect.
2. Limitation of the right to strike. With regard to the question of repealing
Ordinance No. 30 of 36 November l 975 suspending all strike action and Ordinance No.
001 of 8 January 1976 prohibiting public employees and workers whose status is
assimilated to theirs from exercising the right to strike, the Committee notes the
Government's assurances that the texts to repeal these Ordinances have been prepared
and that their adoption is only a matter of time. The Committee also notes that Decree
No. 096/PR/MFPT/94 of 29 April l 994, issuing regulations governing the right to strike
in the public service, has been submitted to the judgement of the competent authorities
and that the Government undertook in a communique dated 2 June 1994 to comply with
their judgement. The Decree establishes a conciliation and arbitration procedure prior
to the calling of a strike, as well as compulsory minimum service in certain public
146 Rep34A3. E55
Observations concerning ratified Conventions C. 87
services, the interruption of which would result in extremely serious disruption of the
life of the community, particularly in respect of financial services, hospital services,
postal and telecommunication services, television and radio, the central services of the
Ministry of Foreign Affairs and Cooperation and the inter-prefectoral labour inspection
services.
Emphasizing that the right to strike is an intrinsic corollary of the right to organize
that is protected by the Convention, the Committee wishes to recall that it can only be
restricted in exceptional cases; restrictions, or even prohibition, should be limited to
public servants exercising authority in the name of the State, to essential services in the
strict sense of the term, namely those the interruption of which would endanger the life,
personal safety or health of the whole or part of the population, or in cases of acute
national crisis (see General Survey on freedom of association and collective bargaining,
1994, paragraph 159). With regard to other services which are of public utility where
an outright ban on strikes cannot be justified, the Committee is of the opinion that a
negotiated minimum service may be established provided that it is genuinely and
exclusively a minimum service, that is one which is limited to the operations which are
strictly necessary to meet the basic needs of the population or the minimum requirements
of the service, and that workers' organizations should be able, if they so wish, to
participate in defining such a service, along with employers and the public authorities
(see the General Survey, op. cit., paragraph 161). The Committee trusts that all
measures adopted to give effect to the right to strike will take into account the principles
of freedom of association and requests the Government to provide it with a copy of any
decision that is made concerning appeals brought before the competent authorities. In
addition, the Committee once again urges the Government to transmit the texts repealing
the above Ordinances of 1975 and 1976 as soon as they are adopted.
3. Prohibition of any political activity by trade unions (section 36 of the Labour
Code of 1966) and the obligation to have been resident in Chadfor seven years in order
to be elected to trade union office (section 41). The Committee notes the Government's
statement to the effect that a satisfactory response will be found in the draft Labour Code
with regard to the prohibition of all political activity by trade unions. The Government
adds that in the draft Labour Code it has lowered the period of residence required for
foreigners to be able to take responsibility for the administration or direction of a trade
union. On the first point, the Committee recalls that the development of the trade union
movement and its broader recognition as a fully-fledged social partner make it necessary
for workers' organizations to be able to express their views on political problems in the
broad sense, and particularly to be able to make public their opinions on the
Government's social and economic policy. On the second point, with regard to the
possibility for foreigners to be able to accede to trade union office, the Committee
considers that the national legislation should allow foreign workers to have access to
these functions, at least after a reasonable period of residence in the host country. The
Committee urges the Government to take the necessary measures to bring its legislation
into full conformity with the requirements of the Convention and the principles of
freedom of association by amending sections 36(2) and 41 of the Labour Code, so as to
lift the ban on all political activity by trade unions and to reduce the period of residence
required before foreigners can have access to trade union office. It also requests the
Government to transmit the text of the new Labour Code when it is adopted.
[The Government is asked to provide full particulars to the Conference at its 83rd
Session.]
Rep34A3.E55 147
Document No. 168
ILC, 99th Session, 2010, Report III (Part 1A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 56-58 (Australia)
International Labour Conference, 99th Session, 2010
Report of the Committee of Experts
on the Application of Conventions
and Recommendations
(articles 19, 22 and 35 of the Constitution)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report III (Part 1A)
General Report
and observations concerning particular countries
International Labour Office Geneva
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
56
Australia
Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87) (ratification: 1973)
The Committee notes the comments of the Australian Council of Trade Unions (ACTU) in a communication dated
31 August 2009, the International Trade Union Confederation (ITUC) in a communication dated 26 August 2009, the
Australian Chamber of Commerce and Industry (ACCI) in a communication dated 14 October 2009 and the Australian
Industry Group (AI) dated 14 October 2009 on the application of the Convention. The Committee also notes the passage
of the Fair Work Act, 2009, and the creation of Fair Work Australia (FWA) to oversee the administration of the provisions
of this Act. As a general consideration, the Committee notes with interest that the Fair Work Act was prepared in full
consultation with the social partners and was aimed at resolving a number of issues that the Committee has been raising
over recent years in relation to the application of the Convention.
The Committee notes with interest that the Government indicates that the development of the new system under the
Fair Work Act benefited from a process of genuine and extensive consultation with the social partners and key
stakeholders – the most comprehensive consultation process on workplace relations ever undertaken in Australia.
According to the Government, this extensive consultation process ensured that all stakeholders had the opportunity for
their concerns to be raised and addressed before the Bill was debated in Parliament and adopted in amended form as the
Fair Work Act. The Government indicates that Australia‟s new system represents a significant move away from the
fundamental elements of the previous Government‟s Work Choices regime and that the Fair Work Act has been designed
to balance the needs of employees, unions and employers and to foster increased competitiveness and prosperity, at the
same time as safeguarding workplace rights and guaranteeing minimum standards. The Government considers that the
new legislation strikes the right balance between fairness and flexibility in the workplace to achieve the objectives of both
social equity and economic modernization.
Article 3 of the Convention. The right of organizations freely to organize their activities and to formulate their
programmes. The Committee recalls that it previously expressed the need to amend numerous provisions of the
Workplace Relations Act, 1996 (WR Act) which lifted the protection of industrial action in support of: multiple business
agreements (section 423(1)(b)(i)); “pattern bargaining” (section 439); secondary boycotts and general sympathy strikes
(section 438); negotiations over “prohibited content” (sections 356 and 436 of the WR Act, in connection with the
Freedom of association,
collective bargaining, and
industrial relations
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
57
Workplace Relations Regulations, 2006); strike pay (section 508 of the WR Act); and provisions which prohibited
industrial action in case of danger to the economy (sections 430, 433 and 498 of the WR Act), through the introduction of
compulsory arbitration at the initiative of the Minister (sections 500(a) and 504(3) of the WR Act). The Committee also
recalls that it previously raised the need to amend provisions of the WR Act which prohibited industrial action in instances
when it risked harm to the national economy and empowered the Minister to order compulsory arbitration.
The Committee notes the concerns raised by the ACTU that most of the restrictions remain in place in the Fair Work
Act. In particular, sections 408–411 protect industrial action only if it is undertaken in the process of bargaining for an
agreement, which would appear to effectively prohibit sympathy strikes and general secondary boycotts. The Act
maintains the removal of protection of industrial action in support of multiple enterprise agreements (section 413(2)). The
Committee notes that the Government indicates in its report that, under the Fair Work Act, certain categories of multiple
employers with a close connection to each other are able to bargain together as single-interest employers for a single
enterprise agreement with their employees. In that instance, protected industrial action is available to employers and
employees. The Fair Work Act also allows voluntary multi-employer bargaining. However, employers and employees do
not have access to protected industrial actions in these circumstances. In addition, the pre-existing secondary boycott
arrangements, regulated by the Trade Practices Act, 1974, remain in place. The Committee requests the Government to
review the abovementioned provisions, in the light of its previous comments, in full consultation with the social
partners concerned, with a view to bringing them into full conformity with the Convention.
Pattern bargaining remains unprotected, unless the parties are “genuinely trying to reach an agreement” (sections
409(4) and 412). Industrial action remains unprotected if it is in support of the inclusion of unlawful terms, including: to
extend unfair dismissal benefits to workers not yet employed for the statutory period; to provide strike pay; to pay
bargaining fees to a trade union; and to create a union right to entry for compliance purposes that are different or superior
to those contained within the Act (section 409(3)). The Committee notes that the Government indicates that, under the Fair
Work Act, industrial action in pursuit of an agreement that contains non-permitted matters is still protected, provided the
bargaining representatives reasonably believed the claims were permitted. The Government further indicates that, under
the Fair Work Act, it remains unlawful for an employer to pay, or an employee to demand or request strike pay, but that
when protected industrial action is taken there will no longer be a minimum mandatory deduction of four hours‟ pay. In
addition, section 423 permits the suspension or termination of protected industrial action if it may cause significant
economic harm. Section 424(1)(d) requires the suspension or termination of industrial action if it has threatened, is
threatening or would threaten to cause significant damage to the Australian economy or an important part of it, while
section 431 permits the Minister to terminate proposed industrial actions in the same circumstances. Industrial actions that
are threatening to cause significant harm to a third party must also be suspended or terminated (section 426). The
Government indicates that in order for the prohibition or suspension of industrial action to be ordered by the FWA, that
agency must be satisfied that the action is threatening to cause significant and imminent economic harm. The Committee
observes that these restrictions depend upon a complex review of conditions apparently set forth with the aim of balancing
a number of concerns. With reference to its previous comments on these matters and recalling that the right to strike is
an intrinsic corollary of the right of association protected by Convention No. 87 (see in particular the 1994 General
Survey on freedom of association and collective bargaining, paragraphs 159, 160, 168 and 179), the Committee
requests the Government to provide detailed information on the application of these provisions by the FWA and to
continue to keep them under review with the social partners with the aim of ensuring the full application of the
provisions of the Convention.
The Committee previously noted the need to amend section 30J of the Crimes Act, 1914, which prohibits industrial
action threatening trade or commerce with other countries or among states. Section 30K of that Act prohibits boycotts
resulting in the obstruction or hindrance of the performance of services by the Australian Government or the transport of
goods or persons in international trade. The Committee notes that the ITUC states that there have been no amendments to
the Crimes Act. In addition, section 419 of the Fair Work Act, 2009, requires the FWA to suspend or terminate industrial
action in non-national enterprises or by non-national employees, if the event will or would be likely to have the effect of
causing substantial loss or damage to the business of a constitutional corporation. The Committee once again requests the
Government to review the abovementioned provisions, in the light of its previous comments, in full consultation with
the social partners concerned, with a view to bringing them into full conformity with the Convention and, in the
meantime, to provide detailed information on any use of these provisions in practice.
In addition, the Committee notes the concerns raised by the ACTU in relation to the potential obstacles to the
effective exercise of industrial action that may be posed by the provisions concerning strike ballots. The Committee
requests the Government to provide information on the application of those provisions in practice.
The Committee recalls that it previously raised the need to amend the restrictive conditions set for granting a permit
allowing trade union representatives to have entry to the workplace in order to meet with workers. The Committee notes
that, under the Fair Work Act, a union official must hold a permit provided by the FWA in order to have the right of entry
under the Fair Work Act for a certain workplace. In determining whether to grant an entry permit, the FWA will consider
any matter it considers relevant, including whether the applicant has ever been convicted of violating an industrial law or
convicted of a crime involving fraud, entry onto premises, or intentional use of violence or destruction of property
(section 513). The Committee notes that the Government indicates that the Fair Work Act permits union officials to hold
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
58
discussions with employees who are members, or eligible to be members, of a union and to enter workplaces to investigate
suspected breaches of the Act or an instrument made under the Act. The Committee requests the Government to provide
information on the practical application of this provision, including statistics relating thereto.
Building industry. The Committee recalls from previous comments that: (i) the Building and Construction Industry
Improvement (BCII) Act of 2005 renders virtually all forms of industrial action in the building and industrial sector
unlawful; (ii) introduces severe financial penalties, injunctions and actions for uncapped damages in case of “unlawful”
industrial action; (iii) gives the enforcement agency known as the Australian Building and Construction Commission
(ABCC) wide-ranging coercive powers akin to an agency charged with investigating criminal matters; (iv) grants the
capacity to the Minister for Workplace Relations to regulate industrial affairs in the building and construction industry by
ministerial decree through a device referred to as a building code which is inconsistent with the Convention on several
points and is implicitly “enforced” through an “accreditation scheme” for contractors who wish to enter into contracts with
the Commonwealth. The Committee previously requested the Government to indicate whether the proposed bill would:
(i) amend sections 36, 37 and 38 of the BCII Act, 2005, which refer to “unlawful industrial action” (implying not simply
liability in tort vis-à-vis the employer, but a wider responsibility towards third parties and an outright prohibition of
industrial action); (ii) amend sections 39, 40 and 48–50 of the BCII Act so as to eliminate any excessive impediments,
penalties and sanctions against industrial action in the building and construction industry; (iii) introduce sufficient
safeguards into the BCII Act so as to ensure that the functioning of the ABCC and inspectors does not lead to interference
in the internal affairs of trade unions – especially provisions on the possibility of lodging an appeal before the courts
against the ABCC‟s notices prior to the handing over of documents (sections 52, 53, 55, 56 and 59 of the BCII Act); and
(iv) amend section 52(6) of the BCII Act which enables the ABCC to impose a penalty of six months‟ imprisonment for
failure to comply with a notice to produce documents or give information so as to ensure that penalties are proportional to
the gravity of any offence.
The Committee notes that the Government indicates that the Office of the ABCC will be retained until 31 January
2010 and that, after that date, subject to the passage of legislation, it will be replaced with a new agency, the Office of the
Fair Work Building Industry Inspectorate. In addition, based on an independent report the Government commissioned and
consultation with industry stakeholders, the Government developed and introduced the Building and Construction
Industry Improvement Amendment (Transition to Fair Work) Bill, 2009, into Parliament on 17 June 2009. According to
the ACTU, that Bill maintains the coercive powers of the ABCC, while allowing trade unions to petition for the coercive
powers to be switched off. This Bill: (i) repeals sections 36, 37 and 38 of the BCII Act; (ii) repeals sections 39 and 40 of
the BCII Act and repeals and substitutes sections 48–50 with the effect that the provisions of the Fair Work Act apply to
the building and construction industry in the same way as they do to all other industries; (iii) introduces numerous
safeguards and limits the coercive powers to no longer allow investigation of matters relating to compliance with laws
governing the registration of the internal affairs of unions; and (iv) maintains the current limitation on the ABCC‟s power
to impose any penalty under section 52(6) of the BCII Act, which requires the ABCC to refer the matter to the Office of
the Commonwealth Director of Public Prosecutions who determines whether to prosecute. The Committee requests the
Government to indicate any progress made concerning the adoption of the Transition to Fair Work Bill. The
Committee also once again requests the Government to indicate any measures taken to instruct the ABCC to refrain
from imposing penalties or commencing legal proceedings under the ABCC while the review is under way.
Document No. 169
ILC, 100th Session, 2011, Report III (Part 1A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 186-188 (United Kingdom)
ILC.100/III/1A
International Labour Conference, 100th Session, 2011
Report of the Committee of Experts
on the Application of Conventions
and Recommendations
(articles 19, 22 and 35 of the Constitution)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report III (Part 1A)
General Report
and observations concerning particular countries
International Labour Office Geneva
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
186
United Kingdom
Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87) (ratification: 1949)
The Committee takes note of the Government’s report. It further notes the detailed comments and information
provided by the Trades Union Congress (TUC) in a communication dated 28 October 2010, which raised a number of
issues on the application of the Convention in law and in practice that have been the subject of the Committee’s comments
for many years now. The Committee requests the Government to reply to these comments in its next report.
Article 3 of the Convention. Right of workers’ organizations to draw up their constitutions and rules without
interference by the public authorities. The Committee’s previous comments concerned the right of trade unions to draw
up their rules and formulate their programmes without interference from the authorities, particularly as regards the
exclusion or expulsion of individuals on account of membership in an extremist political party with principles and policies
wholly repugnant to the trade union. Following the judgment of the European Court of Human Rights (ECHR) reached in
the case of Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom (27 May 2007),
which found that section 174 of the Trade Unions and Labour Relations (Consolidation) Act, 1992 (TULRA) violated
Article 11 of the European Convention on Human Rights on freedom of association in that it did not strike a proper
balance between the rights of individual members and those of the trade union, the Government had informed the
Committee that relevant amendments contained in an Employment Bill were then before the Parliament.
The Committee had also noted the detailed comments made by the TUC which set out certain reservations in respect
of the proposed amendment both as regards what it saw as a degree of legal uncertainty around its meaning and the
perception of excessive complexity in the new legislation. The Committee takes due note of the detailed observations
made by the Government in its latest report in reply to these concerns. In particular, the Government informs that section
19 of the Employment Act of 2008 has now amended section 174 of the 1992 Act and significantly extends the scope for
trade unions to exclude and expel individuals on the grounds of their political party membership. The Government states
that it attempted to balance competing human rights about freedom of belief and freedom of association in its drafting of
these amendments. It therefore included safeguards concerning the essential elements of natural justice, due process and
transparency which aim to ensure that: (a) membership of the political party concerned is contrary to a rule or objective of
the union; (b) the union has taken the decision to exclude or expel in accordance with its rules; and (c) the union has
followed fair procedures when taking that decision, and the individual does not lose his livelihood or suffer other
exceptional hardship for loss of union membership. As regards this last point, the Government indicates that, since “closed
shop” is already unlawful in the country, a loss of union membership is very unlikely to produce hardship on this scale. As
regards the TUC allegation that the complexity would lead to unjustified and vexatious litigation, the Government states
that there is no evidence to support that such mischievous litigation has been indulged in since the amendments came into
force in April 2009. The Government adds in this respect that a compensatory award for unlawful exclusion would only
apply where the trade union refused to admit or re-admit the individual and where membership of the political party is not
contrary to a rule or objective of the trade union, whereas in the Government’s understanding, the rules or objectives of
British trade unions often specify that membership of certain political parties, or xenophobic or racist behaviours
associated with such parties, are incompatible with union membership. The Government concludes that these amendments
Freedom of association,
collective bargaining, and
industrial relations
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
187
do not breach the Convention and are necessary in a democratic society for the protection of the rights and freedom of
others.
The Committee requests the Government to reply to the further concerns expressed by the TUC in its latest
comments and to provide any available information on the practical application of the amendments to section 174 of
the TULRA.
Immunities in respect of civil liability for strikes and other industrial action (sections 223 and 224 of the TULRA).
In its previous comments, the Committee had noted that according to the TUC, due to the decentralized nature of the
industrial relations system, it was essential for workers to be able to take action against employers who are easily able to
undermine union action by complex corporate structures, transferring work, or hiving off companies. The Committee
generally raised the need to protect the right of workers to take industrial action in relation to matters which affect them
even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes
provided the initial strike they are supporting is itself lawful. The Committee takes note of the Government’s reiteration
that it has no plans to change the law in this area. The Committee emphasizes that the globalization of the economy and
the delocalization of work centres may have a severe impact on the right of workers’ organizations to organize their
activities in a manner as to defend effectively their members’ interests should lawful industrial action be too restrictively
defined. The Committee therefore recalls that workers should be able to participate in sympathy strikes, provided the
initial strike they are supporting is lawful, and to take industrial action in relation to social and economic matters
which affect them and requests the Government to review sections 223 and 224 of the TULRA, in full consultation with
the social partners, and to provide further information in its next report on the progress made in ensuring respect for
this principle.
The Committee further recalls that, when reviewing the comments made by the British Airline Pilots’ Association
(BALPA), the International Transport Federation (ITF) and Unite the Union, the Committee had observed with serious
concern the practical limitations on the effective exercise of the right to strike of the BALPA workers in the case at hand.
The Committee observed that the omnipresent threat of an action for damages that could bankrupt the union, possible in
the light of the Viking and Laval judgments issued by the European Court of Justice (ECJ), created a situation where the
rights under the Convention could not be exercised. While noting the Government’s statement that the impact of the ECJ
judgments was limited, the Committee referred to the likelihood of such issues becoming more frequent within the current
context of globalization, particularly in certain sectors of employment, like the airline sector and considered that the
doctrine being articulated in these ECJ judgments was likely to have a significant restrictive effect on the exercise of the
right to strike in practice in a manner contrary to the Convention.
In its latest report, the Government points out that, even if there were an international dimension to a United
Kingdom trade dispute, it was far from clear that the industrial action involved would fail to meet the legitimacy and
proportionality requirements laid down in the ECJ case law. In any event, the Government indicated that in so far as the
proportionality tests might apply to United Kingdom industrial action, these tests were derived from EU treaties, to which
the Government is obliged to give effect. The Government therefore considers that amendment of the TULRA would not
have any impact on the proportionality tests set out in these judgments. As regards the threat of unlimited damages, the
Government observes that it has not been proven that these ECJ judgments would have the effect of nullifying the limits
on damages for unlawful industrial action that are set out in the TULRA, but even if they did, the Government maintains
that it could not change this impact through any unilateral action on its part. The Government concludes that the effect of
the ECJ judgments on United Kingdom industrial action has not been established as no United Kingdom court has decided
a case in this area and, in any event, any effect would probably be limited to the small minority of disputes which have the
necessary international dimension. For these reasons, the Government considers that it is not necessary to review the
TULRA or take other national measures.
The Committee wishes once again to recall the serious concern it raised as to the circumstances surrounding the
BALPA proposed industrial action, for which the courts granted an injunction on the basis of the Viking and Laval case
law and where the company indicated that, should the work stoppage take place, it would claim damages estimated at
£100 million per day. The Committee recalls in this regard that it has been raising the need to ensure fuller protection of
the right of workers to exercise legitimate industrial action in practice and considers that adequate safeguards and
immunities from civil liability are necessary to ensure respect for this fundamental right, which is an intrinsic corollary of
the right to organize. While taking due note of the Government’s observations in relation to its obligations under EU law,
the Committee considers that protection of industrial action in the country within the context of the unknown impact of the
ECJ judgments referred to by the Government (which gave rise to significant legal uncertainty in the BALPA case), could
indeed be bolstered by ensuring effective limitations on actions for damages so that unions are not faced with threats of
bankruptcy for carrying out legitimate industrial action. The Committee further considers that a full review of the issues at
hand with the social partners to determine possible action to address the concerns raised would assist in demonstrating the
importance attached to ensuring respect for this fundamental right. The Committee therefore once again requests the
Government to review the TULRA, in full consultation with the workers’ and employers’ organizations concerned, with
a view to ensuring that the protection of the right of workers to exercise legitimate industrial action in practice is fully
effective, and to indicate any further measures taken in this regard.
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
188
Reinstatement of workers having participated in lawful industrial action. In its previous comments, the Committee
recalled that for the right to strike to be effectively guaranteed, the workers who stage a lawful strike should be able to
return to their posts after the end of the industrial action. Making the return to work conditional on time limits and on the
employer’s consent constituted, in the Committee’s view, obstacles to the effective exercise of this right, which constitutes
an essential means for workers to promote and defend the interests of their members. The Committee therefore requested
the Government to indicate any measures taken or contemplated with a view to strengthening the protection available to
workers who stage official and lawfully organized industrial action.
The Committee notes that the Government reiterates that those participating in lawfully organized, official industrial
action are protected against dismissal for action which lasts 12 weeks or less. Dismissing a worker for taking industrial
action during this period is considered to be automatically unfair. Virtually all industrial action in the United Kingdom
lasts less than 12 weeks and therefore this protection extends to virtually all workers who stage official and lawfully
organized strikes. In addition, regardless of the duration of the industrial action, an employer cannot dismiss a worker for
taking industrial action if the employer has failed to take reasonable procedural steps to resolve the dispute with the trade
union (i.e. agreed procedures for dispute resolution). The Government however maintains that it is not appropriate to
support the view that an employer must never dismiss employees under any circumstances when they take protected
industrial action. In any event, the sacking of strikers is very rare in the United Kingdom.
The Committee recalls the importance it attaches to the maintenance of the employment relationship as a normal
legal consequence of the recognition of the right to strike (see General Survey of 1994 on freedom of association and
collective bargaining, paragraph 139). While provisions that enable employers to dismiss workers during or at the
conclusion of an industrial action on the grounds of illegitimate or unlawful action may be in conformity with the
provisions of the Convention, it considers that restricting the right to maintain the employment relationship to industrial
action of twelve weeks or less places an arbitrary limit on the effective protection of the right to strike in a manner
contrary to the Convention. The Committee therefore once again requests the Government to review the TULRA, in full
consultation with workers’ and employers’ organizations concerned, with a view to strengthening the protection
available to workers who stage official and lawfully organized industrial action and to provide information on the steps
taken in this regard.
Notice requirements for industrial action. In its previous comments, the Committee had taken note of comments
made by the TUC to the effect that the notice requirements for an industrial action to be protected by immunity were
unjustifiably burdensome. The Committee notes from the Government’s report that it held discussions with the TUC about
these issues during the reporting period, but that no agreement was reached. The Committee requests the Government to
continue to provide information on developments in this regard, as well as any relevant statistics or reports on the
practical application and effect of these requirements.
The Committee is raising other points in a request addressed directly to the Government.
Document No. 170
ILC, 102nd Session, 2013, Report III (Part 1A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, p. 156 (Russian
Federation)
ILC.102/III(1A)
International Labour Conference, 102nd Session, 2013
Report of the Committee of Experts
on the Application of Conventions
and Recommendations
(articles 19, 22 and 35 of the Constitution)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report III (Part 1A)
General Report
and observations concerning particular countries
International Labour Office Geneva
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
156
Russian Federation
Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87) (ratification: 1956)
The Committee recalls that it had previously requested the Government to provide its observations on the comments
made by the International Trade Union Confederation (ITUC), the Russian Labour Confederation (KTR) and the
Seafarers’ Union of Russia (RPSM) alleging numerous violations of trade union rights in practice, including the denial of
legal personality trade unions, interference by the authorities in internal trade union affairs, harassment of trade union
leaders, and restrictions on the rights to strike. The Committee notes the Government’s reply thereon. The Committee
notes that an ILO mission visited the country in October 2011 in order to discuss similar issues pending before the
Committee on Freedom of Association with all interested parties.
The Committee notes the comments made by the ITUC in a communication dated 31 July 2012 alleging numerous
violations of trade union rights in practice, including denial of registration of trade unions, dissolution of a migrant
workers’ union upon a court’s order and restrictions on the right to strike. The Committee requests the Government to
provide its observations thereon.
The Committee notes that the Government’s report for the current reporting cycle has not been received, however, it
observes that the Labour Code has been amended.
Article 3 of the Convention. Right of workers’ and employers’ organizations to organize their administration and
activities. Labour Code. The Committee recalls that it had previously requested the Government to amend section 410
of the Labour Code so as to repeal the obligation to indicate the duration of a strike in order to allow trade unions to
declare strikes of unlimited duration. The Committee notes with interest that this provision has been amended so as to
repeal this obligation.
Other legislation. The Committee recalls that it had previously requested the Government to ensure that workers of
postal services, municipal services and railways can exercise the right to strike and, to that effect, amend section 9 of the
1994 Federal Postal Service Act, section 11(1)(10) of the 1998 Federal Municipal Services Act and section 26 of the 2003
Federal Rail Transport Act. Furthermore, noting that the 2004 Law on State Civil Service prohibits civil servants from
stopping their duties to solve a labour dispute, it also requested the Government to amend the relevant legislative
provisions so as to ensure that public servants who do not exercise authority in the name of the State could exercise the
right to strike. The Committee notes that the Government reiterates that the right to strike of the following categories of
workers is restricted: workers of the federal courier communications and the municipal employees, as well as certain
categories of railway workers. The Government considers that the restrictions imposed on the right to strike of certain
categories of workers do not contradict international standards. It refers in this respect to Article 8(2) and (1)(c) of the
International Covenant on Economic, Social and Cultural Rights and points out that, under these provisions, a State may
impose prohibition on the exercise of the right to strike by members of the armed forces, the police, or the administration
of the State, as well as other persons, if necessary, in a democratic society in the interests of national security, public
order, or for the protection of the rights and freedoms of others. The Government stresses that nothing in this Article shall
authorize States parties to Convention No. 87 to take legislative measures which would prejudice, or apply the law in such
a manner as would prejudice, the guarantees provided for in that Convention. The Committee once again recalls its basic
position that the right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87. It further
recalls that, in addition to the armed forces and the police (members of which could be excluded from the application of
the Convention), the right to strike may be restricted or prohibited only for public servants exercising authority in the
name of the State and in 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. The Committee considers that railway
services and postal services do not constitute essential services. The Committee therefore requests once again the
Government to take the necessary measures to amend the abovementioned legislative acts so as to bring its legislation
into conformity with the Convention and ensure that workers of the federal courier communications, railway workers,
municipal employees, as well as public servants who do not exercise authority in the name of the State, can exercise the
right to strike. It requests the Government to indicate in its next report all measures taken in this respect.
The Committee is raising other points in a request addressed directly to the Government.
Document No. 171
ILC, 67th Session, 1981, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, p. 104 (Egypt)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
c. 87 PEPOPT OF THE col!TEE OP EXPERTS
-------------------------
gIE! (ratification: 1957)
The committee takes note of the information provided by the
Government in reply to its comments.
The committee notes that a Bill on trade union s has been
discussed by the trade union organisations and is now before the
People's Assembly. The committee also notes the state■ent by the
Government that the Bill confers wide rights on the Federation of Trade
Unions, which has the main responsibility for orga nising and managing
all the activities of the trade union organisation s. The committee
recalls in this respect that in its previous observation, it had
pointed out that it is incompatible with the pri.nciples of freedom of
association to impose or maintain a single-trade-union structure
through legislation as is already the case with Act No. 35, sections 9,
10, 13, 15, 16 and 17.
The committee notes the statement by the Government that these
provisions meet a request by the workers to strengthen the trade union
movement and fit it to play its part in society. The committee is
bound to point out that, although the aim of the Convention is not to
make trade union pluralism compulsory, pluralism must remain possible
in every case where workers wish to establish organisations independent
of the existing structure.
The Committee has already commented on the right to strike. It
notes from the information provided by the Government that the Bills
now under consideration do not mention strikes, which come under the
general rules and basic principles governing the society. The
Committee asks the Government to specify the general rules and basic
principles applicable to strikes, and points out that the right to
strike is one of the essential means available to workers and their
organisations for furthering and defending their occupational
interests. !n this connection, the committee notes the detailed
explanations provided by the Government in its report on the
application of convention No. 98 to the effect that the legislation at
present in force does not constitute a system of compulsory
a rbitration.
The Committee observes that its earlier comments also related to
other points: the trade union rights of certain managerial staff (Act
No. 35, section 19(e)); the right of trade unions to organise their
internal administration and activities (Act No. 35, section 23;
sections 9, 10, 2l(a) an d 36(c): sections 61 and 62; section 41).
The Committee hopes that the new Act, presently under
consideration, will make it possible to bring the legislation into full
conformity with the Convention in the light of the comments ■ade above
and it asks the Government to provide information on any developments
in the situation.
104
Document No. 172
ILC, 71st Session, 1985, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 129-133 (Colombia)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS c. 87
Colombia (ratification; 1976)
The Committee takes note of the information communicated in the
latest report of the Government in reply to its previous comments and
those of the General Confederation of Labour.
129
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
In its previous comments the Committee has raised several
discrepancies between the national legislation and the Convention:
1. Establishment of workers' organisations
the prohibition on setting up more than one works union per
undertaking (sections 357 and 364(i) of the Labour Code,
section 26 of Decree No. 2351 of 1965 and section 11(1) and (2)
of Decree No. 1373 of 1966).
- the requirement of too high a number of trade union organisations
for the establishment of a local or regional federation (ten) or
a national confederation (20) (sections 27 and 28 of Decree No.
1469 of 1978 on freedom of association).
- the obligation to obtain recognition of legal personality from
the Ministry of Labour (sections 366 and 372 of the Labour Code
as supplemented by section 5 of Decree No. 1469 of 1978, and
section 423 of the Labour Code in respect of federations and
confederations).
The Government states that first-level unions, which are
generally weaker than industry unions, become still weaker when they
proliferate, which affects their power to negotiate. This is also
true of national confederations. Furthermore, the Government states
that the Administrative Claims Code (Decree No. 1 of 1984) guarantees
the possibility of appealing against administrative acts such as
resolutions of the Ministry of Labour refusing legal personality to a
union (section 50) and that a trade union organisation which has been
refused legal personality may apply for the restoration of its rights
(section 85).
The Committee notes the Government's argument on the risk of the
weakening of the bargaining power of first-level unions, regional
federations and national confederations where they have an inadequate
number of workers or trade union organisations. It considers
nevertheless that by prohibiting the creation of more than one union
per undertaking and requiring the affiliation of a minimum of ten
organisations at the regional level and 20 at the national level, the
provisions in question may well prevent the establishment of
first-level unions, federations and confederations (see paragraph 240
of the General Survey on Freedom of Association and Collective
Bargaining prepared by the Committee of Experts in 1983).
Furthermore, the Committee observes that the appeals provided for by
section 50 of the Administrative Claims Code are only administrative
and not judicial. Section 85 seems to confer the possibility of
judicial appeal on a point of law for the restoration of a right.
The Committee considers, however, that if such judicial appeal is to
constitute an adequate guarantee, the judges should be able not only
to ensure that the legislation has been correctly applied but also to
re-examine both the substance of the matter and the grounds
determining the administrative decision in the light of the provisions
of the Convention (see paragraph 117 of the above-mentioned General
Survey).
The Committee therefore asks the Government to amend its
legislation so as to permit the establishment without hindrance and
130
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
without previous authorisation of first-level unions, federations and
confederations.
2. Interference in the internal
administration of trade unions
The questions raised relate to the following points:
- ministerial approval of amendments to the constitutions of
first-level unions and those of federations and confederations
(sections 369, 370 and 425 of the Labour Code and section 15 of
Resolution No. 4 of 1952).
- regulation by Resolution No. 4 of 1952 of questions that should
be governed by the constitutions of the unions rather than by law
(quorum at the general assembly, composition of executive bodies,
electoral procedure, etc.).
supervision of the internal management and meetings of unions by
public servants (section 486 of the Labour Code and section 1 of
Decree No. 672 of 1956), strict rules for trade union meetings
(Decree No. 2655 of 1954) and presence of authorities at general
assemblies convened to vote the calling of a strike
(section 444(2) of the Labour Code).
- the obligation to be Colombian for election to trade union office
(section 18(a) of Resolution No. 4 of 1952).
- the election of union officers to be submitted for approval by
the administrative authorities (section 21 of Resolution No. 4 of
1952 and sections 10 to 13 of Decree No. 1469 of 1978).
the suspension, with loss of the right to organise, of leaders
who have been responsible for the dissolution of their union
(sections 380(2)(b) and (c) and 4 of the Labour Code).
- the obligation to belong to the occupation for election to trade
union office (sections 388(1)(c) and 432(2) of the Labour Code,
and section 18(c) of Resolution No. 4 of 1952 for first-level
unions and 422(1)(c) for federations).
The Government states that section 486 of the Labour Code, which
is still in force, is intended to prevent employers, workers and
officers or members of trade union organisations from infringing the
provisions concerning conditions of employment and the protection of
workers following their occupation and exercising the right to freedom
of association. It states that interference by the administrative
authorities in respect of the approval of election to trade union
office and the application of penalties to trade union officers when
they cause, by their own fault, the dissolution of a union is intended
only to supervise the application of specific legal provisions
designed to protect the members. Furthermore, the Government states
that the provisions on membership of an occupation are logical.
The Committee observes that section 486 of the Labour Code
confers on the officials of the Ministry of Labour the power to summon
to their office leaders and members of trade union organisations to
demand from them information on their role and the submission of
books, registers and other documents, and also confers on these
officials the power to be present at any moment without notice at a
trade union meeting to prevent the infringement of the provisions
mentioned by the Government.
131
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
The Committee recalls that the freedom of unions to hold meetings
is a condition indispensable to the effective exercise of trade union
rights and that the public authorities should refrain from any
interference that would restrict this right or impede its lawful
exercise. The Committee also considers that the application of the
provisions concerning the management of trade unions must be left
mainly to the trade unionists themselves, supervision over management
not going further than the obligation to furnish periodical financial
reports. Lastly, the Committee, while noting the Government's
comments on the need for officers to belong to the occupation, hopes
that the Government will amend the provisions on the membership of the
occupation so as to ensure that a dismissed trade union officer does
not lose his office and to permit the candidature of persons who have
previously belonged to the occupation; the Committee also hopes that
the Government will make section 18 of Resolution No. 4 of 1952
(restriction to Colombians of the right to manage unions) more
flexible so as to enable organisations to choose their leaders in full
freedom and foreign workers to attain trade union office, at least
after a reasonable period of residence in the host country.
The Committee therefore asks the Government to amend its
legislation in order to ensure to workers and their organisations the
right to draw up their constitutions, elect their representatives and
organise their administration without interference from the public
authorities.
3. Right of trade unions to further and
defend the interests of the workers
The questions raised by the Committee relate to the following
points:
- the prohibition placed on trade unions from taking part in
political matters or holding meetings on them (section 378(a) of
the Labour Code, section 16 of Decree No. 2655 of 1954 and
sections 12 and 50 of Resolution No. 4 of 1952).
- the prohibition of federations and confederations from calling a
strike (section 417(1) of the Labour Code).
- the prohibition of strikes not only in the essential services in
the strict sense of the term but also in a very wide range of
public services that are not necessarily essential (section 430
of the Labour Code and Decrees Nos. 414 and 437 of 1952, 1543 of
1955, 1593 of 1959, 1167 of 1963 and 57 and 534 of 1967).
- compulsory arbitration empowering the Minister of Labour to end a
labour dispute that has lasted 40 days (section 2 of Decree
No. 939 of 1966) and the President of the Republic to order the
termination of a strike affecting the interests of the national
economy (section 3(4) of Act No. 48 of 1968).
- the sentences of imprisonment during the temporary suspension of
the right to strike under emergency powers (Decree No. 2004 of
1977).
- the automatic dismissal of trade union leaders who have
intervened or participated in an illegal strike (section 450(2)
of the Labour Code).
132
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS c. 87
The Government does not connnent on the prohibition of political
activities by trade unions, but states that while the calling of a
strike by a federation or a confederation in a whole sector of
economic activity or the classification as essential of some services
does little harm to developed nations, it is very harmful to countries
that are trying to overcome the obstacles of underdevelopment. It
adds that the Convention does not deal with essential services. It
further explains that the power of the President of the Republic,
under Act No. 48 of 1968, to terminate a strike seriously affecting
the national economy by submitting the dispute to compulsory
arbitration is not discretionary since it comes into play only subject
to the positive opinion of the Supreme Court (Labour Chamber).
The Committee, while noting the comments of the Government on the
d ifficulties faced in overcoming the obstacles of economic
underdevelopment, emphasises that the peaceful exercise of the right
to strike has always been considered by the supervisory bodies to be
one of the essential means that should be available t9 the workers and
their organisations for advancing their occupational claims. The
prohibition or restriction of its exercise is compatible with the
Convention only in respect of public servants acting in their capacity
as agents of the public authority or in essential services in the
strict sense of the term (and not in the public services in general)
where the interruption of such activities due to a strike would
endanger the life, personal safety or health of the whole of part of
the population.
The Committee therefore hopes that the Government will amend its
legislation so as to change the provision prohibiting political
activities by trade unions and to abolish the excessive restrictions
on the peaceful exercise of the right to strike. Resort to
compulsory arbitration should apply only to essential ser vices in the
strict sense of the term, and the suspension of the right to strike
under emergency powers should be confined to the innnediate period of
the emergency.
The Committee would be grateful if the Government would indicate
in its next report the measures it could take to bring its legislation
into full conformity with the Convention in the light of the above
comments.
133
Document No. 173
ILC, 71st Session, 1985, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 136-137 (Denmark)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
Denmark (ratification: 1951)
The Committee takes note of the information contained in the
report of the Government and of the adoption of Act No. 300 of 6 June
1984, which concerns, inter alia, occupational assoc iations.
The Committee also takes note of the colJDllents of the Danish
Federation of Trade Unions (LO) and the Salaried Employees' and Civil
Servants' Confederation (FTF) on the application of the Convention.
It observes that, according to these trade union organisations, the
collective agreements providing for the indexation of wages on the
cost of living were suspended by the Government in October 1982,
because of their inflationary effect, for a period up to January 1985,
which was extended by P arliament to January 1987, thereby putting a
brake on wage claims. These organisations also mention situations in
which the Government has taken legislative action to prevent or end
strikes in certain sectors of the public service (namely those in
136
OBSERVATIONS CONCERNING RATIFIED CONVENTI O NS c. 87
which radio operators and engineers work). The Committee also takes
note of the information furnished by the Government in reply to these
comments. The Government explains in particular that its action to
end the strike, which had already lasted four months, in the sector of
wireless operators was necessary, since, because of the climatic
conditions of the country, the prolongation of this strike would have
had serious consequences. With regard to its action to prevent the
strike in the engineering sector, the Government explains that a
strike in this sector would have created conditions in which human
life would have been endangered and would have led to considerable
loss of property.
First, the Committee points out that, in the General Survey that
it submitted to the 69th (1983) Session of the International Labour
Conference, particularly paragraph 200, it emphasises that the right
to strike is one of the essential means available to workers and their
organisations for the promotion and defence of their economic and
social interests. Secondly, the Committee points out that
res tricticns vn the i:- igli L to strike should. be limited to services
whose interruption would endanger the life, personal safety or health
of the whole or part of the population. Since wages form an
important aspect of the living and working conditions in an
undertaking and are a question of economic policy, the Committee would
draw the attention of the Government to the fact that freezing wages
for more than four years is a restriction on the right of trade union
organisations to organise their activities and formulate their
programmes in full freedom for the defence of their economic interests
(A rticle 3 of the Convention).
The Committee requests the Government
questions in consultation with the trade
concerned, in the light of the principles stated
informed of any developments in the situation.
to re-examine these
union organisations
above, and to keep it
137
Document No. 174
ILC, 71st Session, 1985, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 142-145 (Ethiopia)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
c. 87 REPOR T OF THE COMMITTEE OF EXPER TS
Ethiopia (ratification: 1963)
The Committee takes note of the information communicated by a
Government representative to the Conference Committee in 1984 and the
report submitted by the Government.
The Committee would again refer to the points already raised by
it in its previous comments.
1. The Com mittee has noted that, under section 9(4) and (5) of
Proclamation No. 222, the coming together of unions results in a
single union at the national level, namely the All-Ethiopia Trade
Union ( AETU), one of whose functions is to represent the workers and
trade unions of Ethiopia (section 6), which, in tur n, have to report
to the higher level unions (section 11). It has also noted that the
procedure laid down by section 6(7) of the Proclamation confers on the
single national trade unions (AE TU and AEPA) the exclusive right to
draft the by-laws of all trade unions and associations.
The Committee notes the statement by the Government that the aim
of the Convention is not to make trade union diversity an obligation
and that the establishment and maintenance of a single-trade-union
structure are the legal expression of the will of the workers. The
Committee would point out, however, that the principle of the free
choice of workers' and employers' organisations set forth in Article 2
of the Convention is not intended to favour the thesis of trade union
diversity, the implication of the Convention being that this diversity
must at least be possible in every case. In paragraph 137 of the
General Survey which it submitted to the 6 9th (1983) Session of the
International Labour Conference, the Committee stated that "even in a
situation where, at some point in the history of a nation, all workers
have preferred to unify the trade union movement; they should,
however, be able to safeguard their freedom to set up, should they so
wish in the future, unions outside the established trade union
structure".
A de facto single-trade-union system should not be made
compulsory by law and appropriate measures should be taken to give
effect to the principles that are referred to by the Committee in its
connnents.
142
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
2. With regard to the All-Ethiopia Peasant Association (AEPA),
the Committee observes, as it has already done, that the Government
reaffirms that the AEPA is not a trade union organisation governed by
the Proclamations, but a mass organisation of independent peasants,
established voluntarily by them. The Committee points out, however,
that the peasants' associations are governed by Proclamation No. 223
of 1982, sections 6 and 7 of which confer on them aims, powers and
duties that are similar to those accorded the trade union
organisations by Proclamation No. 222 at the ideological, economic,
social and educational levels. The Committee further notes the
statement of the Government that these independent peasants are not to
be confused with agricultural workers, who are to be found only on the
state farms. The Committee would again point out that peasants, even
when they have become collective owners of the land, remain rural
workers and should, accordingly, enjoy the trade union guarantees laid
down by the Convention, their organisations being workers'
organisations. The Committee draws the attention of the Government
to the fact that rural workers united in associations should be able
to set up and join organisations freely without previous authorisation
and to draw up their rules, elect their representatives in full
freedom and to formulate their programmes without interference from
the public authorities, in accordance with Articles 2 and 3 of the
Convention. The Committee points out that these Articles of the
Convention are infringed by the following provisions of Proclamation
No. 223 of 1982; section 9 on the minimum area for the establishment
of a first-level association, section 73 on registration by the
Ministry without any indication of the procedure or possible ways of
appeal in the event of refusal; section 17(2) on the issuing of the
internal regulations by the AEPA; section 5 on the conditions for
election to trade union office; and section 7 on the determination of
the powers and duties of the associations. Furthermore, the
Committee observes that there is no legislative or other provision to
govern the dissolution of the associations.
The Committee, therefore, requests the Government to ensure that
the Articles of the Convention are applied to rural workers'
associations and to indicate any relevant legislative provisions
concerning the dissolution of these associations.
The Committee notes further that the agricultural workers of
state farms are not covered by Proclamation No. 223. It, therefore,
requests the Government to indicate any legislative provisions through
which the Convention is applied to this category of workers and to
state whether they are considered to be public servants of the State.
3. The Committee has pointed out in previous comments that
trade unions other than the All-Ethiopia Trade Union (AETU) cannot
affiliate with international organisations. It added that, under
Article 5 of the Convention, freedom to affiliate is recognised to
every trade union, whether it be at the national level, first level or
for a branch of industry. The Committee notes that the Government
considers the existing situation to be a logical part of the
single-trade-union system established in the country by the workers.
The Committee, therefore, refers to its comments at point 1 above and
draws the attention of the Government to the necessity, in order to
give effect to the Convention, of safeguarding the rights of unions
143
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
that might be established outside the AETU to establish and join
federations and to affiliate with international trade union
organisations. The Committee requests the Government to ensure that
effect is given to this provision of the Convention.
4. The Committee takes note of the statement by the Government
that the procedures of sections 106 and 99(3) of the Labour
Proclamation No. 64 of 1975, contain no prohibition of the right to
strike. In its previous comments, the Committee has called attention
to the fact that section 106 of the Proclamation makes illegal any
strike initiated where the dispute has not been referred to the Labour
Division of the High Court, whose decisions are final by virtue of
section 99(3) or, where it has been so referred, if 50 days have not
elapsed before any decision is given, which makes any strike
practically impossible and thus considerably restricts the possibility
open to trade union organisations of defending the interests of their
members. Since, by virtue of Article 3 of the Convention, a certain
number of means must be available to the workers for furthering and
defending their economic and social interests, and since the right to
strike is an essential one of these means, the Committee requests the
Government to take the necessary steps, in particular by legislative
action, to enable the workers to exercise these trade union rights.
5. Furthermore, the Committee has also noted that, under
section 5 of Proclamation No. 222, the unions are obliged to
disseminate among the workers the development plans of the Government
as well as Marxist-Leninist theories, and to implement the decisions,
directives and orders of higher authorities. Proclamation No. 223
sets forth the same obligations for peasants' associations (sections
15(4) and 22(5)) and further specifies that every member of a peasant
association has the duty to accept and implement the National
Democratic Revolution Programme of Ethiopia (section 13(1)).
The Committee observes that a trade union which wished to
formulate another programme would find itself in conflict with the
law. These detailed provisions defining the scope of the unions and
also section 6(7), under which the All-Ethiopia Trade Union issues the
by-laws of its unions in accordance with the legislation, and section
17(2) of Proclamation No. 223 on peasants' associations, under which
the AEPA lays down in detail the powers of the General Assembly of the
first-level peasants' associations, are contrary to the principles of
freedom of association. The Committee hopes that the Government will
take the necessary action to bring its legislation into conformity
with the Convention.
6. The Committee has pointed out that public servants and
domestic staff do not enjoy the trade union rights granted by
Proclamation No. 222. It notes the Government's statement that their
right to organise is treated separately by the new Labour Code, which
is still being examined. The Committee requests the Government to
inform it of any development in this connection and to transmit a copy
of the new Code as soon as this is adopted.
7. With reference to the employers' organisations, which the
Committee has considered not to constitute employers' organisations
within the meaning of the Convention - according to which their
principal aim should be to further and defend the interests of the
employers - the Committee notes the Government's statement that the
144
OB S ERVATIONS CONCERNING RATIFIED CONVENTIONS c. 87
amendments to the Proclamation of 1978 on the Chamber of Commerce have
been approved and will be published shortly. The Committee requests
the Government to send it a copy of the relevant texts.
[The Government is asked to supply full particulars to the
Conference at it 71st S ession and to report in detail for the period
ending 30 June 1985.]
145
Document No. 175
ILC, 79th Session, 1992, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 219-222 (Kuwait)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C.87
Kuwait (ratification: 1961)
The Commit tee takes note of the Government's statement in its
report that this Convention has made an effective contribution to
strengthening freedom of association and the right to organise,
developing trade union activities and directing freedom of association
219
C.87 REPORT OF THE COMMITTEE OF EXPERTS
towards its goals of protecting workers' rights and improving working
conditions. The Government adds that the draft Labour Code takes
account of the Committee's observations by including all the
provisions of the Convention except those that run counter to national
security.
The Committee recalls that for several years it has been drawing
attention to a number of discrepancies between the Labour Code (Act
No. 38 of 1964) and the Convention, in particular:
(1) the prohibition on establishing more than one trade union for a
given establishment or activity and the membership requirement of
at least 100 workers in order to establish a trade union (section
71 of the Act) and ten employers to form an association (section
86);
the requirement that trade unions may federate only if they
represent the same occupation or industries producing similar
goods or providing similar services (section 79);
the prohibition on organisations and their federations from
forming more than one general confederation (section 80);
the system of trade union unity instituted by sections 71, 79 and
80 read together;
(2) the requirement that non-Kuwaiti workers must reside in Kuwait
for five years before joining a trade union; the requirement
that a certificate of good reputation and good conduct must be
obtained in order to join a union; the denial of the right to
vote and to be elected of trade unionists who are not of Kuwaiti
nationality, except to elect a representative whose only right is
to express their opinions to the trade union leaders (section 72);
(3) the prohibition on trade unions from engaging in any political or
religious activity (section 73);
(4) the requirement that a certificate must be obtained from the
Minister of the Interior stating that he has no objection to any
of the founder members before a trade union may be established;
and the requirement that at least 15 members must be Kuwaiti
before a union may be established (section 74);
(5) the wide powers of supervision of the authorities over trade
union books and records (section 76);
(6) the reversion of trade union assets to the Ministry of Social
Affairs and Labour in the event of dissolution (section 77);
(7) the restriction on the free exercise of the right to strike
(section 88 of the Labour Code).
With regard to the system of trade union unity, the Committee can
only recall that the principle set forth in Article 2 of the
Convention, that workers should be able to constitute organisations of
their own choosing, is not intended as an expression of support either
for the idea of trade union unity or for that of trade union
pluralism. If workers choose to group together in a single trade
union system, legislation should not impose such a system but should
allow pluralism to be possible in the future (in this connection, see
paragraphs 136 and 137 of the 1983 General Survey on Freedom of
Association and Collective Bargaining). The Committee requests the
Government to amend its legislation to ensure that workers, should
they so wish, are able to set up unions outside the established trade
union structure in order to safeguard their occupational interests.
220
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
As regards the prohibition imposed on foreign workers from voting
or standing as candidates in trade union elections, except to elect a
representative to express their opinions to the trade union leaders,
the Committee stresses that the right o£ workers' organisations to
elect their representatives (Article 3 of the Convention) is limited
by the restrictions imposed on foreign workers by section 72 of the
Labour Code, and that the legislation should be made more flexible in
order to permit non-Kuwaiti workers to have access to or hold trade
union office, at least after a reasonable period of residence in
Kuwait (in this connection see paragraphs 159 ana 160 of the General
Survey).
With regard to the wide powers of supervision of the authorities
at all times over trade union books and records, the Committee recalls
that under Article 3 of the Convention, workers' organisations should
have the right to organise their administration without any
interference from the public authorities and that, accordingly,
supervision of union finances should not normally go beyond a
requirement that the organisation submit periodic financial returns
(see paragraph 188 of the General Survey).
With reference to section 88 of the Labour Code under which
compulsory arbitration may be imposed at the request of one of the
parties in order to settle a labour dispute and end a strike, the
Committee recalls that the right to strike is one of the essential
means available to workers' organisations promote and protect their
members' interests. It requests the Government to revise its
legislation in order to ensure that compulsory arbitration with a view
to ending a strike cannot be imposed except in the case of strikes in
essential services in the strict sense of the term or in the event of
an acute national crisis.
In its previous observation, the Committee noted that a draft
Labour Code repealing several provisions contrary to the Convention
(sections 71, 72, 73, 74 and 79) was being prepared. Since the
Government's report confirms that the above draft takes the
Committee's observations fully into account, the Committee asks the
Government in its next report to provide information on the status of
the draft Labour Code and on the measures it envisages to;
remove from the legislation all provisions institutionalising
trade union unity;
- enable foreign workers to vote and to stand as candidates in
trade union elections;
remove the prohibition on trade unions from engaging in any
political activity;
limit the powers of supervision of the authorities over the
establishment and the internal management of trade unions;
- remove the measures providing for the reversion of trade union
assets to the Ministry of Social Affairs and Labour in the event
of dissolution; and
remove the excessive restrictions on the exercise of the right to
strike.
The Committee hopes that the Government will do its utmost to
take the necessary measures in the very near future.
221
C.87 REPORT OF THE COMMITTEE OF EXPERTS
The Commit tee is addressing a direct request to the Government
concerning another subject.
[The Government is asked to supply full particulars to the
Conference at its 79th Session.]
222
Document No. 176
ILC, 79th Session, 1992, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 238-240 (Syrian Arab
Republic)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
C. R7 REPORT OF THE COMMIITEE OF EXPERTS
Syrian Arab Republic (ratification: 1960)
The Committee takes note of the information contained in the
Government's report to the effect that the committee composed of
representatives of the Ministry of Social Affairs and Labour, the
General Federation of Workers' Unions (FGST), the General Federation
of Peasants (FGP), the General Federation of Craftsmen (FGA) and the
Chamber of Industry decided to obtain the written opinion of the FGA,
FGP and FGST concerning the amendment of certain provisions of
Legislative Decree No. 84 of 1968 concerning trade unions, Act No. 21
of 1974 respecting peasants' associations, and Legislative Decree No.
250 of 1969 respecting craftsmen's associations, to bring them into
line with the Convention. The Government adds that by 21 April 1991
only the FGST had issued an opinion on the possibility of repealing
sections 25, 32, 36, 44(b)(4), 49(c) of Legislative Decree No. 84 and
section 12 of Legislative Decree No. 250. The Committee regrets,
however, that the report does not indicate whether the FGST supported
or opposed the repeal of the sections in question.
The Committee recalls that the discrepancies between the national
legislation and the Convention concern the following:
Legislative Decree No. 84 of 1968 concerning trade unions
(section 7) which organises the structure of trade unions on a
single union basis;
- Legislative Decree No. 250 of
associations (section 2) and Act
peasants' cooperative associations
impose a single trade union system;
1969 regarding craftsmen's
No. 21 of 1974 regarding
(sections 26 to 31) which
- section 25 of Legislative Decree No. 84 restricting the trade
union rights of non-Arab foreign workers;
238
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
- sections 32, 35, 36, 44, and 49(c) of Legislative Decree No. 84
and sections 6 and 12 of Legislative Decree No. 250 of 1969
restricting the free administration and independence of the
management of trade unions;
- section 160 of the Agricultural Labour Code of 1958 prohibiting
strikes in the agricultural sector.
1. The single trade union system. The Committee recalls that,
under Article 2 of the Convention, workers, without distinction
whatsoever and without previous authorisation shall have the right to
establish and join organisations of their own choosing. It also
recalls that this Article is not intended as an expression of support
either for the idea of trade union unity or for that of trade union
pluralism; pluralism, however, should remain possible in all cases.
The Committee regrets that neither the above-mentioned committee
nor the FGST have issued an opinion on the repeal of the provisions in
the national legislation which organise the single trade union system
(sections 3, 4, 5, 7 and 49(c) of Legislative Decree No. 84 of 1968,
Legislative Decree No. 250 of 1969 and Act No. 21 of 1974). According
to the Government, the FGST has issued an opinion on the possibility
of repealing section 49(c) of Legislative Decree No. 84 concerning the
right of the General Federation to dissolve the management committee
of any trade union.
Accordingly, the Committee once again requests the Government to
take the necessary measures in the very near future to remove from its
legislation the numerous references to the single trade union
federation designated in the law as the General Federation of Workers'
Unions (FGST) so as to enable workers who so wish to establish trade
union organisations of their own choosing outside the existing trade
union structure, in conformity with Article 2.
2. Restrictions on the trade union rights of non-Arab foreign
workers employed in the Syrian Arab Republic. Section 25 of
Legislative Decree No. 84 only entitles such workers to form or join
trade unions if they have been resident in Syria for one year and only
if there are reciprocal rights. The Committee recalls that the
guarantees set out in Article 2 of the Convention should apply to all
workers and employees, without distinction whatsoever, and asks the
Government to amend section 25 to bring the national legislation into
conformity with the Convention.
3. The broad powers of intervention of the authorities in trade
union finances. The Committee regrets that the opinion of the FGST
concerns only section 32 of Legislative Decree No. 84 (the need for
the prior consent of the FGST and the approval of the Ministry for the
acceptance of gifts, donations and legacies) and sections 36 of
Legislative Decree No. 84 and 12 of Legislative Decree No. 250 (the
obligation on unions to allocate a certain percentage of their income
to the higher trade union bodies), and that it gave no opinion on
section 35 of Legislative Decree No. 84 (financial supervision by the
Ministry at all levels of the trade union organisation).
The Committee stresses the need to bring the legislation into
line with Article 3 of the Convention which guarantees workers'
organisations the right to organise their administration without any
interference from the public authorities. The Committee has always
considered that supervision of union finances should not normally go
239
C.87 REPORT OF THE COMMITIEE OF EXPERTS
beyond a requirement for the periodic submission of financial reports,
and that if the administrative authority has a discretionary power to
inspect the books and other documents of organisations or to carry out
investigations and demand information at any time, there exists a
serious risk of interference in trade union affairs. The Committee
therefore asks the Government to repeal the provisions which enable
the Government to intervene in the financial administration of unions.
4. Requirement of six months in an occupation before being
eligible for trade union office (section 44 of Legislative Decree No.
84). The Committee considers that provisions of this nature may
prevent qualified persons, such as pensioners or full-time union
officers from carrying out union duties. It therefore requests the
Government to make its legislation more flexible by admitting as
candidates persons who have previously been employed in the occupation
concerned and by exempting from the occupational requirement a
reasonable proportion of the officers of organisations, so as to allow
the candidature of persons outside the profession.
5. Prohibition of strikes in the agricultural sector (section
160 of the Labour Code of 1958). The Committee notes that, according
to the Government, the draft amendment to the Act on the organisation
of agricultural relations contains a provision repealing section 160
which makes it unlawful for agricultural employers and tenant farmers
to suspend agricultural work on their land and for agricultural
workers to go on strike.
The Committee again stresses that it is most important that
legislation should not deprive trade union organisations of the right
to strike, as this is one of the essential means by which they may
promote and defend the occupational interests of their members.
The Committee asks the Government to indicate in its next report
the measures that have been taken to bring all its legislation into
conformity with the requirements of the Convention.
[The Government is asked to supply full particulars to the
Conference at its 79th Session.]
240
Document No. 177
ILC, 83rd Session, 1996, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, p. 151 (Jamaica)
International Labour Conference
83rd Session 1996
Report III
(Part 4A)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
Observations concerning ratified Conventions c. 87
The Committee notes the information provided by the Government in its report.
The Committee recalls that for several years its previous comments concerned the
necessity to amend sections 9 and 10, paragraphs I, 2, 4, 5 iind 8 of the Labom
Reiations and Industriai Disputes Act No. 14 of 1975, as amended in 1978, which
empower the Minister to submit an industrial dispute to compulsory arbitration and hence
to terminate any strike. The Committee has noted in the past that the list of essential
services contained in the legislation is too broadly defined and that the notion of a strike
which is liable seriously to jeopardize the interests of the nation can be interpreted very
mirlPlv
The Government indicates that the Labour Relations and Industrial Disputes Act is
being revised and that the right to strike is one of the key areas examined. The
Government adds that before deciding what sectors should be regarded as essential
services, it has to carefully examine the dependence on the economy of these services.
The Committee reiterates that the right to strike is one of the essential means which
should be available to workers and their organizations to promote and defend their
economic and social interests. The Minister of Labour should therefore only be able to
have recourse to the courts in the following circumstances: (1) in the event of strikes in
essential services in the strict sense of the term, namely those the interruption of which
would endanger the life, personal safety or health of the whole or part of the population;
or (2) in the event of total and prolonged stoppage of work which might constitute an
acute national crisis; or (3) at the request of the two parties concerned (see 1994
General Survey on freedom of association and collective bargaining. paragraphs 152,
154, 159 and 160).
The Committee urges the Government to provide information in its next report on
the outcome of the reviewing process of the Labour Relations and Industrial Disputes
Act and to indicate the measures taken to amend its legislation in order to bring it into
conformity with the principles of freedom of association.
The Committee is also addressing a request directly to the Government concerning
some other points.
Rep34A3. E55 151
Document No. 178
ILC, 109th Session, 2021, Report III/Addendum (Part A),
Report of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 91–99 (Belarus)
X Application of International
Labour Standards 2021
Report III /Addendum (Part A)
Addendum to the 2020 Report
of the Committee of Experts on the Application
of Conventions and Recommendations
International Labour Conference
109th Session, 2021
Freedom of association,
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Belarus
Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87) (ratification: 1956)
The Committee notes the observations of the International Trade Union Confederation (ITUC) and of
the Belarusian Congress of Democratic Trade Unions (BKDP) received on 16 and 30 September 2020,
respectively, and examined by the Committee below together with the Government’s reply thereon.
Follow-up to the recommendations of the Commission of Inquiry
appointed under article 26 of the Constitution of the ILO
Civil liberties and trade union rights. The Committee notes the ITUC and BKDP allegations of extreme
violence to repress peaceful protests and strikes, and detention, imprisonment and torture of workers
while in custody following the presidential election in August 2020. The Committee notes that in its report,
the Government indicates that the elections held in August 2020 were the most competitive and emotional
in terms of public perception and reaction in the history of the State. The Government further indicates
that following the vote counting, the political tensions that were fuelled from the outside resulted in a
series of protests and events that were organized and held in violation of current legislation and aimed at
destabilising the country. The Government points out that the exercise of rights and freedoms, including
freedom of assembly, meetings, street processions, demonstrations and picketing, must be peaceful,
respect the law of the land and not lead to violations of the law, the rights and legitimate interests of
others, and threaten public and national security. The Government further points out that protest actions
by some citizens to express their disagreement with the results of the presidential elections were purely
political in nature and were organized without regard to the legislation establishing the procedure for
their conduct and were not always peaceful. In the course of these actions, numerous offences were
recorded; these included acts of resistance to the legitimate demands of law enforcement officers,
associated with the manifestation of aggression, use of violence, damage to official transport, blocking
the movement of vehicles, damage to infrastructure facilities. The Government indicates that the majority
of persons referred to by the BKDP had been held administratively liable for organizing and/or actively
participating in illegal protests or calling for participation in such protests. The Government considers that
holding persons accountable for illegal acts cannot and should not be regarded as persecution of workers
and trade unionists for the exercise of their civil rights and freedoms, including the rights to participate in
sanctioned peaceful protests and lawful strikes. The status of a worker or trade union leader does not
create additional advantages or immunity.
The Committee observes the statement by the UN High Commissioner for Human Rights at the
Intersessional meeting of the Human Rights Council on the situation in Belarus on 4 December 2020, in
which she pointed out that the monitoring and analysis of demonstrations since 9 August 2020 indicate
that participants were overwhelmingly peaceful. The Committee expresses its deep concern over the
serious allegations submitted by the ITUC and BKDP and the continued deterioration of the situation of
human rights in the country, particularly with respect to the right of peaceful assembly, as noted by the
UN High Commission for Human Rights at the most recent above-mentioned meeting. The Committee
recalls that peaceful participation in strikes or demonstrations should not give rise to arrest or detention.
No one should be deprived of their freedom or be subject to penal sanctions for the mere fact of
organizing or participating in a peaceful strike or protest. The Commission recalls the International Labour
Conference (ILC) 1970 Resolution concerning trade union rights and their relation to civil liberties, which
emphasises that the rights conferred upon workers’ and employers’ organizations must be based on
respect for civil liberties, as their absence removes all meaning from the concept of trade union rights.
Among those liberties essential for the normal exercise of trade union rights are freedom of opinion and
expression, freedom of assembly, freedom from arbitrary arrest and detention and the right to a fair trial
by an independent and impartial tribunal. The Committee refers to Recommendation 8 of the Commission
of Inquiry on Belarus, which considered that adequate protection or even immunity against administrative
detention should be guaranteed to trade union officials in the performance of their duties or when
exercising their civil liberties (freedom of speech, freedom of assembly, etc.). The Committee urges the
Government to take all necessary measures to implement this recommendation of the Commission of
Inquiry, to prevent the occurrence of human rights violations and ensure full respect for workers’ rights
and freedoms. The Committee further urges the Government to take measures for the release of all of
trade unionists who remain in detention and the dropping of all charges related to participation in
peaceful protests and industrial actions. The Committee also requests the Government to supply copies
of the relevant court decisions upholding detention and imprisonment of workers and trade unionists
and to provide a list of the affected persons.
Regarding the reported cases of violent mistreatment of workers participating in such protests, the
Committee, deeply regretting that the Government provides no information in this regard, recalls that it
is the responsibility of the Government to ensure a climate free from violence, threat or pressure against
peacefully protesting workers. The Committee urges the Government to investigate without delay any
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
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alleged instances of intimidation or physical violence through an independent judicial inquiry, in order
to shed light on the facts and circumstances surrounding these acts, and to identify those responsible,
punish the guilty parties and thus prevent the repetition of similar events. The Committee requests the
Government to provide information on all measures taken to this end. Further in this respect, the
Committee, with reference to the recommendations of the Commission of Inquiry, stresses the need to
ensure impartial and independent judiciary and justice administration in general in order to guarantee
that investigations into these grave allegations are truly independent, neutral, objective and impartial.
The Committee recalls that it in its previous comment it noted that activities aimed at giving effect to
the recommendations of the Commission of Inquiry continued in the country in collaboration with the
ILO. In this respect, the Committee noted that a training course on international labour standards for
judges, lawyers and legal educators took place in Minsk in June 2017 and that a tripartite conference
“Tripartism and Social Dialogue in the World of Work” was held in Minsk on 27 February 2019. The
Committee recalls that it had previously noted that one of the outcomes of a tripartite activity on dispute
resolution held in 2016 was the common understanding of the need to continue working together towards
building a strong and efficient system of dispute resolution, which could handle labour disputes involving
individual, collective and trade union matters. The Committee noted with regret the BKDP’s indication that
the work on developing such a mechanism has been neglected completely. The Committee once again
requests the Government to provide its comments thereon and invites it to continue to take advantage
of ILO technical assistance in this regard.
Article 2 of the Convention. Right to establish workers’ organizations. The Committee recalls that in its
previous observations, it had urged the Government to consider, within the framework of the tripartite
Council for the Improvement of Legislation in the Social and Labour Sphere (hereinafter, tripartite
Council), the measures necessary to ensure that the matter of legal address ceases to be an obstacle to
the registration of trade unions in practice. The Committee recalls that it requested the Government to
provide its comments on the allegations of the BKDP and the ITUC of cases of refusal to register trade
union structures of the Free Trade Union of Belarus (SPB) and of the Belarusian Union of Radio and
Electronics Workers (REP union) in Orsha and Bobruisk. The Committee notes the Government’s indication
that the requirement to provide confirmation of legal address is not an obstacle to the registration of
trade unions and that there were no cases of refusal to register trade unions or (associations of trade
unions in 2019 and the first nine months of 2020. With regard to the refusal to register a REP primary
trade union in Bobruisk, the Government confirms that on 5 July 2019, the Bobruisk city executive
committee decided to refuse the registration of the primary trade union because its members were not
bound by common interests by virtue of the nature of their work as required by section 1 of the Law on
Trade Unions. The Government points out that the relevance and the validity of this requirement was
confirmed at a meeting of the tripartite Council of 30 April 2009. Thus, according to the Government, the
steps taken by the REP union to establish the so-called city primary organization, uniting citizens without
association with any organization, industry or profession, did not meet the requirements of the Law on
Trade Unions. Additional grounds for the decision to deny registration were the absence of a decision by
the authorized trade union body to create an organizational structure and other shortcomings in the
documents submitted for the registration. The decision of the Bobruisk city executive committee was not
appealed in court. The Committee notes that a similar explanation is provided by the Government
regarding the refusal to register a primary trade union in Orsha. The Government points out that a refusal
to register does not amount to a ban on the establishment of a trade union or its organizational structure
as once all of the shortcomings have been remedied, the documents for the state registration can be
resubmitted. The Committee recalls that it had previously taken note of the decision regarding the
requirement of section 1 of the Law on Trade Unions, agreed upon by all members of the tripartite
Council’s sitting of 30 April 2009.
Regarding the Committee’s previous request to discuss the issue of registration of trade unions by
the tripartite Council, the Committee notes the Government’s indication that the possibility of
implementing the Committee’s proposal may be considered when the tripartite Council resumes its work
once the epidemiological situation in the country has improved. The Government points out, however,
that the comments of the Committee of Experts are publicly available and that members of the tripartite
Council can freely consult them and, if they deem it necessary, put the consideration of the Committee’s
comments on the agenda of the tripartite Council. The Government reiterates that the agenda for
meetings is set on the basis of proposals from the parties and organizations represented on the Council,
taking into account the relevance of the issues raised, and with the agreement of the Council’s members.
To that end, the information should be submitted to the Council’s secretariat (the Ministry of Labour and
Social Protection) with an explanation as to why that particular issue is problematic and merits
consideration by the Council. The Government indicates that in 2016–20, there had been no submissions
for discussion of issues relating to the legal address requirement. The Committee expects the
Government, as a member of the tripartite Council, to submit the Committee’s comments on the issue of
registration for the Council’s consideration at one of its meetings as soon as possible. The Committee
requests the Government to inform it of the outcome of the discussion.
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The Committee observes with concern that during his televised meeting with the chairperson of the
Federation of Trade Unions of Belarus (FPB) President Lukashenko urged that trade unions be set up at
all private enterprises by the end of 2020 under the threat of liquidation of those private companies which
did not organize trade unions upon FPB demand. In his remarks, he underlined the State position
supporting the FPB trade unions. The Committee recalls that the principal objective of Convention No. 87
is to protect the autonomy and independence of workers’ and employers’ organizations in relation to the
public authorities, both in their establishment and in their functioning and dissolution (see the 2012
General Survey on the fundamental Conventions, paragraph 55). The Committee considers that the spirit
of Convention No. 87 calls for impartial treatment of all trade union organizations by the authorities, even
if they criticize the social or economic policies of national or regional executives, as well as avoidance of
reprisals for pursuing legitimate trade union activities. The issuance of a statement by a high public
authority that would favour one union over another or even use its authority to create unions within a
designated trade union federation undermines the right of workers to establish and join organisations of
their own choosing.
The Committee recalls that the 1952 ILC Resolution concerning the independence of the trade union
movement emphasizes that a stable, free and independent trade union movement is an essential
condition for good industrial relations and that it is essential for the trade union movement in each
country to preserve its freedom and independence so as to be in a position to carry forward its economic
and social mission irrespective of political changes. The Resolution recalls that governments, in seeking
the cooperation of trade unions to carry out their economic and social policies, should recognize that the
value of this cooperation rests to a large extent on the freedom and independence of the trade union
movement as an essential factor in promoting social advancement and should not attempt to transform
the trade union movement into an instrument for the pursuit of political aims, nor should they attempt to
interfere with the normal functions of a trade union movement.
The Committee urges the Government to refrain from showing favouritism towards any given trade
union and to put an immediate stop to the interference in the establishment of trade union
organizations. The Committee requests the Government to provide information on all measures taken to
that end.
Articles 3, 5 and 6. Right of workers’ organizations, including federations and confederations, to organize
their activities. Legislation. The Committee recalls that the Commission of Inquiry had requested the
Government to amend Presidential Decree No. 24 of 28 November 2003 on Receiving and Using Foreign
Gratuitous Aid. The Committee further recalls that it had considered that the amendments should be
directed at abolishing the sanctions imposed on trade unions (liquidation of an organization) for a single
violation of the Decree and at widening the scope of activities for which foreign financial assistance can
be used so as to include events organized by trade unions. The Committee recalls that Decree No. 24 had
been superseded by Presidential Decree No. 5 of 31 August 2015 on Foreign Gratuitous Aid and the
ensuing Regulations on the Procedures for the Receipt, Recording, Registration and Use of Foreign
Gratuitous Aid, the Monitoring of its Receipt and Intended Use, and the Registration of Humanitarian
Programmes. The Committee notes the Government’s indication that the national legislation does not
prohibit trade unions from receiving gratuitous foreign aid, including from international trade union
organizations. At the same time, the legislation defines the objectives and conditions for the use of foreign
gratuitous aid and stipulates that such aid must be registered in accordance with the established
procedure, which, according to the Government, is not complicated and rapid. The Government indicates
that Decree No. 5 has been replaced by Decree No. 3 of 25 May 2020. The Committee notes
with regret that just as previously under Decrees Nos 24 and 5, the foreign gratuitous aid cannot be used
to organize or hold assemblies, rallies, street marches, demonstrations, pickets or strikes, or to produce
or distribute campaign materials, hold seminars or carry out other forms of activities aimed at “political
and mass propaganda work among the population”, and that a single violation of the Regulation bears
the sanction of possible liquidation of the organization. The Committee notes the Government’s indication
in this respect that the ban on receiving and using foreign donations for purposes involving political and
mass propaganda work among the population is conditioned by the national security interests, the need
to exclude opportunities for destructive influence and pressure from external forces (foreign states,
international organizations and associations, foundations, etc.) aimed at destabilising the socio-political
and socio-economic situation in the country. The Government emphasizes that this procedure applies to
all legal entities, including trade unions, and further points out that there are no cases of trade unions
being denied foreign gratuitous aid and that there are no cases of trade unions being liquidated for
violation of the procedure for its use. Further in this respect, the Government considers that the issue of
procedure established for receiving foreign gratuitous aid is unjustifiably linked to Articles 5 and 6 of the
Convention.
While taking note of the above, the Committee observes that the broad expression “political and
mass propaganda work among the population” when applied to trade unions may hinder the exercise of
their rights as it is inevitable and sometimes normal for trade unions to take a stand on questions having
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political aspects that affect their socio-economic interests, as well as on purely economic or social
questions. As to the link with Articles 5 and 6 of the Convention, the Committee draws the Government’s
attention to paragraph 624 of the report of the Commission of Inquiry where it was observed that the
right recognized in these Articles “implies the right to benefit from the relations that may be established
with an international workers’ or employers’ organization. Legislation which prohibits the acceptance by
a national trade union or employers’ organization of financial assistance from an international workers’
or employers’ organization, unless approved by the Government, and provides for the banning of any
organization where there is evidence that it has received such assistance, is not in conformity with this
right. Although there were no specific allegations as to the practical application of [the] Decree, the
Commission reiterates the conclusions made by [the] supervisory bodies that the previous authorization
required for foreign gratuitous aid and the restricted use for such aid […] is incompatible with the right of
workers’ and employers’ organizations to organize their own activities and to benefit from assistance that
might be provided by international workers’ and employers’ organizations”.
Further in this connection, the Committee recalls that the Commission of Inquiry had requested the
Government to amend the Law on Mass Activities. The Committee recalls that under the Law, which
establishes a procedure for mass events, the application to hold an event must be made to the local
executive and administrative body. While the decision of that body can be appealed in court, the Law does
not set out clear grounds on which a request may be denied. A trade union that violates the procedure
for organizing and holding mass events may, in the case of serious damage or substantial harm to the
rights and legal interests of other citizens and organizations, be liquidated for a single violation. In this
context, “violation” includes a temporary cessation of organizational activity or the disruption of traffic,
death or physical injury to one or more individuals, or damage exceeding 10,000 times a value to be
established on the date of the event. The Committee had requested the Government to amend the
legislation, in particular by abolishing the sanctions imposed on trade unions or trade unionists for a
single violation of the Law and setting out clear grounds for the denial of requests to hold trade union
mass events, bearing in mind that any such restriction should be in conformity with freedom of association
principles.
In its previous observation, the Committee noted the Government’s indication that the Law on Mass
Activities was amended on 26 January 2019. The Government indicated that the revised Act sets out a
number of additional measures and requirements that need to be complied with by the organizers in
order to ensure the law and order and public safety during mass events. The Committee noted with deep
regret that the Law on Mass Activities was not amended along the lines of its previous requests. It also
noted with concern the BKDP’s allegation that the amendments to the Law were not discussed with the
social partners. The Committee also noted the BKDP’s indication that among the novelties in the Law is
the notification procedure for street action, which applies to mass events to be organized at “permanent
places” designated as such by local authorities. Thus, according to the BKDP, the format of an event is
imposed on the organizers, as rallies and pickets are possible in the squares designated as “permanent
places”, but processions and demonstrations are not. The Committee requested the Government to
provide its comments thereon.
The Committee notes the Government’s indication that because a violation of the procedure for
organizing and/or holding a mass event may entail a serious threat to public order, the national legislation
establishes certain liability, including liquidation of an organization for a single violation if the mass event
results in serious damage or substantial harm to the rights and legal interests of other citizens and
organizations. The Government points out that the above should not be interpreted as a deterrent to the
exercise by citizens and trade unions of their right to freedom of peaceful assembly. The Government
adds that the decision to terminate activities of an organization may only be taken by the Supreme Court.
The Government indicates that to date, there have been no decisions on the liquidation of trade unions
for violation of the procedure for organizing and conducting mass events.
With regard to the information provided by the BKDP that the introduction of notification procedures
for the organization and holding of mass events in permanent locations imposes on the organizers the
format of the event, the Government indicates that the organizers have the right to determine the format
of the planned event themselves. Thus, if the planned format allows the event to be held in one of the
specially designated permanent locations, the organizers may use the notification procedure, if not - the
organizers need to receive a permission to hold the mass event. The above is aimed not at restricting the
organizers in choosing the format of the event, but rather at eliminating excessive interference of state
bodies in the process and thus at creating additional guarantees for the realization by citizens of the right
to assembly. At the same time, certain restrictions on individual rights and freedoms are a means of legal
protection of public order and public safety, morality, public health and the rights and freedoms of other
persons. Thus, the Government considers that the legislation in force is in conformity with the principles
of freedom of association and freedom of assembly.
While taking note of the above, the Committee recalls that it had previously noted with regret the
adoption by the Council of Ministers (pursuant to the Law on Mass Activities) of the Regulation on the
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procedure of payment for services provided by the internal affairs authorities in respect of protection of
public order, expenses related to medical care and cleaning after holding a mass event (Ordinance No.
49, which entered into force on 26 January 2019). The Committee noted that according to the Regulation,
once a mass event is authorized, the organizer must conclude contracts with the relevant territory internal
affairs bodies, health services facilities and cleaning facilities regarding, respectively, protection of public
order, medical and cleaning services. The Regulation provides for the fees in relation to protection of
public services as follows: three base units – for an event with the participation of up to ten people; 25
base units – for an event with the participation of 11 to 100 people; 150 base units – for an event with the
participation of 101 to 1,000 people; 250 base units – for an event with the participation of more than
1,000 people. The Committee notes that the current base unit is set at BYN27 (US$11). If the event is to
take place in an area which is not a “permanent designated area,” the above fees are to be multiplied by
a coefficient of 1.5. In addition to the above fees, the Regulation provides for the expenses of the
specialized bodies (medical and cleaning services) that must be paid by the organizer of the event.
According to the Regulation, these shall include: salary of employees engaged in the provision of services
taking into account their category, number and time spent in the mass event; mandatory insurance
contributions; the cost of supplies and materials, including medicine, medical products, detergents;
indirect expenses of specialized bodies; taxes, fees, other obligatory payments to the republican and local
budgets provided by law. The Committee notes with deep regret that the Regulation was amended on 3
April 2020 by the Ordinance of the Council of Ministers No. 196 so as to provide that the above-mentioned
various contracts have to be concluded by an organizer prior to filing a request for authorization to hold
an event. The Committee notes with deep concern that according to the most recent observations of the
BKDP, the new amendment deprives trade unions of the possibility to carry out their public activities.
Reading these provisions alongside those forbidding the use of foreign gratuitous aid for the conduct
of mass events, the Committee considers that the capacity for carrying out mass actions would appear to
be extremely limited if not non-existent in practice. The Committee notes with regret that at this stage,
the Government considers it not advisable to change the existing procedure for receiving and using
foreign gratuitous aid. The Committee therefore once again urges the Government, in consultation with
the social partners, to amend the Law on Mass Activities and the accompanying Regulation in the very
near future and requests the Government to provide information on all measures taken in this respect
as soon as possible. The Committee recalls that the amendments should be directed at abolishing the
sanctions imposed on trade unions or trade unionists for a single violation of the respective legislation;
at setting out clear grounds for the denial of requests to hold trade union mass events, bearing in mind
that any such restriction should be in conformity with freedom of association principles; and at widening
the scope of activities for which foreign financial assistance can be used. Furthermore, considering that
the right to organize public meetings and demonstrations constitutes an important aspect of trade union
rights, the Committee requests the Government to take the necessary steps in order to repeal the
Ordinance of the Council of Ministers No. 49, as amended, which makes the exercise of this right nearly
impossible in practice. The Committee requests the Government to provide information on all measures
taken to that end and invites the Government to avail itself of ILO technical assistance in this respect.
Practice. The Committee recalls that it has been noting the allegations of repeated refusals to
authorize the BKDP, the BNP and the REP union to hold demonstrations and public meetings for a number
of years and in this respect, it had previously urged the Government, in working together with the abovementioned
organizations, to investigate all cases of refusals to authorize the holding of demonstrations
and meetings, and to bring to the attention of the relevant authorities the right of workers to participate
in peaceful demonstrations and meetings to defend their occupational interests. In this respect, the
Committee had noted that according to the Government, in 2016–19, the following were the most
common reasons to deny an authorization to hold a mass event: the application did not contain the
information required by the law; another mass event was being held in the same place at the same time;
the event was to take place in a location not allowed for such a purpose; the documents submitted did not
indicate the precise location of the event; and the event was announced in the mass media prior to
receiving authorization. The Government indicated that when a permission to hold a mass event was not
granted, the organizers, having rectified the shortcomings, could re-submit their application. Finally, a
decision prohibiting the holding of a mass event may be appealed in court. The Government referred to
several examples where the permission to hold such events was granted to the BKDP. While taking note
of this information, the Committee noted the 2019 BKDP’s allegations that executive authorities in Minsk,
Mogilev, Vitebsk, Zhlobin, Borisov, Gomel, Brest and Novopolotsk refused to grant a permission to hold
mass events and requested the Government to provide its detailed comments thereon. The Committee
notes the Government’s indication that the decision to allow or prohibit a mass event is made taking into
account the date, place, time, number of participants, weather conditions and a number of other
circumstances directly affecting public order and safety and that both the rights of citizens to freedom of
association and freedom of assembly and the principle of the priority of the public interest, according to
which, the exercise of rights should not undermine public benefit and safety, damage the environment,
historical and cultural values, and infringe on the rights and interests of other persons, are taken into
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
96
account. The Committee further notes the detailed information provided by the Government in reply to
the 2019 BKDP allegations. The Committee notes, in particular, that with the exception of one case where
a permission to hold a mass event was granted, others were denied on account of the following: the event
was to take place in a location not allowed for such a purpose; the failure to provide information on the
source of funding and information on contracts for medical care and cleaning of the territory; the
application did not contain the information required by the law; and another mass event was being held
in the same place at the same time. The Committee observes from the information provided by the
Government that it would indeed appear that the application of the legislation in practice hinders the right
of workers to carry out their activities without interference. In view of the continuing difficulties
experienced by the BKDP unions, the Committee urges the Government to engage with the social
partners, including in the framework of the tripartite Council, with a view to addressing and finding
practical solutions to the concerns raised by the unions in respect of organizing and holding mass events.
The Committee requests the Government to provide information on concrete steps taken in this respect
and the outcome of such discussions. The Committee further requests the Government to provide
statistical information on the requests submitted and permissions granted and denied, segregated by
the trade union centre affiliation.
The Committee recalls the 2019 BKDP and ITUC allegations regarding the cases of Messrs Fedynich
and Komlik, leaders of the REP union, found guilty, in 2018, of tax evasion and use of foreign funds without
officially registering them with the authorities as per the legislation in force. They were sentenced to four
years of suspended imprisonment, restriction of movement, a ban on holding senior positions for five
years and a fine of BYN47,560 (over US$22,500 at that time). The Committee noted that the particulars of
these cases were being considered by the Committee on Freedom of Association in the framework of its
examination of the measures taken by the Government to implement the recommendations of the
Commission of Inquiry. In this connection, the Committee also noted the BKDP allegation that the
equipment seized during searches in the REP union and BNP premises had not been returned and
requested the Government to provide information thereon.
The Committee notes the Government’s indication that according to the Investigative Committee,
computer equipment, mobile phones and other equipment seized during searches of the REP union and
BNP administrative premises were returned to their official representatives in October 2019, except for
the hard drives and flash drives containing information on financial and economic transactions of these
organizations. The data storage devices have not been returned and are kept together with the
corresponding material in the criminal case of tax evasion by the leaders of the REP union Messrs Fedynich
and Komlik. The Government indicates that the information contained therein will be used to conduct
further investigations into possible similar crimes committed by these persons in the period from 2012 to
2018 with the assistance of the BNP employees. In this connection, the Minsk City Investigation Committee
Department has appointed an additional tax audit of the REP union, which is yet to be initiated. Upon the
completion of the tax audit, the leading criminal authority will take a decision on the future fate of the
seized information storage devices. While noting this information, the Committee observes that the data
contained in the storage devices could have been copied and returned to the union thereby avoiding the
situation where a union is deprived of administrative and financial information necessary for the conduct
of its activities. The Committee requests the Government to provide information on the outcome of a new
investigation.
Right to strike. The Committee recalls that it had been requesting the Government for a number of
years to amend the following sections of the Labour Code as regards the exercise of the right to strike:
sections 388(3) and 393, so as to ensure that no legislative limitations can be imposed on the peaceful
exercise of the right to strike in the interest of rights and freedoms of other persons (except for cases of
acute national crisis, or for public servants exercising authority in the name of the state, or essential
services in the strict sense of the term, i.e. only those, the interruption of which, would endanger the life,
personal safety or health of the whole or part of the population); 388(4) so as to ensure that national
workers’ organizations may receive assistance, including financial assistance, from international workers’
organizations, even when the purpose is to assist in the exercise of freely chosen industrial action; 390,
by repealing the requirement of the notification of strike duration; and 392, so as to ensure that the final
determination concerning the minimum service to be provided in the event of disagreement between the
parties is made by an independent body and to further ensure that minimum services are not required in
all undertakings but only in essential services, public services of fundamental importance, situations in
which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal
conditions of existence of the population, or to ensure the safe operation of necessary facilities.
The Committee notes the Government’s indication that the right to strike is not expressly provided
for in the Instrument of the ILO; rather, the ILO supervisory bodies derive the right to strike from Article 3
of Convention No. 87, despite the fact that the legality of this interpretation has been questioned by the
Employers’ Group on several occasions and that under Article 37 of the ILO Constitution, any question or
dispute concerning the interpretation of conventions shall be referred to the International Court of Justice,
Freedom of association,
collective bargaining, and
industrial relations
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
97
the only body which has the right to interpret Conventions. The Committee further notes that the
Government refers to the national constitutional and legislative provisions enshrining the right to strike.
It further notes the Government’s indication that the exercise of the right to strike requires the existence
of a collective labour dispute and that national legislation does not provide for the possibility of organizing
and holding political strikes. The law may impose restrictions on the exercise of the right to strike to the
extent necessary in the interests of the national security, public order, public health and the rights and
freedoms of others. The Government points out that pursuant to section 393 of the Labour Code, in the
event of a real threat to national security, public order, public health, the rights and freedoms of other
persons and in other cases provided for by law, the President of the Republic of Belarus has the right to
postpone or suspend a strike, but not for more than three months. The Government further points out
that legal provisions containing certain restrictions or conditions on the exercise of the right to strike are
due to the very nature of the right. According to the Government, the right to strike is fundamentally
different from other human rights due to a number of specific following features: it is not an end in itself,
but a tool to achieve an end, a way to protect the interests of workers; the right to strike is not inherent
and inalienable as it may be restricted; it must be balanced with the rights of other human rights when
the health and safety of others are affected or essential services are impacted; and while it is an individual
right, the possibility of its realization depends on the agreement of other parties. For the reasons
expressed above, the Government disagrees with the calls of the Committee for the amendment of the
legislation, in particular as regards section 388(4) of the Labour Code.
At the outset and in reply to the Government’s general remarks, the Committee recalls that its
opinions and recommendations derive their persuasive value from the legitimacy and rationality of the
Committee’s work based on its impartiality, experience and expertise. The Committee’s technical role and
moral authority is well recognized, particularly as it has been engaged in its supervisory task for more
than 90 years, by virtue of its composition, independence and its working methods built on continuing
dialogue with governments taking into account information provided by employers’ and workers’
organizations. This has been reflected in the incorporation of the Committee’s opinions and
recommendations in national legislation, international instruments and court decisions. It is within this
mandate that it has been dealing with the questions pertaining to the right to strike.
The Committee requests the Government to take measures to revise the above-mentioned
legislative provisions, which negatively affect the right of workers’ organizations to organize their
activities in full freedom, in consultation with the social partners, and to provide information on all
measures taken or envisaged to that end.
The Committee recalls that it had previously requested the Government to provide its reply to the
BKDP allegations of violation of the right to strike in practice. The Committee notes the Government’s
indication that a strike is a measure of last resort to which workers represented by a trade union have the
right to resort if all other constructive ways of resolving a collective labour dispute (conciliation, mediation
and arbitration) have been exhausted. The Government points out that the need to comply with the
procedure for resolving collective labour disputes should not be considered as a practice contradicting
provisions of the Convention regarding the right of workers’ organizations to freely exercise their
activities. The Committee notes with regret that while the Government confirms that the decision by
members of the SPB at an enterprise in Polotsk to call a rolling strike from 1 November to 31 December
2017 was declared illegal by the court, it does not indicate the reasons therefor.
The Committee notes with concern detailed allegations of numerous cases of arrests, detention of
and fines imposed on trade unionists for having organized and participated in strikes following the August
2020 events. The Committee notes the Government’s indication that attempts to organize strikes at
various enterprises were in no way connected with the resolution of collective labour disputes, as per the
requirement set by the Labour Code; rather the purpose of these protests was to draw public attention to
the civil position and political demands of some employees against the country’s leadership, without due
regard to the interests of other members of the workforce who do not share the same political views, as
well as the economic interests of enterprises and of the State. The Committee notes that pursuant to the
definition of the word “strike” set out in section 388 (1) of the Labour Code, as referred to by the
Government, strikes are permitted only in relation to a collective labour dispute. The Committee considers
that strikes relating to the Government’s economic and social policies, including general strikes, are
legitimate and therefore should not be regarded as purely political strikes, which are not covered by the
principles of the Convention. In its view, trade unions and employers’ organizations responsible for
defending socio-economic and occupational interests should be able to use, respectively, strike action or
protest action to support their position in the search for solutions to problems posed by major social and
economic policy trends which have a direct impact on their members. Moreover, noting that a democratic
system is fundamental for the free exercise of trade union rights, the Committee considers that, in a
situation in which they deem that they do not enjoy the fundamental liberties necessary to fulfil their
mission, trade unions and employers’ organizations would be justified in calling for the recognition and
exercise of these liberties and that such peaceful claims should be considered as lying within the
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
98
framework of legitimate trade union activities, including in cases when such organizations have recourse
to strikes (see the 2012 General Survey on the fundamental Conventions, paragraph 124). The Committee
therefore further requests the Government to amend section 388(1) of the Labour Code, in consultation
with the social partners, to ensure that workers can exercise their right to strike to defend their
occupational and economic interests, which do not only concern better working conditions or collective
claims of an occupational nature, but also the seeking of solutions to economic and social policy
questions. The Committee requests the Government to indicate all measures taken or envisaged to that
end.
Consultations with the organizations of workers and employers. The Committee recalls that in its
previous comment it had noted that the BKDP alleged lack of consultations in respect of the adoption of
new pieces of legislation affecting rights and interest of workers. The Committee notes in this respect the
Government’s indication that the development of draft legislation regulating social and labour issues is
carried out with the direct involvement of the social partners. The obligation to consult the social partners
and the procedure therefor are reflected in the tripartite General Agreement for 2019-21. In addition, and
as a follow-up to the Law “On Normative Legal Acts“, a Regulation on the Procedure for Public Discussion
of Draft Normative Legal Acts was approved by the Council of Ministers on 28 January 2019. The Regulation
describes the procedures and means of public consultation with regard to legislative drafts. Furthermore,
pursuant to Regulation of the Council of Ministers No. 193 of 14 February 2009, draft legislation affecting
labour and socio-economic rights and interests of citizens is submitted to the FPB as the most
representative organization of workers for possible comments and/or proposals. In addition, both the FPB
and the BKDP are represented in the National Council on Labour and Social Issues (NCLSI), as well as in
the tripartite Council. Both tripartite advisory bodies have certain functions with regard to draft legislation
affecting social and labour issues. The Government indicates that it had consulted with trade unions and
employers’ organizations with regard to the amendments to the Labour Code and that discussions in this
regard were held at meetings of the NCLSI held on 28 June 2018 and 31 May 2019.
While taking note of this information, the Committee understands that the FPB, as an organization
with a higher overall number of members, has preferential rights in the processes of consultation on
legislation affecting rights and interest of workers. The Committee considers that both the number of
members and independence from the authorities and employers’ organizations are essential elements
for consideration in determining the representativeness of an organization. In light of the above-noted
publicly expressed support by the State authorities at the highest level for the FPB, the Committee is
bound to reiterate its previous comments made in 2007, which recalled the importance of ensuring an
atmosphere in which trade union organizations, whether within or outside the traditional structure, are
able to flourish in the country before establishing the notion of representativeness. The Committee
therefore requests the Government to ensure that the BKDP and the FPB, as members of both the NCLSI
and the tripartite Council, enjoy equal rights in consultations during the preparation of legislation and
to that end to take the necessary measures to amend Regulation of the Council of Ministers No. 193. The
Committee requests the Government to provide information on all steps taken in this regard. The
Committee further once again requests the Government to take the necessary measures in order to
further strengthen the role of the tripartite Council for the Improvement of Legislation in the Social and
Labour Sphere, which should, as its title indicates, serve as a platform where consultations on the
legislation affecting rights and interests of the social partners can take place.
Further in this respect, the Committee notes the Government’s indication that the tripartite Council
was set up with the advice of the ILO to consider issues related to the implementation of the
recommendations of the Commission of Inquiry as well as other issues that may arise between the
Government and its social partners, including the consideration of complaints received from trade unions.
The Committee welcomes the Government’s expressed readiness to either work to further improve the
Council’s function or to create another structure. The Committee also notes that the Government also
expresses its concern over the issue of representation at the Council and the willingness of the parties to
accept the decisions that will be made within this tripartite body. The Government indicates, in particular,
that in its experience, representatives of the BKDP are not prepared to support Council’s decisions that
differ from the BKDP predetermined position or declare that they do not have the necessary authority to
adopt a position of the Council. The Government indicates that it would like to count on the advice of the
Office in this respect once the Council resumes its work, which has been temporarily suspended due to
the epidemiological situation caused by the widespread of COVID-19. Taking all the above into account,
the Committee expects that the Government will fully engage with the social partners, the ILO, as well
as relevant national institutions and bodies, with a view to improving the functioning, procedures and
the work of the tripartite Council aimed at enhancing its impact in addressing the issues stemming from
the recommendations of the Commission of Inquiry and other ILO supervisory bodies.
The Committee considers that the current situation in Belarus remains far from ensuring full respect
for freedom of association and the application of the provisions of the Convention. The Committee regrets
to observe that the recent developments as examined above appear to indicate steps backward on some
Freedom of association,
collective bargaining, and
industrial relations
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
99
of the previously achieved progress in implementing the Commission of Inquiry’s recommendations. The
Committee therefore urges the Government to pursue its efforts and expects that the Government, with
the assistance of the ILO and in consultation with the social partners, will take the necessary steps to
fully implement all outstanding recommendations without further delay.
In light of the situation described, the Committee is obliged to note that there has been no
meaningful progress towards full implementation of the 2004 Commission of Inquiry recommendations,
and notes with concern that the recent developments referred to in detail above would appear to indicate
a retreat on the part of the Government from its obligations under the Convention.
[The Government is asked to supply full particulars to the Conference at its 109th Session and to
reply in full to the present comments in 2021.]
Document No. 179
ILC, 59th Session, 1974, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, p. 141 (Guatemala)
International Labour Conference
59th Session 1974
Report III
(Part 4 A)
Third Item on the Agenda:
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
Volume A :
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
Guatemala (ratification : 1952)
Further to its earlier observation, the Committee notes the statements made to the
Conference Committee in 1973 and the information contained in the Government's
latest report, to the effect that a special Labour Commission, established on a
tripartite basis in September 1973, has begun its task of preparing amendments to the
Labour Code.
The Committee trusts that the task of revising the legislation will be completed in
the near future and that account will be taken of its earlier comments, more
particularly as regards section 222 (a) of the Labour Code (prohibiting the reelection
of trade union leaders), section 211 (a) and (b) (supervision of unions by the
Government), section 226 (a) (dissolution of unions which have intervened in
matters of electoral or party policy) and section 211 (c) (prohibition of the
establishment of minority unions in undertakings).
As regards the point raised in its earlier observation concerning the trade union
rights of workers employed directly or indirectly by the State, who are excluded from
the scope of the Labour Code and the Civil Service Act, the Committee feels obliged
to remind the Government that it would be desirable to adopt provisions specifically
granting to such workers the rights prescribed by the Convention.
The Committee further wishes to refer to its previous comments concerning
Decree No. 1786 of 1968, which, in the case of collective economic demands,
prohibits recourse to strikes or to arbitration by workers in independent or semiindependent
government undertakings, the economic activities of which are similar to
those of private undertakings. The Committee must once again point out that this
provision constitutes a serious limitation on the possibilities of action and the
activities of the trade unions in question. It would remind the Government that the
Committee on Freedom of Association has indicated that the prohibition of strikes
might be permissible in strictly essential services, the interruption of which would be
harmful to the public interest. In such a case, it is important that adequate guarantees
are given to the workers concerned so that their interests will be safeguarded by
appropriate conciliation and arbitration procedures which are both impartial and
rapid, and in which those concerned can take part at every stage. The Committee
trusts that these considerations will be borne in mind when the legislation is being
revised.
With regard to its earlier comments concerning section 63 of the Civil Service Act,
which permits public officials freely to form associations to defend their professional
interests, but which is not governed by any regulations for its application, the
Committee notes that the National Civil Service Office has been consulted. It would
again express the hope that the Government will, in the very near future, take the
necessary steps to implement fully the freedom of association of public officials in
accordance with the provisions of the Convention.
Finally, the Committee feels obliged once again to ask the Government to state
whether Decree No. 31-71, which governed trade union activities during the state of
emergency, has been repealed.1
Honduras (ratification : 1956)
The Committee notes the Government's report, which arrived too late to be
examined in 1973, and the statement made by a Government representative to the
1 The Government is asked to supply full particulars to the Conference at its 59th Session.
141
Document No. 180
ILC, 67th Session, 1981, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, p. 99 (United Republic of
Cameroon)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
C.87
United_Pe£ublic_of_Camero on (ratification: 19 62)
With reference to its earlier direct reguests, the Committee
no tes the i nformation supplied by the Government in its report.
1. he Committee has made comments on section 4, subsection 2,
of Order o. 24/MTLS/DEGFE of 27 May 1969, which excludes the
possibility of more than one trade union for a given branch of activity
in a given central organisation. The committee has considered that
this provision constitutes a restriction conflicting with Article 2 of
the Convention.
The Government offers nothing new on this point. The committee
therefore reguests it to provide information on any development on this
matter.
2. Tbe committee has pointed out that strikes may be
prohibited by the administrative authorities in services and
undertakings considered to come under a vital sector of economic,
social or cultural activity (section 165(3) of the Labour Code and
section 2 of Decree No . 74/969 of 3 December 1974). The committee
notes the statement of the Government that the notion of the
"undertaking considered particularly important for the economic and
social development of the country" (section 2 of the Decree) is to be
understood in a rather wide vay because, as Cameroon is a developing
country, the normal operation of most of its undertakings is
indispensable to its economic and social survival.
The co■nLttee appreciates the explanations of the Government but
it considers that the prohibition of strikes in sectors so broadly
defined places a clear restriction on the possibilities of trade unions
to further and defend the interests of their members (Article 10 of the
Convention) and on the right of trade unions to organise their
activities (Article 3).
The conmittee reguests the Government to take the appropriate
measures in this matter.
99
Document No. 181
ILC, 67th Session, 1981, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 103-104 (Dominican
Republic)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
CBSERVATICN CNCE?NING A::F!ED CCNVENT:ors C.87
Q!2.!inis,an Republis, (ratif ication: 1956)
The coamittee takes note of the report of the Government. In
particular, it notes that the Secretary of State for Labour has
prepared various advance drafts of r esolutions to repeal Fesolution No.
15/64 (which requires a minimum number of organisations for the
for■ation of a federation or confederation) and ?esolution No. 13/74
(concerning the presence of an inspector from the Department of Labour
at certain trade union meetings), and also an advance draft to bring
all agricultural workers within the scope of the Labour Code, since,
under the present section 265, the Labour Code does not apply to
agricultural, agro-indus trial, stock-raising or forestry undertakings
that continuously and permanently employ no more than ten workers.
The Committee has pointed out that the Labour Code authorises
strikes only within very narrow limits (sections 373, 37U and 3 77 and
the provisions concerning the arbitration procedure). In its report
the Government again expresses its intention of revising the
legislation on this point.
concerning the right to strike, the co1nittee also observes that
section 370 of the Labour Code prohibits strikes in "public services of
permanent utility" and that section 371 lists some of these services,
extending the appellation to similar services. The Committee considers
that the prohibition of strikes is admissible only in essential
services in the strict sense, namely those whose interruption night
endanger the existence or well-being of the whole or part of the
population. Some of the services mentioned in section 371, however, do
not seem to belong to the class of essential services strictly
speaking. The committee therefore invites the Government to re-examine
the list in question with a view to limiting it to services which are
really essential.
The coanittee notes that the National Ad■inistration and
Personnel Office (ONAP) is studying the new conditions of employment
for the public service and that the observations of the committee
concerning civil servants and other workers in the service of the
public authorities have been trans■itted to it. With reference to the
legis lation in force, the con■ittee has already made the following
observations: civil servants and other workers e■ployed by the public
authorities are, with some exceptions, excluded from the labour
legislation (section 3 of the Labour Code and Act No. 2C59 of 19 July
1949) and are therefore deprived of the guarantees provided for
concerning freedoa of association. Furthermore, Act No. 56 of 24
Nove■ber 1965 prevents all trade union propaganda and proselytism
within public and municipal adainistrations or autono■ous institutions
of the State. Finally, although public servants have the right of
association under Act No. 520 (regarding non-profit-making
associations), this Act contains provisions whose application could be
contrary to the Convention (section 13, for exaaple, refers to the
dissolution of an association by the executive authority).
103
c. 87 PEPOPT OF THE col!TEE OP EXPERTS
-------------------------
The committee trusts that the resolutions repealing esolutions
No. 15/64 and No. 13/74 will be adopted shortly and also the necessary
provisions to amend the legislation in accordance with its comments.
The Committee asks the Government to inform it of any chang e in this
connection.
104
Document No. 182
ILC, 67th Session, 1981, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, p. 110 (Jamaica)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
C.87 PEPOPT OF THE COMMITTEE OF EXPEPTS
--------------------------------------------
g!g!£2 (ratification: 1962)
?e ferring to its previous comments, the Committee notes the
information communicated by the Government in its last report that the
provisions of the Labour elations and ,ndustrial Disputes Act are
under r eview. The Committee hopes that the proposed re-examination of
these provisions wil l take into account the committee 's previous
comments concerning the list of essential services which is too wide in
scope to be considered compatible with the convention, as it permits
strikes to be stopped in a wide range of activities, such as the
banking services, transport, loading and nloading of ships, oil
refining, etc. The Committee recalls that the l i st of essential
services should be limited to those services whose interruption might
endanger the existence or wellbeing of the whole or part of the
population.
The Commi ttee has already referred to the Labour Felations and
Industrial Disputes Act, 1978, as amended, which grants the Minister
the right, at his own initiative, to refer to the Tribunal an industrial
dispute for comp ulsory arbitration to "safeguard the national
interest" (section 15(iii)). The Government indicates that this
procedure is resorted to within the framework of the restrictions
imposed by the Pay Guidelines of 1 978, which in the Committee's view,
appears tantamount to a system of compulsory arbitration. Such a
procedure should be confined to essential services only in the strict
sense of the term. The Committee therefore reguests the Government to
re-examine its legislation with a view to bringing it into conformity
with the Convention and to provide any information on steps taken to
ensure its application.
110
Document No. 183
ILC, 67th Session, 1981, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 111-112 (Liberia)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
C.87
bigIis (ratification: 1962)
With reference to its previous observations, the committee takes
note of the statements made by the Government representative to the
Conference Committee in 1980 and of the information provided by the
Government in its last report.
Ei.91!.! _ !a!!ise of state employees. The Committee has already
noted that the national legislation does not recognise the right to
organise of state employees. :t has also noted that the draft Labour
Bill that has been under preparation for several years guarantees this
right to the employees of public undertakings but excludes the
employee s of the Government (section 1(1) (h) and section 1(2)).
A Government representative at the conference committee stated in
this connection that under Convention No. 98 it was possible to exclude
111
C.87 FEPOPT OF THE COMMITTEE OF EXPEPTS
public servants engaged in the administration of the State from the
rights and guarantees provided for by the Convention in respect of
collective bargaining and that convention No. 87 should be read in
conjunction with Convention No. 98. The Committee is bound to point
out that convention No. 87 provides expressly that all workers without
distinction whatsoever (including employees of the State) shall have
the right to establish organisations for furthering and defending the
interests of their me■bers. The legislation should therefore recognise
the right to organise of all state e mployees.
YI!ision of trade uni2.!L_filll21.l.Le Labour Practices
Feview Board. The Committee observes that the Bill no longer contains
restrictive provisions in this field and that it thus ensures fuller
application of the Convention on this point.
Ri£h!_2ficultural workers to organise jointly wit_iilgY§!ris!
l@rkers. The Co■mittee has already noted that section 4601-A of the
Labour Practices Act prohibits an industrial labour organisation from
exercising any privilege or function for agricultural workers. It has
pointed out that this restriction could bring about an impediment to
the development of trade union organisations among agricultural
workers, since it prohibits both the joint membership by agricultural
and industrial workers in the same union and the joint membership by
industrial and agricultural workers• unions of the same national trade
union centre. The Committee notes with interest from the statement of
a Government representative to the conference that trade unions may
organise in all sectors, including the agricultural sector. The
Committee nevertheless hopes that the proposed Bill will explicitly
repeal section 4601-A.
A bolition_of_the_right_to_strike. The committee takes note of
Decree No. 12 of 30 June 1980 abolishing strikes and declaring that all
labour disputes shall be handled exclusively by the Minister of Labour,
Youth and Sports. 7he Committee points out that a prohibition of
strikes in all the economic activities of the country constitutes a
considerable limitation of the possibilities of action of trade union
organisations and that such a limitation is not compatible with the
principles of -freedom of association generally admitted. The committee
asks the Government to consider taking measures to bring the
legislation into confor■ity with the Convention.
The Committee also hopes that the Bill, w hich has been under
study for several years, will take account of its comments and will be
adopted in the near future. a
1 The Government is asked to supply full particulars to the
C onferen ce at its 67th Session and to report in detail for the period
ending 3C June 1981.
112
Document No. 184
ILC, 67th Session, 1981, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 119-121 (Philippines)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
C.87
Philippines (ratification: 1953)
The c ommittee h as taken note of the Government's detailed replies
to the committee's observation in reports received in June 1979 and
C'ctober 1980 .•
1. !t notes with satisfaction the promulgation of Act No. 386,
of 1 May 1 980• extending the right to organise for purposes of
collective bargaining to persons employed in non-profit, religious,
charitable, medical, or educational institutions. In addition, the
Committee notes with interest that under the same legislation ambulant,
intermittent and itinerant workers, self-employed people, rural workers
and those without any definite employers may form labour organisations
for the purpose of enhancing and defending their interests and for
their mutual aid and protection (section 244).
2. In its previous observation, the committee had expressed
the view that the legal provisions in force concerning the right to
strike (Presidential Decree No. 823, amended by L etter of Instruction
368, Presidential Decree No. 849, section 264 of the Code, etc.) make
it possible to submit any conflict to compulsory arbitration and could
be so applied in practice as to result in a general abolition of the
right to strie, which would considerably restrict the right of unions
to organis e their activities (Article 3 of the Convention). The
Committee notes the Government's reply according to which a notice of
strike or an actual strike is only referred to compulsory arbitration
in the interests of n ational security or public safety, public order,
the protection of p ublic health or morals, or the protection of the
rights to freedo of others. It further notes from statistics provided
by the Government that, in 1979, out of 265 strike notices filed and 39
actual strikes, only 33 and 5 cases, respectively , were certified for
compulsory arbitration. The Committee would be grateful if the
Government would continue to provide statistics of this kind in its
future reports.
3. The Committee had further noted that the industries which
are regarded by the Government as vital and in which strikes are
therefore prohibited are defined very broadly by the provisions in
force given that this definition covers mos·t . of the economic
activities. The Committee had cons idered that the prohibition of
strikes should be confined to services that are essential in the strict
sense of the term.
The Coanittee recalls in this regard that the Government, in its
report for the period ending 30 June 1978, had indicated that the list
of vital industries contained in Letter of Instruction No. 368 of 1976
was to be reviewed with a view to limiting the list and that a
tripartite conference was to be convened to consider the matter. The
committee notes that the Government's last report contains no
119
C. 87 EEPCPT OF THE COMMITTEE OF EXPEETS
information on this matter. It hopes that the review in question will
soon be completed and will result in a revised list restricted to
essential services in the strict sense of the term, that is, services
whose interruption would endanger the existence or the well-being of
the whole or part of the population.
4. In its earlier comments the Committee had considered that
section 23U(c) of the Labor Code, as amended, under which a union can
be registered only if it includes at least 50 per cent of the workers
of a bargaining unit, section 237(a) which stipulates that if a
federation is to be registered, it must comprise at least ten unions of
the same region and the same industry, and section 238 which precludes
more than one federation or national union per any one industry in any
area or region were incompatible with Articles 2 and 6 of the
Convention which provide that workers shall have the right to establish
organisations of their own choosing, on the sole condition that they
conform to the rules of the organisation concerned, with Article 7
which provides that the acquisition of legal personality by these
organisations shall not be made subject to conditions of such a
character as to restrict the application of the principles of the
Convention, and with Article 5 which provides that workers' and
employers" organisations shall have the right to establish and join
federations and confederations. Hhilst noting from the Government's
last report that, since 1975, 627 new unions have been registered and
that there is practically no record of any complaint citing these
requirements as restrictive, the Committee nevertheless wishes to
recall the Government's earlier statement that the above-mentioned
requirements only constituted transitory measures. The Committee
accordingly hopes that measures will be taken at an early date to
revise the provisions in question so as to ensure conformity with the
above-mentioned Articles of the Convention.
5. The Committee notes that section 270 of the Labor Code
precludes all aliens from engaging directly or indirectly in any form
of trade union activity. It hopes that the Government will review the
provision in question, in the light of Article 2 of the Convention
which provides for the right of workers and employers, without
distinction whatsoever, to establish and join organisations of their
own choosing.
6. The Committee further notes that, under section 271 of the
Labor Code, no foreign organisation or entity nay give any donations,
grants or other forms of assistance to any labour organisation or group
of workers in the country without prior permission by the Secretary of
Labor. The Committee considers a provision of this nature to be such
as to deprive the workers of an important benefit that may flow from
their right to affiliate with international organisations of workers,
as laid down in Article 5 of the Convention. It accordingly requests
the Government to reconsider the need for a provision of this kind.
7. Further to its previous comments on certain provisions of
the Labor Code relating to administrative decisions concerning the
registration of a trade union (sections 231, 235, 239 and 2U0), and the
removal from office of a trade union officer (section 212), the
Committee has noted from the report of the Government that an appeal
lodged with the Supreme Court against an administrative decision
refusing or cancelling registration or removing a trade union officer
from office has a suspensive effect. Since such a practice is already
established, the Committee expresses the hope that the Government will
adopt specific provisions regarding the right of appeal of both
cancelled trade unions, as well as of dismissed trade union officers.
The Committee would also ask the Government to indicate whether, during
the reporting period, any such appeals had been resolved through
decisions of the Supreme Court.
120
OBSERVATIONS CONCERNING RATIFIED CONVENTICNS C.87
8. With regard to the powers of inquiry conferred on the
Secretary of Labor in respect of.the finan cial management of trade
unio n s (section 275 of the code), the committee notes that the policy
of the· Ministry of Labor was· to limit itself to inquiry during the
presentation of the complaints. However, the Committee would ask the
Government to consider, during a next revision of the legislation,
modifying the texts in question so as to limit inquiries of the
Secretary of Labor to exceptional cases, for instance to cases of
presumed irregularity, or to complaints submitted by members of a trade
union.
9. The committee has noted the Government's reply to its
earlier comme nts concerning the right to organise of m anagerial staff
and the status of security staff. I
1 The Government is asked to report in detail for the period ending
30 June 1981.
121
Document No. 185
ILC, 71st Session, 1985, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 127-128 (Cameroon)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
OBSERVATIONS CONCERN IN G RATIFIED CONVENTIONS c. 87
Cameroon (ratification: 1962)
The Committee notes that the Government's report has not been
rece ived. It must therefore repeat its previous observation which
read as follows:
The Committee takes note of the information supplied by the
Government to the Conference Committee in 1981 and that contained
in the latest report. The Government states that section 4(2) of
Order N o. 24/MTLS/DEGRE of 1969, which excludes the possibility
of more than one trade union for the same branch of activity in a
given central organisation, is due to a concern for the rational
organisation of trade unions and does not in any manner prejudice
the furthering and defending of the interests of members. The
Committee points out that a provision of this kind restricts the
right of workers, without distinction whatsoever, to establish
and join organisations of their own choosing (Article 2 of the
Convention).
The Committee further notes the Government's statement that
it is impossible to establish an exhaustive list of
administration s, services or sectors of the economy in which the
exercise of the right 'to strike may be prohibited by the
administrative authorities under section 165(3) of the Labour
127
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
Code and section 2 of Decree No. 74/969 of 1974, that is to say
the services and undertakings considered to come within a vital
sector of economic, social or cultural activity. The Committee
points out that in certain sectors, such as the public service
and essential services, a prohibition may be applied, subject to
the provision of adequate guarantees to safeguard the interests
of the workers (appropriate, impartial and rapid procedures of
conciliation and arbitration) and that the notion of essential
services must be restricted to services whose interruption would
endanger the life, personal safety or health of the whole or part
of the population.
The Committee therefore considers that a prohibition of
strikes in sectors that are so broadly defined severely limits
the possibilities open to the trade unions of furthering and
defending the interests of their members (A rticle 10) and their
right to organise their activities (Article 3).
The Committee would be grateful if the Government would
introduce appropriate a mendments in respect of the
above-mentioned points.
The Committee hopes that the Government will make every effort to
take the necessary action in the very near future.
128
Document No. 186
ILC, 71st Session, 1985, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 152-155 (Guatemala)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
Guatemala (ratification: 1952)
The Committee takes note of the information supplied by a
Government representative to the Conference Committee in June 1984, of
the discussion that followed on the application of this Convention, of
the information contained in the latest report of the Government and
of the legislation in force in Guatemala.
The Committee notes in particular that Legislative Decree No.
88-83 of 8 August 1983 has abolished the state of alert and that the
Government has communicated a draft legislative decree containing
provisions intended to give fuller effect to Convention No. 87.
The Committee considers, however, that important discrepancies
between the national legislation and the Convention still exist on the
following points:
Right to organise
the absence of regulations governing the right to associate
granted to public servants by section 63 of Legislative Decree
No. 1748 of 10 May 1968 on the civil service;
the prohibition on workers in the employment of the State from
establishing trade unions or associations (section 57 of
Legislative Decree No. 24-82 of 27 April 1982 to promulgate the
Fundamental Statute of Government and repeal of the 1965
Constitution (section 109)).
The Committee takes note of the draft legislative decree sent by
the Government and observes that section 7(2) of this draft provides
that the right of association granted by section 63 of Decree No. 1748
shall be exercised in accordance with the provisions laid down in the
Labour Code.
The Committee notes the contradiction existing between section 63
of Legislative Decree No. 1748 of 1968 and section 57 of Legislative
Decree No. 24-82 of 1982 and recalls that Article 2 of the Convention
grants the right of association to all workers without distinction
whatsoever, including workers in the employment of the State. It
therefore trusts that section 57 of the Fundamental Statute of
Government (prohibition on workers in the employment of the State from
establishing trade unions or associations) will be repealed.
Activities of trade unions
- the strict supervision of the activities of the unions by the
Government (section 211(a) and (b) of the Labour Code of 16
August 1961);
- the impossibility for the unions of taking part in politics
(section 207 of the Labour Code);
- the dissolution of trade unions that have taken any part in
matters concerning electoral or party politics (section 226(a) of
the Code);
- the prohibition on all trade unions from taking part in party
politics (section 51(12)(1) of Legislative Decree No. 24-82 of
1982);
152
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
the prohibition on employees of the State and their unions from
all political activities and from strikes (section 63 of the
Civil Service Act of 1968).
The Committee observes that section 8 of the draft legislative
decree (which provides for the amendment of section 226 of the Labour
Code concerning the dissolution of trade unions that have taken part
in electoral or party politics) will introduce the possibility for
these unions of intervening with public bodies with a view to the
cultural, economic and social advancement of the workers in accordance
with their constitutions, these actions not being covered by the
prohibition placed on unions from taking part in matters of electoral
or party politics.
The Committee trusts that the amendment of section 226 of the
Labour Code will also apply to sections 207 of the Labour Code
(impossibility for trade unions of taking part in politics), 63 of the
Civil Service Act (prohibition on persons in the employment of the
State from taking part in political activities) and 51(12)(1) of the
Fundamental Statute of Government (prohibition on trade unions from
taking part in party politics).
Right to elect trade union leaders
in full freedom
- the restriction to Guatemalans of the possibility of being
elected to trade union office (sections 51(12) (2) of the
Fundamental Statute of Government and 223(b) of the Labour Code).
The Committee points out that Article 3 of the Convention confers
on workers' organisations the right to elect their representatives in
full freedom. It hopes that the Government will relax section 223(b)
of the Labour Code and section 51(12)(2) of the Fundamental Statute of
Government (restriction to Guatemalans of the right to lead trade
unions) so as to enable these organisations to exercise without
hindrance the choice of their leaders and to enable foreign workers to
attain trade union office, at least after a reasonable period of
residence in the host country.
Right of trade unions to further and
defend the interests of the workers
The Committee observes that several provisions of the Labour Code
and the special laws seriously restrict the exercise of the right to
strike:
the obligation to obtain a majority of two-thirds of the workers
in the undertaking or production centre (section 241(c)) and a
majority of two-thirds of the members of a trade union (section
222(f) and (m)) for the calling of a strike;
- the prohibition of strikes or work stoppages placed on
agricultural workers at harvest time with a few exceptions
(sections 243(a) and 249);
- the prohibition of strikes or work stoppages placed on workers in
undertakings or services in which the Government considers that
the suspension of their work would seriously affect the national
economy (sections 243(d) and 249);
153
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
- the possibility of calling the national police to ensure the
execution of work in the event of an illegal strike (section 255);
the imprisonment and trial of offenders (section 257);
- the prohibition of strikes by workers in decentralised autonomous
and semi-autonomous state bodies (section 4 of the decree issued
under the Civil Service Act, Decree No. 1786 of 6 September
1968), by state servants (section 63 of the Civil Service Act of
1968) and by workers in the employment of the State and in public
services (sections 57 and 54 of Legislative Decree No. 24-82 of
1982).
Moreover the Committee observes that the Penal Code lays down
heavy penalties for illegal strikes:
the possibility of imposing a sentence of from one to five years'
imprisonment on those who carry out acts intended to paralyse or
disturb undertakings contributing to the development of the
national economy, with a view to harming national production
(section 390(2) of the Penal Code as amended in 1973);
- the possibility of imposing a sentence of from six months to two
years' imprisonment on public employees and employees of public
service undertakings who collectively abandon their duty and
possibility of doubling the sentence for those who incite to the
collective abandonment of work (section 430 of the Penal Code of
1973).
The Committee points out that the peaceful exercise of the right
to strike is one of the basic means that must be available to the
workers for furthering their occupational claims. The prohibition or
restriction of its exercise is compatible with the Convention only in
respect of public officials acting in their capacity as agents of the
public authority or in essential services in the strict sense of the
term (and not in public services in general) where the interruption of
such activities due to a strike would endanger the life, personal
safety or health of the whole or part of the population.
The Committee observes that section 7(3) of the draft legislative
decree repeals section 4 of Decree No. 1786 of 6 September 1968, which
prohibits workers in decentralised autonomous and semi-autonomous
state bodies from resorting to strikes or arbitration for the
settlement of their differences. Nevertheless, in view of the many
discrepancies existing between the legislation and the Convention, the
Committee hopes that the Government will amend its legislation to
guarantee to workers the peaceful exercise of the right to strike and
that suitable guarantees will be granted to protect workers in the
public service and in essential services who are denied an important
means of defending their occupational interests, perhaps through
conciliation and arbitration procedures.
In conclusion, the Committee, while hoping that the draft decree
sent by the Government will be adopted in the near future, emphasises
the necessity of amending the provisions of the Labour Code, the Penal
Code, the Civil Service Act and the Fundamental Statute of Government
in order to remove the present restrictions and to ensure the
application of the Convention. It asks the Government to keep it
informed of developments in the situation on these various points.
154
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS c. 87
[The Government is asked to supply full particulars to the
Conference at its 71 st Session and to report in detail for the period
ending 30 June 1985.J
155
Document No. 187
ILC, 71st Session, 1985, Report III (Part 4A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 179-182 (Philippines)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
Philippines (ratification: 1953)
The Committee takes note of the written and oral information
communicated by the Government to the Committee of the International
Labour Conference in June 1984 and of the discussion that was held in
this Committee.
The Committee points out that the discrepancies existing between
the national legislation and the Convention relate to the following
points:
1. Right of trade unions to further and
defend the interests of their members
- requirement of a two-thirds majority of union members in a
bargaining unit for the calling of a strike (section 264(f) of
the Labour Code as amended by Act No. 130 of 5 October 1981);
a very broad and non-restrictive list of cases of labour disputes
that may affect the national interest, in which the Government
may end the disputes through compulsory arbitration accompanied
by a prohibition on strikes and the possibility of dismissing
trade union leaders and workers participating in an illegal
strike (section 264(g) and (i) and section 265 of the Code as
amended by Act No. 227);
- penalties of up to six months' imprisonment for participation in
an illegal strike (section 273(a) as amended on 2 June 1982);
- immediate deportation and prohibition from returning to the
Philippines except with the special permission of the President
of the Philippines of any foreign worker participating in an
illegal strike (section 273(b) as amended on 2 June 1982);
- a sentence of penal servitude for life for organisers or leaders
of strike pickets or collective actions deemed to be meetings or
demonstrations held for propaganda purposes against the
Government, mere participation being punishable by imprisonment
(section 146 of the Penal Code as amended by Presidential Decree
No. 1834, published in the Official Gazette of 25 July 1983).
The Government admits that the legislation authorises recourse to
compulsory arbitration and confers on the Minister of Labor the power
to put an end to labour disputes likely to lead to strikes contrary to
the national interest, but it insists that the powers of the Minister
are exercised with extreme caution, after consultation with the
workers' and employers' organisations and attempts at conciliation.
Furthermore, the parties are entitled to appeal to the Supreme Court
in the case of compulsory arbitration. Moreover, legal strikes have
taken place in all the industries listed in section 264 of the Labour
Code, including banks and electric industries, and solidarity strikes
have affected factories in the export processing zone. According to
the Government, the requirement of a majority of two-thirds for
calling a strike is intended to prevent wild-cat strikes and strikes
resulting from rivalry between unions or within a union. The unions
have no difficulty in assembling the majority in question. Besides,
peaceful strike pickets are authorised except where in violation of
section 273 of the Labour Code, when a sentence of six months'
imprisonment may be imposed. Proceedings instituted under section
179
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
273 preclude prosecutions for the same acts under the Revised Penal
Code. This provision, moreover, is subject to the supervision
provided for by section 267 of the Labour Code, which provides that no
trade unionist or trade union leader shall be arrested for trade union
activities unless the Minister of Labor and Employment has been
consulted. In addition, the Government states that where proceedings
relating to a labour dispute are instituted, by virtue of a
presidential directive of 1982 addressed directly to the prosecutors
and judges, before the opening of the criminal inquiry the matter is
referred to the ministry for administrative action through
conciliation or arbitration. The Government adds that no conviction
has been pronounced on the basis of the penal aspect of the law.
The Committee takes note of this information, and in particular
of the fact that, according to the Government's statement, strikes
have taken place in several sectors of the economy, including those
set forth in the above-mentioned list, and that there have been no
convictions. It observes, however, that the Government itself
recognises in its written communication that it resorted to compulsory
arbitration to end strikes in 23 cases in 1982 and in 33 cases in
1983. The Committee points out that the peaceful exercise of the
right to strike is one of the essential means that workers and their
organisations must have for advancing their economic and social
occupational claims. The restriction or prohibition of its exercise
is compatible with the Convention only in respect of public servants
acting in their capacity as agents of the public authority or in
essential services in the strict sense of the term, where the
interruption of such activities due to a strike would endanger the
life, personal safety, or health of the whole or part of the
population. Furthermore, strikes carried out as an expression of
solidarity or a gesture of protest should be admissible.
The Committee trusts that the Government will amend its
legislation in order to eliminate the excessive restrictions on the
peaceful exercise of the right to strike and the heavy penalties that
workers are liable to suffer for having lead an illegal strike or for
having taken part in picketing during an illegal strike, provided that
it was not a strike called in a service the interruption of which
would endanger the life, personal safety or health of the population.
2. Right of workers to establish
organisations of their own choosing
- requirement that at least 30 per cent of the workers in a
bargaining unit shall be members of a trade union for the union
to be registered (section 344(c) of the Labour Code);
- requirement of too high a number of trade unions of the same
region or branch (ten) to establish a federation or a registered
national union (section 237(a);
- impossibility of registering more than one federation or national
union per branch of activity in a given area or region
(section 238).
The Government states that there has been no complaint on the
grounds that a trade union has not been recognised because it has
failed to meet the 30 per cent membership requirement and that workers
180
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
can join directly the 200 federations existing at present in the
Philippines. As regards sections 237(a) and 238, the Government
states that they fit the "one union, one industry" concept, endorsed
by the trade union movement in 1974. It recognises, however, that
this concept has been the subject of an appeal to the Supreme Court of
the Philippines, and states that the Committee will receive a copy of
the Court's decision as soon as it has been handed down. The
Government states that all these provisions are part of the on-going
review being undertaken of labour relations law and policy.
The Committee points out that the requirement of too high a
percentage of workers for the establishment of a trade union and of
trade unions for the establishment of a federation may constitute an
obstacle to the rights of workers and their organisations to establish
the trade unions and federations of their own choosing and that the
possibility of registering only one federation per branch of activity
for a given region establishes, at this level, a single-trade-union
situation, which is contrary to Articles 2, 5 and 6 of the
Convention. The Committee recognises that bargaining privileges may
be granted to the most representative trade union, but it has always
considered that the national legislation should not prevent workers
and their organisations from associating in more than one registered
union per undertaking or in more than one federation if they so
wish. In this case, the minority unions or federations should be
able to defend the individual interest of their members.
The Committee trusts that the Government will amend its
legislation so as to guarantee to workers and their organisations the
right to establish organisations of their own choosing and it asks the
Government to supply a copy of the decision of the Supreme Court on
the appeal against the "one union, one industry" concept as soon as it
is handed down.
3. Right of workers without distinction
whatsoever to join trade unions
- prohibition on the direct or indirect participation of foreigners
in any form of trade union activity (section 270 of the Labour
Code).
The Government indicates that the prohibition in question would
apply only to foreigners without a work permit. Foreigners who have
obtained a work permit would have the right to organise and the right
to bargain collectively.
The Committee takes note of this explanation, but in view of the
express prohibition contained in section 270 of the Labour Code, it
urges the Government to amend its legislation on this important point
in order to guarantee the right to organise to foreigners working in
the Philippines by means of a specific provision in the legislation.
4. Powers of supervision of the authorities
over the management of trade unions
- powers of inquiry conferred on the Minister of Labor in respect
of the financial management of trade unions (section 275 of the
Labour Code).
181
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
The Government maintains that the 75 recent audits of union
accounts by the Bureau of Labor Relations have been carried out only
on the application or complaint of trade unionists and that the
amendment of this provision is under study.
In these circumstances, the Committee hopes that the Government
will be able to amend its legislation on this point so as to
guarantee that administrative supervision of the management of trade
unions takes place only on the complaint of members and that it will
be open to re-examination by the competent judicial authority.
The Committee trusts that the Government will adopt the necessary
measures to bring the whole of its legislation into conformity with
the Convention in the near future and asks the Government to report
any progress made in this connection.
182
Document No. 188
ILC, 71st Session, 1985, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 182-184
(Poland)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
Poland ( ratification: 19 5 7)
The Committee takes note of the information supplied by the
Government in its reports received in May and October 1983, April and
October 1984 and March 1985. It has also taken note of the
developments that have occurred in Poland since its previous
observation in 1983, which have been widely referred to in the report
of the Commission especially mandated to examine the complaint on the
observance by Poland of Conventions Nos. 87 and 98. The Committee
notes, in particular, that martial law has been lifted and that an
Amnesty Act was adopted in July 1983 which, according to the
Government, have contributed to the creation of a climate propitious
to social peace and national understanding.
In the light of all the information in its possession, the
Committee observes that several important provisions of the trade
union legislation (Trade Union Act, Act respecting farmers'
socio-occupational organisations, Act on the representation of
non-manual workers employed by the State, all three adopted in October
1982) are not compatible with the rights recognised by the
Convention. The following are the points in question:
Only one trade union organisation may exist in an undertaking
until the Council of State has considered the application of the Trade
Union Act, three years after its coming into force, that is to say in
October 1985 (section 53(4) of the Trade Union Act, as amended by the
Act of 21 July 1983). Furthermore, in the agricultural sector, the
legislation imposes a single national federation of farmers (section
33(2) of the Act respecting farmers' socio-occupational organisations)
and, as to the public service, the Act on the representation of
non-manual workers employed by the State provides that these shall
have the right to join the union of workers in the administration of
the State (section 40). Similarly, workers employed in military
units and in state undertakings within the jurisdiction of the
Ministries of National Defence and the Interior can only establish
trade unions as laid down in the leg is lat ion (section 14 (1) of the
Trade Union Act). The Government states in its reports that the
Trade Union Act does not impose any restriction on the establishment
of trade union structures, that all workers may join the new trade
unions irrespective of their former trade union membership, and that
182
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
the National Federation of Farmers is not of a monopolistic nature
since many farmers' organisations do not belong to it. The Committee
takes note of these statements, but considers that the above-mentioned
provisions establish to a varying extent single-trade-union systems
and are thus incompatible with Article 2 of the Convention, under
which workers have the right to establish organisations of their own
choosing.
Under section 12 of the Trade Union Act, the right to organise is
not recognised to officials of prison establishments. According to
the Government, these officials constitute a militarised formation
with a hierarchical and disciplinary system similar to that of the
army. The Committee however maintains the opinion it expressed in
its General Survey of 1983, namely that the functions exercised by
this category of public servants should not normally justify their
exclusion from the right to organise.
The Trade Union Act lays down a number of conditions for the
calling of a strike, including the acceptance of the decision by the
majority of the workers concerned and trie priuc agteefûèat of the
higher trade union body (section 38(D). It also establishes a very
extensive list of essential services in which strikes are prohibited
(section 40). Furthermore, under section 37(1) the purpose of the
strike shall be to defend the social and economic interests of a
clearly defined group of workers. According to the Government, the
provisions on the calling of strikes constitute a guarantee to ensure
that a decision is taken democratically and that it expresses the will
of the workers. The Government also states that the list of
essential services will be revised in the light of the application of
the Act in practice. With regard to section 37(1) of the Act, the
Government states that strikes for political purposes extending beyond
the framework of the undertaking, occupation or industrial sector are
not authorised, but that other forms of protest are allowed, provided
that they violate neither legal order nor the principle of social
coexistence. The Committee takes note of these statements but is
bound to point out that the imposition of conditions for the calling
of strikes that are too severe may seriously jeopardise the
possibility open to workers of organising such movements and that the
prohibition of strikes should be confined to essential services in the
strict sense of the term, that is to say those whose interruption
would endanger the life, personal safety or health of the whole or
part of the population. It also points out, as it has already done
in its General Survey of 1983, that trade union organisations should
have the possibility of resorting to protest strikes, including those
called to criticise the economic and social policy of governments.
In the opinion of the Committee, the above-mentioned provisions thus
constitute obstacles to the right of trade unions to organise their
activities (Article 3) with a view to furthering and defending the
interests of their members (Article 10).
The Committee expresses the firm hope that the Government will
take the necessary measures to bring its legislation, a review of
which is planned for October 1985, into conformity with the Convention.
Furthermore, the Committee asks the Government to supply
information on the following provisions:
183
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
With regard to the transfer of the assets of the former
organisations dissolved by the Trade Union Act, the Committee note s
that the assets of the trade union organisations have. been
transferred, as appropriate, to the new works unions or the newly set
up federations. The process of transfer is still under way. In
this regard the Committee is addressing a direct request to the
Government.
The Committee again asks the Government to state whether the
expression "unions and inter-union organisations" appearing in section
20 of the Trade Union Act covers federations set up on a geographical
basis.
Lastly, the Committee asks the Government to provide information
on the practical application of section 47 of the Trade Union Act,
under which any person who leads a strike organised in violation of
the provisions of the Act is liable to a penalty of up to one year's
imprisonment. In this respect, the Committee would recall the
opinion it already expressed in its General Survey of 1983 that
penalties of imprisonment should not be imposed in the case of
peaceful strikes. It would like in particular to have information on
any convictions that may have been passed or that may be passed under
this provision.
The Committee is addressing a direct request to the Government on
other points.
[The Government is asked to supply full particulars to the
Conference at its 71st Session and to report in detail for the period
ending 30 June 1985.]
184
Document No. 189
ILC, 71st Session, 1985, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 198-200
(Uruguay)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
Uruguay (ratification: 1954)
The Committee takes note of the Government's statements to the
Conference Committee in 1983 as well as the written information
received in August and October 1984.
1. In its previous comments, the Committee has called attention
to several provisions in the national legislation that are not
compatible with the Convention:
the need to belong to the occupation as worker or employer for
election to office in an occupational association (sections 4, 5,
8 and 9 of Act No. 15137 respecting occupational associations
dated 12 May 1981 and sections 38, 39 and 46(c) of the
regulations issued under it, Decree No. 513/981 of 9 October
1981);
- the need, in certain cases, to have been a member of the
association in question for two years (sections 5(c) and 9(a) of
the Act and 39(c) and 47 of the Decree);
the need to have held no executive office in an organisation
declared unlawful and never to have been disqualified from
election to office under the Constitution (sections 39(d) and
46(e) of the Decree);
- the requirement that an interval elapse before re-election to
trade union office (section 19 of the Decree);
198
the regulation of membersh{p of second-level and third-level
occupational associations, and international organisations, and
rules governing the election and composition of the executives of
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
second-level and third-level associations, all matters that
should have been regulated under the constitutions of the
associations rather than under the Decree (sections 22 to 27 of
the Decree);
the excessive length of the periods allowed the Ministry of
Labour and Social Security for the registration of occupational
associations (sections 64 and 65 of Decree No. 640/973 of
8 August 1973).
The Committee, noting that the Government confines itself in its
report to repeating its previous statements to the effect that the
provisions of the national legislation the Committee has been
commenting on are not contrary to Convention No. 87, is bound to urge
the Government to reconsider its position and asks it to indicate in
its next report the measures taken or under consideration to bring its
legislation into full conformity with the Convention on these points.
2. The Committee has also examined the conclusions of the
Committee on Freedom of Association reached at its November 1984
meeting in Cases Nos. 1207 and 1209 (236th Report) relating to
complaints concerning the obligation to submit the agendas of
constituent meetings of trade union organisations to the authorities
for approval, the delay in holding elections for permanent officers in
associations and the disqualification of the officers of dissolved
associations. The Committee observes that the Committee on Freedom
of Association considered that the delay in holding the elections of
the permanent officials of organisations was due to the fact that the
Government itself convened the trade union elections by ministerial
decision after inspecting the agenda of the constituent assemblies.
The Committee would point out that the non-intervention by governments
in the organisation and running of trade union meetings constitutes an
essential element of trade union rights. It trusts that the
Government will therefore change this practice, which constitutes
interference in the holding of trade union elections, and asks the
Government to state in its next report whether all the elections to
permanent office in occupational associations at present administered
by temporary officers have actually taken place and whether the
measures disqualifying the officers of dissolved organisations have
been lifted.
3. Lastly, the Committee has examined the recent provisions on
the right to strike (Act No. 15530 of 27 March 1984, the Decree issued
under it, No. 245 of 15 June 1984, Fundamental Law No. 3 of 13 April
1984 and Decree No. 254 of 25 June 1984).
The Committee raises several provisions which affect the
principles of freedom of association:
the power of the Minister of Labour and Social Security to submit
collective disputes to compulsory and binding arbitration for
reasons of general interest (section 10 of Act No. 15530 and
section 21 of the Decree), whereas resort to binding arbitration
should only be used where both parties request it or should be
confined to cases of disputes in essential services in the strict
sense of the term, that is to say those the interruption of which
would endanger the life, personal safety or health of the whole
or part of the population;
199
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
recognition of the right to strike to workers only in the private
sector (section 1 of Act No. 15530 and of the Decree) and refusal
of the right to strike of all public servants (section 1 of Act
No. 3 of 13 April 1984), whereas exclusions from the right to
strike should apply only to public servants acting in their
capacity as agents of the public authority and to workers in
essential services in the strict sense of the term. Other
workers in the public sector should be able to strike;
restriction of the right to strike to exclusively occupational
purposes (sections 1, 2 and 16 of the Act and sections 2 and 30
of the Decree) and prohibition of the temporary stoppage of
activities in the private and public sectors (sections 1 and 2 of
Decree No. 254/984 of 25 June 1984), whereas workers should be
able to strike over all matters concerning the defence of their
occupational interests both for economic and social reasons and
at the workplace. Accordingly, for example, where workers have
been dismissed or trade unionists imprisoned, strikes called as
an expression of solidarity or a means of protest should be
permissible;
restrictions on the manner of holding a strike: sit-in strike,
deliberate reduction of output, etc. (section 19 of the Act and
section 33 of the Decree), whereas such restrictions could be
justified only if the strike were to lose its peaceful character;
establishment of a minimum service (section 16 of the Act). The
Committee recalls that workers' organisations should participate
with the employers or the public authorities in the determination
of minimum services;
requirement of an absolute majority of the workers in the
undertaking or undertakings concerned for the calling of a
strike, the vote being summoned and supervised by the authorities
(sections 8 and 14 of the Act and sections 12, 13 and 28 of the
Decree), whereas trade union organisations should be able to call
strikes in accordance with the voting criteria laid down in their
own by-laws or when a simple majority of voters so decide;
the declaration that a strike is illegal pronounced by the
executive (section 17 of the Act and section 31 of the Decree)
and challenging of the strike vote before the administrative
authorities (section 18 of the Decree), whereas any presumed
illegality of strike action should not be subject to
administrative supervision. Any challenge to the result of a
strike vote should only be heard by the judicial authorities.
The Committee hopes that the Government will re-examine all these
provisions and take the necessary measures to modify the excessive
restrictions on the exercise of the right to strike so as to bring its
legislation into conformity with the Convention.
200
Document No. 190
ILC, 79th Session, 1992, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 225-226
(Norway)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
Norway (ratification: 1949)
The Committee notes the information contained in the Government's
report and the comments of the Norwegian Trade Union Federation of Oil
Workers (OFS) of 10 May 1991. It also notes the conclusions of the
225
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
Connnittee on Freedom of Association in Case No. 1576 (279th Report of
the Connnittee on Freedom of Association, adopted by the Governing Body
at its 251st Session, November 1991) concerning the restrictions
imposed on the right to strike by legislative means 1n the oil
industry through the imposition of compulsory arbitration.
While noting the Government's statement in its report that the
interference by the authorities in the right to strike in order to
restrict or prohibit it is compatible with the Convention in the event
that the strike is liable to cause considerable economic losses with a
harmful effect on society or third parties and that the oil industry
should, in this respect, be considered to be an essential service, the
Committee recalls that the principle whereby the right to strike may
be limited or prohibited in essential services would become
meaningless if the legislation defined essential services too
broadly. The Committee has already indicated that the prohibition
upon the right to strike should be confined to services whose
interruption would endanger the life, personal safety or health of the
whole or part of the population, or in a situation of acute national
crisis. Moreover, the Committee has considered it compatible with the
Convention to maintain a minimum service, provided that it 1s
restricted to operations that are strictly necessary to avoid
endangering the 1 i fe, personal safety or health of the whole or part
of the population and provided that workers' organisations are, if
they wish, able to participate in defining the minimum service along
with the employers and public authorities.
The Committee of Experts, in the same way as the Commit tee on
Freedom of Association, expresses doubts as to the compelling need to
have had recourse to compulsory arbitration in the dispute in the oil
industry and encourages the parties concerned, with the participation
of the Government if necessary, to reach an agreement on the minimum
services that would be strictly necessary in order not to compromise
the 1 i fe, personal safety or health of the whole or part of the
population during a labour dispute in the oil sector. As did the
Committee on Freedom of Association, the Committee of Experts
recommends that all the parties to the dispute give priority to
collective bargaining as the means of determining employment
conditions.
Noting that, according to the information contained in the report
of the Committee on •Freedom of Association, the Government plans to
examine possible modifications to the existing system, the Committee
trusts that the Government will endeavour to take the necessary
measures to bring national law and practice into conformity with the
principles of the Convention and requests it to indicate any progress
achieved in this respect in its next report.
226
Document No. 191
ILC, 79th Session, 1992, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 226-230
(Pakistan)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
Pakistan (ratification: 1951)
The Commit tee notes the Government's report for the period 30
June 1990 and the discussion which took place in the Conference
Committee in 1991. It also notes the conclusions reached by the
Committee on Freedom of Association in Case No. 1534 (278th Report,
paragraphs 451 to 472, and 281st Report, paragraphs 160 to 173,
226
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
approved in May-June 1991 and February 1992, respectively) and the
Government's reply to the comments previously made by the Pakistan
National Federation of Trade Unions (PNFTU), as well as the comments
made by the All Union Pakistan Trade Union Council dated 25 June 1991
and the Government's observation thereon supplied in letters dated 5
October 1991 and 29 January 1992.
The Committee's previous observations referred to inconsistencies
between the national legislation and various Articles of the
Convention on the following points:
ban on trade union membership and activities for employees of the
Pakistan International Airlines Corporation (PIAC) (section 10 of
the PIAC Act, 1956);
denial of the rights guaranteed by the Convention for workers in
export processing zones (section 25 of the Export Processing
Zones Authority Ordinance, 1980, and section 4 of the Export
Processing Zone (Control of Employment) Rules, 1982);
- exclusion of public servants of grade 16 and above from the scope
of the Industrial Relations Ordinance, 1969 (section
2(viii)(special provision));
restrictions on recourse to strikes (sections 32(2) and 33(1) of
the Ordinance);
prohibition on minority unions from representing their members in
relation to individual grievances;
- comments from the PNFTU alleging the promotion of union activists
as an anti-union tactic.
The Committee also notes that, according to the All Union
Pakistan Trade Union Council, employees in private and public sector
hospitals are denied the right to form trade unions.
1. The Committee notes with interest that section 10 of the
PIAC Act has been amended to repeal the ban on trade union membership
and activities by airlines employees. It notes, however, from the
Conference discussions, that a similar ban applies to employees of the
Pakistan Telecommunications Corporation and that, according to the
Government representative, draft legislation restoring trade union
rights there was to have been passed by the National Assembly at the
end of 1991. The Commit tee accordingly requests the Government to
confirm that the draft was passed and to supply a copy of the amending
legislation.
2. The Government states that export processing zones were set
up to boost industrialisation and to enable workers and employers to
work together in an environment of industrial peace, and since this
has been largely achieved, the 1980 Act has not been amended;
however, it gives the assurance that all unreasonable restrictions on
the right to organise will be removed. The Committee welcomes this
development. It nevertheless reminds the Government that these
restrictions are not consistent with the requirements of the
Convention. It asks the Government to transmit any legislation
amending the Act and Rules in question.
3. As for the granting of trade union rights to senior civil
servants, the Government states that since they are engaged in the
administration of the State they are not covered by the Industrial
Relations Ordinance; there are, however, 25 associations of civil
servants which, it claims, can act in a wide range of ways for the
227
7
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
defence of their members' interests. The Committee notes from section
28 of the Sindh Government Servants (Conduct) Rules, amended in 1990
and mentioned in a previous direct request, that associations of
public servants are subject to serious restrictions incompatible with
Articles 2 and 3 of the Convention: membership confined to civil
servants serving in one functional unit (see the 1983 General Survey
on Freedom of Association and Collective Bargaining, paragraph 126);
requirement that all office-bearers be members of that association
(op. cit., paragraph 158); bans on engaging in political activities,
limiting activities to matters of personal interest of their members,
ban on involvement in the individual cases of their members, ban on
issuing periodical publications or publishing representations on
behalf of their members without government sanction and the
requirement of prior approval of the approving authority (the
employer) of their by-laws (see, respectively, op. cit., paragraphs
195, 68, 152).
Noting that the Government has not replied to its query whether
similar restrictions exist in other provinces, the Committee cannot
but repeat that senior and provincial civil servants - like all other
workers - should have the right to form and join organisations of
their own choosing, organisations which should be free to act in the
defence of the occupational interests of their members. If it is felt
that joint membership with other types of government servants is
undesirable due to the special characteristics or functions of a
particular group or to avoid conflicts of interest, provisions so
forbidding joint membership should ensure that such workers have the
right to form their own organisations and that the categories of
concerned staff are not so broadly defined that the organisations of
other workers in the government services are weakened by depriving
them of a substantial proportion of potential membership (op. cit.,
paragraph 131). The Committee accordingly asks the Government to
inform it of measures taken or envisaged to bring the legislation into
conformity with the Convention on this point.
4. Regarding che schedule of eight public utility services in
which strikes are banned, the Government is of the view that if any
such service is disrupted this is likely to endanger the health and
safety of the society or part of the population; it adds that the
list is already a bare minimum and if any service was deleted thus
allowing strikes or lockouts, this would certainly affect the interest
of the community as a whole. The Committee agrees that most of the
services listed in the schedule accord with its definition of
essential services where strikes may be restricted or even prohibited,
namely services where an interruption would endanger the life,
personal safety or health of the whole or part of the population (op.
cit., paragraph 214); it must repeat, however, that it has
consistently considered that oil production and distribution, the post
and telegraph service, railways and airways (except for air traffic
controllers), and ports are not within this definition and accordingly
again asks the Government to amend the schedule.
5. As regards the rights of representation of minority unions,
the Government repeats that if a minority union is permitted to
dialogue with the employers in the presence of the elected workers'
representatives (the bargaining agent) this would undermine the very
228
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
existence of the elected representatives; it adds that workers
themselves have been agitating against any such practice publicly and
during the tripartite discussions on the issue, feeling that workers'
rights are infringed when employers can establish contact with
minority unelected unions. The Committee would emphasise that the
only rights of minority unions that it is advocating are those of
representing their own members in individual grievances, not an
undermining of the bargaining parties; by virtue of the right of
workers to join organisations of their own choosing, as set forth in
Article 2 of the Convention, the members of unions should have the
right as regards their individual claims, even if their union is a
minority one, to be represented by their own organisation (op. cit.,
paragraph 141). The Committee therefore again asks the Government to
consider amending its legislation so as to enable minority unions to
represent their members in these specific circumstances.
6. The Committee notes that the Committee on Freedom of
Association, in Case No. 1534, examined allegations from the PNFTU and
other union organisations identical to the comments made by the PNFTU
in the context of the present Convention, namely that a number of
foreign-owned companies in the bank and finance sector were giving
false promotions to their employees so as to remove them from the
category of "workman" in section 2 of the Industrial Relations
Ordinance and place them in the "employer" category, thus denying
their right to belong to the same union as workers. The Committee on
Freedom of Association found that these staff movements were clearly
designed to undermine the membership of workers' unions, some of which
had been severely affected in practice and called on the Government to
take measures to strengthen the application of the protective
provisions in the Ordinance so as to prevent employers from weakening
workers' unions through artificial promotions. The present Committee
notes the Government's explanations that section 15(i) provides
protection against anti-union acts and that, if these were in effect
false promotions since the employees received higher wages but not the
corresponding change of task to a supervisory role, the employees
could use the unfair labour practice provisions of section 22(A)(8)(g)
and eventually go to the labour courts for redress. Noting that the
Government has not yet supplied the statistics requested in its
previous observation on the "employers'" organisations which might be
formed by the promoted workers, the Committee considers that the
Government should strengthen the Ordinance as suggested above, and
asks it to inform it of any measures taken or envisaged in this
connection.
7. Regarding the denial of the right to form trade unions and
to strike of employees in private and public sector hospitals, the
Committee notes the Government's statement that it is conscious of the
need of constant care and service to the sick, injured and physically
handicapped population so that it does not consider it appropriate to
allow the members of the medical profession to form trade unions and
to go on strike though these rights are available to other workers
under the Industrial Relations Ordinance, 1959. The Committee, while
accepting that private and public sector hospitals fall within the
category of essential services where the right to strike can be
denied, asks the Government to restore to these employees the right to
229
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
form trade unions and to negotiate collectively their terms and
conditions of employment.
In view of the fact that the Commit tee has been commenting on
many of these points for some considerable time, it trusts that the
Government wi 11 make every effort to take the measures to bring its
legislation into full conformity with the Convention as soon as
possible.
230
Document No. 192
ILC, 83rd Session, 1996, Report III (Part 4A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, p. 162
(Swaziland)
International Labour Conference
83rd Session 1996
Report III
(Part 4A)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
c. 87 Report of the Committee of Experts
Swaziland (ratification: 1978)
The Committee notes the Government's report. The Committee recalls that, for a
number of years, its previous comments concerned discrepancies between the
Convention and the 1980 Industrial Relations Act and the 1973 Decree on
Meetings and Demonstrations.
Article 2 of the Convention
non-recognition of the right of association of prison staff (section 83(c) of the Act);
obligation upon workers to organize within the context of the industry in which they
exercise their activity (section 2(1) and (2) of the Act);
power of the Labour Commissioner to refuse to register a trade union if he considers
that the interests of the workers are fully or substantially represented by a trade
union that has already been registered (section 23), even though by virtue of section
24( l )(d) an appeal may be made against such a refusal before the Labour Tribunal;
obligation for an occupational organization or federation to obtain authorization
before affiliating with any international organization (section 34(1)).
Article 3 of the Convention
prohibition on federations from carrying out political activities and limitation of their
activities to providing advice and services (section 33);
prohibition of the right to strike in certain sectors or services, in particular in the
postal, radio and teaching sectors (section 65(6) of the Act);
power of the Minister to refer any dispute to compulsory arbitration if he considers
that a current or pending strike constitutes a threat to the national interest (section
63(1));
important restrictions of the rights of organizations to hold meetings and peaceful
demonstrations (section 12 of the 1973 Decree).
The Committee notes with interest the information provided by the Government in
its report that a draft Industrial Relations Bill, which takes into consideration the
comments of the Committee of Experts, has been elaborated and was submitted to
Parliament in 1995. The draft has been approved by the National Assembly and needs
to be submitted to the Senate. In addition a draft amendment of the Employment Act was
also elaborated in 1995. It will have to be discussed in a tripartite commission before
being submitted to the competent authorities. The Government adds that it will provide
copies of these two texts as soon as they are adopted.
The Committee trusts that these two texts will bring the legislation into full
conformity with the requirements of the Convention. It requests the Government to
transmit, in its next report, copies of the two drafts in question, even if they have not
yet been adopted, so as to enable the Committee to examine their conformity with the
Convention and, if they have already been adopted, it requests the Government to
transmit them in their final version."
162 Rcp34A3.E55
Document No. 193
ILC, 83rd Session, 1996, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 163-164
(Syrian Arab Republic)
International Labour Conference
83rd Session 1996
Report III
(Part 4A)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
Observations concerning ratified Conventions C. 87
Syrian Arab Republic (ratification; 1960)
The Committee notes the information supplied by the Government in its report
indicating that the draft legislative decree to amend the provisions of Legislative Decree
No. 84 of 1968 on trade unions in line with certain coimiients made by the Committee
for a number of years, has not yet been adopted. The Government adds that it has again
asked the General Federation of Peasants and the General Federation of Craftsmen to
designate their representatives to serve on the tripartite commission responsible for
preparing texts to amend Act No. 21 of 1974 on peasants' associations and Legislative
Decree No. 250 of 1969 on craftsmen's associations.
Since the Government's report, which arrived too late to be examined by the
Committee at its session in February 1995, contains no further information on the
situation, the Committee is bound to repeat once again the comments and requests it has
been making for manv years and recalls that there are still divergencies between the
national legislation and the Convention, particularly on:
— Legislative Decree No. 84 of 1968 on trade unions (section 7) which organizes the
structure of trade unions on a single union basis;
— Legislative Decree No. 250 of 1969 regarding craftsmen's associations (section 2)
and Act No. 21 of 1974 regarding peasants' cooperative associations (sections 26 to
31) which impose a single trade union system;
— section 25 of Legislative Decree No. 84 which restricts the trade union rights of
non-Arab foreign workers;
— sections 32, 35, 36, 44 and 49(c) of Legislative Decree No. 84 and sections 6 and
12 of Legislative Decree No. 250 of 1969 restricting the free administration and
independence of management of trade unions;
— section 160 of the Agricultural Labour Code of 1958 prohibiting strikes in the
agricultural sector.
1. Single trade union system. The Committee recalls that Article 2 of the
Convention is not intended as an expression of support for either the idea of trade union
unity or trade union pluralism but to ensure that workers, without distinction whatsoever,
and without previous authorization, shall have the right to establish and join
organizations of their own choosing. The Committee requests the Government to take
the necessary measures without delay to delete from legislation the numerous references
to the single central trade union organization designated in law as the General Federation
of Workers' Union (FGST) and allow workers who so wish to establish organizations
of their own choosing outside the existing trade union structure.
2. Restrictions to the right ofnon-Arabforeign workers employed in the Syrian Arab
Republic. Section 25 of Legislative Decree No. 84 does not confer on foreign workers
the right to join trade unions unless they have resided in Syria for one year and on
condition of reciprocity. The Committee recalls that the guarantees of Article 2 of the
Convention apply to all workers, without distinction whatsoever. It requests the
Government to amend this Article to bring national legislation into conformity with the
Convention.
3. Wide powers of intervention by the authorities over public finances. Several
sections of Legislative Decree No. 84 (32, 35, 36, 44 and 49, paragraph (c)), and of
Legislative Decree No. 250 of 1969 (6 and 12) confer on the public authorities the
discretionary power to inspect the books and other documents of organizations, to carry
out investigations, to demand information at any time and to supervise trade union funds.
The Committee requests the Government to abolish these impediments to the right of
Rep34A4.E55 163
c. 87 Kepvrt oj tile Commiuee of Etperi
workers' organizations to organize their management and activity without interference
from the public authorities in accordance with the requirements of Article 3, p aragraphs
1 and 2, of the Convention.
4. The need to belong to the occupation for a minimum of six months in order to be
elected to trade union office. Section 44 of Legislative Decree No. 84 is liable to
prevent qualified persons such as permanent trade union members and retired persons
from exercising trade union office. The Committee requests the Government to make its
legislation more flexible in order to allow the candidature of persons who formerly
worked in the occupation and to lift the conditions on belonging to the occupation for
a reasonable proportion of trade union officials in order to allow the candidature of
persons from outside the occupation.
5. Prohibition on strikes in the agricultural sector. In regard to section 160 of the
Agricultural Labour Code forbidding agricultural workers to go on strike, the Committee
notes with regret that the repeal of this text announced by the Government some time
ago has not yet been adopted. The Committee once again emphasizes the importance it
attaches to legislation not depriving trade union organizations of the right to strike, as
this is one of the essential means by which they can promote and defend the occupational
interests of their members, and requests the Government to repeal this provision.
The Committee must therefore request the Government once again to indicate in its
next report the measures which have been taken to bring the whole of its legislation into
conformity with the Convention.
[The Government is requested to provide full particulars to the Conference at its
83rd Session.]
164 Rep34A4.E55
Document No. 194
ILC, 109th Session, 2021, Report III/Addendum
(Part A), Report of the Committee of Experts on the
Application of Conventions and Recommendations,
pp. 130–132 (Chile)
X Application of International
Labour Standards 2021
Report III /Addendum (Part A)
Addendum to the 2020 Report
of the Committee of Experts on the Application
of Conventions and Recommendations
International Labour Conference
109th Session, 2021
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
130
Chile
Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87) (ratification: 1999)
The Committee takes note of the supplementary information provided by the Government in light of
the decision adopted by the Governing Body at its 338th Session (June 2020) relating to the measures
adopted in the context of the COVID-19 pandemic with regard to the application of the Convention. In this
respect, the Committee welcomes the measures indicated by the Government with a view to extending
the mandates of trade union executives during the state of emergency (with the possibility for the
organizations to elect their representatives if they considered that the conditions existed for holding
elections), and to ensuring that workers engaged in telework are informed of the existence of unions in
the enterprise, and other measures to facilitate the action and consultation of workers’ organizations on
measures related to the pandemic, such as their participation in agreements for the reduction of working
hours as a consequence of the health emergency, and their capacity to defend their members in the event
of any flaws in the suspension of employment relations.
The Committee also notes the observations of the International Trade Union Confederation (ITUC),
received on 15 September 2020, alleging the violent repression of the protest against an anti-union reform
at the end of 2019, including the temporary detention and injuries suffered by various trade union leaders,
as well as the attempt to break into the headquarters of the Single Central Organization of Workers of
Chile (CUT). The Committee also notes the observations of the CUT, received on 6 October 2020, also
alleging limitations on the exercise of the right to demonstrate and on trade union activities, and the
arbitrary and unjustified detention of 24 trade union leaders in several cities, as well as the death of a
trade union leader of artisanal fishers (challenging the official version of suicide as the cause of his death),
raids on and attempts to enter trade union premises (in particular the CUT headquarters, also alleged by
ITUC), and spying on and monitoring trade union leaders. The Committee requests the Government to
provide its comments on these serious allegations.
The Committee notes that, as to the complaint made under article 26 of the ILO Constitution alleging
failure to comply with this and other ILO Conventions by the Republic of Chile, made by a Worker delegate
to the International Labour Conference in 2019, the Governing Body: (i) decided not to refer the matter to
a Commission of Inquiry and to close the procedure under article 26; and (ii) invited the Government to
continue reporting to the ILO regular supervisory system on measures taken to apply in law and practice
the Conventions concerned.
As to other pending matters, the Committee reiterates the content of its previous comments adopted
in 2019 and reproduced below.
The Committee notes the observations on the application of the Convention in law and practice
(including allegations of violations in the public, food, transport and copper sectors) provided by the
following organizations: the National Association of Fiscal Employees (ANEF), received on 29 August 2019;
the Confederation of Copper Workers (CTC), the General Confederation of Public and Private Sector
Workers (CGTP), and the World Federation of Trade Unions (WFTU, taking up the observations of the
CGTP), all received on 30 August 2019; the International Trade Union Confederation (ITUC), received on 1
September 2019; as well as the observations of the Federation of Workers’ Unions of Chile (FESINTRACH),
received on 2 September 2019, the No. 1 Promoter CMR Falabella Enterprise Union, received on 20
September 2019, and the Single Central Organization of Workers of Chile (CUT), received on 26 October
2019. The Committee requests the Government to provide its comments in this regard. Noting that the
Government has not replied to the various requests made in its previous comments, including with regard
to the multiple observations made by social partners in 2016, the Committee trusts that it will receive the
missing information in the next report.
Articles 2 and 3 of the Convention. Legislative matters not covered by the reform of the Labour Code. In
its previous comment, while noting with satisfaction the amendment or repeal of various provisions of
the Labour Code which were not in conformity with the Convention, the Committee observed that the
following provisions had not yet been brought into conformity with the Convention:
– Amendment of article 23 of the Political Constitution, which provides that the holding of trade union
office is incompatible with active membership of a political party and that the law shall establish
penalties for trade union officials who engage in party political activities. In its previous comments,
the Committee welcomed the submission of a draft constitutional amendment in October 2014 to
remove these restrictions, but noted that the draft had not been approved.
– Amendment of section 48 of Act No. 19296, which grants broad powers to the Directorate for Labour
for the supervision of the accounts and financial assets and property of associations. In its previous
Freedom of association,
collective bargaining, and
industrial relations
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131
comment, the Committee noted the Government’s indication that the approach adopted by the
Directorate for Labour in that regard is consistent with the principles of freedom of association and
leaves it to organizations to control their own accounts, financial assets and property; and that a
protocol agreement had been agreed between the Government and the public sector round-table of
2014 which included the commitment to address possible amendments to Act No. 19296.
– Repeal of section 11 of Act No. 12927 on the internal security of the State, which provides that an
interruption or strike in certain services may be penalized with imprisonment or banishment, and the
amendment of section 254 of the Penal Code, which establishes criminal penalties in the event of the
interruption of public services or public utilities or dereliction of duty by public employees. In its
previous observation, the Committee noted the Government’s indication that these provisions had
not been applied and recalled that no penal sanction should be imposed on a worker for participating
peacefully in a strike, which is merely exercising an essential right, and therefore that sentences of
imprisonment or fines should not be imposed.
The Committee observes that in its latest report the Government has not provided any further
information on the application, amendment or repeal of these provisions, and that the observations of
the various social partners continue to denounce the incompatibility of these provisions with the
Convention. The Committee once again expresses the hope that the Government will take the necessary
measures in the very near future to bring these provisions into conformity with the Convention and
requests it to report any developments in this regard.
Article 3. Right of organizations to organize their activities and to formulate their programmes. Exclusion
from strike action of enterprises declared to be strategic. Section 362 of the Labour Code, under the heading
of the determination of enterprises in which the right to strike may not be exercised, provides that a strike
may not be called for workers providing services in corporations or enterprises, irrespective of their
nature, purpose or function, which provide services of public utility or the cessation of which would cause
serious damage to health, the national economy, the provision of supplies to the population or national
security. In its previous comment, the Committee recalled that this definition of enterprises in which the
right to strike cannot be exercised, to be approved jointly by various ministries and subject to appeal to
the Court of Appeal, potentially covers services which go beyond the definition of essential services in the
strict sense of the term (those the interruption of which may endanger the life, personal safety or health
of the whole or part of the population). Recalling that the prohibition of strikes relating to the services
provided should be limited to essential services in the strict sense of the term, the Committee reiterated
that the concepts of public utility and of damage to the economy are broader than that of essential
services. The Committee also observed that “services of public utility” would already be covered by the
system of minimum services established in section 359, which is distinct from the concept of essential
services in the strict sense of the term. Observing that the Government has not provided the requested
information on the application of this provision in practice, the Committee notes that, according to the
indications of the ITUC, under the terms of this provision a list was approved in August 2017 of 100
enterprises considered to be strategic and excluded from the exercise of the right to strike, which include
enterprises in the health and energy sectors, and that 14 unions have lodged appeals in this regard with
the Court of Appeal. The Committee also notes that in August 2019 a new list was published of enterprises
considered to be strategic and excluded from the exercise of the right to strike (43 enterprises were
removed from the former list of 100 enterprises, and 15 new enterprises were added). While considering
that section 362 of the Labour Code should be amended to ensure that the prohibition of the right to
strike can only cover essential services in the strict sense of the term, the Committee once again requests
the Government to provide information on the application in practice of section 362 of the Labour Code,
with an indication of the various categories of services provided by the enterprises excluded from the
exercise of the right to strike, and the action taken in relation to any complaints lodged in this respect.
The Committee recalls that, without calling into question the right to strike of the large majority of
workers, a negotiated minimum service may be established for public services of fundamental
importance that are not essential services in the strict sense of the term.
Replacement of workers. In its previous comment, while on the one hand the Committee noted with
satisfaction the introduction in the Labour Code of a prohibition to replace striking workers, as well as the
sanctions in the event of such a replacement (sections 345, 403 and 407) on the other hand, it noted that,
according to the CGTP, other recently introduced provisions could undermine or introduce uncertainty
into such prohibition to replace striking workers. The CGTP referred, in particular, to the possibility
envisaged in new section 306 of the Labour Code for an enterprise that has subcontracted work or services
to another enterprise to carry out directly or through a third party the subcontracted work or services
interrupted due to a strike (in this regard, the CGTP alleged that over 50 per cent of workers in the country
work in subcontracting enterprises). The Committee requested the Government to provide its comments
on the observations of the CGTP and to report on the application in practice of sections 306, 345, 403 and
407, including the sanctions imposed for the replacement of striking workers, and on the impact of the
hiring of workers under section 306 on the workers or services interrupted due to a strike. The Committee
notes that the Government reports various legal opinions issued by the Directorate for Labour concerning
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132
these provisions, including an opinion that it is not in accordance with the law for an enterprise providing
temporary services to provide workers to a principal enterprise for the performance of work or services
which have been interrupted due to a strike by workers in the enterprise contracted to perform them. The
Committee welcomes these clarifications, while noting that the Government has not provided further
information on the application in practice of the above-referred provisions. The Committee also notes that
the issue of the replacement of workers is the subject of additional observations by the social partners. In
this respect, the CTC indicates that section 403 of the Labour Code supports the internal replacement of
striking workers, and the CGTP denounces the fact that the authorities have allowed the replacement of
striking workers in the public passenger transport sector in Santiago de Chile. The Committee requests
the Government to provide its comments on the observations of the social partners on these matters,
and to provide further information on the application in practice of sections 306, 345, 403 and 407,
including on the sanctions applied for the replacement of striking workers, and on the impact of the
hiring of workers under section 306 on striking workers or services interrupted due to a strike.
Exercise of the right to strike beyond the framework of regulated collective bargaining. In previous
comments, the Committee noted that, in general terms, the exercise of the right to strike is regulated
exclusively within the framework of regulated collective bargaining. In this respect, the Committee
referred to the recommendations made to the Government by the Committee on Freedom of Association
(CFA), in which: (i) given that existing legislation does not permit strike action outside the context of the
collective bargaining process, the CFA requested the Government, in consultation with workers’ and
employers’ organizations, to take all necessary steps to amend the legislation in line with the principles of
freedom of association (see 367th Report, March 2013, Case No. 2814, paragraph 365); and (ii) recalling
the principle that the occupational and economic interests that workers defend through the right to strike
do not only concern better working conditions or collective claims of an occupational nature, but also the
seeking of solutions to economic and social policy questions and problems facing the enterprise which
are of direct concern to the workers, the CFA requested the Government to take all the necessary
measures, including legislative measures if necessary, to uphold this principle, and to submit the
legislative aspects of the case to the Committee of Experts (see 371st Report, March 2014, Case No. 2963,
paragraph 238).
In this regard, certain social partners (see for example, the observations of the ITUC in 2016, the
CGTP in 2016 and 2019, and the CTC in 2019) have been denouncing the failure to protect the right to
strike outside the framework of regulated collective bargaining. The Committee also noted that a ruling
of 23 October 2015 of the Court of Appeal of Santiago held that the sole fact that the law regulates strike
action in one instance, that is in the context of regulated collective bargaining, cannot lead to the
conclusion that outside that context strikes are prohibited, based on the understanding that matters that
the legislature has failed to regulate or define cannot be held to be prohibited (the Committee refers to
other recent rulings along these same lines, such as the ruling by the Labour Court of Antofagasta of 6
August 2019, finding that the right to strike is an essential right regulated by the Convention and that the
Supreme Court has found that the right to strike is guaranteed even outside the framework of collective
bargaining procedures). In light of the judicial decisions referred to above, the Committee once again
requests the Government to provide its comments on the observations of the social partners denouncing
the failure to protect the right to strike outside the framework of regulated collective bargaining and to
provide information on any measures taken in relation to the recommendations referred to in this
regard.
The Committee is raising other matters in a request addressed directly to the Government, which
reiterates the content of its previous request adopted in 2019.
Document No. 195
ILC, 109th Session, 2021, Report III/Addendum
(Part A), Report of the Committee of Experts on the
Application of Conventions and Recommendations,
pp. 181-185 (Fiji)
X Application of International
Labour Standards 2021
Report III /Addendum (Part A)
Addendum to the 2020 Report
of the Committee of Experts on the Application
of Conventions and Recommendations
International Labour Conference
109th Session, 2021
Freedom of association,
collective bargaining, and
industrial relations
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
181
Fiji
Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87) (ratification: 2002)
The Committee takes note of the supplementary information provided by the Government in light of
the decision adopted by the Governing Body at its 338th Session (June 2020). The Committee proceeded
with the examination of the application of the Convention on the basis of the supplementary information
received from the Government and the social partners this year, as well as on the basis of the information
at its disposal in 2019.
The Committee notes the observations of the International Trade Union Confederation (ITUC)
received on 1 September 2019 and 15 September 2020 and of the Fiji Trades Union Congress (FTUC)
received on 23 May and 13 November 2019, denouncing violations of civil liberties and lack of progress
on the legislative reform. The Committee notes the Government’s general reply thereto, as well as to the
2017 and 2018 FTUC observations, and requests it to provide further details on the specific incidents of
alleged violations of civil liberties reported by the FTUC.
Follow-up to the conclusions of the Committee on the Application of Standards
(International Labour Conference, 108th Session, June 2019)
The Committee notes the discussion that took place in the Conference Committee on the Application
of Standards (hereafter the Conference Committee) in June 2019 concerning the application of the
Convention. It notes that the Conference Committee observed serious allegations concerning the violation
of basic civil liberties, including arrests, detentions and assaults, and restrictions of freedom of association
and noted with regret the Government’s failure to complete the process under the Joint Implementation
Report (JIR). The Conference Committee called upon the Government to: (i) refrain from interfering in the
designation of the representatives of the social partners on tripartite bodies; (ii) reconvene the
Employment Relations Advisory Board (ERAB) without delay in order to start a legislative reform process;
(iii) complete without further delay the full legislative reform process as agreed under the JIR; (iv) refrain
from anti-union practices, including arrests, detentions, violence, intimidation, harassment and
interference; (v) ensure that workers’ and employers’ organizations are able to exercise their rights to
freedom of association, freedom of assembly and speech without undue interference by the public
authorities; and (vi) ensure that normal judicial procedures and due process are guaranteed to workers’
and employers’ organizations and their members. The Conference Committee also requested the
Government to report on progress made towards the implementation of the JIR in consultation with the
social partners by November 2019 and called on the Government to accept a direct contacts mission to
assess progress made before the 109th Session of the International Labour Conference. While duly noting
the context of the current COVID-19 pandemic, the Committee trusts that the direct contacts mission
requested by the Conference Committee will be able to take place as soon as the situation so permits
and, if possible, before the next International Labour Conference.
Trade union rights and civil liberties. In its previous comments, the Committee requested the
Government to respond in full detail to the FTUC allegations of continued harassment and intimidation of
trade unionists, in particular with respect to its National Secretary, Felix Anthony. The Committee notes
the Government’s general statement that Mr Anthony has been able to organize and carry out trade union
activities without any interference from the Government and that the arrest, search and detention of
persons previously alleged by the ITUC and the FTUC were not intended to harass or intimidate trade
unionists but to allow the Commissioner of Police to conduct investigations into alleged violations of
applicable laws. The Government also affirms that the Commissioner of Police and the Office of the
Director of Public Prosecutions are both independent and neither the entities nor their decisions are
subject to the direction or control of the Government. The Committee notes, however, the 2020 ITUC
allegations that Mr Anthony is currently charged with one count of malicious acts under the Public Order
Act, 1969 in relation to his trade union activities following the mass termination of 2,000 workers’ contracts
by the Fiji Water Authority in April 2019, which led to protests and the arrest of trade unionists and union
members, including Mr Anthony. The ITUC alleges that Mr Anthony was to appear before the court on 1
September 2020 and if convicted, he could receive a fine of up to US$2,500 or be imprisoned for up to
three years. The Committee notes the Government’s reply that the arrest and subsequent criminal
prosecution of Mr Anthony are not a targeted attack but a matter that is criminal in nature and that the
presiding court will make a determination on the criminal charges and penalties imposed, if any. The
Committee further notes with concern the ITUC and FTUC allegations of continued intimidation by the
police, arrests, detention, interrogation and the filing of criminal charges against trade unionists, as well
as prolonged confiscation of personal and union property and violent dispersal of gatherings between
April and June 2019. Recalling the interdependence between civil liberties and trade union rights and
emphasizing that a truly free and independent trade union movement can only develop in a climate free
from violence, pressure and threats of any kind against the leaders and members of such organizations,
the Committee requests the Government to make serious efforts to ensure that state entities and their
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182
officials refrain from anti-union practices, including arrests, detentions, violence, intimidation,
harassment and interference in trade union activities, so as to contribute to an environment conducive
to the full development of trade union rights. The Committee requests the Government to consider
issuing instructions to the police and the armed forces in this regard and to provide training to ensure
that any actions taken during demonstrations respect the basic civil liberties and fundamental labour
rights of workers and employers. Furthermore, the Committee firmly expects that any charges against
Mr Anthony related to the exercise of his trade union activities will be immediately dropped.
Appointment of members to and the functioning of the Employment Relations Advisory Board to review
labour legislation. In its previous comments, having observed the FTUC concerns that the Government
had systematically dismantled tripartism by removing or replacing the tripartite representation on a
number of bodies with its own nominees, the Committee requested the Government to provide detailed
information on the manner in which it designated individuals to these bodies and the representative
nature of the organizations that appeared therein. The Committee notes the detailed reply provided by
the Government on the appointment of members to the ERAB, the Fiji National Provident Fund, the Fiji
National University, the Wages Council and the Air Terminal Service (Fiji) Limited. The Committee also
notes the Government’s clarification that, in addition to the ERAB, the National Occupational Health and
Safety Advisory Board (NOHSAB) and the National Employment Centre Board (NECB) also have tripartite
membership. The Government further indicates, with regard to the ERAB, that: (i) the Minister for
Employment is the appointing authority and representatives of workers and employers are appointed
from persons nominated by workers’ and employers’ organizations; (ii) appointment of members is
undertaken through a consultation process to allow expanded representation of workers from various
organizations; (iii) there is no interference from the Government in the designation of representatives of
the social partners; and (iv) as the current ERAB membership ended in October 2019, the social partners
were invited to submit nominees and both the Fiji Commerce and Employers Federation (FCEF) and the
FTUC have already done so at the end of October 2019. The Committee observes, however, that, according
to the FTUC, there is no indication as to when the appointment of ERAB members will take place, despite
the urgency of the situation, and that the ITUC remains concerned about government manipulation of
national tripartite bodies, thus curtailing the possibility of genuine tripartite dialogue. The Committee
trusts that the Government will refrain from any undue interference in the nomination and appointment
of members to the ERAB and to other tripartite bodies, and will ensure that the social partners can freely
designate their representatives. The Committee expects the appointment of ERAB members to take place
without delay so as to allow this mechanism to reconvene and meet regularly in order to pursue the
labour law review and meaningfully address all outstanding matters in this regard.
Progress on the review of labour legislation as agreed in the Joint Implementation Report. The
Committee previously noted with regret the apparent lack of progress on the review of the labour
legislation as agreed in the JIR and urged the Government to take the necessary measures with a view to
rapidly bringing the legislation into line with the Convention. The Committee notes the Government’s
indication that several meetings took place with the tripartite partners and the ILO between June 2018
and August 2019, in which it was agreed that a number of matters under the JIR have already been
implemented and that the tripartite partners are making good progress on the outstanding matters
concerning the review of labour laws and the list of essential services and industries, despite the FTUC’s
boycott and withdrawal from the tripartite dialogue within the ERAB in June 2018, February and August
2019. The Committee notes that, according to the FTUC, the Government’s reference to boycott clearly
reveals that there remain issues in the appointment process of ERAB members and shows the
Government’s lack of genuine commitment to previously agreed timelines that had led to the boycott. The
Committee notes from the resolutions adopted at the 48th biennial delegates conference of the FTUC
provided by the Government in its supplementary report that: (i) the FTUC maintains its position on
boycotting participation in any tripartite forums until its role as an important stakeholder with sincere
engagement is recognized; and (ii) the FTUC expresses concern about the Government’s failure to uphold
its commitment to engage in genuine social dialogue and to take any positive action to review the labour
legislation, and denounces the way in which the Ministry of Employment, Productivity and Industrial
Relations has handled the review process. The Committee further observes that the ITUC calls on the
Government to return to the negotiating table with the social partners to fully implement the JIR and to
grant safeguards and guarantees to those participating in the dialogue. Finally, the Committee welcomes
the Government’s indication in its supplementary report that a detailed Plan of Action with timelines was
elaborated with the ILO Country Office in September 2020 to give guidelines to the tripartite partners and
the Plan of Action enumerates issues to be addressed in order to implement recommendations of the ILO
supervisory mechanisms, including the reconvening of the ERAB, the ERA matrix, the reform of the
essential services list, training and sensitization of the police on civil liberties and freedom of association,
as well as the organization of the direct contacts mission. In light of the above, the Committee urges the
Government to take all necessary measures to continue to review the labour legislation within the
reconvened ERAB, as agreed in the JIR and the September 2020 Plan of Action, with a view to rapidly
bringing it into line with the Convention, taking into account the Committee’s comments below.
Freedom of association,
collective bargaining, and
industrial relations
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Article 2 of the Convention. Right of workers to establish and join organizations of their own choosing.
The Committee had previously noted that the following issues were still pending after the adoption of the
Employment Relations (Amendment) Act, 2016: denial of the right to organize to prison guards (section
3(2)); and excessively wide discretionary power of the Registrar in deciding after consultation whether or
not a union meets the conditions for registration under the Employment Relations Promulgation, 2007
(ERP) (hereinafter, ERA, section 125(1)(a) as amended). The Committee notes, on the one hand, the
Government’s indication that the tripartite partners met in August 2019 to discuss the proposed
amendments and all clauses in the ERA matrix but observes, on the other hand, the ITUC and the FTUC
allegation that no progress has been achieved since then and the matrix agreed by the tripartite partners
is still pending with the Solicitor General’s office. In the absence of any substantial progress in this regard,
the Committee urges the Government to finalize the process of review on the basis of the tripartiteagreed
matrix so that the necessary amendments for bringing the legislation into full conformity with
the Convention may be rapidly submitted to Parliament and adopted.
Article 3. Right of organizations to elect their representatives in full freedom, organize their activities and
formulate their programmes. The Committee had previously observed that, pursuant to section 185 of the
ERA as amended in 2015, the list of industries considered as essential services included: (i) the services
listed in Schedule 7 of the ERP; (ii) the essential national industries declared under the former Essential
National Industries (Employment) Decree, 2011 (ENID) (financial industry, telecommunications industry,
civil aviation industry and public utilities industry), and the corresponding designated companies; and (iii)
the Government, statutory authorities, local authorities and government commercial companies
(following the adoption of the Public Enterprise Act, 2019, these are now referred to as public enterprises
– an entity controlled by the State and listed in Schedule 1 of the Act or designated as such by the Minister).
The Committee welcomes the Government’s indication that, as agreed in the JIR and with the
technical assistance of the Office, a workshop was held on 16 and 17 October 2019 with the participation
of the tripartite partners to consider, gauge and determine the list of essential services and industries.
The Committee also welcomes that, as a result of the workshop, the tripartite parties agreed on a timebound
plan of action to review the existing list of essential services within the ERAB and to engage in
discussion with the aim of restricting limitations on the right to strike to essential services in the strict
sense of the term and public servants exercising authority in the name of the State. The Government
informs that it has received proposals for amendments from representatives of workers and employers
and is currently considering them. The Committee notes, however, the concerns expressed by the FTUC
that due to the Minister’s absence from the workshop, all decisions had to be referred to the Solicitor
General’s office and that the timelines continue to be ignored without any justification for the delay in
convening meetings to finalize the essential national industries list and the ERA matrix.
The Committee wishes to reiterate that while some essential industries are defined in line with the
Convention, namely those which had been initially included in Schedule 7 of the ERP, other industries
where strikes may now be prohibited due to the inclusion of the ENID in the ERA do not fall within the
definition of essential services in the strict sense of the term, including: statutory government authorities;
local, city, town or rural authorities; workers in managerial positions; the financial sector; radio, television
and broadcasting services; civil aviation industry and airport services (except air traffic control); public
utilities industry in general; pine, mahogany and wood industry; metal and mining sector; postal services;
and public enterprises in general. The Committee also wishes to emphasize that provisions which prohibit
the right to strike on the basis of potential detriment to public interest or economic consequences are not
compatible with the principles relating to the right to strike. The Committee recalls, however, that for
services which are not considered essential in the strict sense of the term, but in which strikes of a certain
magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the
population or in public services of fundamental importance in which it is important to deliver the basic
needs of users, a negotiated minimum service, as a possible alternative to fully restricting industrial action
through imposed compulsory arbitration, could be appropriate. The right to strike may also be restricted
for public servants but only those exercising authority in the name of the State. Given the extensive
breadth of the services where workers’ rights to take industrial action may be prohibited, as noted above,
the Committee urges the Government to meaningfully engage with the social partners without further
delay to review the list of essential services, as agreed in the JIR and the October 2019 and the September
2020 action plans, so as to restrict limitations on the right to strike to essential services in the strict
sense of the term and public servants exercising authority in the name of the State. The Committee
requests the Government to provide information on the progress achieved in this regard.
In addition, the Committee has been requesting for a number of years that the Government take
measures to review numerous provisions of the ERA. In the absence of any progress reported in this
regard, the Committee recalls that the following issues in the ERA are still pending: obligation of union
officials to be employees of the relevant industry, trade or occupation for a period of not less than three
months (section 127(a) as amended); prohibition of non-citizens to be trade union officers (section 127(d));
interference in union by-laws (section 184); excessive power of the Registrar to request detailed and
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
184
certified accounts from the treasurer at any time (section 128(3)); provisions likely to impede industrial
action (sections 175(3)(b) and 180); compulsory arbitration (sections 169 and 170, section 181(c) as
amended, new section 191BS (formerly 191(1)(c)); penalty in form of a fine in case of staging an unlawful
but peaceful strike (sections 250 and 256(a)); provisions likely to impede industrial action (section 191BN);
penalty of imprisonment in case of staging a (unlawful or possibly even lawful) peaceful strike in services
qualified as essential (sections 191BQ(1), 256(a), 179 and 191BM); excessively wide discretionary powers
of the Minister with respect to the appointment and removal of members of the Arbitration Court and
appointment of mediators, calling into question the impartiality of the dispute settlement bodies (sections
191D, 191E, 191G and 191Y); and compulsory arbitration in services qualified as essential (sections 191Q,
191R, 191S, 191T and 191AA). In this regard, the Committee observes, from the resolutions adopted at
the 48th biennial delegates conference of the FTUC provided by the Government in its supplementary
report, the concerns expressed by the FTUC about the inefficiency of the Arbitration Court and the
Employment Tribunals, as well as the need to improve the current dispute resolution system in order to
reduce considerable delays in resolving disputes. The Committee therefore urges the Government to take
measures to review the above provisions of the ERA, in accordance with the agreement in the JIR and in
consultation with the representative national workers’ and employers’ organizations, with a view to their
amendment, so as to bring the legislation into full conformity with the Convention.
Public Order (Amendment) Decree (POAD). With regard to its previous comments concerning the
practical application of the POAD, the Committee notes that the Government simply reiterates that the
POAD facilitates the maintenance of public order and that prior permission is required to ensure the
carrying out of administrative functions and the provision of law enforcement officers to maintain order.
While further noting that the Government points to two instances, in October 2017 and January 2018, in
which the FTUC obtained a permit and undertook marches, the Committee observes that, according to
the FTUC, its recent requests to march from May, August and November 2019 were all refused. The ITUC
and the FTUC denounce that permission for union meetings and public gatherings continues to be
arbitrarily refused and that section 8 of the POAD has been increasingly used to interfere in, prevent and
frustrate trade union meetings and assemblies. The Committee urges the Government to take the
necessary measures to bring section 8 of the POAD into line with the Convention by fully repealing or
amending this provision so as to ensure that the right to assembly may be freely exercised.
Political Parties Decree. The Committee had previously noted that, under section 14 of the 2013
Political Parties Decree, persons holding an office in any workers’ or employers’ organization are banned
from membership or office in any political party and from any political activity, including merely
expressing support or opposition to a political party; and that sections 113(2) and 115(1) of the Electoral
Decree prohibit any public officer from conducting campaign activities, and any person, entity or
organization that receives any funding or assistance from a foreign government, intergovernmental or
non-governmental organization to engage in, participate in or conduct any campaign (including
organizing debates, public forums, meetings, interviews, panel discussions, or publishing any material)
that is related to the election. In its previous comments, the Committee further observed that the Political
Parties Decree was unduly restrictive in prohibiting membership in a political party or any expression of
political support or opposition by officers of employers’ or workers’ organizations, and requested the
Government once again to take measures to amend the above provisions, in consultation with the
representative national workers’ and employers’ organizations. Observing that the Government does not
provide any new information and noting the ITUC concerns about the restrictive effect of the Political
Parties Decree on legitimate trade union activities, the Committee reiterates its request in this respect.
Article 4. Dissolution and suspension of organizations by administrative authority. The Committee
notes the ITUC allegations that in February 2020, the Government suspended five trade unions for failing
to submit their annual audited reports and indicated that they faced penalties and deregistration if they
continued to fail to comply with the legislation (the Hot Bread Kitchen Employees Trade Union, the Fiji
Maritime Workers Association, the Viti National Union of I-taukei Workers, BPSS Co Limited Workers and
Carpenters Group of Salaries Association and the I-taukei Land Trust Board Workers Union). According to
the ITUC, such arbitrary measures represent a clear attempt at quashing independent trade unions and
the legislation does not provide for sufficient guarantees for trade unions to operate without undue
interference by the authorities, as demonstrated by section 128(3) of the ERA, which gives the Registrar
excessive power to request detailed and certified accounts from the treasurer at any time. The Committee
notes that the Government refutes this allegation as baseless and untrue and asserts that any suspension
of trade union activity is done in accordance with section 133(2) of the ERA. With regard to the mentioned
trade unions, the Government informs that: (i) in June 2019, the Registrar issued notices to 11 unions for
failure to submit their annual returns under section 129 of the ERA; in August 2019, the Registrar issued
a follow-up notice; and in September 2019, seven trade unions, which had not rectified their breach, were
issued a notice of suspension; (ii) the notice of suspension provided the unions two months to show cause
as to why their registration should not be suspended; (iii) despite the notice, four unions failed to rectify
their breach and in June 2020, the Registrar published a notice of cancellation concerning the four unions;
and (iv) the unions were again given two months to rectify their breach and the Registrar only cancelled
Freedom of association,
collective bargaining, and
industrial relations
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
185
the registration of those unions that failed to respond to the notice, whereas the remaining three
suspended unions were able to submit their annual reports. The Government adds that there are currently
46 active unions in Fiji, which freely conduct their activities and the Registrar does not have the authority
to dictate how they operate or function under their constitution, thus ensuring absolute freedom for trade
unions to deal with their affairs. The Committee takes due note of the steps taken by the Registrar before
suspending or cancelling the registration of the above trade unions and recalls that under section 139 of
the ERA, a trade union may appeal a decision against suspension or cancellation of registration to the
competent court. Further recalling however that the dissolution and suspension of trade union
organizations constitute extreme forms of interference and should be reserved for serious breaches of
the law after exhausting other possibilities with less serious effects for the organizations, and observing
the ITUC’s allegations that these measures constitute an attempt at quashing independent trade unions,
the Committee requests the Government to consider, in consultation with the most representative
organizations, any measures that are appropriate to ensure that the procedures for suspension or
cancellation of trade union registration are, both in law and in practice, in full accordance with the
guarantees set out in the Convention.
Document No. 196
ILC, 110th Session, 2022, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 97-98 (Albania)
X Application of International
Labour Standards 2022
Report III (Part A)
Report of the Committee of Experts on
the Application of Conventions and
Recommendations
International Labour Conference
110th Session, 2022
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 97
Freedom of association, collective bargaining, and industrial
relations
Albania
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 1957)
The Committee takes note of the Government’s comments in reply to the observations of the
International Trade Union Confederation (ITUC), received in 2020, denouncing the persistence of
restrictions on the right of workers to establish trade unions. The Committee observes that these
matters are being examined by the Committee on Freedom of Association (Case No. 3388). Noting that
the Government has not provided its comments on the ITUC’s observations received in 2019, which
alleged violations of trade union rights in practice, the Committee once again requests it to provide its
comments in this respect.
Article 2 of the Convention. Right to organize of foreign workers. Further to its previous comments
on the exercise of trade union rights by all foreign workers irrespective of their residence status, the
Committee notes that the Government indicates in its report that the Act on Foreigners (No. 108 of
2013), as amended by Act No. 13 of 2020, does not address whether foreigners who do not have a
working permit have the right to organize in unions. The Committee notes that Act No. 13 of 2020 did
not amend section 70 of the Act on Foreigners, which provides that foreign workers with a permanent
residence permit shall enjoy economic and social rights on the same terms as nationals. The Committee
also notes that the Government has not provided any information on foreign workers’ exercise of trade
union rights in practice. The Committee requests the Government to take, without delay, the necessary
measures, including consideration of possible legislative amendments, to ensure that all foreign
workers, whether or not they have a residence or a working permit, benefit from the trade union rights
provided by the Convention, particularly the right to join organizations which defend their interests as
workers. The Committee requests the Government to provide information on any progress made in this
respect.
Article 3. Right of organizations to organize their activities and formulate their programmes. In its
previous comments the Committee requested the Government to indicate any legal exceptions to the
right to strike other than those provided in section 35 of the Act on civil servants (No. 152 of 2013) as
well as to take any necessary measures to ensure that the legislation be amended so as not to unduly
curtail the right of unions to organize their activities to defend the interest of workers. The Committee
notes the Government’s indication that the exercise of the right to strike by civil servants must be in full
compliance with section 35 of the Act on civil servants, as well as with the regulations set out in the
Labour Code concerning the exercise of this right, which include providing for the possibility of requiring
minimum services in essential services like water and electricity supply, as well as in other services of
fundamental public importance. The Committee takes note that section 35 of the Act on civil servants
remains in force and provides that the right to strike shall not be permitted for a list of services that
includes both essential services in the strict sense of the term (such as water and electricity), as well as
services which may not be considered essential services in the strict sense of the term – namely
transport and public television. The Committee recalls in this regard that the right to strike may be
restricted for public servants exercising authority in the name of the State, but as to other public
servants and for services which are not considered essential in the strict sense of the term, the
introduction of a negotiated minimum service, as a possible alternative to the full prohibition of strike
action, could be appropriate in circumstances where strikes of a certain magnitude and duration could
cause an acute crisis threatening the normal conditions of existence of the population, or in public
services of fundamental importance in which it is important to deliver the basic needs of users (see the
98 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
2012 General Survey on the fundamental Conventions, paragraphs 129 and 136). The Committee
requests the Government to indicate whether civil servants not exercising authority in the name of the
state and working in the transport and public television services may exercise the right to strike,
subject to the possible establishment of minimum services; and if these civil servants are not able to
exercise said right, to take the necessary measures to amend the legislation in light of the above.
Document No. 197
ILC, 111th Session, 2023, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 307-309 (United Kingdom of
Great Britain and Northern Ireland)
Report of the Committee
of Experts on the Application
of Conventions and Recommendations
X Application of International
Labour Standards 2023
Report III (Part A)
International Labour Conference
111th Session, 2023
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 307
United Kingdom of Great Britain and Northern Ireland
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 1949)
Previous comment
The Committee notes the observations made by the Trades Union Confederation (TUC), received
on 31 August 2022, which refer to the issues examined by the Committee below.
The Committee had previously requested the Government to comment on the allegations
relating to police surveillance of trade unions and trade unionists submitted by the TUC in 2018. The
Committee notes the Government’s indications that the exercise of covert investigatory powers
under the Investigatory Powers Act, 2016 (IPA) and the Regulation of Investigatory Powers Act,
2000 (RIPA) are subject to numerous stringent safeguards and robust independent oversight, and are
carried out only if they are necessary for specific statutory grounds, proportionate to the outcome
sought, and the information required cannot be reasonably obtained through less intrusive means.
The Government points out that it would therefore never be necessary and proportionate to use
investigatory powers merely to interfere with legitimate trade union activity. The Government adds
that the RIPA grants victims of improper exercise of covert investigatory powers recourse to the
Investigatory Powers Tribunal (IPT) for redress. The Government further informs that there is an
Investigatory Powers Commissioner who exercises independent oversight over investigatory powers
and has the mandate to audit, inspect and report the use of such powers by the authorities.
The Committee notes the Government’s indication that an Undercover Policing Inquiry was
established in 2015 to inquire into and report on undercover police operations conducted in England
and Wales since 1968 and their effects upon individuals in particular and the public in general. A
number of trades unions and trades unions members have been granted core participant status in
the Inquiry. The Committee expects that the inquiry will be concluded in the very near future and
requests the Government to provide information on any conclusions arrived at in relation to the
above-mentioned allegations.
308 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
Article 3 of the Convention. Right of workers’ organizations to organize their activities and formulate
their programmes. In its previous comment, the Committee had requested the Government to provide
information on the measures taken to facilitate electronic balloting (e-balloting) for industrial action
ballots. The Committee notes both the TUC’s and the Government’s indications that the review of e-balloting
conducted in 2017 resulted in certain recommendations, including pilots of e-balloting in non-statutory
areas as a first step. According to the Government, round table consultations on the recommendations
were held both with experts and with trade unions. The Government indicates that details will be
provided after the finalization of its consideration of the recommendations. The Committee trusts that
this work will be finalized without further delay and that the Government will provide information
thereon in its next report.
The Committee had also requested the Government to review section 3 of the Trade Union Act,
2016 with the social partners to ensure that the requirement of support by 40 per cent of all workers
for strike ballot did not apply to the education and transport sectors. The Committee notes the
Government’s indication that the Act, including the ballot thresholds, will be reviewed with the social
partners in the future. The TUC indicates that the imposition of the ballot threshold of 40 per cent to the
two above-mentioned sectors imposes a requirement of 80 per cent voting support if only 50 per cent
of the members vote and poses a significant barrier to union members exercising their right to strike.
The Committee urges the Government to review section 3 of the Trade Union Act with the social
partners without further delay in order to ensure that the support of 40 per cent of all workers is not
required for a strike ballot in the education and transport services.
In its previous comment, the Committee had requested the Government to provide information
on the practice of notifying the police of the identity of activists; the details of any complaints regarding
the handling of this information or its impact on lawful industrial action; and information on the
blacklisting of individuals engaged in lawful picketing. The Committee notes the Government’s
indication that the Trade Union Act, including provisions on picketing requirements, will be reviewed in
the future, and the Government will take into consideration the comments of the Committee. The
Government indicates that it does not have any information on the blacklisting of individuals engaged
in lawful picketing but adds that claims against blacklisting could be pursued before the Employment
Tribunal within three months of the commission of the offence, or longer at the discretion of the
Tribunal. The Government adds that the usage of personal data is protected by the Data Protection Act,
2018, with breaches of the Act being investigated by the Information Commissioners Office. The
Committee takes note of the TUC allegation that additional restrictions are being planned. The
Committee once again requests the Government to provide information on the application of this
notification in practice, including any complaints made in relation to the handling of this information
or its impact on lawful industrial action, and any information on the blacklisting of individuals engaged
in lawful picketing. It also requests the Government to provide information on the additional
restrictions planned, if any.
The Committee had further requested the Government to review the impact of sections 16–20 of
the Trade Union Act with the social partners to ensure that the expansion of the role of the Certification
officer does not interfere with the rights of workers’ and employers’ organizations under Article 3 of the
Convention. The Committee notes the Government’s indication that the Certification officer reforms
were implemented in April 2022, after engaging with the social partners in June and July 2021, in
addition to the 2017 consultations on the levy. The Government indicates that no consultation was
needed in relation to the proposed new investigatory powers since these were contained in the Trade
Union Act. While noting the Government’s indication that the new legislation would bring the powers of
the Certification Officer in line with other regulators and provide confidence both to union members
and the wider public, the Committee notes the TUC’s indication that the changes would render trade
unions vulnerable to interference by non-members including hostile employers or campaign groups,
particularly during legitimate industrial disputes. The TUC adds that the consultation in 2017 was a
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 309
general consultation inviting input from the general public and not a specific review with the social
partners. The Committee notes the TUC’s concerns that the changes obstruct and hinder trade unions
in their core functions, since they grant the Certification Officer undue discretion in exercising the
powers while the threshold for the exercise of the powers is extremely low and their scope is uncertain.
The changes vest in the Certification Officer the power to act upon a third-party complaint, which,
according to the TUC, could create a risk of interference in the functioning of trade unions; and to
demand documents with sensitive information which are protected by data protection laws. The TUC
further indicates that the changes allow unduly high financial penalties to be imposed for statutory
breaches, and that there is no ceiling imposed on the newly introduced levy which requires unions to
cover the majority of the costs of the Certification Officer. The Committee requests the Government to
provide its comments on the TUC observations, as well as detailed information on the reform
implemented with regard to the Certification Officer’s new investigatory powers, financial penalties
that may be imposed, the amount of any penalties that have been imposed since April 2022, and the
ceiling on the levy introduced.
The Committee is raising other matters in a request addressed directly to the Government.
The Committee hopes that the Government will make every effort to take the necessary action
in the near future.
Document No. 198
ILC, 71st Session, 1985, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 170-172
(Nicaragua)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
Nicaragua (ratification: 1967)
With reference to its previous comments, the Committee notes the
information contained in the Government's report.
It particularly notes with satisfaction that the right
which had been suspended by several successive Decrees
National Emergency Act, was re-established by Decree No,
August 1984,
to strike,
under the
1480 of 6
The Committee also made comments on several provisions of the
Labour Code and the Occupational Associations Regulations concerning
the following points:
170
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
the exclusion of independent workers in urban and rural sectors,
persons working in family workshops and public officials from the
scope of the Labour Code (sections 2, 3, 9 and 175 of the Code);
the requirement of an absolute majority of workers of an
undertaking or a workplace to constitute a trade union (section
189 of the Code);
the general prohibition of political activities by trade unions
(section 204(b) of the Code);
- the restrictions on the right to strike (sections 225(3), 228(1),
and 314 of the Code);
- the possibility of obliging trade union leaders to present the
trade union's books and registers at the request of any of the
members of the trade union (section 36 of the Regulations).
The Committee recalls that during the direct contacts which took
place between the national authorities and a representative of the
Director-General in December 1983, the authorities had indicated that
sections 204(b), 225 and 314 could be modified as desired by the
Committee.
The Committee notes with interest the information provided by the
Government in its report to the effect that, to bring the legislation
into line with the Convention, the Government envisages amending
section 189 of the Code in order to recognise the possibility of a
multiplicity of trade unions in the undertaking and amending
section 204(b) of the Code in order to eliminate the prohibition of
political activities by trade unions. It also envisages amending
section 36 of the Regulations on Trade Union Associations so as to
require that requests for the presentation of the trade union's books
and registers should be made by at least 10 per cent of the members of
the trade union.
The Committee also takes due note that under section 187 of the
Labour Code state employees, whether they are workers or officials
(except those whose responsibilities are of a public nature), enjoy
the same benefits as those set out in the Code for workers in the
private sector.
Regarding independent workers in urban and rural sectors and
workers in family workshops, the Committee notes that, according to
the Government, although these persons are excluded from the Labour
Code which governs the relations between employers and workers, this
exclusion does not prevent the persons in question from forming trade
unions. The Government adds that the right of all persons to found
occupational associations is recognised by the Statute of Rights and
Guarantees of Nicaraguans (section 24) and that section 5 of the
Regulations on Occupational Associations describes social and
occupational associations as groups whose objective is the promotion
of mutual assistance between workers and farmworkers, even when the
latter are not involved in a worker-employer relationship. The
Committee also takes due note of these explanations.
The Committee, however, notes with regret that the Government
wishes to maintain as they are sections 225, 228 and 314 of the Labour
Code concerning restrictions on the right to strike. According to
the Government, it is necessary to maintain the requirement of a
majority of 60 per cent to call a strike, to prohibit strikes in rural
occupations when there is a risk of the products' deteriorating if
171
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
they are not handled immediately and to be able to end a strike that
has lasted 30 days through compulsory arbitration if no solution has
been found after the date of authorisation of the strike.
In this respect, the Committee is bound to point out that
recourse to strike action is one of the essential means that must be
available to workers and their organisations in order to promote and
defend their interests and that restrictions on strikes are only
acceptable in the public service for public servants acting in their
capacity as agents of the public authority and in essential services
or sectors in the strict sense of the term, namely those the
interruption of which would endanger the life, personal safety or
health of the whole or part of the population.
Consequently, the Commit tee invites the Government to re-examine
its position on these points so as to enable a simple majority of the
voters involved in a labour dispute in a bargaining unit (and not 60
per cent of the workers) to be able to decide on a strike, and to
ensure that recourse to arbitration to end a strike is only used at
the request of the two parties or when the strike affects an essential
service in the strict sense of the term.
The Committee expresses the hope that legislation conforming to
the Convention will be adopted in the near future and requests the
Government to keep it informed of all developments in this respect.
172
Document No. 199
ILC, 79th Session, 1992, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 218-219
(Honduras)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
Honduras (ratification: 1956)
The Committee takes note of the Government's report and the
discussions that took place at the Conference Committee in 1991.
The Committee wishes to remind the Government of the sections of
the Labour Code which must be amended in order to bring them into
conformity with the Convention:
218
the amendment of sect ion 2 of the Labour Code, so as to extend
the right to Join trade unions expressly to workers in
agricultural or stock-raising enterprises not regularly employing
more than ten workers, with a view to bringing this provision
into conformity with Article 2 of the Convention;
the amendment of section 472 of the Labour Code, which is
inconsistent with Article 2 in not permitting the existence in a
given enterprise, institution or establishment of more than one
works union and in providing that, where there is already more
than one union, only the one with the greatest number of members
shall remain in existence;
the amendment of s-ction 510 of the Labour Code, which 1s
inconsistent with Article 3, in requiring that union officers
shall, at the moment of election, be normally engaged in the
occupational function characteristic of the union and have
exercised it for more than six months during the preceding year;
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C.87
the alignment of section 537 of the Code with Article 6, which
provides that federations and confederations are not entitled to
call strikes, and section 541, which provides that the leaders of
federations and confederations shall have been engaged in the
corresponding occupation or function for more than one year
before election;
the amendment of provisions that require a majority of two-thirds
at the general assembly of a trade union in order to call a
strike (sections 495 and 563 of the Labour Code);
the need for government authorisation or six months' notice for
any suspension or work stoppage in public services that do not
depend directly or indirectly on the State (section 558 of the
Labour Code). This provision is open to criticism in so far as
it applies to certain services - such as transport or services
connected with petroleum - that are not essential in the strict
sense of the term, that is to say, services whose interruption
would endanger the life, personal safety or health of the whole
or part of the population;
the power of the Minister of Labour and Social Security to end a
dispute between employers and workers on the application of
either party in services for the production, refining, transport
and distribution of petroleum (section 555(2) of the Code).
The Committee notes the information supplied by the Government
concerning the first meeting of the Seminar on the reform of the
Labour Code attended by delegates from the trade union organisations,
representatives of the Honduran Private Enterprise Council and
directors-general of the Ministry of Labour and Social Security; and
the creation of the project "Modernisation and institutional
reinforcement of the labour administration in support of the economic
reorganisation programme", whose objectives are: to modernise, update
and develop labour legislation so that it is more consistent with the
Constitution of the Republic of 1982 and ratified international labour
Conventions.
However, the Committee regrets that, although it has been
pointing out to the Government for many years that a number of
provisions of the existing Labour Code require amendment so as to
bring them into line with the prov1s1ons of the Convention, the
necessary reforms have still not been carried out.
Accordingly, the Committee cannot but trust that the Government
will examine its obser·1ations carefully and reiterates the firm hope
that it will take the necessary measures to give full effect to the
Convention, and it again asks the Government to report any
developments in this respect.
[The Government is asked to supply full particulars at the 79th
Session of the Conference.]
219
Document No. 200
ILC, 79th Session, 1992, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 223-225
(Nicaragua)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C.87
Nicaragua (ratification: 1967)
The Committee takes note of the Government's report and
observes that it contains information concerning compliance
with the recommendations made by the Commission of Inquiry
appointed under article 26 of the ILO Constitution to examine the
complaint against Nicaragua concerning the application of
Conventions Nos. 87, 98 and 144.
223
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
With regard to the information given in connection with paragraph
541 of the report of the Commission of Inquiry (amendment and updating
of the Police Functions Act, the Police Code and the Code of Criminal
Procedure), the Committee notes with interest that the National
Assembly has promulgated Act No. 124 of 25 July 1991 on the reform of
criminal procedure, which makes local judges competent to try and
punish the perpetrators of minor criminal offences and district judges
to try the perpetrators of offences that carry more severe penalties
than correctional penalties, but provides that they may not pronounce
sentence until a jury has delivered its verdict. The Committee takes
note of the Government's statement that it does not propose to
promulgate legislation on social communications since there is
complete and unrestricted freedom to receive and disseminate
information without limitation.
The Coiranittee further notes with satisfaction, with regard to the
information given by the Government in connection with the
recommendation of the Commission of Inquiry concerning expropriations
(paragraph 542 of the report of the Commission of Inquiry) that the
properties have been returned to the leaders of COSEP.
The Committee takes due note that the Government has prepared a
draft Labour Code taking into account the observations of the
Committee of Experts, of the Commission of Inquiry and of the ILO
advisers. As regards tripartite consultations provided for in
Convention No. 144, the Committee notes the Government's statement
that it has had extensive recourse to tripartism in different labour
activities.
In this connection the Committee reminds the Government of its
observations concerning certain provisions of or omissions from the
legislation that are not in accordance with the Convention. The
Committee had referred in particular to the need to:
- guarantee, by a specific provision, the right of public servants,
self-employed workers in the urban and rural sectors and persons
working in family workshops to associate for the defence of their
occupational interests;
- abolish the requirement of an absolute majority of the workers of
an enterprise or work centre for the formation of a trade union
(section 189 of the Labour Code);
- amend the provision on the general prohibition of political
activities by trade unions (section 204(b) of the Code);
- amend the obligation placed on trade union leaders to present to
the labour authorities the registers and other documents of a
trade union on application by any of the members of that union
(section 36 of the Regulations on Trade Union Associations);
lift the excessive limitations on the exercise of the right to
strike, requiring a majority of 60 per cent for calling a strike,
prohibiting strikes in rural occupations when the produce may be
damaged if it is not immediately available, and enabling the
authorities to end a strike that has lasted 30 days through
compulsory arbitration if no settlement has been reached after
the date authorised for the strike (sections 225, 228 and 314 of
the Code).
The Committee asks the Government to send it a copy of the draft
Code in question. Since the questions raised are of great importance
224
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
and it has been pressing them for many years, the Committee expresses
the firm hope that at its next session it will be able to take note of
tangible results with regard to the reconciliation of the legislation
with the Convention and that the recommendations made by the
Commission of Inquiry in its report (paragraphs 543 and 544) will be
embodied in the future Labour Code.
225
Document No. 201
ILC, 79th Session, 1992, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 240-241
(Trinidad and Tobago)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
C.87 REPORT OF THE COMMITIEE OF EXPERTS
Trinidad and Tobago (ratification: 1963)
The Committee takes note of the Government's report and recalls that
its previous observations have addressed the following issues:
240
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C.87
1. the need to amend prov1s1ons that afford a privileged position to
registered associations, without providing objective and
pre-established criteria for determining the most representative
association (sections 24(3) of the Civil Service Act, 28 of the
Fire Service Act and 26 of the Prison Service Act);
2. the need to amend section 59(4)(a) of the Industrial Relations
Act, as amended in 1978, so as to enable a simple majority of the
voters in a bargaining unit (excluding those workers not taking
part in the vote) to call a strike;
3. the need to amend sections 61 and 65 of the same Act to ensure
that any resort to the courts by the Ministry of Labour, or by
one party only, to end a strike is limited to cases of strikes in
essential services in the strict sense of the term, that is to
say, those in which the strike would endanger the life, personal
safety or health of the whole or part of the population, or in
cases of acute national crisis.
In its report, the Government indicates that the high-level
review committee that it had appointed to undertake a global review of
all the Service Acts and regulations has accomplished a considerable
amount of work. In particular, the Fire Service (Amendment) Bill,
1990 and the Prison Service (Amendment) Bill, 1990, both of which
amend the relevant Service Acts to bring them into line with the
observations of the Committee of Experts, have been completed after
extensive consultations with the relevant associations, and are soon
to be submitted for the Government's approval. Moreover, a draft
Civil Service (Amendment) Bill has been submitted to the Public
Services Association, prior to discussions to be held thereon.
The Committee hopes that the Government will be in a position to
indicate in its next report whether the above-mentioned Bills have
been promulgated and, if so, to provide copies of these amendments.
The Government states that it is still actively considering the
questions of amending sections 59(4)(a) and 65 of the Industrial
Relations Act, Chapter 88:01, along the lines suggested by the
Committee. It is also studying the comments of the Committee with
respect to the amendment made to section 61 of the same Act, by the
promulgation of Act No. 5 of 1987.
The Commit tee strongly hopes that the Government wi 11 implement
legislation along the lines it has been suggesting for many years and
urges the Government once again to indicate in its next report the
measures taken to bring its legislation into conformity with the
Convention.
In addition, in the light of the comments made by the Staff
Association of the Central Bank of Trinidad and Tobago in a letter
dated 7 November 1990 relating to the insufficient observance of the
Convention in this sector, the Government indicates that in the
context of a rev1s1on of the Central Bank Act, 1964, which is
currently being undertaken by the Government, consideration will be
given to the establishment of an appropriate mechanism to deal with
the grievances of Central Bank employees.
The Committee requests the Government, in its next report, to
keep it informed of any developments in this respect.
241
Document No. 202
ILC, 109th Session, 2021, Report III/Addendum
(Part A), Report of the Committee of Experts on the
Application of Conventions and Recommendations,
pp. 70–72 (Armenia)
X Application of International
Labour Standards 2021
Report III /Addendum (Part A)
Addendum to the 2020 Report
of the Committee of Experts on the Application
of Conventions and Recommendations
International Labour Conference
109th Session, 2021
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
70
Armenia
Freedom of Association and Protection of the Right to Organise Convention,
1948 (No. 87) (ratification: 2006)
The Committee notes the observations of the Republican Union of Employers of Armenia (RUEA) and
of the Confederation of Trade Unions of Armenia (CTUA) transmitted with the Government’s report, which
refer to the issues raised by the Committee below. The Committee further notes the CTUA observations
received on 30 September 2020 referring to the issues raised by the Committee below and to the
application of the Convention in practice. The Committee requests the Government to provide its
comments thereon.
Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish
and join organizations. The Committee had previously requested the Government to take the necessary
Freedom of association,
collective bargaining, and
industrial relations
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
71
measures to amend the Constitution and the Law on Trade Unions so as to ensure that the following
categories of workers could establish and join organizations of their own choosing: (i) employees of the
Prosecutor’s Office, judges and members of the Constitutional Court; (ii) civilians employed by the police
and security service; (iii) self-employed workers; (iv) those working in liberal professions; and (v) workers
in the informal economy. The Committee notes the Government’s indication that constitutional
amendments were adopted on 6 December 2015. The Committee notes with interest that pursuant to
article 45, paragraph 1, of the amended Constitution everyone has the right to freedom of association,
including the right to establish and join trade union organizations.
The Committee further notes the Government’s indication that while the issue of amending the Law
on Trade Unions will be discussed with the social partners, the right of civilian personnel in the police and
security services to join trade unions is not restricted by section 6 of the Law on Trade Unions, by the Law
on the Police Service or by the Law on the Service in the National Security Bodies. The Committee notes,
however, that it stems from section 6 of the Law on Trade Unions, as amended in 2018, that only those
with employment contracts can be members of a trade union and that pursuant to paragraph 3 of the
same section, employees of the armed forces, police, national security, prosecutor's office, as well as
judges, including judges of the Constitutional Court, cannot be members of a trade union organization.
The Committee once again recalls that all workers, without distinction whatsoever, should have the right
to establish and join organizations of their own choosing. It further recalls that the only authorized
exceptions concern members of the police and the armed forces. It considers, however, that civilians
employed in such services should be granted the right to establish and join organizations to further and
defend their interests. The Committee therefore urges the Government to take the necessary measures
to amend the Law on Trade Unions to ensure that employees of the Prosecutor’s Office, judges (including
of the Constitutional Court), civilians employed by the police and security services, self-employed
workers, those working in liberal professions, and workers in the informal economy can establish and
join organizations for furthering and defending their interests. It requests the Government to provide
information on all progress made in this respect.
Minimum membership requirement. The Committee recalls that it had previously requested the
Government to amend section 4 of the Law on Employers’ Unions, providing for the number of employers
required to form employers’ organizations at the national level (over half of employers’ organizations
operating at the sectoral and territorial levels), sectoral level (over half of employers’ organizations
operating at the territorial levels) and territorial level (majority of employers in a particular administrative
territory or employers’ organizations from different sectors in a particular administrative territory); and to
also amend section 2 of the Law on Trade Unions, setting out similar prerequisites for federations of trade
unions at the territorial, sector and national levels, so as to lower the required minimum membership
requirements. The Committee had considered that the minimum membership requirements as set out in
the above legislative provisions are too high given that they would appear to ensure that in fact there is
only one national level organization, one organization per sector and one territorial level organization per
territory or a particular sector in the territory. The Committee notes the Government’s indication that the
Ministry of Labour and Social Issues has received draft amendments to the Law on Trade Unions and the
Law on Employers' Unions. Recalling that it has been raising the issue of minimum membership
requirement for the last ten years, the Committee expects that, in consultation with the social partners,
both the Law on Trade Unions and the Law on Employers’ Unions will be amended in the near future so
as to lower the minimum membership requirements and to ensure that more than one organization can
be established at various levels. The Committee requests the Government to provide information on the
developments in this regard.
Article 3. Right of organizations to organize their administration and activities in full freedom. The
Committee recalls that it had previously requested the Government to amend:
– sections 13(2)(1) and 14 of the Law on Employers’ Unions, which regulate in detail matters that should
be decided upon by organizations themselves (such as the obligatory use of the words “employers’
union” for all employers’ organizations and “Armenia” for a national organization and the rights and
responsibilities of the congress of an employers’ organization);
– section 74(1) of the Labour Code, which requires a vote by two-thirds of an organization’s
(enterprise’s) employees to declare a strike (or a vote by two thirds of employees of the subdivision
if a strike is declared by a subdivision of an organization, as the case may be), so as to ensure that
account is taken only of the votes cast, and that the required quorum and majority are fixed at a
reasonable level; and
– section 77(2) of the Labour Code, according to which, minimum services are determined by the
corresponding state and local self-governance entities, so as to ensure that social partners are able
to participate in the definition of what constitutes a minimum service.
The Committee takes note of the Government’s indication that in its view, sections 13(2)(1) and 14 of
the Law on Employers’ Unions are not inconsistent with Article 3 of the Convention and do not limit the
right of the employers' unions to independently draft their regulations or by-laws, freely elect their
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
72
representatives and organize their administration and activities. Recalling that the fundamental notion
of Article 3 of Convention No. 87 is that workers and employers may decide for themselves the rules which
should govern the administration of their organizations, the Committee once again requests the
Government to consider amending the above-mentioned provisions in consultation with the social
partners to ensure that only formal requirements are laid down by the national legislation with regard
to the functioning of organizations.
The Committee further notes the Government’s indication that the Labour Code is currently being
reviewed to determine whether its above-mentioned sections should be amended. The Government
informs, in particular, that it is suggested to amend section 74(1) of the Labour Code so as to require a
favourable vote by the majority of employees who have participated in the closed ballot to call a strike if
at least two-thirds of the total number of the employees of an organization/undertaking (or its subdivision)
have participated in the ballot. The Government indicates that the question of acceptable quorum will be
further discussed with the social partners. As regards section 77(2) of the Labour Code, the Committee
notes that the Government’s indication that a new proposal for amendments contains reference to the
negotiation of minimum services between employers and workers’ representatives. While welcoming the
proposed amendments, the Committee recalls that the observance of a quorum of two-thirds of the total
number of employees may also be difficult to reach and could restrict the right to strike in practice. It
therefore requests the Government to ensure that the quorum and majority required for voting on a
strike as well as to call a strike are fixed at a reasonable level. The Committee requests the Government
to provide information on the developments regarding the amendment of the Labour Code.
The Committee encourages the Government to pursue its efforts in addressing the issues raised
above with the assistance of the ILO and in consultation with the social partners.
Document No. 203
ILC, 111th Session, 2023, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, p. 266 (Seychelles)
Report of the Committee
of Experts on the Application
of Conventions and Recommendations
X Application of International
Labour Standards 2023
Report III (Part A)
International Labour Conference
111th Session, 2023
266 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
Seychelles
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 1978)
Previous comment
The Committee notes the observations of the Association of Seychelles Employers (ASE) and the
Seychelles Chamber of Commerce and Industry (SCCI), communicated with the Government’s report, as
well as the Government’s statement pertaining to the status of the review of the Industrial Relations Act
(IRA) set out below.
In its previous comment, the Committee had requested the Government to provide information
on the developments regarding the review of the IRA, particularly the amendments of its following
provisions:
– section 9(1), so as to repeal the Registrar ’s discretionary power to refuse registration;
– section 52(1)(a)(iv), so as to reduce the majority required to declare a strike to a simple
majority;
– section 52(1)(a)(iii), so as to consider shortening the length of the cooling-off period;
– section 52(4), so as to ensure that the responsibility for declaring a strike illegal does not lie
with the government authorities, but with an independent body which has the confidence of
the parties involved; and
– section 56(1), which imposes penalties of up to six months of imprisonment for organizing
or participating in a strike declared unlawful.
The Committee notes the Government’s indications that a report with the recommendations for
amendments developed by an ILO consultant in 2021 is currently under review by the Ministry of
Employment and Social Affairs. According to the Government, the report contains recommendations:
to repeal section 9; to provide that the strike ballot “shall be successful where it obtains the support of
a majority of the workers in the bargaining unit concerned by the labour dispute”; to amend
section 56(1) so as to limit the penalty to solely a monetary fine, as opposed to a monetary fine combined
with imprisonment; and to set up a Commission for Conciliation and Mediation which will have statutory
powers to create a deadlock breaking mechanism and prevent strike action. No recommendation has
been made regarding the authority to declare a strike unlawful. The Government indicates that it is yet
to finalize its position on the proposals. While taking due note of the work carried out with the technical
assistance of the ILO, the Committee recalls that it has been requesting the Government to amend the
IRA for a number of years. It therefore urges the Government to take all necessary steps to expedite
the legislative review, in consultation with the social partners, and to take into account the
Committee’s previous comments, including its expectation that the amendment of section 52(1)(a)(iv)
will continue to ensure that account is taken only of votes cast, as well as its comments on provisions
apparently not mentioned in the consultant’s report. The Committee requests the Government to
provide information on the developments in this regard.
The Committee notes the Government’s indication that while the 45 days cooling-off period is not
preceded by compulsory prior mediation or conciliation procedure and begins at the time of the
reporting of the dispute to the Minister, in its view, it is possible to further shorten it to 30 days, in
consultation with the social partners. Recalling that the period of advance notice should not be an
additional obstacle to bargaining, the Committee requests the Government to provide information of
developments in this respect.
Document No. 204
ILC, 67th Session, 1981, Report III (Part 4A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, pp. 100-101
(Chad)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
C. 87 PEPOFT OF THE COMHITTEE OF EXPEFÎS
Labour Code have been proposed with a view to giving effect to the
provisions of the convention, in accordance with the comments of the
Committee.
The Committee asks the Government to report any development in
the situation and to provide a copy of the amendments as soon as they
have been adopted.
Chad (ratification: 19 60)
Following the discussion on the application of this Convention
that took place in 1979 in the Conference Committee, the Committee
regrets to note that once again the report of the Government has not
arrived. Tt is therefore bound to repeat its previous observation,
which was worded as follows:
Tn its previous observations, the Committee has made
comments on section 36 of the Labour Code, which prohibits trade
unions from undertaking any political activities. The Committee
has, in particular, stated that a wide interpretation of this
provision could lead to the conclusion that trade unions were
going beyond their statutory competence if they ventured to make
suggestions or criticisms concerning the Government's economic
and social policy, for instance, the Government's wages policy.
The Committee considered that it would be desirable not to
prohibit completely any activity which, while directed
essentially to the defence of members' interests, might have some
political aspects, and to leave it to the courts to repress any
abuses by occupational organisations which might attempt to
transform unions into political instruments.
In addition, the Committee takes note of Ordinance No. 001
of 8 January 1976. This Ordinance provides that the exercise of
trade union rights is exclusively reserved for the private sector
and is prohibited in regard to public officials and equivalents.
The Committee recalls in this connection that under Article 2 of
the Convention, workers, without distinction whatsoever,
including public officials, have the right to establish and to
join organisations of their own choosing.
The Committee has also taken note of Ordinance Vo. 30 of 26
November 1975. This Ordinance provides that by reason of the
overriding necessity to maintain order and in view of the
positive abuses in the practice of freedom of association, all
strike activity on the entire national territory is suspended
until further notice. The Committee considers in this connection
that, to be permissible, a prohibition from striking applied to
all workers owing to special circumstances should not last longer
than is strictly necessary. Tn addition, the Committee recalls
that a general prohibition from striking considerably restricts
the possibilities that trade unions have of furthering and
defending the interests of their members (Article 10 of the
Convention) and of organising their activities (Article 3).
The Committee trusts that the Government will take, in the
very near future, the action necessary to modify the legislation
in the light of the comments made above.
In addition, in its previous direct requests, the Committee
had noted the statement of the Government that trade unions may
affiliate with organisations provided that these have African
allegiance. The Committee again requests the Government to
indicate whether organisations of workers and employers have the
right to affiliate with international organisations of workers
100
C.87
and em?loyers, in general, as provided for in Article 5 of the
convention. 1
1 The Government is asked to supply full particulars to the
Conference at its 67th Session.
101
Document No. 205
ILC, 111th Session, 2023, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 290-294 (Türkiye)
Report of the Committee
of Experts on the Application
of Conventions and Recommendations
X Application of International
Labour Standards 2023
Report III (Part A)
International Labour Conference
111th Session, 2023
290 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
Türkiye
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 1993)
Previous comment
The Committee notes the observations of the Confederation of Public Employees’ Trade Unions
(KESK), received on 31 August 2022; as well as those of the International Trade Union Confederation
(ITUC), and the Confederation of Progressive Trade Unions of Türkiye (DİSK) received on 1 September
2022 which concern questions examined in this comment, and the Government’s reply thereto. The
Committee also notes the observations of Turkish Confederation of Employers’ Associations (TISK)
communicated with the Government’s report.
Civil liberties. In its previous comment, the Committee had requested the Government to provide
its detailed comments on the lengthy and serious allegations of violations of civil liberties and trade
union rights that date back to 2016. The Committee notes that the Government reiterates its previous
general indications citing a number of constitutional and legal provisions guaranteeing freedom of
association and, in particular, section 118 of the Penal Code concerning the offence of forcing
someone to join or leave a union or to prevent the activities of a union; and indicates that there
are both administrative and penal sanctions against those who violate these provisions which aim
to protect trade union activities from all kinds of violence, pressure and a threatening
environment. The Government also once again refers to the constitutional and statutory
framework governing the freedom of assembly in Türkiye, indicating that everyone has the right to
hold unarmed and peaceful meetings and demonstrations without prior authorization – however,
with prior notification to administrative authorities – and that this right shall be restricted only by
law on grounds of national security, public order, prevention of commission of crime, protection of
public health and public morals, or the rights and freedoms of others. Act No. 2911 on Meetings and
Demonstrations and the relevant
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 291
Regulation set the legal framework for exercising this right. In this framework, meetings and
demonstrations can be organized in determined places, with notification made to the administrative
authorities in order to ensure that the necessary security measures are taken. Security measures are
planned and implemented regardless of the affiliation of the organizers, with a view to protecting the
life and property of the organizers and other citizens. The Government indicates that all kinds of
peaceful meetings and demonstrations take place in a safe and free environment, but when some trade
union members transgress the law, destroy public and private property and seek to impose their own
rules during the meetings and demonstrations, then security forces are obliged to intervene to preserve
public order and safety. The Government adds that for the latest May Day, celebrations were held by all
trade unions and confederations all around the country. According to the Government, the rate of
intervention in demonstrations and meetings has decreased from 3.2 per cent in 2015 to 0.6 per cent in
2021 and the number of persons subjected to judicial and administrative proceedings in the same
period decreased from 11,330 to 2,640 persons. The Government finally adds that since the enactment
of Act No. 6356 and the substantial amendment of Act No. 4688, the rate of unionization has steadily
increased, reaching 72.36 per cent in the public sector and 14.32 per cent in the private sector. There
are currently seven trade unions’ confederations and 12 public servants’ trade unions’ confederations.
Taking due note of this information, the Committee notes with deep regret that the Government does
not provide any concrete information in response to the many specific and very serious allegations of
violations of civil liberties made by the social partners in the past years. The Committee notes that in
their latest observations, the KESK, the DİSK and the ITUC denounce more cases of arrest, detention
and prosecution of trade unionists including the imprisonment of six KESK members and executives,
among them Mr Mehmet Ali Köseoğlu, secretary of Collective Bargaining Agreement and legal affairs
of Yapi-Yol-Sen, a KESK affiliate, arrested on 3 June 2022 and still held in pre-trial detention, without
being informed of the charges against him or having a trial date; and the arrest in Ankara of eight
leaders of the Trade Union of Employees in Public Health and Social Services (SES) on unspecified
charges on 25 May 2021. The Committee notes the Government’s indication that there is no information
in the records of the Ministry of Labour regarding these cases. The Committee recalls that the alleged
instances of denial of freedom of assembly and demonstration include: an absolute ban on all forms of
public gatherings in the city of Van, declared on 21 November 2016 and regularly extended since by the
Governor’s office; a Government ban on May Day celebrations in Istanbul Taksim square; the arrest of
212 demonstrators in Istanbul for attempting to hold a May Day protest in defiance of the coronavirus
lockdown rules, including members of several DİSK affiliates; intervention of security forces in the
awareness raising action of KESK women leaders on the occasion of the International day for the
elimination of violence against women on 22 November 2021; a ban on a public gathering of KESK and
other union representatives in Antalya, planned to express views on the annual budget that was being
discussed in Parliament, on 12 December 2021; use of tear gas and physical force to disperse a
gathering of KESK leaders and members to protest low wages in front of the Turkish Statistical Institute
on 1 July 2022; intervention with tear gas and violence in the demonstration organized by KESK women
representatives to protest against the withdrawal of Türkiye from the Council of Europe’s Istanbul
convention on violence against women in Ankara on 26 July 2022; and violent police intervention in the
sit-in organized inside Farlplas Automotive factory on 31 January 2022 to protest against the dismissal
of nearly 150 workers. The police went to seek protesting workers on the rooftop of the factory, where
it arrested them with violence, using pepper gas, risking their fall from the roof, using foul language
against women, dragging them on the ground by the hair and breaking their bones. Reportedly
106 workers and union members and two officers of the DGD-SEN union were arrested by the police
and released after giving their statements. The Committee urges the Government to provide detailed
comments on these serious allegations of violations of civil liberties.
292 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
Follow-up to the recommendations of the tripartite committee
(representation made under article 24 of the ILO Constitution)
The Committee notes that in March 2021, the Governing Body approved the report of the tripartite
committee set up to examine the representation submitted by the Action Workers’ Union Confederation
(Aksiyon-Is) under article 24 of the ILO Constitution (GB.341/INS/13/5). The Committee notes that the
tripartite committee issued conclusions and made recommendations in relation to: (i) dissolution of
trade unions pursuant to the Decree-Law No. 667; (ii) the situation of workers who suffered from
reprisals and retaliatory acts for their membership in the dissolved unions; and (iii) the situation of the
imprisoned leaders and members of the dissolved unions. The Committee will examine measures taken
by the Government in respect of the recommendation of the tripartite committee below.
The Committee recalls that the tripartite committee found that the workers dismissed for
membership in dissolved unions were punished for having exercised their right to join organizations of
their own choosing guaranteed by Article 2 of the Convention without any possibility of review of their
individual situation. The Inquiry Commission, which is mandated to examine the applications of workers
dismissed under the state of emergency decrees, did not review the legality of the closure of the
relevant trade union or any of the individual’s own activities; membership in a closed union was
considered sufficient ground to reject an application against dismissal. The tripartite committee found
that this amounted to a denial of the right of dismissed workers to an effective remedy. Concerning the
allegation of imprisonment of the chairperson of Aksiyon-Is and the Chairpersons of PAK MADEN IS,
PAK TEKSIL IS, PAK EGITIM IS, PAK TASIMA IS, PAK SAGLIK IS, and PAK HIZMET IS, as well as many
members of administrative committees, the tripartite committee stressed the importance of the right
to freedom and security of person and freedom from arbitrary arrest and detention, as well as the right
to a fair trial by an independent and impartial tribunal, in accordance with the provisions of the Universal
Declaration of Human Rights. The tripartite committee urged the Government to ensure that a full,
independent and impartial review be made with regard to all those workers who suffered from reprisals
and retaliatory acts for their membership in the dissolved unions, in order to determine whether,
independently of their membership in such unions, they had carried out any unlawful activity that would
justify their dismissal. The tripartite committee also expected that the imprisoned trade unionists
receive a swift and impartial trial and requested the Government to submit copies of the relevant
judgments to this Committee. The Committee notes the following information provided by the
Government on the review mechanism of the Inquiry Commission: (i) the Inquiry Commission on the
State of Emergency initiates its investigations on the ground that the member concerned has a
membership, affiliation, connection or contact with terrorist organizations, or structures/entities, or
groups established by the National Security Council as engaging in activities against the national
security of the State; (ii) the investigations on the applicants from the confederations and trade unions
which were closed by the decree laws are ongoing; (iii) as an effective remedy, the Commission delivers
individualized and reasoned decisions after speedy and extensive examination; it is aimed that all
application files whose examination process are ongoing will be concluded during the Commission’s
mandate period.
The Committee deeply regrets that the Government does not refer to any measures taken to
address the concerns and recommendations of the tripartite committee regarding the denial of the
rights of members and leaders of dissolved unions to an effective remedy and a fair trial. The Committee
further deeply regrets that the Government does not provide any information on the situation of
imprisoned union leaders. In view of the foregoing, the Committee urges the Government to take all
necessary measures to implement the recommendations of the tripartite committee and to ensure that
the right to an effective remedy and to a fair trial of the members and leaders of dissolved unions is
duly respected. The Committee requests the Government to provide information thereon.
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 293
Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join
organizations. Senior public employees, magistrates and prison staff. The Committee recalls that for a
number of years it has been requesting the Government to amend section 15 of Act No. 4688 which
excludes senior public employees, magistrates, and prison staff from the right to organize. The
Committee notes that in the Government’s view, section 15 was designed in line with legal regulations,
judicial decisions, and ILO Conventions. The Committee recalls in this regard that it has always
considered that: (i) to bar senior public officials from the right to join trade unions which represent other
workers in the public sector is not necessarily incompatible with freedom of association on the condition
that they should be entitled to establish their own organizations to defend their interests; and (ii) while
the exclusion of the armed forces and the police from the right to organize is not contrary to the
Convention, the same cannot be said for prison staff.
Locum workers (teachers, nurses, midwives, etc), public servants working without a contract of
employment and pensioners. The Committee had previously requested the Government to provide its
comments on the observations of MEMUR-SEN concerning the need to ensure freedom of association
for these categories of workers. The Government indicates in this regard that: (i) only public servants as
defined in section 3 of Act No. 4688 on Public Servants’ Trade Unions and Collective Agreement can join
trade unions established within the scope of the Act and locum workers cannot be employed under any
cadre or position as specified in section three; and (ii) retired public servants cannot establish or join
public servants’ unions, as sections 6 and 14 of Act No. 4688 restrict these rights to active public servants.
According to the Government, they have, however, formed several associations that can bring the issues
concerning them to the attention of the Government. The Committee recalls in this respect that: (i) with
regard to the right to establish and join organizations, the Convention does not allow any distinction
based on whether the employees are engaged on a permanent or temporary basis, or with regard to
their contractual status or the lack thereof; and (ii) legislation should not prevent former workers and
retirees from joining trade unions, if they so wish, particularly when they have participated in the activity
represented by the union.
The Committee requests the Government to take necessary measures to review the legislation
with a view to ensuring that senior public employees, magistrates and prison staff, locum workers,
public servants working without a contract of employment and retirees can enjoy and exercise their
right to establish and join organizations. The Committee requests the Government to provide
information thereon.
Article 3. Right of workers’ organizations to organize their activities and formulate their programmes.
Suspension and prohibition of strikes. The Committee recalls that section 63(1) of Act No. 6356 provides
that a lawful strike or lockout that had been called or commenced may be suspended by the President
of the Republic for 60 days by a decree if it is prejudicial to public health or national security and that if
an agreement is not reached during the suspension period, the dispute would be submitted to
compulsory arbitration. For a number of years, the Committee has been requesting the Government to
ensure that section 63 of Act No. 6356 is not applied in a manner so as to infringe on the right of workers’
organizations to organize their activities free from government interference. While observing that in a
decision dated 22 October 2014, the Constitutional Court ruled that the prohibition of strikes and
lockouts in banking services and municipal transport services under section 62(1) was unconstitutional,
the Committee noted that pursuant to a Decree with power of law (KHK) No. 678, the Council of Ministers
can postpone strikes in local transportation companies and banking institutions for 60 days. The
Government indicates in this regard that the decision of the President to postpone a strike is taken
within its context and its rationale is clearly stated in the decision, hence this authority is exercised within
clearly stated boundaries. Furthermore, pursuant to article 125 of the Constitution, this decision is
subject to judicial review as an administrative decision. The Government indicates that 14 strikes have
been postponed since 2012 and in the regular reporting period only one postponement decision was
accepted, which resulted in the agreement of the parties and the signing of a CBA. The Committee
294 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
further notes the observation of the DİSK, indicating that between 2015-2019, nine strikes concerning
235 workplaces and 169,705 workers were postponed with a cabinet decree. Recalling that strikes can
be suspended only in essential services in the strict sense of the term, for public servants exercising
authority in the name of the State or in the event of an acute national crisis, the Committee once again
requests the Government to ensure that these principles are taken into consideration in the
application of section 63 of Act No. 6356 and KHK No. 678.
The State Supervisory Council. The Committee had previously requested the Government to provide
information on any investigations or audits of trade unions undertaken by the Council, pursuant to
Decree No. 5 or article 108 of the Constitution, and their results including any sanctions assessed. The
Committee notes the Government’s indication that the Constitutional Court annulled the phrase “may
apply a measure or” in section 6(ç) of the Presidential Decree No. 5, which provided that the State
Supervisory Council may apply a measure of removal from duty or propose the application of this
measure to the competent authorities for officials of all levels and ranks who are deemed inconvenient
to remain on duty in terms of the requirements of public service. The Government explains that
following that decision, the State Supervisory Council no longer has the authority to dismiss or suspend
any trade union official but can only propose the application of these measures to the competent
authorities, which, in the case of trade unions, refers to the trade union’s own supervisory bodies and
disciplinary committees. The Committee takes due note of the Government’s indication that the Council
has not carried out any investigation or audit against any trade union.
Article 4. Dissolution of trade unions. The Committee notes the conclusions of the tripartite
committee referred to above about the situation of trade unions dissolved pursuant to Decree-Law
No. 667. The tripartite committee noted that these unions were dissolved by the executive branch of the
Government, while under Article 4 of the Convention, any dissolution of workers’ or employers’
organizations can only be carried out by the judicial authorities, which alone can guarantee the rights
of defence. The tripartite committee further noted that while according to the Government, the
representatives of these unions had failed to file applications with the Inquiry Commission mandated
to examine their cases, the dissolved organizations had a limited capacity to present their claims due to
the imprisonment of their leaders and members and seizure of their funds pursuant to the state of
emergency Decree-Laws. The tripartite committee noted that as the time for filing an application
challenging the closure of the unions has elapsed, it would now appear impossible to bring the
dissolution of trade unions before a normal judicial procedure and added that the Government itself
does not provide any explanation or details concerning the actions of the trade unions justifying their
dissolution other than a declaration set out in Decree-Law No. 667 indicating that they were connected
to FETÖ/PDY. The tripartite committee therefore urged the Government to take the necessary measures
to ensure that the dissolution of trade unions pursuant to Decree-Law No. 667 is reviewed through the
normal judicial procedures, which should also enable those unions to be able to be fully represented to
defend their case. The Committee regrets that the Government merely indicates in this respect that two
confederations and ten trade unions dissolved due to their connections to the FETO terrorist
organization have applied to the Inquiry Commission and their cases are pending. Recalling that the
dissolution and suspension of trade unions constitute extreme forms of interference by the authorities
in the activities of organizations, and that Article 4 of the Convention prohibits the imposition of such
measures by administrative authority, the Committee urges the Government to take all necessary
measures to comply with the recommendation of the tripartite committee and to provide detailed
information thereon. The Committee further requests the Government to provide information on the
outcome of the cases concerning dissolved unions and confederations that are pending before the
Inquiry Commission as well as on the number and outcome of any appeals against the negative
decisions of the Inquiry Commission.
[The Government is asked to reply in full to the present comments in 2023.]
Document No. 206
ILC, 59th Session, 1974, Report III (Part 4A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, p. 136 (Costa
Rica)
International Labour Conference
59th Session 1974
Report III
(Part 4 A)
Third Item on the Agenda:
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
Volume A :
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
The Committee hopes that the Government will make every effort to take the
necessary action in the very near future.
Congo (ratification: 1960)
Further to its earlier observations, the Committee notes with satisfaction the
information supplied by the Government to the Conference Committee in 1973 and in
its latest report, to the effect that Ordinance No. 13/73 of 18 May 1973 repealed Acts
Nos. 40/64 and 3/65 setting up a single trade union organisation, which the
Committee had found not to be compatible with the Convention.
Costa Rica (ratification: 1960)
In its earlier observation the Committee expressed the hope that, in view of the
importance of the exercise of trade union rights in plantations, the right of trade
union leaders to have access to them and the right of the workers to hold meetings,
the Government would, as soon as possible, adopt legislative and administrative
measures to ensure that all concerned may exercise these rights fully and effectively.
The Committee notes with interest the information given by the Government in its
latest report, to the effect that it will submit to the Legislative Assembly a Bill to guarantee
the right to hold trade union meetings in public places inside plantations. The
Committee would ask the Government to supply information on any development
in this matter and on the measures that have been taken to ensure that trade union
leaders have access to plantations for the purpose of legitimate trade union activities.
The Committee also notes the statements made by a Government representative
and by the Worker member of Costa Rica to the Conference Committee in 1973
regarding section 334 of the Criminal Code, which imposes penal sanctions for
incitement to strike in the public services. According to the Worker member, the
Government is an important employer, and this fact has led it to restrict the exercise
of the rights laid down in the Convention. According to the Government representative,
the Government has never made use of the section in question and has submitted
to Parliament proposals for, among other things, the repeal of section 334 of the
Criminal Code.
The Committee notes that, according to the Labour Code, strikes are not
permitted in the public services, which include all work performed by persons in the
employment of the State or a state institution, if the work in question is not of the
same nature as work performed also by private undertakings carried on for profit.
In this connection the Committee would point out, as it has done before with
regard to public officials, that the recognition of freedom of association does not
necessarily imply the right to strike as well. However, if strikes are prohibited
for those officials, and also in essential services, it is important that they should
have adequate guarantees that their rights will be safeguarded as, for example, appropriate
conciliation and arbitration procedures which are impartial and speedy and
in which the parties concerned can participate at every stage.
Cuba (ratification: 1952)
The Committee notes that the Government's last report contains no new
information.
The Committee remains prepared to consider further the points raised in
preceding years at such time as any new elements shall have been brought to its
attention. The Committee would be grateful if the Government would supply
information on any developments in this connection.
136
Document No. 207
ILC, 71st Session, 1985, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 138-140
(Ecuador)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
Ecuador (ratification: 1967 )
With reference to its previous comments, the CotIDnittee takes note
of the information supplied by the Government in its report. It,
nevertheless, considers that several provisions of the national
legislation continue to impair the application of the Convention:
138
the prohibition placed on public servants from setting up trade
unions (section lO(g) of the Act on the civil service and
administrative careers of 8 December 1971), although they have
the right to associate and to appoint their representatives
(section 9(h) of the above-mentioned Act). A rticles 2 and 10 of
the Convention guarantee to all workers without distinction
whatsoever (and therefore to all public servants) the right to
establish organisations to further and defend their occupational
and economic interests and not merely simple associations;_
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
the obligation to belong to the undertaking for election to the
managing committee of a workers' association (section 445 of the
Labour Code of 1978). The legislation ought to allow the
candidature of persons who have previously belonged to the
undertaking or occupation. In addition, the Committee asks the
Government to indicate whether any other form of first-level
trade union exists other than works unions, for example, unions
of workers in the same profession or grouping workers of several
undertakings.
- the obligation to be Ecuadorian for membership of the managing
committee of a works council (section 455 of the Code). The
legislation ought to permit organisations to choose their leaders
without hindrance and foreign workers working legally in the
country to attain trade union office, at least after a reasonable
period of residence in the host country,
- the administrative dissolution of a works council when its
membership drops below 25 per cent of the total'number of workers
(section 461 of the Code). In undertakings employing a large
number of workers the legislation should not permit the
dissolution of the works council on the pretext that the level of
unionisation in the undertaking is less than 25 per cent;
- the prohibition of strikes by public employees (section 503,
final subsection, of the Code) and public servants (section 10(g)
of the Act on the civil service and administrative careers).
Prohibitions on the exercise of the right to strike are
compatible with the Convention only in respect of public servants
acting in their capacity as agents of the public authority or in
essential services in the strict sense of the term (and not the
public services in general) where the interruption of such
activities due to a strike would endanger the life, personal
safety or health of the whole or part of the population;
- the prohibition placed on unions from taking part in the
activities of political or religious parties, with the
requirement that provisions to this effect shall be included in
the by-laws of the unions (section 443(11)). The legislation
should not impair the right of trade unions to express in public
their opinions on the economic and social policy of the
Government for purposes of furthering and defending the interests
and the social and economic welfare of the workers;
- the penalty of imprisonment laid down by Decree No. 105 for the
instigators of collective work stoppages.
- the granting of exclusive rights to bargain collectively, to
"works councils" (sections 457 and 501 of the Code) whereas the
Committee considers that this right should be accorded
specifically to federations and confederations.
The Government explains, in respect of public servants, that only
public employees - and not the workers of public institutions, who
have the right to strike under section 453 of the Labour Code - do not
have the right to form unions and go on strike, but that in practice
associations exist in all public institutions. Collective agreements
have therefore been signed between several public or semi-public
institutions and their employees. The Government admits that public
servants do not have the right to strike, but states that workers in
139
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
the public sector covered by the Labour Code do enjoy this right,
provided that they have given notice and set up a minimum service
(section 503 of the Code). Moreover, the Government considers that
it is unnecessary to amend sections 44301) (which prohibits trade
unions from engaging in party politics) and 461 (which concerns the
dissolution of works councils covering a very small number of
workers), and states that the repeal of Decree No. 105 would require
action by the legislative authority.
The Committee takes note of these statements but can only express
once again the hope that the Government will re-examine the situation
in the light of the above considerations and asks it to indicate in
its next report the measures taken or under consideration to bring the
legislation into full conformity with the Convention.
[The Government is asked to supply full particulars to the
Conference at its 71st Session.]
140
Document No. 208
ILC, 71st Session, 1985, Report III (Part 4A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, pp. 140-142
(Egypt)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
(ratification: 1957)
The Committee has studied the written and oral information
supplied by the Government to the Conference Committee in June 1984
and also in the report of the Government.
It observes that several provisions of the national legislation
affect the application of the Convention:
the single-trade-union system laid down by law in favour of an
organisation mentioned by name, the Confederation of Egyptian
Trade Unions (sections 7, 13, 14, 16, 17, 31, 41, 52 and 65 of
Act No. 35 of 1976 on trade unions as amended by Act No. 1 of
1 January 1981);
the denial of the right to belong to a trade union committee on
persons occupying managerial posts in the public and private
sectors (section 19(e) of the Trade Union Act);
the regulation of the internal management and the activities of
trade unions (exclusion from the right to vote and election to
trade union office of the unemployed and the retired:
section 23; obligation to have been a member of the trade union
organisation for a year for election to office: section 36(c);
need for the approval of the Confederation of Trade Unions to be
a candidate: section 41; and supervision of the financial
administration of trade unions by the Confederation: section 62
of the Trade Union Act);
the power of the Public Prosecutor to call for the removal from
office of the executive committee of a trade union organisation
responsible for the abandonment of work or deliberate absenteeism
in a public service or a service meeting a public need
(section 70(2) (b) of the Trade Union Act) and the establishment
of a system of compulsory conciliation and arbitration for
collective labour disputes (sections 93 to 106 of the Labour
Code, Act No. 137 of 6 August 1981).
The Committee has taken note of the repeated statements by the
Government on the historical nature of Egyptian trade union unity,
which is due to the fact that the Trade Union Act has been drafted by
the Egyptian workers and discussed by the workers themselves and that
140
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
it is the workers' members of the People's Council who placed it
before this Council, bearing in mind the obligations of the
Confederation of Trade Unions to the Organisation of African Trade
Union Unity, which favours a single-trade-union system at the national
level.
The Committee, while appreciating the Government's statements on
this point, can only point out once more that, even where a de facto
monopoly exists as a consequence of the grouping together of all the
workers, national legislation should not institutionalise this factual
situation by mentioning by name the single central organisation, even
if the existing trade union so requests. Even where, at some point
in the history of a nation, all workers have preferred to unify the
trade union movement they should, however, be able to safeguard their
freedom to set up, should they so wish in the future, unions that are
able to group together in higher-level trade union organisations
outside the established trade union structure (see paragraph 137 of
the the General Survey of the Committee of Experts of 1983 on Freedom
of Association and Collective Bargaining).
The Committee therefore asks the Government to indicate the
measures taken or under consideration to eliminate in its legislation
all reference to the Confederation of Egyptian Trade Unions.
With regard to the denial of the right to belong to a trade union
committee on persons occupying managerial posts in the public or
private sector, the Committee takes note of the information supplied
by the Government to the effect that these workers, representing the
administration or the employers, have been excluded from the right to
membership of a trade union committee in order to prevent all
interference by employers in trade union activities. Nevertheless,
according to the Government, these persons are entitled to join
occupational associations.
With regard to the regulation of the internal administration and
the activities of trade unions, the Government states that the
legislation has taken account of the wishes of the Confederation of
Egyptian Trade Unions to lay down certain rules that the Confederation
considers necessary in the interests of the workers, but that the
Ministry of Labour has sent a letter to the Confederation of Trade
Unions asking it to consider the possibility of amending these
provisions in accordance with the comments of the Committee.
The Committee notes this information with interest and hopes that
the next report will mention the progress made in this connection.
With regard to the system of compulsory arbitration for the
settlement of collective disputes, the Committee notes the
Government's statement that in practice it is the workers who
generally call for arbitration and that in most cases the efforts of
the Ministry of Labour result in a decision in favour of the
workers. Furthermore, some strikes took place in 1983 and 1984 and
no worker who had participated in a strike has been prosecuted.
The Committee takes note of this information, but observes that
the legislation does not guarantee the right to strike to the workers
and that, on the contrary, the Public Prosecutor can obtain the
removal of a trade union committee that has provoked the abandonment
of work or deliberate absenteeism in a public service.
141
c. 87 REPOR T OF THE COMMITTEE OF EXPER TS
The Committee can only point out that the peaceful exercise of
the right to strike is one of the essential means that must be
available to the workers and their organisations for furthering and
defending their occupational, economic and social claims.
Restrictions on its exercise are compatible with the Convention only
in respect of public servants acting in their capacity as agents of
the public authority and in essential services in the strict sense of
the term (and not in the public services in general) where the
interruption of activities due to a strike would endanger the life,
personal safety or health of the whole or part of the population.
The Committee therefore urges the Government to indicate in its
next report the measures taken or under consideration to bring the
legislation into conformity with the Convention in the light of the
above considerations.
142
Document No. 209
ILC, 71st Session, 1985, Report III (Part 4A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, pp. 158-160
(Japan)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
Japan (ratification: 1965)
The Committee notes the information supplied by the Government in
its report and to the Conference Commit tee in 1984, as we 11 as the
comments made by the General Council of Trade Unions of Japan (SOHYO)
on 5 November 1984, by the Japanese Confederation of Labour (DOMEI) on
14 December 1984 and in a communication from the National Railway
158
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
Workers' Union (KOKURO) on 15 February 1985 transmitted by SOHYO on
19 February 1985.
1. The Committee first notes that the KOKURO's observations on
the situation of employees of the Japanese National Railways were
transmitted to the Government on 1 March 1985. The Government has
not yet transmitted its comments thereon. The Committee hopes that
full information on these matters will be available from the
Government at its next session so that the Committee may examine the
issues raised by KOKURO.
2. The Committee observes that SOHYO repeats its observations
of past years concerning the acquisition of legal personality by the
National Union of Local and Municipal Government Employees (JICHIRO)
and the legislative definition of public servants at the managerial,
supervisory and confidential level. It also takes note of the
Government's detailed replies to these two issues. In the
Committee's opinion, no new information has been made available to
warrant any change in the conclusions it reached on these matters in
its observations of 1981, 1983 and 1984, namely that these two
situations do not involve infringements of freedom of association.
3. Both DOMEI and SOHYO contest the strike ban contained in the
National Public Service Law and the latter supplies detailed
statistics on sanctions which have been applied between October 1982
and October 1983 to public servants who have participated in strike
action, ranging from warnings, reprimands, admonitions and wage cuts
to dismissals. The Government replies, as it has in the past, that
disciplinary sanctions are inevitable in a legal situation where
strikes are prohibited and it points out that reductions in pay
increments after repeated warnings, being an indication of the quality
of the public servant's work, are agreed upon beween the labour and
management involved and provided for in a collective agreement. The
Government repeats that penal sanctions for strike action are imposed
only on those who conspire, instigate or incite other public servants
to strike and not on strike participants. It adds that no case
leading to the imposition of penal sanctions was reported in the last
decade (although one case involving a 1974 teachers' strike is before
the Tokyo High Court).
Given that there is no change in this situation on which the
Committee made detailed comments in 1984, it would repeat its previous
conclusions, namely that the principle whereby the right to strike may
be limited or prohibited in the public service or in essential
services (whether public, semi-public or private) would become
meaningless if the legislation defined the public service or essential
services too broadly. In the view of the Committee such a
prohibition should be confined to public servants acting in their
capacity as agents of the public authority or to services whose
interruption would endanger the life, personal safety or health of the
whole or part of the population. Moreover, if strikes are prohibited
or restricted in the public service or in essential services,
appropriate guarantees must be afforded to workers who are thus denied
one of the essential means of defending their occupational
interests. Restrictions should be offset by adequate, impartial and
speedy conciliation and arbitration procedures in which the parties
concerned can take part at every stage and in which the awards should
159
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
in all cases be binding on both parties. Such awards, once rendered,
should be rapidly and fully implemented (see the observation under
Convention No. 98). Moreover, the Committee has stated that, as
regards strikes, penal sanctions should only be imposed where there
are violations of strike prohibitions that are in conformity with the
principles of freedom of association. In addition, in these cases,
the sanctions should be proportionate to the offences committed, and
penalties of imprisonment should not be imposed in the case of
peaceful strikes. Generally, as regards the question of the right to
strike and the application of disciplinary sanctions, the Committee
would again request the Government to re-examine the situation in the
light of the above principles and to continue to supply information on
any action that may be taken concerning the application of these
principles.
4. As regards the denial of the right to organise for
fire-fighters, the Committee notes that the Government heard the
opinions from the parties concerned at the Inter-Ministerial
Conference on Public Employees' Problems and that it approached a
cross-section of fire defence personnel for their views on this
matter. According to the Government's summary of the latters'
op1.n1.ons, if the right to organise were recognised, the spirit of
solidarity and unity between organisations would be weakened and if
such personnel had the right to strike this would cause anxiety to the
public and would damage the co-operation between volunteer
fire-fighting teams and fire defence personnel; moreover, the working
conditions of fire defence personnel were discussed at various levels
and there have been positive improvements through mutual communication
between labour and management. The Government adds that it has never
interferred with the National Council of Fire-Fighting Personnel, and
would not do so unless the Council committed any illegal activity.
Although SOHYO states that there is discrimination by employers
against members of the Council, the Government maintains that fire
defence personnel have ne ver met with unfair treatment because of
belonging to the Council.
The Committee notes that extensive deliberations are taking place
concerning the right to organise of this category of workers with the
participation of SOHYO and DOMEI affiliates from the public sector.
It requests the Government to keep it informed in future reports on
any developments in the matter.
160
Document No. 210
ILC, 83rd Session, 1996, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 160-161
(Rwanda)
International Labour Conference
83rd Session 1996
Report III
(Part 4A)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
c. 87 Report of che Commiuee of Erpem
Rwanda (ratification: 1988)
The Committee notes with regret that the Government's report does not contain a
reply to its previous observation.
1. Prohibition of the right to strike in the public service. The Committee recalls
that whereas it has always acknowledged that the right to strike may be limited or even
prohibited in the public service, such a prohibition would be nonsensical if legislation
adopted a too broad definition of the concept of public service. The Committee cannot
disregard the peculiarities or legal and social traditions of each country but it must
160 Rep34A3.E55
Observations concerning ratified Conventions c. 87
nevertheless attempt to identify relatively uniform criteria permitting examination of the
compatibility of a legislation with the principles of freedom of association. In these
circumstances, the prohibition of the right to strike should not be imposed on public
servants who are not exercising authority in the na1ne of the State {see General Survey
of 1994 on freedom of association and colkctive bargaining, paragraph 158).
The Committee therefore requests the Government to indicate the measures which
have been taken, or are envisaged, to amend section 26 of the Legislative Decree of 19
l\1arch 1974 to issue the general conditions of service of employees of the State (which,
under its present wording, continues to forbid state employees to take part in strikes or
in activities aimed at causing a strike in the state services) with a view to limiting the
restrictions on the right to strike to those which accord with the principles of freedom
of association.
2. Hindrance with respect to the election of trade union revresentatives. The
Committee recalls that under Article 3 of the Convention workers' and employers'
organizations shall have the right to elect their representatives in full freedom.
The Committee therefore requests the Government to indicate the measures which
have been taken or are envisaged to amend section 8 of the Labour Code which prohibits
election of non-Rwandans to trade union office, in order to permit foreign workers to
hold trade union office at least after a reasonable period of residence in the country (see
paragraph 118 of the General Survey).
The Committee reminds the Government that the ILO is at its disposal for any
assistance that may be needed in formulating amendments which will give effect to the
Convention and hopes that the Government will make every effort to take the necessary
action in the very near future. It requests the Government to communicate in its next
report information on any progress made in these fields.
Rep34A3.E55 161
Document No. 211
ILC, 109th Session, 2020, Report III (Part A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, pp. 73-74 (Benin)
Report of the Committee
of Experts on the Application
of Conventions and Recommendations
X Application of International
Labour Standards 2020
Report III (Part A)
International Labour Conference
109th Session, 2020
Freedom of association,
collective bargaining, and
industrial relations
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
73
Benin
Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87) (ratification: 1960)
The Committee notes the observations of the General Confederation of Workers of Benin (CGTB) dated 3 April 2019
and those of the Trade Union Confederation of Workers of Benin (CSTB) dated 12 June 2019, regarding Act No. 2018-34
amending and supplementing Act No. 2001-09 of 21 June 2002 on the exercise of the right to strike, which refer to the
matters examined below by the Committee. The Committee also notes the response of the Government in this respect.
Article 2 of the Convention. Right to establish trade unions without previous authorization. The Committee has, on
numerous occasions, insisted upon the need to amend section 83 of the Labour Code, which requires trade unions to deposit
their by-laws with numerous authorities, in particular the Ministry of the Interior, in order to obtain legal status. The
Government reiterates that the Committee’s recommendations have been taken into account in the most recent version of
the draft revised Labour Code, the revision of which is ongoing. Observing that the Government has been referring to
amending this legislation for several years, the Committee firmly expects that the revision process of the Labour Code
will be concluded rapidly and that the Government will very shortly report the amendment of section 83 of the Labour
Code. The Committee requests the Government to provide a copy of the revised Labour Code once it is adopted. The
Committee also notes the information provided by the Government indicating that Act No. 98-015 of 12 May 1998, issuing
the general conditions of seafarers, is still in force and the right to organize is thereby recognized for all seafarers.
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
74
Article 3. Right of workers’ organizations to organize their activities. The Committee notes the below provisions
of Act No. 2001-09 on the exercise of the right to strike, as amended by Act No. 2018-34.
Scope of the Act in terms of the persons covered. The Committee notes that military personnel, paramilitary personnel
(police, customs, water, forestry, hunting, etc.) and healthcare staff may not exercise the right to strike (new section 2). In
this regard, the Committee wishes to recall that it considers that States may restrict or prohibit the right to strike of public
servants “exercising authority in the name of the State”, for example, civil servants in government ministries and other
comparable bodies, and ancillary staff and that, when they are not exercising authority in the name of the State, they should
benefit from the right to strike without being liable to sanctions, except in the case that the maintenance of a minimum
service may be envisaged. This principle should also apply to civilian personnel in military institutions when they are not
engaged in the provision of essential services in the strict sense of the term (see the 2012 General Survey on the fundamental
Conventions, paragraphs 130 and 131).
Requisitioning in the event of a strike. The Committee notes that public service employees and employees of public,
semi-public or private institutions of an essential nature, whose stoppage of work would cause serious damage to peace,
security, justice, the health of the population or the public finances of the State, may be requisitioned in the event of a strike
(new section 17). Taking into account the general wording of the criteria set out in section 17, the Committee recalls that it
is desirable to limit powers of requisitioning to cases in which the right to strike may be limited, or even prohibited, namely:
(i) in the public service for public servants exercising authority in the name of the State; (ii) in essential services in the strict
sense of the term; and (iii) in the case of an acute national or local crisis (see the 2012 General Survey, paragraph 151).
Duration of the strike. The Committee notes that the exercise of the right to strike is subject to certain conditions of
duration. Strikes may not exceed ten days in any one year; seven days in a six-month period; and two days in the same
month. Regardless of the duration, the stoppage of work during a day shall be considered as a full day of strike action (new
section 13). The Committee considers that workers and their organizations should be able to call a strike for an indefinite
period if they so wish (see the 2012 General Survey, paragraph 146).
Sympathy strikes. The Committee notes that sympathy strikes are prohibited (new section 2). The Committee recalls
that it considers that a general prohibition of this form of strike action could lead to abuse, particularly in the context of
globalization characterized by increasing interdependence and the internationalization of production, and that workers
should be able to take such action, provided that the initial strike they are supporting is itself lawful (see the 2012 General
Survey, paragraph 125).
In light of the foregoing, the Committee urges the Government to take the necessary measures in the near future to
amend the provisions in question of Act No. 2001-09 on the exercise of the right to strike, as amended by Act No. 2018-34,
and to ensure that they give full effect to the provisions of the Convention with regard to the above.
Document No. 212
ILC, 110th Session, 2022, Report III (Part A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, pp. 195-200
(Japan)
X Application of International
Labour Standards 2022
Report III (Part A)
Report of the Committee of Experts on
the Application of Conventions and
Recommendations
International Labour Conference
110th Session, 2022
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 195
Japan
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 1965)
The Committee notes the following observations concerning matters addressed in this
comment, as well as the Government’s replies to them: the observations of the Japanese
Trade Union Confederation (JTUC–RENGO), transmitted with the Government’s report; of the National
Confederation
196 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
of Trade Unions (ZENROREN), received on 31 August 2021; and of the Rentai Union Suginami, the Rentai
Workers’ Union, Itabashi-ku Section, the Apaken Kobe (Casual/Temporary/Part-time Non-regular
Workers’ Union) and the Union Rakuda (Kyoto Municipality Related Workers’ Independent Union),
received on 1 September 2021. The Committee further notes the observations from Education
International (EI), received on 9 September 2021, and the reply of the Government thereto.
Article 2 of the Convention. Right to organize of firefighting personnel. The Committee recalls its
long-standing comments concerning the need to recognize the right to organize for firefighting
personnel. For the past years, the Government had been referring to the operation of the Fire Defence
Personnel Committee (FDPC) system, which was presented as an alternative. The role of the FDPC was
to examine proposals on working conditions by the personnel and to submit its conclusions to the chief
of the fire department. The Government further indicated that surveys, directed to fire defence
headquarters, were regularly conducted to gather information on the deliberations and results of the
FDPC. The Government also mentioned a specific survey, conducted in January 2018, aiming at
assessing the operation of the FDPC system and eventually seeking improvement. The results of the
survey were discussed in the Fire and Disaster Management Agency. While the outcome of this survey
was that the FDPC system is operated properly, the workers’ representatives in the Fire and Disaster
Management Agency called for improvement in the operation of the FDPC, including procedural
transparency, and a more conducive environment for personnel to provide their opinions to the FDPC.
In its previous report, the Government indicated that a new implementation policy of the FDPC,
developed with the social partners, came into force in April 2019. In this regard, the Committee notes
the observations from ZENROREN that the Japan Federation of Prefectural and Municipal Workers’
Union (JICHIROREN), joined by the Firefighters’ Network (FFN), had requested the Ministry for Internal
Affairs and Communications and the Fire and Disaster Management Agency to come up with concrete
measures to ensure that firefighters’ opinions regarding working conditions and workplace safety are
heard in the operation of the FDPC. JICHIROREN and FFN conducted a survey among firefighters in June
2021; the result indicated that the FDPC system is still considered to give discretionary power to the
head of the fire department. ZENROREN regretted that, despite such result, the Government’s response
was merely to indicate that the FDPC system runs appropriately.
Furthermore, the Government indicates in its latest report that, since January 2019, the Ministry
of Internal Affairs and Communications held six consultations with the workers’ representatives where
it discussed the Government’s opinion that fire defence personnel are considered as police in relation
to the implementation of the Convention. In the Government’s view, the four consultations held in April,
July and December 2019 enabled a substantive exchange on its opinion and on the Firefighting Staff
Committee system. The fifth and sixth consultations, held in August 2020 and January 2021 respectively,
enabled discussion of the situation of modern fire administration and the issue of harassment. The
Government indicates that the employees voiced their appreciation for the regularity of the
consultations and were willing to continue to hold regular consultations. The Committee notes, on the
other hand, that JTUC–RENGO deplores the Government’s continued failure to respond to the
Committee’s longstanding recommendation to grant the right to organise to firefighting personnel.
JTUC–RENGO states that the establishment of reporting systems and consulting services brought up by
the Fire and Disaster Management Agency amount to nothing more than makeshift measures and the
Government's denial of the right to organize hampers fire and emergency services by lowering morale
among the personnel.
The Committee wishes to recall its prior emphasis that the implementation policy for the FDPC
remains distinct from the recognition of the right to organize under Article 2 of the Convention. It notes
the divergent views on the meaningfulness of the consultations held since January 2019, and
understands that no progress was made towards bringing positions closer together on the right to
organise of firefighting personnel. The Committee is bound to express again its firm expectation that
continuing consultations will contribute to further progress towards ensuring the right of firefighting
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 197
personnel to form and join an organization of their own choosing to defend their occupational
interests. The Committee requests the Government to provide detailed information on any
developments in this regard.
Article 2. Right to organize of prison staff. The Committee recalls its long-standing comments
concerning the need to recognize the right to organize of prison staff. The Committee notes that the
Government reiterates its position that prison officers are included in the police, that this view was
accepted by the Committee on Freedom of Association in its 12th and 54th Reports, and that granting
the right to organize to the personnel of penal institutions would pose difficulty for the appropriate
performance of their duties and the proper maintenance of discipline and order in the penal institutions.
The Government also reiterates its view that, in cases where any emergency occurs in a penal institution,
it is required to promptly and properly bring the situation under control, by force if necessary; thus
granting the right to organize to the personnel of penal institutions could pose a problem for the
appropriate performance of their duties and the proper maintenance of discipline and order. The
Government recalls that it decided to grant expanded opportunities for the personnel of penal
institutions to express their opinions in the eight Regional Correctional Headquarters across the country
in 2019 and 2021, with the participation of 228 general staff members (from 77 penal institutions) in
2019, and 233 general staff members (from 78 penal institutions) in 2021. The participants exchanged
opinions on improving the work environment, on the nature of staff recreation as a way to contribute
to a more open workplace and on the promotion of a better work–life balance for staff.
On the other hand, the Committee notes the observations from JTUC–RENGO regretting that the
Government did not follow up on the Committee’s previous comments to consider the different
categories of prison officers in determining, in consultation with the social partners, whether they are
part of the police. JTUC–RENGO is of the view that: (i) the different measures described by the
Government to provide opportunities to the personnel of penal institutions to express their opinions on
their working conditions are irrelevant to union rights, including the right to organize. They merely
constitute an exchange of views with individual employees and cannot be considered as negotiation;
(ii) these measures described by the Government serve as substitutes for a meaningful discussion on
granting the right to organize to the personnel of penal institutions; and (iii) it is unlikely the
Government can report any concrete example of measures taken that have improved the work
environment based on the exchange of opinions described above.
The Committee considers it useful to recall that, in previous reports, the Government referred to
the following distinction among staff in penal institutions: (i) prison officers with a duty of total
operations in penal institutions, including conducting security services with the use of physical force,
who are allowed to use small arms and light weapons; (ii) penal institution staff other than prison
officers who are engaged directly in the management of penal institutions or the treatment of inmates;
and (iii) penal institution staff designated, by virtue of the Code of Criminal Procedure, to carry out duties
of judicial police officials with regard to crimes which occur in penal institutions and who have the
authority to arrest, search and seize. The Committee observes in this regard that the Government has
not engaged, despite reiterated calls from this Committee and the Conference Committee, in any
consultation with the social partners to consider the different categories of prison officers. Furthermore,
the Committee wishes to recall that, in its view, the Government initiatives to give opportunities to the
personnel of penal institutions to provide their opinions on various aspects, including on their working
conditions, remain distinct from the recognition of the right to organize under Article 2 of the
Convention. The Committee is bound to urge once again the Government to take, in consultation with
the social partners and other concerned stakeholders, the necessary measures to ensure that prison
officers, other than those with the specific duties of the judicial police, may form and join an
organization of their own choosing to defend their occupational interests, and to provide detailed
information on the steps taken in this regard.
198 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
Article 3. Public service employees. The Committee recalls its long-standing comments on the
need to ensure basic labour rights for public service employees, in particular that they enjoy the right
to industrial action without risk of sanctions, with the only exception being public servants exercising
authority in the name of the State and workers employed in essential services in the strict sense of the
term. The Committee notes the general information provided by the Government on its overall
approach, which remains to continue to hear opinions from employee organizations. The Committee
further notes the information on the reduction of the number of national public service employees, as
a result of the creation of Incorporated Administrative Agencies and the privatization of public
departments or divisions. According to the Government, the number of employees in Governmental
Administrative Agencies has diminished from 807,000 in March 2003 to 302,000 in March 2021. The
Government thus considers that presently the restrictions on the basic labour rights for national public
service employees, whose number is decreasing, is considerably limited.
The Committee recalls that the Government has been referring over the years to the procedures
of the National Personnel Authority (NPA) as a compensatory guarantee for public service employees
whose basic labour rights are restricted. Previously, the Committee had noted the persistent divergent
views on the adequate nature of the NPA as a compensatory measure, and had requested the
Government to consider, in consultation with the social partners, the most appropriate mechanism that
would ensure impartial and speedy conciliation and arbitration. In its report, the Government indicates
that the NPA held 185 official meetings with employees’ organizations in 2020, making
recommendations enabling working conditions of public service employees to be brought in line with
the general conditions of society. The Government invokes the example of the use of the NPA
recommendation system for revision of the remuneration of public service employees, implemented
since 1960. Thus, the Government restates that these compensatory measures maintain appropriately
the working conditions of public service employees.
The Committee notes, on the other hand, the observations from the JTUC–RENGO regretting that
the Government’s position on the autonomous labour–employer relations system has not evolved and
the Government’s failure to take action as requested by the ILO supervisory bodies. JTUC–RENGO,
recalling the obligation of the Government under Section 12 of the Basic Act on the National Civil Service
Reform (2008), regrets that the Government gives the same response it has been repeating for many
years, that “there are wide-ranging issues regarding autonomous labour–employer relations systems,
so while exchanging views with employees organizations, it is necessary to continue to consider this
carefully”. Furthermore, JTUC–RENGO reiterates that the NPA recommendations are left to political
decision, making it obvious that such mechanism is defective as a compensatory measure. JTUC–RENGO
denounces the statement from the Government that the privatization of national administrative
agencies had left fewer public service employees without their basic labour rights as an attempt to seek
acceptance of these restrictions. The Committee notes that JTUC–RENGO deplores the evident lack of
intention on the part of the Government to reconsider the legal system with regard to the basic labour
rights of public service employees, and once again requests that the ILO supervisory bodies call into
question the Government’s attitude and investigate these matters.
The Committee, noting that the report fails to provide any additional information on the matter,
is therefore bound to urge once again that the Government indicate tangible measures taken or
envisaged to ensure that public service employees, who are not exercising authority in the name of the
State, enjoy fully their basic labour rights, in particular the right to industrial action. In view of
persistent divergent views, the Committee also urges the Government to resume consultations with
the social partners concerned for the review of the current system with a view to ensuring effective,
impartial and speedy conciliation and arbitration procedures, in which the parties have confidence and
can participate at all stages, and in which the awards, once made, will be fully and promptly
implemented. It requests the Government to provide information on steps taken in this regard. It also
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 199
requests the Government to continue providing information on the functioning of the NPA
recommendation system.
Local public service employees. The Committee had previously noted the observations of Rentai
Union Suginami, Rentai Workers’ Union, Union rakuda and Apaken Kobe referring to the adverse impact
of the entry into force of the revised Local Public Service Act in April 2020 on their right to organize, and
stating that: (i) non-regular local public service employees and their unions are not covered by the
general labour law that provides for basic labour rights and their ability to appeal to the labour relations
commission in case of alleged unfair labour practice; (ii) the new system, which aimed at limiting the
use of part-time staff on permanent duties (through special service positions appointed by fiscal year
just as regular service employees), has the effect of increasing the number of workers stripped of their
basic labour rights; (iii) the conditional yearly employment system in place has created job anxiety and
weakens union action and (iv) these situations further call for the urgent restoration of basic labour
rights to all public service employees. The Committee notes the latest observations provided by these
trade unions, as well as by JTUC–RENGO and ZENROREN, deploring that the situation described remains
unaddressed. Additionally, these observations allege that the increase in consultation on harassment
at the workplace and non-renewal of employment, is part of a new framework making it difficult for
non-regular employees to join municipal unions, which in turn makes it more urgent to ensure basic
labour rights to local public service employees.
The Committee notes the Government’s statement that the legal amendments ensure proper
appointment of special service personnel and temporary appointment employees, and that the change
of basic labour rights conditions is a direct consequence. The Government asserts that, based on the
examination of the autonomous labour–employer relations system of national public service
employees, it will carry out careful examination of measures for local public service employees, listening
to opinions from related organizations. The Committee recalls its view that the legal amendments that
entered into force in April 2020 for local public service employees have the effect of broadening the
category of public sector workers whose rights under the Convention are not fully ensured. The
Committee therefore urges the Government to expedite its consideration of the autonomous labour–
employer relations system so as to ensure that municipal unions are not deprived of their long-held
trade union rights through the introduction of these amendments. It requests the Government to
provide detailed information on the measures taken or envisaged in this regard.
Articles 2 and 3. Consultations on a time-bound action plan of measures for the autonomous labour–
employer relations system. In its previous comments, the Committee noted the Government’s
statement that it was examining carefully how to respond to the conclusions and recommendations
formulated by the Committee on the Application of Standards of the International Labour Conference
(Conference Committee) in 2018 and the various concerns regarding measures for the autonomous
labour–employer relations system, while continuing to hear opinions from the social partners. The
Committee observes with regret that no tangible progress seems to have been made in this respect. In
its report, the Government merely indicates that it exchanged opinions with JTUC–RENGO and will
provide information on initiatives taken in this regard in good faith. The Committee notes, on the other
hand, that JTUC–RENGO denies such exchange of opinions took place and deplores that, despite the
time that elapsed since the Conference Committee called on the Government to develop a time-bound
action plan together with the social partners in order to implement its recommendations, the
Government has taken no step towards its materialization. The Committee also notes ZENROREN’s view
that, based on how consultations were held with its affiliated organizations on the pending matters, it
is clear that the Government has no willingness to draw up the action plan requested by the ILO
supervisory bodies. Recalling the Conference Committee conclusions, including as to the lack of
meaningful progress in taking necessary measures regarding the autonomous labour–employer
relations system, the Committee once again strongly encourages the Government to take meaningful
200 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
steps to elaborate, in consultation with the social partners concerned, a time-bound plan of action to
implement the recommendations made above and to report on any progress made in this respect.
[The Government is asked to reply in full to the present comments in 2023.]
Document No. 213
ILC, 67th Session, 1981, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 104-106
(Gabon)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
CBSEFVATTCN? COHCEPNING PATIFTED CONVENTICKS C. 87
Ethiopia (ratification: 196 3)
The committee has noted the indications given by the competent
national authorities to the representative of the Director-General of
the ILO during the course of the direct contacts that took place in
January 1980. It has also noted the information supplied by a
Government representative to the Conference Committee in 1980,
according to which everything possible would be done as regards the
matters raised by the Committee and discussed during the direct
contacts. It further notes from the Government's last report that the
new draft Laiour Proclamation, which is to replace the Labour
Proclamation of 1975, has yet to be finalised.
The Cominittee recalls that its earlier comments related to the
following provisions of the Labour Proclamation of 1975 which it had
considered incompatible with the Convention: sections 51(2), 52(3) (b),
50(«) and C) and 49(2), establishing the system of a single trade
union; sections 106 and 99(3), placing restrictions on the right to
strike, and sections 51(2) and 109(13) restricting the right of
international affiliation.
The Comnittee had furthermore observed that certain categories of
workers (such as public service employees and domestic servants) were
not covered by the Labour Proclamation.
Finally, the Committee has stressed the need for the Government
to take measures to ensure that not only workers but also employers may
exercise freely the right to organise, and had expressed the view that
it did not appear that the organisations mentioned in the Chamber of
Commerce Proclamation of 1978 constitute employers' organisations in
the sense of the Convention, that is to say, organisations to further
and defend the interests of the employers (Article 10). In this regard
the committee notes the information provided by the Government during
the direct contacts in 1980, according to which a special committee was
currently examining the Chamber of Commerce Proclamation with a view to
its amendment in certain respects.
The Comnittee hopes that the elaboration of the new Labour
Proclamation and the amendment of the Chamber of Commerce Proclamation
will be completed at an early date and that the new texts will ensure
full compliance with the Convention on all the points enumerated
above.•
Gabon (ratification: 1960)
The Committee notes the information provided by the Government in
its report. It has also examined the constitution of the C0SYGA, the
single trade union central organisation.
1. The Committee has commented on the compulsory affiliation
of the organisations to the central occupational organisations (CCSÏGA
for the workers and CPG for the employers), provided for by the Labour
Code, section 174,
The Government states that the revision of various sections of
the Code, including section 174, is under consideration. The Committee
again points o«t that the compulsory affiliation, under penalty of
i The Government is asked to supply full particulars to the
Conference at its 67th Session and to report in detail for the period
ending 30 June 1981.
105
C.87 FEPOFT OF THE C0MMI7TEE OF EXPEPTS
illegality, of existing or future workers• or employers• organisations
to the single central organisation of workers or of employers is
contrary to the rights guaranteed by the Convention in Articles 2, 3,
5 and 6, under w hich, in particular, workers a nd employers have the
right to establish the organisations of their own chQQ§i!!g•
2. The committee has also commented on the concilication and
arbitration procedures (sections 239, 240, 245 and 249 of the Labour
Code). It notes that a decision of the arbitration board is subject to
appeal by either party, failing which it becomes executory. In the
event of an appeal the arbitration decision may either be confirmed or
be amended. It understands that the total effect of the various
provisions mentioned might be to make any legal strike practically
impossible. However, restrictions of this kind considerably limit the
opportunities of trade unions of furthering and defending the interests
of their members (Article 10 of the Convention) and the right of trade
unions to organise their activities (Article 3 of the convention).
The committee requests the Government to take the appropriate
measures in these matters.
106
Document No. 214
ILC, 67th Session, 1981, Report III (Part 4A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, p. 113
(Mauritania)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
CBSEF.VA!CNS CONCERNING PAT!F!ED CCNVENT!ONS C.87
nauritania (ratification: 1961)
The committee notes that the proposed amendments referred to in
its previou s observation are to be re-examined during the revision of
the Labour code that is now going on. The Committee points out that it
has been commenting for several years on various provisions of the
Labour Code (section 1 of Book TT!, prohibiting the setting up of more
than one union in any trade or occupation and similar trades or
occupations; sections 40 and 48 of Book !V, under which a strike or
lock out can be prohibited by submitting the collective dispute to an
arbitration procedure).
The co mmitee hopes that the revision of the Labour Code that is
now being carr ied out will take account of its comments and asks the
Government to provide information on any development in the matter.
113
Document No. 215
ILC, 67th Session, 1981, Report III (Part 4A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, p. 118
(Paraguay)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
C.87 FEPOPT OF THE COMMITTEE OF EXPEP.TS
!n its pre vious comments the Committee has noted that, although
sections 3ij7 et seq. of the Labour Code contain certain provisions
relating to the right to strike, the Code of Labour Procedure renders
these provisions inoperative by establishing a system of conciliation
and arbitration whose awards the parties are bound to accept. This
results in prohibition of the right to strike in practice, which
seriously restricts trade union activities and is thus contrary to
Articles 3, 8 and 10 of the convention.
In its report the Government simply indicates that no new
provision has been adopted in this connection.
Since the
of the right to
measures will
into conformity
Committee has been raising the question of the exercise
strike for many years, it hopes once again that
be adopted in the near future to bring the legislation
with the Convention in this matter.
The Committee further points out that under the Convention public
servants must enjoy the right to associate for trade union purposes.
It again asks the Government to state how associations of public
servants can defend their members• interests and what kind of trade
union activities these associations carry on, since section 31 of Act
No. 200/70 expressly confines the activities of associat ions of public
servants to cultural and social ends.
The Commi ttee again asks the Government to state vhat procedures
are applicable in respect of labour disputes in public undertakings,
since section 2 'of the Labour Code provides that labour disputes
involving officials or manual or non-manual workers in undertakings
producing public goods and services shall be settled. by administrative
action.
1 The Government is asked to supply full particulars to the
confe rence at its 67th Session and to report in detail for the period
ending 30 June 1981.
118
Document No. 216
ILC, 71st Session, 1985, Report III (Part 4A), Report of
the Committee of Experts on the Application of
Conventions and Recommendations, pp. 155-156
(Haiti)
International Labour Conference
71st Session 1985
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS c. 87
Haiti (ratification: 1979 )
The Connnittee notes with regret that no report has been received
from the Government. It has, however, examined the information
furnished by a government representative to the Conference Connnittee
in June 1984 and the text of the Decree of 24 February 1984 to revise
the Labour Code of 12 September 1961.
1. The Committee notes, in connection with the action taken on
the report of the Connnission of Inquiry instituted to examine, among
other things, the application by Haiti of Conventions Nos. 87 and 98
in respect of Haitian workers in the sugar plantations of the
Dominican Republic, that the Government hRs ReRin clPlRrP"i, hef<:>1'.'':' tl-!e
Connnittee of the International Labour Conference in June 1984, its
intention of including in the text of employment contracts concerning
these workers a special clause guaranteeing their rights to freedom of
association and collective bargaining.
The Commit tee asks the Government to state whether this clause
has actually been included in the contracts of employment for the
1984-85 season and whether it will be included in future contracts.
2. The Committee observes, moreover, that the legislation as a
whole still contain certain restrictions that may affect the exercise
of the freedom of association guaranteed by the Convention:
the obligation to obtain the approval of the Government, on such
conditions as may please the public authority, before
establishing an association of more than 20 persons (section 236
of the Penal Code), whereas the legislation should permit the
establishment of trade union organisations, federations and
confederations without previous authorisation (Articles 2 and 5
of the Convention);
the wide powers of supervision by the authorities over the trade
unions (section 34 of the Decree of 4 November 1983, formerly
section 400 of the Act of 28 August 1967 respecting the
Department of Social Affairs), whereas the public authorities
should refrain from any interference that would restrict the
rights of trade union organisations (Article 3 );
the imposition of compulsory arbitration by the Arbitration
Board, automatically or at the demand of the Secretary of State
for Labour or of only one of the parties to a dispute, with a
view to ending a strike (sections 185, 190, 199 and 200 of the
amended Labour Code), whereas workers and their organisations
should have the right to further and defend their interests by
means including recourse to strikes, and the pub lie authorities
·should refrain from restricting this right (Articles 3 and 10).
The Committee therefore considers that it is desirable that
recourse to compulsory arbitration with a view to ending a strike
be confined to cases of strikes in essential services in the
strict sense of the term, that is to say those whose interruption
would endanger the life, personal safety or health of the whole
155
c. 87 REPORT OF THE COMMITTEE OF EXPERTS
0r part of the population, and arbitration should be possible
when both parties call for it.
3. The Committee asks the Government to state whether there are
at present in Haiti trade union organisations affiliated to
international workers' organisations and, if so, to indicate their
names.
4. Lastly, the Committee observes that public
governed not by the Labour Code but by special laws
section 389 of the Labour Code as amended.
servants are
set forth in
The Co11DUittee therefore asks the Government to
public servants have the right to organise and, if so,
what text.
state whether
by virtue of
156
Document No. 217
ILC, 79th Session, 1992, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, p. 204 (Antigua
and Barbuda)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
C.87 REPORT OF THE COMMI'ITEE OF EXPERTS
Antigua and Barbuda (ratification: 1983)
The Committee notes that the Government's report has not been
received. It must therefore repeat its previous observation which
reads as follows:
204
The Committee refers to its previous comments on the need to
amend sections 19, 20 and 21 of the Industrial Courts Act, 1976,
which can be applied in practice to place a general prohibition
on the right to strike at the initiative of one party, as
illustrated by the decision of the Committee on Freedom of
Association in Case No. 1296. The Committee notes that this
question has been forwarded to the Cabinet for a re-examination
of the provisions on the right to strike.
The Committee has acknowledged that the right to strike may
be limited in essential services in the strict sense of the term,
that is those whose interruption would endanger the life,
personal safety or health of the whole or part of the
population. In view of the fact that the Act provides that
arbitration may be compulsory and can be invoked by only one of
the parties, for these provisions to be in accordance with the
Convention, the arbitration award would have to be accepted by
both parties to the dispute and, failing agreement, the workers
should still have the right to strike. With respect to the
provisions allowing the grant of an injunction putting an end to
a legal strike, the Committee recalls that such measures can only
be justified in situations of acute national crisis, and then
only for a limited period.
The Committee trusts that the Government will adopt the
necessary measures to amend sections 19, 20 and 21 of the
Industrial Courts Act, taking into account the above comments.
It requests the Government to transmit to it rapidly the text of
the amendments and to keep it informed of any new development in
this respect.
Document No. 218
ILC, 79th Session, 1992, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 217-218
(Guyana)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
Guyana (ratification: 1967)
The Committee takes note of the Government's report and
recalls that its comments have addressed the following issues:
the adoption of a Trade Union Recognition Bill;
the need to amend the Public Utility Undertakings and Public
Health Services Arbitration Act (Cap. 54:01) which confers on the
Minister ')road powers to refer a dispute in the services 1 isted
in the schedule (which may be revised at the discretion of the
Minister) to a tribunal for arbitration without having previously
obtained the agreement of the two parties, and renders workers
who take part in an illegal strike liable to a fine or two
months' imprisonment (section 19).
1. The Committee takes note of the contents of the Trade Union
Recognition Bill which contains provisions on the establishment of an
independent body for the certification of trade unions and the
determination of the most representative union in a given unit by
majority vote. The Committee notes that under section 27(a) o-f the
Bill, the recognised majority union has exclusive authority to
negotiate on behalf of workers in the bargaining unit. The Committee
requests the Government to state whether, where no union regroups 40
per cent of the persons in a unit as is required by section 20(2) or,
where no union regroups 51 per cent after the period of time
stipulated in section 20(3)(b), collective representation is granted
to workers in such unions, at least for their members. The Committee
stated in paragraph 141 of its 1983 General Survey on Freedom of
Association and Collective Bargaining that minority organisations
217
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
should be allowed to function and at least have the right to make
representations on behalf of their members and to represent them in
the case of individual grievances. The Committee further requests the
Government to indicate whether, in the situation mentioned above,
collective bargaining rights are granted to trade unions in these
units on behalf of their own members, as it stated would be desirable
in paragraph 295 of its General Survey.
2. In a previous comment, the Committee urged the Government to
ensure that measures were taken to amend Act Cap. 54:01 to limit
recourse to compulsory arbitration in respect of strikes relating to
essential services in the strict sense of the term, namely services
whose interruption is liable o endanger the life, personal safety or
health of the whole or part of the population.
The Committee notes from the Government's report that the
Minister has not invoked the provisions of the Act that permit him to
refer disputes to arbitration without the consent of the parties for
many years, that all the disputes referred to arbitration in recent
years were at the instance of the unions and that the penal sane t ion
contained in the Act has never been enforced. The Committee also
notes the Government's statement that it is currently examining the
legislation in view of the comments and observations made by the
Committee of Experts with a view to adopting the necessary amendments.
The Committee again expresses the hope that, as part of the
present review of the legislation, Act Cap. 54:01 will be amended to
take account of its comments. It asks the Government to provide
detailed information on developments in this respect.
218
Document No. 219
ILC, 79th Session, 1992, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, p. 225 (Nigeria)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
Nigeria (ratification: 1960)
The Committee takes note of the Government's report and the
information supplied by a Government representative at the Conference
Committee in 1991.
1. Article 5 of the Convention (affiliation to international
workers' and employers' organisations). With reference to its
previous comments, the Committee notes with satisfaction that Decree
No. 35 of 1989 prohibiting the international affiliation of trade
unions has been repealed by Decree No. 32 of 1991.
2. Articles 2 and 3. The Committee recalls, however, that, for
several years, the fundamental discrepancies between the national
legislation and the Convention concerned the following points:
the single trade union system established by law under which any
registered trade union is compulsorily affiliated to the Nigerian
Labour Congress, the only central organisation, which is
designated by name; the establishment of a single trade union
for each category of workers in accordance with a pre-established
list; too high a number of members for the establishment of a
trade union;
- non-recognition of the right to organise of certain categories of
workers (employees in the customs service, in mints, in the
Central Bank of Nigeria and in the External Telecommunications
Company);
broad powers of the Registrar to supervise the accounts of trade
unions at any time;
the possibility of restricting the exercise of the right to
strike through the imposition of compulsory arbitration beyond
essential services in the strict sense of the term.
The Committee observes that, in its latest report, the Government
merely indicates that it notes the comments of the Committee and that
the subcommittee of te National Labour Advisory Council responsible
for the review of the labour laws has not yet concluded its work. The
Commit tee again expresses the hope that the Government wi 11 examine
very closely the observations that it has been mak:.ng for several
years in this respect, and urges the Government to indicate in its
next report the measures taken to give full effect to the provisions
of the Convention.
225
Document No. 220
ILC, 110th Session, 2022, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 240-241 (Malta)
X Application of International
Labour Standards 2022
Report III (Part A)
Report of the Committee of Experts on
the Application of Conventions and
Recommendations
International Labour Conference
110th Session, 2022
240 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
Malta
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 1965)
The Committee takes note of the observations of the General Workers’ Unions (GWU) received
on 31 August 2019, which denounce violations of the right to organize in practice. The GWU alleges
that various employers and contractors circumvent the legislative provisions on freedom of association
by depriving their workers of their right to join trade unions. The Committee requests the Government
to provide its comments in this regard.
Article 2 of the Convention. Right to establish organizations without previous authorization. The
Committee previously observed that section 51 of the Employment and Industrial Relations Act, 2002
(EIRA) provides that a trade union or an employers’ association and any member, officer or other
official thereof, may not perform any act in furtherance of any of the purposes for which it is formed
unless such union or association has first been registered, and that the penalty for contravention
of this provision is a fine not exceeding €1,165. It requested the Government to take the necessary
measures to repeal section 51 of the EIRA. The Committee notes that the Government indicates that: (i)
registration is important so that trade unions, employers’ associations and their members can
be officially recognized and able to effectively engage in collective bargaining; (ii) registration is
free; and (iii) the annual reporting system provides data on the above-mentioned organizations, which
helps determine their activity level. The Committee recalls once again that the official recognition of
an organization through its registration constitutes a relevant aspect of the right to organize, as it is
the first measure to be taken so that organizations can fulfil their role effectively. At the same time, the
Committee also recalls that the exercise of legitimate trade union activities should not be dependent
upon registration, nor should the exercise of such legitimate activities be subject to penalties. The
Committee reiterates its request for the Government to take the necessary measures to repeal
section 51 of the EIRA.
Article 3. Right of organizations to freely organize their activities and to formulate their programmes.
In its previous observations, the Committee requested the Government to amend section 74(1) and (3)
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 241
of the EIRA – according to which, if an amicable settlement of a trade dispute and conciliation has not
resulted in a settlement, one of the parties may notify the Minister, who shall refer the dispute to the
Industrial Tribunal for settlement – so as to ensure that compulsory arbitration to end a collective labour
dispute is only possible in the case of disputes in the public service involving public servants exercising
authority in the name of the State or in essential services in the strict sense of the term. The Committee
notes the Government’s indication that: (i) the mechanism provided by the above-mentioned section is
to be used in case of failure of conciliation as facilitated under section 69 of the EIRA; (ii) the purpose of
the Industrial Tribunal would be gravely undermined if a party could not challenge another party unless
the latter agrees; and (iii) since the Industrial Tribunal has exclusive jurisdiction on trade disputes, the
parties cannot resort to other means such as the civil courts. The Committee once again recalls that
recourse to compulsory arbitration to bring an end to a collective labour dispute is only acceptable when
the two parties to the dispute so agree, or when a strike may be restricted or prohibited – that is, in the
case of disputes concerning public servants exercising authority in the name of the State, essential
services in the strict sense of the term or situations of acute national crisis. It further recalls that
accordingly, the failure of conciliation and the existence of protracted disputes are not per se elements
which justify the imposition of compulsory arbitration. The Committee urges the Government to take
the necessary measures to modify section 74(1) and (3) of the EIRA to ensure that compulsory
arbitration may only take place with the approval of both parties or in circumstances in which a strike
can be restricted or prohibited. The Committee requests the Government to inform on any
developments in this respect.
Article 9. Armed forces and the police. The Committee previously noted with interest the
adoption of the Various Laws (Trade Union Membership of Disciplined Forces) Act, 2015 which amended
the EIRA by adding a new section 67A, which gave members of the disciplined forces the right to become
members of a registered trade union of their choice. It invited the Government to provide information
on the application in practice of section 67A of the EIRA, in particular whether any trade unions have
been formed and registered under this provision and the number of their members, and also whether
any requests for such trade union registration are under consideration or have been rejected. The
Committee notes the Government’s indication that 1,189 members have registered with the Malta Police
Association, 1,356 members have registered with the Police Officers Union and 165 members have
registered with the Union of Civil Protection. It also notes that the Government points out that there
have been no further requests for such unions to be registered, and no requests have been rejected.
The Committee invites the Government to continue providing information on the practical application
of section 67A of the EIRA.
Document No. 221
ILC, 111th Session, 2023, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 179-181 (Madagascar)
Report of the Committee
of Experts on the Application
of Conventions and Recommendations
X Application of International
Labour Standards 2023
Report III (Part A)
International Labour Conference
111th Session, 2023
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 179
Madagascar
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 1960)
Previous comment
The Committee notes the observations of the General Confederation of Workers’ Unions of
Madagascar (FISEMA), received on 1 September 2022, which refer to the issues examined in the
present comment.
The Committee also notes the observations of the Randrana Sendikaly Alliance, received on
19 October 2022, alleging the arrest and sentencing to a 12-month prison term and a fine of
400,000 ariarys (about US$92) of Mr Zotiakobanjinina Fanja Marcel Sento, a leader of the trade union
Trade unionism and life of societies (SVS Etoile), for having posted on Facebook the results of meetings
held with the management of an enterprise in the textile sector in the performance of his trade union
duties. The Committee requests the Government to provide its comments on these serious allegations.
The Committee notes that the Government has not responded to the 2021 observations of the
Autonomous Trade Union of Labour Inspectors (SAIT) alleging the violation of the right of trade unions
to organize their activities in line with Article 3 of the Convention. The Committee once again requests
the Government to provide its comments in this regard.
In its previous comments, the Committee noted the observations of the Christian Confederation
of Malagasy Trade Unions (SEKRIMA) containing allegations of restrictions on the right to organize, and
180 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
especially the right of trade unions to organize their management and training activities, and also on
the difficulties encountered in establishing trade unions. The Committee notes that the Government, in
response to these allegations, indicates that freedom of association is protected under section 136 et
seq. of the Labour Code and that Decree No. 2011-490 and its implementing order No. 28968-2011
provide for the promotion of trade union rights in the country. Recalling the Government’s
responsibility to ensure that the rights provided for in the Convention are respected both in law and in
practice, the Committee requests the Government to provide information on the measures taken to
ensure the implementation of the above-mentioned provisions in practice.
Restrictions on trade union activities in the maritime sector. The Committee previously urged the
Government to ensure that the independent inquiry being conducted into anti-union acts in the
maritime sector was concluded as soon as possible. The Committee notes the Government’s indication
that the Ministry of Transport and Meteorology is organizing a meeting with the General Maritime Union
of Madagascar (SYGMMA) with a view to ending the conflict between the union and an enterprise in the
maritime sector. Noting the Government’s brief reference to the above-mentioned inquiry, the
Committee requests the Government to clarify whether the meeting with SYGMMA has been concluded
and, if so, to provide detailed information on its outcome. The Committee also requests the
Government to provide detailed information on the outcome of any meeting organized by the Ministry
of Transport and Meteorology concerning allegations of anti-union acts in the maritime sector.
Article 2 of the Convention. Workers governed by the Maritime Code. In its previous comments, the
Committee noted that a new Maritime Code was to be adopted and requested the Government to
ensure that the Code provided for the right of seafarers to establish and join trade unions. The
Committee notes the Government’s indications that the fundamental rights and freedoms of seafarers
were taken into account in the preparation of the draft Maritime Code, which is currently in the process
of adoption. The Committee expects that the new Maritime Code will be adopted soon and will contain
specific provisions providing for the right of seafarers to form and join trade unions. The Committee
requests the Government to provide information on any developments in this regard and to transmit
a copy of the Maritime Code once adopted.
Article 3. Representativeness of workers’ and employers’ organizations. The Committee previously
noted the adoption of Decree No. 2011-490 on workers’ organizations and representativeness, which
provides for the holding of elections for staff delegates at the enterprise level, and requested the
Government to provide information on any progress made in such elections and their impact on the
determination of the employers’ and workers’ organizations that participate in dialogue at the national
level. The Committee notes the Government’s indication that it is left to the workers and employers to
organize the elections for staff representatives and to forward the results to the Ministry of Labour and
Social Legislation, the role of which is limited to issuing a decree confirming that representativeness has
been established. In this regard, the Government indicates that the Order No. 34-2015, issued on 19
February 2015, is in a state of tacit renewal since certain factors prevent the organization of new
elections. The Committee also notes that FISEMA, in its observations, alleges that in 2019, when
appointing workers’ representatives to the boards of directors and management committees of the
National Social Insurance Fund (CNAPS), the Antananarivo Inter-Enterprise Health Organization (OSTIE)
and the Inter-Enterprise Medical Association of Antananarivo (AMIT), the Ministry of Labour and Social
Legislation unilaterally changed the names of the representatives who were to sit on the boards and
committees. FISEMA says it has filed a complaint with the Council of State, which issued three rulings in
its favour in 2021 and 2022. The Committee requests the Government to provide specific information
on the factors that have prevented the holding of elections for staff representatives since 2015.
Furthermore, recalling the importance of avoiding interference by public authorities in the
determination of the representativeness of professional organizations, the Committee requests the
Government to provide its comments on the serious allegations of FISEMA.
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 181
Right of workers’ organizations to organize their activities and formulate their programmes.
Compulsory arbitration. The Committee previously requested the Government to amend sections 220
and 225 of the Labour Code, which provide that if mediation fails, the collective dispute is referred by
the Ministry of Labour and Social Legislation to a process of arbitration and that the arbitral award ends
the dispute and the strike, as well as section 228 of the Labour Code which provides for the possibility
of requisitioning striking employees in the event of disruption of public order. The Committee notes
with regret that the Government merely indicates that prolonged disputes and strikes cause difficulties
for society, workers and the economy, and provides information about the composition and functioning
of its arbitration board. The Committee recalls that compulsory arbitration in the context of a collective
labour dispute and the requisition of workers in the case of a strike are only acceptable when the strike
in question may be restricted, or even prohibited, namely in the case of public servants exercising
authority in the name of the State, in essential services in the strict sense of the term, or in situations of
acute national crisis (2012 General Survey on the fundamental Conventions, paragraphs 151 and 153).
Recalling that the above-mentioned issues have been the subject of its comments for several years, the
Committee urges the Government to take the necessary measures to amend sections 220, 225 and
228 of the Labour Code in the near future. The Committee requests the Government to provide
information on any developments in this regard, and reminds it that it may avail itself of the technical
assistance of the Office, if it so wishes.
Document No. 222
ILC, 67th Session, 1981, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, p. 109 (Ireland)
International Labour Conference
67th Session 1981
Report III
(Part 4A)
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General Report
and Observations concerning Particular Countries
International Labour Office Geneva
C.87
land (ratification: 1955)
With reference to its earlier comments, the committee takes note
of the infornation provided by the Government to the conference
committee in 1979 and in its report and also the comments submitted by
the Irish congress of Trade Union s. These comments relate to the
absence of protection or certain classes of w orkers, the result of
which might be that workers taking part in peaceful strike picketing
during a strike would be sued for damages.
he co■aittee notes the statement by the Government that ne w
legislation will be adopted shortly to extend the provisions of the Trade
Disputes Act, 1906, as the Trade Union congress has requested.
The comaittee hopes that the Government will shortly adopt the
appropriate measures and it asks the Government to continue to provide
information on the matter and to send copies of the amendments to the
Act as soon as they have been adopted,
109
Document No. 223
ILC, 79th Session, 1992, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 242-249
(United Kingdom)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
United Kingdom (ratification: 1949)
The Committee takes note of the Government's report. It also
notes the extensive discussion which took place in 1991 at the
Conference Committee concerning the issue of the Government
Communications Headquarters (GCHQ), as well as the comments made by
the Trades Union Congress (TUC) and the Council of Civil Service
Unions (CCSU) in several communications in 1991 and 1992.
I. Dismissal of workers at the GCHQ
In its communication of 10 January 1992, to which is attached a
series of letters to and from the Government, the CCSU and itself, the
TUC states that following the debate at the Conference Committee in
1991 it wrote to the Prime Minister proposing discussions on this
issue in the light of the recommendations made by the Committee of
Experts and the Conference Committee. The TUC had referred then to
the readiness of the trade unions to accept arrangements meeting the
Government's requirements, and to the possibility to take the issue to
the International Court of Justice, which is open to the Government
under the ILO Constitution. According to the TUC, the CCSU intend to
raise the issue of the GCHQ workers at the earliest opportunity with
the Head of the Home Civil Service, but are pessimistic about a
positive outcome in view of the attitude of the Government which has
declared it found it difficult to see that any useful purpose would be
served by such discussions.
In its report, the Government basically reiterates the arguments
put forward at the Conference Committee in 1991, and asks the
Committee of Experts to reconsider their views in light of the
following points:
- GCHQ is part of the national security and intelligence service;
- under Convention No. 151 there would be no problem of
interpretation;
in many other countries the same activities would be carried out
entirely within the military apparatus and would therefore be
exempt, even under Convention No. 87;
- out of all the workers involved only 13 eventually did not accept
the revised conditions or alternative employment, and they were
given generous financial compensation;
- other international bodies concerned with fundamental human
rights have ruled in the UK Government's favour; and
- workers at GCHQ are able to join an effective and indeed active
trade union organisation, and the majority of staff have in fact
done so.
Whilst reiterating that the trade unions concerned may raise the
issue at any of their regular meetings with the Head of the Home Civil
Service - an offer they have not taken up so far according to it - the
Government reaffirms its belief that its action in respect of GCHQ was
in line with its obligations under the ILO Conventions.
Having carefully examined the Government's report and the
comments made by the trade unions, the Committee is bound to note that
it was not provided with any new element which might lead it to modify
its previous observation on the merits of this issue. The Committee
242
n OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
further notes that the Conference Conmittee was almost unanimous as to
the necessity o£ a renewal of the dialogue. Since then, while
reiterating that the trade unions could raise the issue at- t-hpi'-
regular meetings with the Head of the Home Civil Service, the
Government indicated twice to the TUC (letters of 25 June and 20
December 1991) that it found it difficult to see that any useful
purpose would be served by such discussions, which probably explains
why the issue was apparently not raised during these regular mepH"2=.
The Committee deplores that it has been unable to note any
tangible progress on this question or even a resumption of
discussions, despite the very broad consensus that has emerged in the
supervisory bodies.
It recalls that the only exclusions provided for in the
Convention concern the armed forces and rv-viii-»^ that workers have Lhc
right to establish organisations of their own choosing, and that the
right to organise does not prejudge the right to strike.
The Committee consequently urges the Government to resume in the
very near future constructive discussions calculated to lead, through
genuine dialogue, to a compromise acceptable to both sides.
II. Article 3 of the Convention
General
In its observation of 1991, the Committee had made a number of
conments concerning the Employment Acts of 1980, 1982 and 1988 and the
Trade Union Act of 1984. These comments concerned the following
issues:
- unjustifiable discipline (section 3 of the Act of 1988);
indemnification of union members and officials (section 8 of same
Act);
immunities in respect of civil liability for strikes and other
industrial action;
- dismissals in connection with industrial action; and
- complexity of the legislation.
The Committee notes the extensive observations communicated by
the Government on these issues, both at the Conference Committee and
in its report. It further takes note of the comments of the TUC in
its communication of 22 January 1992, concerning the Employment Act of
1990.
1. Unjustifiable discipline
(section 3 of the Act of 1988)
In its previous observation, the Committee concluded that those
parts of section 3 which deprive trade unions of the right to
discipline their members who refuse to participate in lawful strikes
and other industrial action or who seek to persuade fellow members to
refuse to participate in such action, constituted an impermissible
incursion upon the guarantees provided by Article 3. While
recognising that the guarantees provided by Article 3 are conditioned
by respect for fundamental human rights, the Committee considered that
it is not compatible with the Convention to prevent the members of a
243
^
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
impose disciplinary penalties on those of their members who refuse to
participate in a strike. It also requests the parties to provide it
with examples of the way the provision is applied in practice.
2. Indemnification of union members and officials
(section 8 of the Act of 1988)
Section 8 of the 1988 Act makes it unlawful for the property of
any trade union to be applied so as to indemnify any individual in
respect of any penalty which may be imposed upon that individual for
an offence or for contempt of court. In its 1991 observation, while
recognising that section 8 does not expressly state that unions may
not adopt rules to this effect, the Committee had concluded that it
appears to achieve the same effect by virtue of the fact that any
payments made in accordance with any such rule may be recovered in
accordance with subsections (2) and (3) of section 8. Accordingly,
the Committee considered that the legislation should be amended so as
to allow the adoption and implementation of rules which permit the
indemnification of members or officials in respect of legal
liabilities they may have incurred on behalf of the union.
In its report, the Government:
(a) points out that section 8 only applies to fines or other
financial penalties imposed on an individual for a criminal
offence or contempt of court - conduct which is self-evidently in
breach of the law of the land;
(b) points out that where an individual merely acts as a passive
"agent" of a trade union, any penalty is likely to be imposed on
the union, but that where a penalty is imposed on an individual
this would imply a clear finding of wilful and unlawful action by
that individual;
(c) having regard to Article 8(1) of the Convention in particular,
cannot accept that provisions which declare unlawful the
application of union funds or property to indemnify such
individuals from the consequences of their own unlawful acts, and
the consequential right of recovery of the money or property paid
over, amount to a denial of any guarantee in the Convention.
Accordingly, the Government cannot agree that there is any need
to amend the legislation as suggested by the Committee, since its
present terms are not incompatible with any guarantee afforded by the
Convention.
The Committee notes that, according to the Government, these
provisions apply in extreme cases, i.e. cases in which a person is
sentenced by a tribunal to a fine or another financial penalty for an
illegal and wilful act manifestly constituting a breach of the
national law (a criminal offence or contempt of court); in other
cases, the penalties would probably be imposed on the trade union.
The Committee considers that indemnification of union members or
officials in respect of legal liabilities they may incur on behalf of
the trade union should be possible.
In order to be able to take a fully informed decision, the
Committee asks the parties to supply it with information on the
practical application of these provisions, in particular by providing
245
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
the texts of quasi-judicial or judicial decisions issued in these
matters.
3. Immunities in respect of civil liability
for strikes and other industrial action
In its 1991 observation, whilst recognising that British
legislation provides a significant measure of protection against
common law liability for individuals and trade unions who organise or
participate in certain forms of industrial action, and that workers
cannot be ordered to return to or remain at work, the Committee
maintained that some of the legislative changes which have been
introduced since 1980 have had the effect of withdrawing statutory
protection from various forms of industrial action which, in its
opinion, ought not to attract legal liability. Therefore, it repeated
its request that the Government introduce legislation to enable
workers and their unions to engage in industrial action in the
circumstances discussed in detail in the Committee's 1989 observation.
In its report, the Government:
(a) points out that UK law (i) continues to provide special
protection against civil law liability that would otherwise arise
wherever a trade union or any other person calls on workers to
break contracts in contemplation or furtherance of a trade
dispute with their employer; and (ii) provides a wide-ranging
definition of "trade dispute" for this purpose;
(b) observes that no change since 1979 to the law relating to the
organisation of industrial action has in any way affected the
position of workers - who remain free to choose to engage in
industrial action whether in relation to a trade dispute with
their employer, or in support of other workers or of some other
objective;
(c) cannot find in the provisions of the Convention any authority for
the Committee of Experts' conclusion that the Convention requires
that calling for, or otherwise organising, the particular forms
of industrial action which it mentions ought to have legal
protection.
Accordingly, the Government cannot accept that there is any need
for further legislation concerning protection against civil liability
for acts of calling for, or otherwise organising, industrial action on
the grounds that this is necessary to ensure compliance with any
guarantee afforded by the Convention.
The Committee is bound to note that no new arguments have been
submitted to it that are likely to affect its previous comments; it
continues to consider that some amendments to the law introduced since
1980 have had the effect of reducing or withdrawing legal protection
against liability for various forms of strike and industrial action
which ought not to give rise to legal liability. It refers in
particular to the detailed observations it made on this question in
its 1989 and 1991 reports, and again asks the Government to amend its
legislation so as to enable workers and their organisations to take
the forms of industrial action in question without incurring civil
liability at common law.
246
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
In its communication of 22 January 1992, the TUC also submits
that section 4 of the Employment Act of 1990 removes immunity in tort
from alj^ secondary action other than that arising in the course of
np^rpfiji nicVpt-in^ by workers at their own pljcc of work.
Since the Government did not reply on this point which had
already been raised in its 1991 observation, the Committee would a^
it once again to provide full details on the objective and the effects
of this provision in its next report.
4. Dismissals in connection with industrial action
In its 1991 observation the Committee had asked once again the
Government to introduce legislative protection against dismissal and
other forms of discriminatory treatment in connection with strikes and
uLher industrial action so as to Dnng law and practice into
conformity with the requirements of the Convention. In addition,
adopting the conclusions of the Committee on Freedom of Association in
Case No. 1540, it invited the Government to modify section 62A of the
Employment Protection (Consolidation) Act [inserted by section 9 of
the 1990 Act].
In its communication of 22 January 1992, the TUC emphasises that
section 62A enables an employer to dismiss selectively those taking,
part in unofficial action; thus, persons dismissed during an
unofficial strike, even if they had not participated in the action,
would have no right to complain of unfair dismissal. In addition,
section 6 of the 1990 Employment Act [which amended section 15 of the
1982 Employment Act] widens the definition of what constitutes
official action and extends unions' liability in tort; unions could
now be held responsible for actions of their members over which they
have no cont rol.
In its report, the Government points out that Convention No. 87
is concerned with protection of the freedom to form employers' and
workers' organisations and the rights of such organisations, but that
the treatment of individual workers (including the matter of dismissal
or disciplinary penalties being imposed by an employer) is a matter
dealt with expressly in other Conventions notably Convention No. 98 -
and are, accordingly, unable to see how the law relating to such
dismissals or discipline of individuals falls to be covered by
Convention No. 87.
The Government however replies on the merits and gives the
following details on the law and practice:
(a) it has always been the case that an employer is entitled to
impose disciplinary penalties on workers who choose to take
industrial action, including for example, denying them payment to
which they would have been entitled if they had worked during the
period they in fact took such action - and there appears to be no
basis in the provisions of Convention No. 87 to deny employers'
freedom to respond in this way to industrial action;
(b) UK law has never included the principle for which the Committee
of Experts contend, namely that any employer should be prevented
from dismissing or imposing a penalty on workers during
industrial action; since the UK law on unfair dismissal was
247
r C. 87 REPORT OF THE COMMITTEE OF EXPERTS
introduced in 1971 it has always contained an exception relating
to dismissals during industrial action;
(c) UK law does not permit workers to be ordered, in any
circumstances, to return to or remain at work; this freedom to
decide whether to take industrial action - which, by its nature,
must always be an individual decision on the part of any employee
- applies regardless of the nature or scale of the effect of that
action on their employers' business (either in absolute terms or
in relation to the nature of the issues involved in the dispute);
(d) moreover, where employees are taking part in official industrial
action - that is to say, action which is called for or otherwise
organised by their trade union - an employee who is discriminated
against by being dismissed while others taking part in the action
are not dismissed can complain of unfair dismissal to an
industrial tribunal; the same is true if all employees are
dismissed but some are offered re-engagement within three months
while others are not;
(e) in addition, UK employment law provides special protection for
any employee who takes strike action by preserving any
"qualifying period of employment" which the employee may have
accumulated prior to taking such action - thereby protecting his
or her future entitlement to many statutory employment rights
(for example to redundancy pay), even though the employee has
chosen to go on strike in breach of the terms of his employment
contract ;
(f) while workers' terms and conditions may be established by
collective agreements made between employers and trade unions, in
the UK there are not known examples of collective agreements
legally enforceable between a union and an employer - which
leaves UK employees free to decide to take industrial action
without having to take into account potential consequences for
their union in terms of its contractual obligations;
(g) it has long been a fundamental principle of UK arrangements that
courts or tribunals should not be asked to adjudicate on the
merits of a particular industrial dispute - and there is nothing
in the provisions of any Convention ratified by the UK which
would require different arrangements to apply in this respect.
Accordingly, the Government cannot accept that there is any
justification for an argument that legislation along the lines
suggested by the Committee of Experts is necessary to ensure that UK
law is compatible with either (i) guarantees afforded by Convention
No. 87, or (ii) respect for "the principles of freedom of association"
in so far as these are identifiable in the provisions of that
Convention itself.
The Committee must note in this connection as well that no new
element has been brought forward and, in view of the fundamental
importance of this question, remains convinced that conformity with
the Convention requires that workers should enjoy real and effective
protection against dismissal or any other disciplinary measure taken
by reason of their participation, whether actual or proposed, in
strikes or other forms of industrial action. It again invites the
Government to amend its legislation on these lines. Furthermore it
248
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C. 87
repeats its recommendation that section 62A of the Employment Act of
1990 be amended.
5. Complexity of the _!egislatic:111
In its previous observations the Committee expressed its concern
at the volume and complexity of legislative change since 1980 in
relation to the matters covered by the Convention, and suggested that
some reconsideration of the form and contents of the legislation would
be advantageous.
In its report the Government confirms that it is willing to bring
forward a "consolidation" measure as and when resources and the
legislative timetable permit. Recalling the distinction between such
a consolidation and a measure which would effect substantive changes
to the present law, the Government rei Lerctls l.; tc:l :c:i !-J.at ri.othi::g
in UK general employment law is incompatible with any guarantee
afforded by any ILO Convention ratified by the UK. Accordingly, it
rejects the suggestion that there is any need for such a
"consolidation" measure to include provisions which would effect
substantive changes to the present law applying to industrial
relations and trade union affairs.
The Committee notes that the Government is prepared to adopt
measures of codification of the law on industrial relations and
invites it to keep it informed, in its future reports, of the measures
taken or contemplated in that respect.
The Committee refers to its foregoing comments with regard to the
substantive provisions that present a problem in relation to the
Convention.
249
Document No. 224
ILC, 83rd Session, 1996, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 149-150
(Guatemala)
International Labour Conference
83rd Session 1996
Report III
(Part 4A)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
Observations concerning ratified Conventions c. 87
Guatemala (ratification: 1952)
The Committee notes the information supplied by the Government representative to
the Conference Committee on the Application of Standards in June 1995 and the ensuing
debate. The Committee also notes the interim conclusions concerning, among other
matters, the violation of basic human rights and obstacles to the establishment of trade
union organizations, which were adopted by the Committee on Freedom of Association
(Cases Nos. 1512, 1539, 1595, 1740, 1778 and 1786) and approved by the Governing
Body at its 263rd Session in June 1995 (see 299th Report, paras. 402 to 427), as well
as the report of the direct contacts mission between representatives of the Government
and a representative of the Director-General, undertaken from 13 to 17 February 1995.
In the same way as the Committee on Freedom of Association, the Committee of
Experts wishes to signal that the rights of workers' and employers' organizations can
only be exercised in a climate that is free from violence, pressure or threats of any kind
against these organizations' leaders and members and that it is for governments to ensure
that this principle is respected (see paragraph 407 of the 299th Report, referred to
above).
The Committee recalls that its previous comments referred to:
the strict supervision of trade union activities by the Government (section 211 (a) and
(b) of the Labour Code);
the requirement of Guatemalan nationality in order to form part of the provisional
founding executive committee of a trade union or to be eligible for trade union office
(new paragraph "d" of section 220 and section 223(b));
the requirement of a sworn statement from members of the provisional founding
executive committee of a trade union to the effect that, amongst other matters, they
have no criminal record and are active workers within the enterprise or are working
on their own account (new paragraph "d" of section 220);
the requirement that candidates must be active workers at the time of election and
that at least three of them must be able to read and write (section 223(b));
the requirement of a majority of two-thirds of the workers in the enterprise or
production centre (section 24l(c)) and of the members of a trade union (section
222(f) and (m)) for the calling of a strike;
the prohibition of strikes or work stoppages by agricultural workers at harvest time,
with a few exceptions (sections 243(a) and 249);
Rep34A3.E55 149
c. 87 Report of the Committee of Experts
the prohibition of strikes or work stoppages by workers in enterprises or services in
which the Government considers that a suspension of their work would seriously
affect the national economy (sections 243(d) and 249);
the possibility of calling upon the national police to ensure the continuation of work
in the event of an unlawful strike (section 255);
the detention and trial of persons who call for an illegal strike (section 257);
the sentence of one to five years' imprisonment for persons who carry out acts
intended not only to cause sabotage and destruction (which do not come within the
scope of the protection provided by the Convention), but also to paralyse or disturb
the functioning of enterprises contributing to the development of the national
economy, with a view to jeopardizing national production (section 390, paragraph
2, of the Penal Code).
The Committee takes due note that, in accordance with the indications provided by
the Government representative to the Conference Committee on the Application of
Standards in June 1995, the Ministry of Labour will shortly convene a meeting with the
social partners to analyse the comments made by the Committee of Experts with a view
to overcoming the above divergencies. Nevertheless, the Committee notes with concern
that the Government representative gave no assurance that such divergencies would be
resolved and indicated that it is the Congress of the Republic that is competent to take
legislative action. The Committee also regrets to note that the Government has not
replied to its comments.
In the same way as the Conference Committee on the Application of Standards, the
Committee of Experts urges the Government to take the necessary measures to guarantee
in both law and practice that the provisions of the Convention are fully applied and that
the principles of freedom of association are observed.
The Committee requests the Government to provide a detailed report on the specific
measures adopted in this respect.
[The Government is asked to supply full particulars to the Conference at its 83rd
Session.]
150 Rep34A3.E55
Document No. 225
ILC, 111th Session, 2023, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 104-105 (Bahamas)
Report of the Committee
of Experts on the Application
of Conventions and Recommendations
X Application of International
Labour Standards 2023
Report III (Part A)
International Labour Conference
111th Session, 2023
104 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
Bahamas
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 2001)
Previous comments: observation and direct request
The Committee recalls that for a number of years it has been requesting the Government to
amend the Industrial Relations Act (IRA), and other texts, so as to bring the national legislation into
conformity with the Convention. In particular, the Committee referred to the need to amend the
following provisions:
Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish
and join organizations without previous authorization.
– Section 3 of the IRA and sections 39 and 40 of the Correctional Officers (Code of Conduct)
Rules, 2014, so as to ensure that prison staff enjoy all rights and guarantees under the
Convention; and
– section 8(1)(a) and the First Schedule of the IRA, so as to ensure that, beyond the verification
of formalities, the Registrar has no discretionary powers to refuse the registration of trade
unions and employers’ organizations.
Article 3. Right of workers’ organizations to draw up their constitutions and rules and to elect their
representatives in full freedom and to freely organize their activities and to formulate their programmes.
– Section 20(2) of the IRA, so as to ensure that trade unions can conduct ballots for election or
removal of trade union officers and for amendment of the constitution of trade unions
without interference from the authorities;
– section 20 (3) of the IRA, so as to ensure that trade unions can conduct strike ballot without
supervision by the authorities;
– sections 73, 76(1) and 77 (1) of the IRA providing for compulsory arbitration to bring an end
to a collective labour dispute and a strike, so as to not excessively restrict the right of
organizations to formulate their programmes and organize their activities;
– sections 74(3), 75(3), 76(2)(b) and 77(2) of the IRA, so as to ensure that no penal sanctions
may be imposed for having carried out a peaceful strike; and
– section 75, so as to allow organizations responsible for defending socio-economic and
occupational interests to use strike action or protest action to support their position in the
search for solutions to problems posed by major social and economic policy trends which
have a direct impact on their members.
Article 5. Right to affiliate to an international federation or confederation.
– Section 39 of the IRA, so as to ensure the right of workers’ and employers’ organizations to
affiliate with international organizations of workers and employers.
The Committee notes the Government’s indication that the National Tripartite Council is
continuing to review the IRA and that no amendments have yet been made to any of the aboveFreedom
of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 105
mentioned sections, or to article 31 of the Constitution (which, among others, defines prison services as
“disciplined force” along with the police and military). The Government indicates that priority has been
given to sections 20(2), 74(3), 75(3), 76(2)(b) and 77(2) of the IRA in the reviewing exercise and that it is
examining the possibility of repealing section 39 of the IRA. The Committee welcomes the Government’s
indication that it will request ILO technical assistance to finalize any relevant pieces of legislation. The
Committee urges the Government to take all necessary measures, in consultation with the social
partners, to amend its legislation in the near future, so as to ensure its full conformity with the
Convention without further delay, and requests the Government to provide information on all
developments in this respect.
Document No. 226
ILC, 111th Session, 2023, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 128-133 (Ecuador)
Report of the Committee
of Experts on the Application
of Conventions and Recommendations
X Application of International
Labour Standards 2023
Report III (Part A)
International Labour Conference
111th Session, 2023
128 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
Ecuador
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 1967)
Previous comment
Discussion at the International Labour Conference, May–June 2022
The Committee notes the observations of the Trade Union Association of Agricultural, Banana
and Rural Workers (ASTAC), received on 30 August 2022, which refer to issues that the Committee
will examine in this comment. The Committee also notes the observations of the International Trade
Union Confederation (ITUC), received on 1 September 2022, which refer to issues examined in this
comment and allege the murder on 24 January 2022 of Mr Sandro Arteaga Quiroz, secretary of
the Union of Workers of the Manabi Provincial Government, who had allegedly received death threats
hours before his murder. The ITUC also alleges clashes between police and protesters in the context of
a nationwide strike in October 2021 that culminated in the arrest of 37 protesters. The Committee
recalls that the authorities should not resort to arrest and detention measures in cases of organization
or participation in a peaceful strike. The Committee deplores the murder of Mr Arteaga Quiroz.
Recalling that freedom of association can only be exercised in conditions in which fundamental
human rights, in particular those relating to life and personal safety, are fully respected and
guaranteed, the Committee strongly urges the Government to take without delay all necessary
measures to determine responsibility and punish those guilty of this crime.
The Committee also notes the joint observations of the Ecuadorian Confederation of Free Trade
Unions (CEOSL), the Federation of Petroleum Workers of Ecuador (FETRAPEC), the National Federation
of Education Workers (UNE) and Public Services International (PSI) in Ecuador, received on 1
September 2022, which in addition to dealing in detail with issues that the Committee addresses in this
comment, allege unjustified delays in the registration of union organizations and new union officers,
as well as the refusal to register union organizations for reasons not provided for in the Constitution
or in the law. They also point out that the Government is seeking to table in the National Assembly a
Bill on a Basic Employment Act, still in draft form, which contravenes the Committee’s comments.
The Committee requests the Government to send its comments on all the above-mentioned
observations. It also requests the Government to send a copy of the Bill and to keep it informed of
any further developments.
Follow-up to the conclusions of the Committee on the Application of Standards
(International Labour Conference, 110th Session, May–June 2022)
The Committee notes that in the discussion that took place in the Conference Committee on the
Application of Standards (hereinafter referred to as the Conference Committee) in June 2022 on the
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 129
implementation of the Convention by Ecuador, the Conference Committee noted with regret that no
action had been taken to follow up on the technical assistance provided by the Office in December 2019
and also noted the long-standing issues regarding compliance with the Convention. The Conference
Committee urged the Government to take action to foster an environment conducive to the full
enjoyment of the right of workers and employers to freedom of association. The Conference Committee
noted that both the Government and the social partners raised the importance of labour law reform
and expressed the hope that the Government would seize this opportunity to bring its legislation and
practice fully into line with the Convention in consultation with the social partners. The Conference
Committee urged the Government to take effective and time-bound measures, in consultation with the
social partners, to:
– ensure full respect for the right of workers, including public servants, to establish
organizations of their own choosing, for the collective defence of their interests, including
protection against administrative dissolution or suspension;
– amend legislation to ensure that the consequences of any delays in convening trade union
elections are set out in the by-laws of the organizations themselves;
– resolve the registration of the National Federation of Education Workers (UNE);
– give effect to the road map presented in December 2019 by the ILO technical assistance
mission; and
– initiate a process of consultation with the social partners to reform the current legislative
framework in order to enhance coherence and bring all the relevant legislation into
compliance with the Convention.
The Conference Committee invited the Government to avail itself of technical assistance from the
Office and requested that the Government accept a direct contacts mission and submit a report to the
Committee of Experts by 1 September 2022 communicating information on the application of the
Convention in law and practice, in consultation with the social partners.
Application of the Convention in the private sector
Article 2 of the Convention. Excessive number of workers (30) required for the establishment of workers’
associations, enterprise committees or assemblies for the organization of enterprise committees. Possibility of
creating trade union organizations by branch of activity. For several years the Committee has been drawing
the Government’s attention to the need to revise sections 443, 449, 452 and 459 of the Labour Code in
such a way as to reduce the minimum number of members required to establish workers’ associations
and enterprise committees and enable the establishment of primary-level unions comprising workers
from several enterprises. The Committee notes that in its report the Government does not refer to the
revision of the articles relating to the number of workers required to form workers' associations and
enterprise committees. The Committee notes that CEOSL, FETRAPEC, the UNE and PSI stress that the
number of no less than 30 workers for the establishment of trade union organizations is
disproportionate and unreasonable in view of the Ecuadorian business structure, stating that persons
working in 88.1 per cent of the business sector are not able to form trade union organizations. With
regard to the creation of organizations that bring together workers from several enterprises, in its
previous comment, the Committee had welcomed the 2021 ruling by the Provincial Court of Justice of
Pinchincha ordering the Ministry of Labour to register ASTAC as a branch union, despite the fact that it
was made up of workers from several enterprises and also ordering the Ministry to regulate the
registration of unions by branch of activity. The Committee notes that the Government, ASTAC and the
ITUC report that although ASTAC was granted legal personality on 11 January 2022, in compliance with
the ruling, the Ministry and the State Attorney General’s Office filed an extraordinary protection order
against the ruling for lack of adequate grounds and legal certainty and non-compliance with due
process. The Committee notes that the extraordinary protection order, which has the support of
130 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
business associations, is pending a decision by the Constitutional Court. It also notes that ASTAC states
that the Government has not fully complied with the ruling since, although it has applied it with respect
to ASTAC, it has refused to regulate the establishment of branch unions, stating that the ruling is not
applicable erga omnes or inter communis (applicable to other parties). The Commission notes with
interest the registration of ASTAC as a branch union. Recalling that, under the terms of Articles 2 and 3
of the Convention, workers must be able, if they so wish, to establish primary-level organizations at a
level higher than the enterprise, the Committee firmly hopes that the above-mentioned ruling will
contribute to enabling the creation of trade union organizations by branch of activity, and also hopes
that the Committee’s assessment of this important development in the application of the Convention
will be brought to the attention of the Constitutional Court of Justice. The Committee urges the
Government to take the necessary steps, in consultation with the social partners, to revise the sections
of the laws referred to above in the manner indicated and to keep it informed of developments in this
respect. The Committee also requests the Government to report on the proceedings before the
Constitutional Court regarding the extraordinary protection order.
Article 3. Compulsory time limits for convening trade union elections. The Committee has been asking
the Government to amend section 10(c) of the Regulations on Labour Organizations No. 0130 of 2013,
which provides that trade union executive committees shall lose their powers and competencies if they
do not convene elections within 90 days of the expiry of their term of office, as set out in their respective
union constitutions, to ensure that the consequences of any delay in holding elections shall be
determined by the union constitutions themselves, subject to the observance of democratic rules. The
Committee notes that the Government reports that a draft reform of the Regulations on Labour
Organizations is currently being reviewed particularly with regard to section 10(c). Recalling that under
Article 3 of the Convention, trade union elections are an internal matter for organizations, and
observing that the consequences under the Regulations if the deadlines are not respected—the loss of
powers and competencies for trade union committees—risk paralyzing the capacity for trade union
action, the Committee firmly hopes that the draft reform will take into consideration its comments,
and that the section in question will be modified along the lines indicated. The Committee requests the
Government to report on any developments in this regard.
Requirement of Ecuadorian nationality to be eligible for trade union office. The Committee recalls that,
while in 2015 it had noted that section 49 of the Labour Justice Act had amended section 459(4) of the
Labour Code and removed the requirement of Ecuadorian nationality to be eligible to be an officer of
an enterprise committee, in its most recent comment it observed that section 49 was declared
unconstitutional by a ruling of 2018 because it violated the principle of trade union independence by
providing that the legislation determined how the executive bodies of the enterprise committees were
constituted and who had the right to vote in their elections. The Committee notes with regret that as a
result of the declaration of unconstitutionality, section 459(4) has reverted to its original wording and
requires Ecuadorian nationality to be eligible to be an officer of an enterprise committee. The
Committee notes the Government’s indication that Ecuadorian nationality is required to be an officer of
an enterprise committee, but not to be a leader or member of other forms of association. The
Committee notes that enterprise committees are one of the forms that trade unions can take within an
enterprise. The Committee emphasizes that under Article 3 of the Convention all workers’ and
employers’ organizations shall have the right to elect their representatives in full freedom and that
national legislation should allow foreign workers to take up trade union office, if permitted under the
organization’s constitution and rules, at least after a reasonable period of residence in the host country.
The Committee therefore urges the Government to amend section 459(4) of the Labour Code and to
keep it informed of any developments in this regard.
Elections as officers of enterprise committees of workers who are not trade union members. The
Committee had previously indicated to the Government the need to amend section 459(3) of the Labour
Code, which provided that the role of officer of an enterprise committee may be filled by any worker,
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 131
whether or not a union member, who stands for office. The Committee notes the Government’s
indication that the above-mentioned Constitutional Court ruling of 2018 also had an impact on the
wording of section 459(3), and that it reverted to its original wording which does not provide for the
possibility for non-unionized workers to participate in enterprise committee elections. Taking due note
of this information, the Committee requests the Government to hold consultations with the social
partners in relation to the need to review section 459(3) of the Labour Code to bring it into full
compliance with the principle of trade union autonomy.
Application of the Convention in the public sector
Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and to join
organizations of their own choosing. The Committee previously noted that although section 11 of the
Basic Act reforming the legislation governing the public sector (Basic Reform Act), adopted in 2017,
establishes the right to organize for public servants, certain categories of public employees were
excluded from that right, especially those under contract for occasional services, those subject to free
appointment and removal from office, and those on statutory, fixed-term contracts. Recalling that under
Articles 2 and 9 of the Convention, with the sole possible exception of members of the police and of the
armed forces, all workers, including permanent or temporary public servants and those under fixedterm
or occasional services contracts, have the right to establish and to join organizations of their own
choosing, the Committee asked the Government to take the measures required to bring the legislation
into line with the Convention. The Committee notes that, with regard to public servants under fixedterm
or occasional services contracts, the Government merely reiterates that the public institutions of
the State are working to ensure that public servants have their respective definitive appointments,
provided that their activities are not temporary. The Committee notes with regret that no progress has
been made in taking its comments into account in relation to the need to bring the legislation into line
with the Convention in such a way that all workers, with the sole possible exception of the members of
the police and of the armed forces, have the right to establish and to join organizations of their own
choosing. The Committee urges the Government to take the necessary measures to bring the
legislation into line with the Convention.
Right of workers to establish organizations of their own choosing without previous authorization.
Organizations of public servants other than the committees of public servants. The Committee observed
that, according to the provisions of the Basic Reform Act, the committees of public servants, which must
comprise 50 per cent plus one of the staff of a public institution, are responsible for defending the rights
of public servants and are the only bodies that can call a strike. Underlining the fact that all organizations
of public servants must be able to enjoy the various guarantees established in the Convention, the
Committee requested the Government to provide information on organizations of public servants other
than the committees of public servants and to indicate in detail what means they have for defending
the occupational interest of their members. The Committee notes the Government’s indication that
public servants, when forming their organizations, have the right to draft their statutes in which they
may establish any means to defend their interests, emphasizing that public servants’ organizations are
legal entities under private law, and therefore may establish any regulation that is not prohibited by
law. The Committee notes that it is precisely the Basic Reform Act that indicates that the committees of
public servants are responsible for defending the rights of public servants and are the only bodies that
can call a strike. It is on this basis that the Committee requested the Government to provide information
on organizations of public servants other than the committees of public servants and to indicate what
means they have for defending the occupational interest of their members. The Committee regrets that
it has not received this information and reiterates its request to the Government to provide
information in this respect. Recalling that under Article 2 of the Convention, trade union pluralism
must be possible in all cases, and that no organization of public servants should be deprived of the
essential means for defending the occupational interests of its members, organizing its administration
132 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
and activities, and formulating its programmes, the Committee once against requests the Government
to take the necessary steps to ensure that the legislation does not restrict recognition of the right to
organize to the committees of public servants as the sole form of organization.
Article 3. Right of workers’ organizations and associations of public servants to organize their activities
and to formulate their programmes. The Committee previously drew the Government’s attention to the
need to amend section 346 of the Basic Comprehensive Penal Code, which provides for a term of
imprisonment of one to three years for stopping or obstructing the normal provision of a public service,
so as to prevent the imposition of criminal penalties on workers engaged in a peaceful strike. The
Committee notes that according to the Government, no progress has been made in this regard. The
Committee regrets that no action has been taken in this respect and notes that, according to CEOSL,
FETRAPEC, the UNE and PSI, the provision in question is being used to criminalize social protest. The
Committee strongly urges the Government to take the necessary measures to ensure that section 346
of the Basic Comprehensive Penal Code is amended in the manner indicated and, until such measures
are taken, to ensure that this provision is not used to criminalize social protest.
Article 4. Dissolution of associations of public servants by the administrative authorities. The
Committee previously asked the Government to take the necessary measures to ensure that Decree No.
193 of 2017, which retains engagement in party-political activities as grounds for dissolution and
provides for administrative dissolution, does not apply to associations of public servants whose purpose
is to defend the economic and social interests of their members. The Committee notes the
Government’s indication that labour and social organizations are governed by civil law and that it falls
to their members to exercise the rights and obligations recognized by their statutes. The Committee
notes that, according to CEOSL, FETRAPEC, the UNE and PSI, the provision of Decree No. 193 that
maintained as grounds for dissolution the development of party-political activities was declared
unconstitutional by a judgment issued on 27 January 2022 in which the Constitutional Court held that
it was not admissible that an open and indeterminate provision could limit the right of social
organizations to participate in matters of public interest and to oversee the actions of the public
authorities. The Committee notes that these organizations further state that: (i) Decree No. 193
regulates only social organizations and not trade union organizations; (ii) the Labour Code and the Basic
Reform Act establish that public servants’ organizations can only be dissolved by judicial decision; and
(iii) without prejudice to the foregoing, the Government applies the grounds for forced dissolution of
social organizations to trade union organizations. Recalling that Article 4 of the Convention prohibits
the suspension or administrative dissolution of the associations of public servants, the Committee
urges the Government to ensure that the rules of Decree No. 193 are not applied to associations of
public servants that have the purpose of defending the economic and social interests of their members.
Administrative dissolution of the National Federation of Education Workers (UNE). In its last comment,
having noted the registration of social organizations related to the UNE, (which was dissolved by an
administrative act issued by the Under-Secretariat of Education in 2016), the Committee asked the
Government to: (i) indicate whether the registration of the UNE-E with the Under-Secretariat of
Education of Quito meant that the UNE had been able to resume its activities of defending the
occupational interests of its members; (ii) take all necessary measures to ensure the registration of the
UNE as a trade union organization with the Ministry of Labour, if the UNE so wished; and (iii) ensure the
full return of the property seized as well as the removal of any other consequences resulting from the
administrative dissolution of the UNE. The Committee notes that, after summarizing the events that
have taken place in recent years, the Government indicates that the UNE filed several legal actions
against the dissolution resolution and that, to date, although all the actions filed by the UNE have been
rejected, the Constitutional Court’s ruling on an extraordinary protection order is still pending, and that,
with the Constitutional Court’s decision, the national judicial instances will have been exhausted. The
Committee notes that, according to the CEOSL, FETRAPEC, the UNE and PSI, the Government has not
complied with the Committee’s request in its previous comments. The Committee requests the
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 133
Government to provide information on the ruling handed down by the Constitutional Court on the
pending extraordinary protection order and to provide the information requested by the Committee in
its previous comment.
Technical assistance. Both the Committee and the Conference Committee have noted with regret
that the Government has not given follow-up to the technical assistance provided by the Office in
December 2019 regarding measures to address the comments of the supervisory bodies. The
Committee notes that the Government shows interest in receiving technical assistance to restart
tripartite social dialogue and establish a new road map in that regard. The Committee expresses the
firm hope that, with the technical assistance in which the Government has shown interest, social
dialogue will be restarted and progress will be made in taking concrete, effective and time-bound
measures, in consultation with the social partners, to bring the legislation into conformity with the
Convention. Like the Conference Committee, this Committee hopes that the Government will accept a
direct contacts mission and also hopes that the implementation of the measures referred to in this
comment will contribute to guaranteeing greater respect for the rights enshrined in the Convention.
The Committee is raising other matters in a request addressed directly to the Government.
Document No. 227
ILC, 79th Session, 1992, Report III (Part 4A), Report
of the Committee of Experts on the Application of
Conventions and Recommendations, pp. 212-213
(Ecuador)
International Labour Conference
79th Session 1992
Report III
(Part 4 ft,.)
Third item on the agenda:
Information and reports on the application
of Conventions and Recommendations
Report of the Committee of Experts
on the Application
of Conventions and Recommendations
(Articles 19, 22 and 35 of the Constitution)
General report
and observations concerning particular countries
International Labour Office Geneva
C. 87 REPORT OF THE COMMITTEE OF EXPERTS
Ecuador (ratification: 1967) - - - --
The Committee notes the Government's report, and particularly the
adoption of Act No. 133 to reform the Labour Code published on 21
November 1991.
The Committee takes due note of the new wording of section 490 of
the Labour Code, under which the number of cases in which a strike can
be called has been extended (paragraphs 4 to 7); the Committee
nevertheless notes that the new Act introduces the following
provisions which may raise problems with regard to the application of
the Convention:
the increase from 15 to 30 of the minimum number of workers
required for the estabiishment of trade union associations,
including works councils. Even though the minimum number of 30
workers would be acceptable in the case of sectoral trade unions,
the Committee considers that the minimum number should be reduced
in the case of works councils so as not to hinder the
establishment of such bodies, particularly when it is taken into
account that the country has a very large proportion of small
enterprises and that the trade union structure is based on
enterprise unions;
- decision by the Ministry of Labour, in the event of disagreement
between the parties, on the minimum services to be provided in
the event of a strike in services that are considered to be
essential, even when the State is a party to the dispute.
The Committee also regrets that the above text does not contain
amendments relating to the following provisions, which it has been
pointing out for many years are incompatible with the requirements of
the Convention:
212
the prohibition placed on public servants from setting up trade
unions (section lO(g) of the Civil Service and Administrative
Careers Act of 8 December 1971);
the penalty of imprisonment laid down by Decree No. 105 of 7 June
1967 for the instigators of collective work stoppages and for
those who participate in them;
the requirement that members of the executive committee of a
works council be Ecuadorian (section 455 of the Labour Code);
the administrative dissolution of a works council when its
membership drops below 25 per cent of the total number of workers
(section 461 of the Code);
OBSERVATIONS CONCERNING RATIFIED CONVENTIONS C.87
the prohibition placed on unions
political activities, with the
this effect shall be included
(section 433(11) of the Code).
from taking part in religious or
requirement that provisions to
in the by-laws of the unions
The Committee notes the information supplied by the Government
concerning the presentation on 22 May 1990 to the Secretariat of the
National Congress by a member of the Congress of four draft amendments
and two legal interpretations, the purpose of which is to bring the
national legislation into conformity with the Convention. The
Committee requests the Government to keep it informed of the progress
of the draft teKts before the legislature and to supply copies of them
once they are adopted.
The Committee once again urges the Government to take the
necessary measures in the near future to bring the law and practice
into full conformity with the Convention and requests it to supply
detailed information in this respect in its next report.
In addition, the Committee is addressing a request directly to
the Government.
[The Government is asked to supply full particulars to the
Conference at its 79th Session.]
213
Document No. 228
ILC, 109th Session, 2020, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, p. 85 (Burkina Faso)
Report of the Committee
of Experts on the Application
of Conventions and Recommendations
X Application of International
Labour Standards 2020
Report III (Part A)
International Labour Conference
109th Session, 2020
Freedom of association,
collective bargaining, and
industrial relations
FREEDOM OF ASSOCIATION, COLLECTIVE BARGAINING, AND INDUSTRIAL RELATIONS
85
Burkina Faso
Freedom of Association and Protection of the Right to Organise
Convention, 1948 (No. 87) (ratification: 1960)
The Committee notes the joint observations of six trade union confederations (General Labour Federation of Burkina
Faso (CGT–B); National Confederation of Workers of Burkina (CNTB); Trade Union Confederation of Burkina Faso
(CSB); Force Ouvrière/National Union of Free Trade Unions (FO/UNSL); National Organization of Free Trade Unions
(ONSL) and the Trade Union of Workers of Burkina Faso (USTB)) received on 29 August 2019, concerning the
administrative suspension of two trade unions in the transport sector and the ban on the activities of a prison officials’ union.
The Committee requests the Government to provide its comments in this regard.
In its previous comments, the Committee requested the Government to amend certain legislative and regulatory
provisions relating to the right to strike in order to bring them into conformity with Articles 2 and 3 of the Convention:
– section 386 of the Labour Code, under the terms of which the exercise of the right to strike shall on no account be
accompanied by the occupation of the workplace or its immediate surroundings, subject to the penal sanctions
established in the legislation in force. In this regard, the Committee recalled that restrictions on strike pickets and the
occupation of the workplace are acceptable only where the action ceases to be peaceful. However, it is necessary in
all cases to ensure observance of the freedom of non-strikers to work and the right of management to enter the
premises;
– the Order of 18 December 2009, issued under section 384 of the Labour Code, which lists establishments that may be
subject to requisitioning for the purpose of ensuring a minimum service in the event of a strike. The Committee
observed that certain of the services contained in the list could not be considered essential services or require the
maintenance of a minimum service in the event of a strike, such as mining and quarrying, public and private
slaughterhouses, university centres. The Committee therefore requested the Government to revise the list of
establishments which may be subject to requisitioning for the purpose of ensuring a minimum service in the event of
a strike to ensure that requisitioning is only possible in: (i) services the interruption of which would endanger the life,
personal safety or health of the whole or part of the population (essential services in the strict sense of the term);
(ii) services which are not essential in the strict sense of the term, but in which strikes of a certain scope and duration
could give rise to an acute crisis threatening the normal living conditions of the population; or (iii) public services of
fundamental importance.
The Committee notes the Government’s indication that the process of revising the Labour Code has not yet been
completed, that the draft bill issuing the Labour Code was discussed at a validation workshop in October 2017 and that,
once the revision process is complete, the above-mentioned Order of 18 December 2009 on requisitions could be amended.
With regard to its previous comments on the need to amend section 283 of the Labour Code, which provides that
children of at least 16 years of age may join a trade union unless their father, mother or guardian objects, the Committee
welcome’s the Government’s indication that the draft revising the Labour Code no longer refers to objections by parents or
guardians.
The Committee expresses the firm hope that the Labour Code will be adopted in the near future and that it will give
full effect to the provisions of the Convention on the matters recalled above. It requests the Government to provide a copy
of the Code once promulgated, as well as any relevant implementing texts.
Document No. 229
ILC, 110th Session, 2022, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 188-190 (Hungary)
X Application of International
Labour Standards 2022
Report III (Part A)
Report of the Committee of Experts on
the Application of Conventions and
Recommendations
International Labour Conference
110th Session, 2022
188 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
Hungary
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 1957)
The Committee notes that the Government’s report has not been received. It is therefore bound
to repeat its previous comments.
The Committee notes the observations received on 1 September 2017 from the International Trade
Union Confederation (ITUC), which are reflected in the present observation. It also notes the observations of
the workers’ group of the National ILO Council at its meeting of 11 September 2017, included in the
Government’s report, which relate to issues under examination by the Committee and contain allegations
that Act XLII of 2015 resulted in trade unions formerly established in the area of civilian national security not
being able to operate properly. The Committee requests the Government to provide its comments in this
respect.
Freedom of expression. In its previous comments, the Committee had noted with concern that
sections 8 and 9 of the 2012 Labour Code prohibit workers from engaging in any conduct, including the
exercise of their right to express an opinion – whether during or outside working time – that may jeopardize
the employer’s reputation or legitimate economic and organizational interests, and explicitly provide for the
possibility to restrict workers’ personal rights in this regard. The Committee had requested the Government
to provide detailed information on the results of the “For Employment” project, under which an assessment
of the impact of the Labour Code on employers and workers had been undertaken, as well as on the outcome
of the consultations on the modification of the Labour Code within the framework of the Permanent
Consultation Forum of the Market Sector and the Government (VKF). The Committee had expressed the hope
that the review of the Labour Code would fully take into account its comments with respect to the need to
take any necessary measures to ensure respect for freedom of expression. The Committee notes that the
Government confines itself to indicating that the negotiations in question have not been closed yet. The
Committee regrets that no information has been provided by the Government on the outcome of the “For
Employment” project (completed in August 2015) or on the consultations undertaken since 2015 within the
framework of the VKF with a view to elaborating consensus-based proposals for the review of the Labour
Code. The Committee highlights once again the need to take all necessary, including legislative, measures
to guarantee that sections 8 and 9 of the Labour Code do not impede the freedom of expression of workers
and the exercise of the mandate of trade unions and their leaders to defend the occupational interests of
their members, and expects that its comments will be fully taken into account in the framework of the
ongoing review of the Labour Code. It requests the Government to provide information on any progress
achieved in this respect.
Article 2 of the Convention. Registration of trade unions. In its previous comments, the Committee had
noted the allegation of the workers’ group of the National ILO Council that numerous rules in the new Civil
Code concerning the establishment of trade unions (for example, on trade union headquarters and the
verification of its legal usage) obstructed their registration in practice. The Committee had requested the
Government to: (i) assess without delay, in consultation with the social partners, the need to simplify the
registration requirements, including those relating to union headquarters, as well as the ensuing obligation
to bring the trade union by-laws into line with the Civil Code on or before 15 March 2016; and (ii) take the
necessary steps to effectively address the difficulties signalled with respect to registration in practice, so as
not to hinder the right of workers to establish organizations of their own choosing. The Committee had also
requested the Government to provide information on the number of registered organizations and the
number of organizations denied or delayed registration (including the grounds for refusal or modification)
during the reporting period.
Freedom of association,
collective bargaining, and
industrial relations
Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations 189
The Committee notes the Government’s indication that Act CLXXIX of 2016 on the amendment and
acceleration of proceedings regarding the registration of civil society organizations and companies, which
entered into force on 1 January 2017, amended the 2011 Association Act, the 2013 Civil Code and the 2011
Civil Organization Registration Act. The legislative amendments were adopted to: (i) simplify the contents of
association statutes; (ii) rationalize the court registration and change registration procedures of civil society
organizations (court examination limited to compliance with essential legal requirements on number of
founders, representative bodies, operation, mandatory content of statutes, legal association objectives, etc.;
notices to supply missing information no longer issued on account of minor errors); and (iii) accelerate the
registration by courts of civil society organizations (termination of the public prosecutor’s power to control
the legality of civil society organizations; maximum time limit for registration). The Committee notes,
however, that the ITUC reiterates that trade union registration regulated by the Civil Organization
Registration Act is still being subjected to very strict requirements and numerous rules that operate in
practice as a means to obstruct the registration of new trade unions, including the stringent requirements
on trade union headquarters (unions need to prove that they have the right to use the property), and alleges
that in many cases judges refused to register a union because of minor flaws in the application form and
forced unions to include the enterprise name in their official names. The Committee further notes that the
workers’ group of the National ILO Council states that, when the new Civil Code entered into force, all trade
unions had to modify their statutes to be consistent with the law and at the same time report the changes
to the courts, and reiterates that these regulations pose a serious administrative burden on trade unions.
The Committee observes the persisting divergence between the statements of the Government and
the workers’ organizations. The Committee requests the Government to provide its comments on the
observations of the ITUC and the workers’ group of the National ILO Council concerning in particular the
stringent requirements in relation to union headquarters, the alleged refusal of registration due to minor
flaws, the alleged imposition of including the company name in the official name of associations, and the
alleged difficulties created or encountered by trade unions because of the obligation to bring their by-laws
into line with the Civil Code. The Committee recalls that, although the formalities of registration allow for
official recognition of workers’ or employers’ organizations, these formalities should not become an obstacle
to the exercise of legitimate trade union activities nor allow for undue discretionary power to deny or delay
the establishment of such organizations. Accordingly, the Committee requests the Government to: (i) engage
without delay in consultations with the most representative employers’ and workers’ organizations to assess
the need to further simplify the registration requirements, including those relating to union headquarters;
and (ii) take the necessary measures to effectively address the alleged obstacles to registration in practice,
so as not to impede the right of workers to establish organizations of their own choosing. In the absence of
the solicited information, the Committee also requests the Government once again to provide information
on the number of registered organizations and the number of organizations denied or delayed registration
(including the grounds for refusal or modification) during the reporting period.
Article 3. Right of workers’ organizations to organize their administration. The Committee notes that
the ITUC alleges that trade union activity is severely restricted by the power of national prosecutors to control
trade union activities, for instance by reviewing general and ad hoc decisions of unions, conducting
inspections directly or through other state bodies, and enjoying free and unlimited access to trade union
offices; and further alleges that, in the exercise of these broad capacities, prosecutors questioned several
times the lawfulness of trade union operations, requested numerous documents (registration forms,
membership records with original membership application forms, minutes of meetings, resolutions, etc.)
and, if not satisfied with the unions’ financial reporting, ordered additional reports, thereby overstepping
the powers provided by the law. The Committee notes the Government’s indication that, while public
prosecutors no longer have the right to control the legality of the establishment of the civil society
organizations, they retain the power to control the legality of their operation. The Committee generally
recalls that acts as described by the ITUC would be incompatible with the right of workers’ organizations to
organize their administration enshrined in Article 3 of the Convention. The Committee requests the
Government to provide its comments with respect to the specific ITUC allegations above.
Right of workers’ organizations to organize their activities. The Committee had previously noted that:
(i) the Strike Act, as amended, states that the degree and condition of the minimum level of service may be
established by law, and that, in the absence of such regulation, they shall be agreed upon by the parties
during the pre-strike negotiations or, failing such agreement, they shall be determined by final decision of
190 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
the court; and (ii) excessive minimum levels of service are fixed for passenger transportation public services
by Act XLI of 2012 (Passenger Transport Services Act), both at the local and suburban levels (66 per cent) and
at national and regional levels (50 per cent); as well as with regard to postal services by Act CLIX of 2012
(Postal Services Act), for the collection and delivery of official documents and other mail. The Committee
trusted, in view of the consultations undertaken on the modification of the Strike Act, that due account would
be taken of its comments during the legislative review.
The Committee notes that the Government refers again to the relevant provisions of the Strike Act
(section 4(2) and (3)) and to the Passenger Transport Services Act and Postal Services Act. In the
Government’s view, by regulating the extent of sufficient services in respect of two basic services that
substantially affect the public and thus creating a pre-clarified situation, the legislature promoted legal
certainty in the context of the exercise of the right to strike. The level of sufficient services was determined
seeking to resolve the potential tension between the exercisability of the right to strike and the fulfilment of
the State’s responsibilities to satisfy public needs. The Government further indicates that negotiations on the
amendment of the Strike Act took place in the framework of the VKF throughout 2015 and 2016, in the course
of which the trade unions considered that the extent of sufficient services in the passenger transport sector
was excessive. The employees’ and employers’ sides managed to agree on a few aspects of the amendment
of the Strike Act, but failed to reach an agreement regarding, inter alia, which institution should be
authorized to determine the extent of sufficient services in the absence of a legal provision or agreement.
Stressing the importance of a compromise of the social partners on the amendment proposals of the Strike
Act, the Government adds that, since the trade unions had announced proposals at the end of 2016 but had
not submitted them during the first half of the year, no further discussions have taken place in 2017. The
Committee further notes that the workers’ group of the National ILO Council reiterates that the strike
legislation contains an obligation to provide sufficient service during strike action which in some sectors
virtually precludes the exercise of the right to strike (for example by requiring 66 per cent of the service to
be provided during the strike and ensuring the feasibility of this rate through extremely complicated rules).
The Committee recalls that, since the establishment of a minimum service restricts one of the essential
means of pressure available to workers to defend their economic and social interests, workers’ organizations
should be able, if they so wish, to participate in establishing the minimum service, together with employers
and public authorities; and emphasizes the importance of adopting explicit legislative provisions on the
participation of the organizations concerned in the definition of minimum services. Moreover, any
disagreement on such services should be resolved by a joint or independent body responsible for examining
rapidly and without formalities the difficulties raised by the definition and application of such a minimum
service, and empowered to issue enforceable decisions. The Committee further recalls that the minimum
service must genuinely and exclusively be a minimum service, that is one which is limited to the operations
which are strictly necessary to meet the basic needs of the population or the minimum requirements of the
service, while maintaining the effectiveness of the pressure brought to bear; and that, in the past, it has
considered that a requirement of 50 per cent of the volume of transportation may considerably restrict the
right of transport workers to take industrial action. The Committee therefore once again highlights the need
to amend the relevant laws (including the Strike Act, the Passenger Transport Services Act and the Postal
Services Act) in order to ensure that the workers’ organizations concerned may participate in the definition
of a minimum service and that, where no agreement is possible, the matter is referred to a joint or
independent body. The Committee expects that the consultations on the modification of the Strike Act
undertaken within the framework of the VKF will continue. It requests the Government to provide up-todate
information on the status or results of the negotiations with particular regard to the manner of
determining minimum services and the levels imposed in the postal and passenger transport sectors, and
expects that the Committee’s comments will be duly taken into consideration during the legislative review.
The Committee hopes that the Government will make every effort to take the necessary action
in the near future.
Document No. 230
ILC, 111th Session, 2023, Report III (Part A), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, p. 148 (Guinea)
Report of the Committee
of Experts on the Application
of Conventions and Recommendations
X Application of International
Labour Standards 2023
Report III (Part A)
International Labour Conference
111th Session, 2023
148 Report of the Committee of Experts on the Application of Conventions and Recommendations
Freedom of association, collective bargaining, and industrial relations
Guinea
Freedom of Association and Protection of the Right to Organise Convention, 1948
(No. 87) (ratification: 1959)
Previous comment
Article 3 of the Convention. Right of organizations to organize their activities and to formulate their
programmes. In its previous comment, the Committee requested the Government to provide
information on the work of the National Social Dialogue Council (CNDS) in resolving disagreements
concerning the determination of minimum wages. The Committee also requested the Government to
indicate the minimum services determined in the transport and communications services. The
Committee notes the adoption of the new Decree of 31 May 2022 on the organization and functioning
of the CNDS. The Committee notes that the Government indicates that it is in the process of adopting
the measures necessary to render the CNDS operational and that the social partners have been
requested to designate their members to allow the body to be up and running as soon as possible.
According to the Government, as it is not yet operational, the CNDS has not intervened in resolving the
disagreements concerning the determination of minimum wages. The Committee also notes that,
according to the Government, following a number of collective disputes, minimum services have been
determined at the level of certain institutions and that minimum services exist in the communication
and transport sectors. In light of the above, the Committee once again requests the Government to
provide information on the work of the CNDS, once operational, in the resolution of disagreements
concerning the determination of minimum services. The Committee also once again requests the
Government to provide information on the minimum services determined in the communication,
transport and other sectors.
In its previous comment, the Committee welcomed the establishment of the commission to
review the Labour Code and hoped that sections 431.5 and 434.4 of the Labour Code, on minimum
service in case of strikes and compulsory arbitration respectively, would be amended in conformity with
the Convention. The Committee notes the Government’s indication that the amendment process of the
Labour Code is under way, in consultation with the social partners, and that the next step is to establish
a commission which will be responsible for bringing together the different observations made
regarding the inadequacies, shortcomings, legal gaps and desired rectifications in certain articles of the
Labour Code. On completion of that task, a “sharing” workshop will be organized, at the latest in the
month of November 2022. The Committee notes that the Government indicates that it has requested
ILO technical assistance in this regard. The Committee requests the Government to report on all
progress made in this respect and encourages the Government to continue to avail itself of the
technical assistance of the Office in this connection.
Document No. 231
ILC, 40th Session, 1957, Report III (Part IV), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 161–173
REPORT III
(PART IV)
INTERNATIONAL LABOUR
CONFERENCE
FORTIETH SESSION
GENEVA, 1957
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
REPORT OF THE COMMITTEE
OF EXPERTS ON THE APPLICATION OF CONVENTIONS
AND RECOMMENDATIONS
(Articles 19, 22 and 35 of the Constitution)
INTERNATIONAL LABOUR OFFICE
GENEVA, 1957
09661
Conclusions concerning Reports Requested under Article 19 of the Constitution 161
be considered not only as reflecting but also as underpinning
a government's efforts in the field of labour
protection.
58. Viewed in this light, the Labour Inspection
Convention assumes its full significance, and the
encouragingly wide echo which this instrument has
found during the decade since its adoption—ratification
by half the I.L.O. membership is now a
distinct possibility for the near future—confirms the
Committee in the belief that its own work of supervision
rests on an increasingly solid foundation. The
progress yet to be made in improving the efficiency of
labour inspection depends, in many cases, on the
elimination of material and technical difficulties, which
may be facilitated by assistance on the spot, and it
is interesting to note that, as already indicated above,
reference is made to such assistance in the reports
of several countries engaged in economic development
programmes. Experience has shown that largescale
industrialisation must be accompanied by
parallel action, through the adoption and effective
implementation of protective labour standards, to
ensure that those whose labour makes economic
progress possible receive adequate protection in the
process.
(B) FREEDOM OF ASSOCIATION AND PROTECTION OF
THE RIGHT TO ORGANISE CONVENTION, 1948 (No. 87)
Introduction
1. For the second time since the entry into force
of the amended Constitution, the Committee has
been called upon to examine reports furnished by
the States Members of the Organisation, under
article 19 of the Constitution, on the position of
their law and practice in regard to the matters dealt
with in the Freedom of Association and Protection
of the Right to Organise Convention, 1948. Whereas
the examination made by the Committee in 1953
related to reports furnished by 23 States, the remarks
of the Committee this year are based on information
contained in reports furnished by 57 States, that is,
74 per cent, of the States Members of the Organisation;
41 of these reports were furnished in accordance
with the provisions of article 19 of the Constitution
relating to the making of reports on unratified Conventions,
and 16 were annual reports furnished in
accordance with article 22 by States which have ratified
this instrument.
2. In accordance with the new procedure adopted
in 1956, the Committee's remarks relate not only to
the information furnished by States which have not
ratified the Convention but also to the various annual
reports transmitted by those States which have ratified
it.
3. The larger number of reports from which
information has on this occasion been drawn has
enabled the Committee to present a much more
complete picture in the form of a general survey of
the position of States Members in regard to the matters
dealt with in the Convention. Such a picture
may assist the Conference and the Governing Body
in judging the extent to which their concern to see
the institution or maintenance throughout the world
of necessary guarantees for ensuring freedom of
association, which constitutes one of the principal
aspects of civil rights, has been met. The concern
which the Organisation has felt in regard to this
matter has been expressed in particular by the adoption
of several resolutions in which the States Members
are, inter alia, invited to ratify and ensure the application
of the two international labour Conventions
relating to freedom of association.
4. When outlining briefly in 1953 the history of
the Freedom of Association and Protection of the
Right to Organise Convention, 1948, the Committee
mentioned that following the establishment in 1950
of the " Fact-Finding and Conciliation Commission
on Freedom of Association ", the Governing Body
of the International Labour Office had in 1951 instituted
a " Committee on Freedom of Association " for
the purpose of making a preliminary examination of
allegations relating to infringements of trade union
rights. The Committee noted then that the Committee
on Freedom of Association had itself defined
its functions by declaring that it was not called upon
" to formulate general conclusions concerning the
position of trade unions in particular countries ", but
that its function was simply " to evaluate specific
allegations ".x
5. Subsequently, a new body which, in carrying
out its mandate, also based itself upon the provisions
of the Freedom of Association and Protection of the
Right to Organise Convention, 1948—the " Committee
on Freedom of Employers' and Workers'
Organisations "—was set up, following a resolution
adopted by the Governing Body at its 128th Session
(March 1955). This Committee of three members
specially appointed for this purpose—and presided
over by Lord NcNair, whom the Committee of
Experts was fortunate to count among its members
for many years—was instructed " to prepare a
report covering the membership of the I.L.O. regarding
the extent of the freedom of employers' and workers'
organisations from government domination and control
". This report was presented in March 1956.
6. It would therefore seem necessary for the
Committee to point out once again that it has to make
its own examination from a different point of view.
As already indicated in 1953, it bases its conclusions
on the information contained in the reports furnished
by the various member States on their law and
practice in regard to the matters dealt with in the
Freedom of Association and Protection of the Right
to Organise Convention, 1948.
7. In this connection, and although the remarks of
the Committee relate to all the member States which
have presented reports, whether they have ratified
the Convention or not, the Committee must emphasise
-that, under its mandate, the scope of its conclusions
is obviously different with respect to these two categories
of States. With regard to those States which
have ratified the Convention and for which the Convention
is in force—States which have, therefore,
voluntarily undertaken more precise international
obligations with respect to freedom of association
and protection of the right to organise—the Committee
is called upon to indicate, where appropriate,
provisions of the national legislation which are not in
conformity with the Convention. On the other hand,
with respect to those States which have not ratified
the instrument or for which it has not entered into
force, the Committee's conclusions must be limited
to findings in respect of the position of law and practice
1 See Sixth Report of the I.L.O. to the United Nations (Geneva,
I.L.O., 1952), Appendix V, First Report of the Committee on
Freedom of Association, paragraph 30.
162 Report of the Committee of Experts
in regard to the matters dealt with in the Convention,
in so far as this is possible on the basis of the information
contained in the reports supplied under article 19.
8. The Freedom of Association and Protection
of the Right to Organise Convention, 1948, guarantees
to individuals, workers and employers, without
distinction whatsoever, the right freely to establish
and join organisations, and accords to these organisations
certain rights and guarantees permitting them
to determine their objects and to develop their activities
without interference. For this purpose, the
Convention is not limited to a more or less negative
definition of the obligations of the State towards
employers, workers and their respective occupational
organisations. Article 11 of the Convention obliges
States which have ratified it " to take all necessary
and appropriate measures to ensure that workers and
employers may exercise freely the right to organise ".
All States which ratify the Convention, whatever legal
methods may be employed to apply the standards
contained in the instrument (constitutional provisions,
laws or regulations or other means such as case law,
common law, current practice or even collective
agreements) are therefore under the obligation to
take such measures as may be necessary to ensure the
protection of the right to organise in all circumstances.
The protection of this right, which relates especially
to actions of the State in its capacity as public authority,
must also extend to acts by the State in its capacity
as an employer (in relation to its officials and to
workers employed in undertakings in the public
sector) and to acts by other bodies which might
infringe, directly or indirectly, the free exercise of
the right to organise.
9. The Freedom of Association and Protection of
the Right to Organise Convention, 1948, entered into
force on 4 July 1950. It has so far been ratified by
the following 26 States : Austria, Belgium 1, Burma,
Byelorussia, Cuba, Denmark 2, the Dominican Republic,
Finland, France3, the Federal Republic of
Germany, Guatemala, Honduras, Iceland, Ireland,
Israel, Mexico, the Netherlands 4, Norway, Pakistan,
the Philippines, Poland, Sweden, Ukraine, the U.S.S.R.,
the United Kingdom6 and Uruguay.
1 According to the declaration communicated by the Government
of Belgium pursuant to article 35 of the Constitution, this
Convention is not applicable to the Belgian Congo and to
Ruandi-Urundi. It should be noted, however, that Belgium
has ratified the Right of Association (Non-Metropolitan Territories)
Convention, 1947.
2 By a declaration communicated pursuant to article 35 of
the Constitution, Denmark has undertaken to apply the provisions
of this Convention to Greenland.
3 The French Government has declared that it will apply the
provisions of this Convention to the following territories :
Cameroons, French Equatorial Africa, French Guiana, French
Settlements in Oceania, French Somaliland, French West Africa,
Guadeloupe, Madagascar, Martinique, New Caledonia,
Réunion, St. Pierre and Miquelon, Togoland. France has also
ratified the Right of Association (Non-Metropolitan Territories)
Convention, 1947, and has undertaken to ensure its application
to all the territories within the purview of the Ministry for
Overseas France.
4 The Government of the Netherlands has accepted the obligations
of this Convention on behalf of the Netherlands Antilles
and Surinam. It has undertaken to ensure its application in
Netherlands New Guinea.
6 This Convention is applicable ipso jure to Guernsey, Jersey
and the Isle of Man. The United Kingdom has also ratified
the Right of Association (Non-Metropolitan Territories) Convention,
1947, and the obligations under this Convention
extend to almost all the territories for whose international
relations that State is responsible.
Reports Examined by the Committee
10. Reports communicated in accordance with
article 19 of the Constitution concerning the position
of law and practice in regard to the matters dealt
with in the Convention have been received from
37 States. Among the 26 States which have ratified
the Convention, only 16 were called upon to supply
this year annual reports pursuant to article 22 of the
Constitution; all these States have carried out this
obligation.7 Of the ten States which ratified the
Convention at a relatively recent date and were
not yet under the obligation to supply an annual
report this year, eight, as already seen, nevertheless
furnished reports pursuant to article 19 of the
Constitution.8 Further, it has appeared useful to
take account in addition of information contained
in reports examined in 1953 which were furnished by
four States, two of which (Burma and Ireland),
having since ratified the Convention, were not yet
obliged to furnish an annual report this year, and two
of which (Bolivia and Yugoslavia) have omitted this
year to furnish the reports requested. In all, therefore,
it has been possible for the Committee to base its
general examination on the position of the law and
practice in regard to the matters dealt with in the
Convention in 57 member States9 which have furnished
reports, either pursuant to the provisions of
article 19 of the Constitution relating to unratified
Conventions, or pursuant to article 22 in the case of
some of those which have ratified the Convention.10
Contents of Reports
11. As this was the second occasion on which
most of the member States which have not ratified
the Convention had been called upon to furnish reports
on the Convention pursuant to article 19 of the Con-
6 Argentina, Australia *, Bulgaria, Byelorussia **, Canada,
Ceylon, Chile, Costa Rica, Czechoslovakia *, the Dominican
Republic **, Ecuador, Egypt, the Federal Republic of Germany
**, Greece', Haiti, Honduras **, India, Iran, Iraq, Israel **,
Italy, Japan, Jordan, Luxembourg, New Zealand, Poland **,
Portugal, Spain, the Sudan, Switzerland, Tunisia *, Turkey,
Ukraine **, the Union of South Africa, the U.S.S.R.**, the
United States and Viet-Nam.
* Reports received too late to be summarised in Report III, Part II,
prepared for the 40th Session of the Conference (1957).
** Ratification by these States being of recent date, they were not yet
under the obligation to supply in the present year a report pursuant to
article 22 of the Constitution. Reports received, therefore, have been
communicated in accordance with article 19.
' Austria, Belgium, Cuba, Denmark, Finland, France, Guatemala,
Iceland, Mexico, the Netherlands, Norway, Pakistan,
the Philippines, Sweden, the United Kingdom and Uruguay.
See Report HI, Part I, prepared for the 35th Session of the
Conference (1952) and subsequent sessions.
8 Byelorussia, the Dominican Republic, the Federal Republic
of Germany, Honduras, Israel, Poland, Ukraine, the U.S. S.R.
9 Argentina, Australia, Austria, Belgium, Bolivia *, Bulgaria,
Burma *, Byelorussia, Canada, Ceylon, Chile, Costa Rica,
Cuba, Czechoslovakia, Denmark, the Dominican Republic,
Ecuador, Egypt, Finland, France, the Federal Republic of
Germany, Greece, Guatemala, Haiti, Honduras, Iceland, India,
Iran, Iraq, Ireland *, Israel, Italy, Japan, Jordan, Luxembourg,
Mexico, the Netherlands, New Zealand, Norway, Pakistan,
the Philippines, Poland, Portugal, Spain, the Sudan, Sweden,
Switzerland, Tunisia, Turkey, Ukraine, the Union of South
Africa, the U.S.S.R., the United Kingdom, the United States,
Uruguay, Viet-Nam, Yugoslavia. *
* Reports examined in 1953 by the Committee and summarised in
Report III, Part II, prepared for the 36th Session of the International
Labour Conference (1953).
10 In the rest of the text, the names of the States which have
ratified the Convention and in respect of which the information
utilised was furnished in their annual reports are given in
italics.
Conclusions concerning Reports Requested under Article 19 of the Constitution 163
stitution, a more detailed special form of report was
adopted by the Governing Body. Consequently,
in a fairly large number of cases, the information
furnished this year pursuant to article 19 of the
Constitution has, in detail and volume, been more
or less comparable with the information furnished
under article 22 by States which have ratified the
Convention. The Committee notes that the two
Conventions x relating to the right of association of
workers and employers have again been selected by
the Governing Body for report pursuant to article 19,
and will come before the Committee at its session in
1959. It would be desirable that, in connection
with the reports to be supplied on that occasion also,
the form of report should be of the detailed nature
used on the present occasion and that a more detailed
form to guide the governments in preparing their
reports on the Right to Organise and Collective
Bargaining Convention, 1949, be adopted. Special
mention should be made of the reports of Canada and
New Zealand, which were particularly detailed. On
the other hand, the reports furnished by Bulgaria,
Iran, Iraq, Jordan, Luxembourg, Poland and Spain
were extremely brief. The Governments of Luxembourg
and Poland indicated that they had not considered
it necessary to furnish more detailed information
by reason of the fact that the procedure for ratifying
the Convention was pending.2 The reports of
Iraq and Jordan are confined to a statement that the
national legislation concerning the matters dealt with
in the Convention is not in conformity with the instrument,
in the case of Iraq, and does not exist in the
case of Jordan. While the reports of Bolivia, Burma,
Ireland and Yugoslavia were sufficiently detailed,
regard must, of course, be had to the fact that, as they
were drawn up several years ago, the situation which
they describe is perhaps no longer exactly the situation
which now exists in those countries. Finally, the
reports of Bulgaria, Byelorussia, Poland, Portugal,
Spain, Ukraine and the U.S.S.R. must be analysed
in the light of the economic, political and social conditions
prevailing in these countries.
12. The study of the information furnished in the
reports of the different governments makes it possible—
(a) to give a general description of the position of
the law and practice of these different States in
regard to the matters dealt with in the Convention;
(b) to indicate the different techniques utilised for
this purpose;
(c) to discover the problems raised by the Convention
and the possibilities of its ratification.
These three questions will be examined in turn
below.
General Description of the Position in the Different States
13. The Freedom of Association and Protection
of the Right to Organise Convention, 1948, provides
a number of guarantees and safeguards for individuals,
organisations and federations of organisations. In
the first place, individuals (workers and employers)
should have the right to establish organisations of
their own choosing and to join such organisations
freely. In the second place, workers' and employers'
organisations—that is to say, organisations which
1 In addition reports under article 19 will also be requested
as regards the Right of Association (Non-Metropolitan Territories)
Convention, 1947.
2 Ratification by Poland was registered on 25 February 1957.
have the object of " furthering and defending the
interests " of their members—should enjoy certain
rights and guarantees intended to ensure their freedom.
Finally, inter-union organisations, federations
and confederations should enjoy the same rights and
guarantees as the basic trade union organisations.
The results of the analysis of the information communicated
by the governments and the examination of
the constitutional or legislative texts to which they
refer make possible a general assessment of the extent
to which the rights and guarantees prescribed by the
Convention for safeguarding freedom of association
are ensured for each of the three specified cases.
A. Rights and Guarantees Enjoyed by Individuals
14. The rights and guarantees which shall be
enjoyed by individuals are defined or specified in
several Articles of the Convention. The categories of
individuals who shall enjoy these rights and guarantees
are determined by Article 2, which is exceedingly
broad in scope and is limited only by Article 9,
which permits each State to decide the extent to which
certain workers (armed forces and police) shall or
shall not enjoy the rights and guarantees in question.
It was necessary in the first place, therefore, to endeavour
to ascertain the extent to which all the individuals
covered by the Convention may effectively enjoy
trade union rights in the different States which have
submitted reports, and, on the other hand, to ascertain
in which States such rights are refused. The extent
of the rights of the individuals in question are defined
or specified in different provisions of the Convention
(Article 2, in particular, and Articles 7, 8 and 10) and
may be briefly summarised as follows :
(a) the right of individuals to establish freely organisations
of their own choosing;
(b) the right of individuals to join such organisations,
subject only to the rules of the organisations
concerned.
The ways in which these two fundamental rights
would appear to be ensured in the different countries,
according to the information communicated in the
reports, may be analysed, therefore, after reviewing
the various distinctions made in certain cases among
those to whom they apply.
Individuals Enjoying the Right to Organise.
15. According to Article 2 of the Convention
" workers and employers, without distinction whatsoever
" shall have the right to establish and join
occupational organisations.3 However, Article 9 leaves
it to the national legislation of each State to determine
the extent to which the right shall apply to the armed
forces and the police.4
3 " Subject only to the rules of the organisation concerned."
However, the conditions of membership or withdrawal from
membership must not bring into question the principle of nondiscrimination
in relation to organisational rights. On this
point see J.L.O. : Freedom of Association and Protection of the
Right to Organise, Report VII, International Labour Conference,
31st Session, San Francisco, 1948 (Geneva, 1948), p. 89.
4 Among the 21 coun* ' es which have furnished information
on this point, it would appear from the information given by
the governments that the situation may be summarised as
follows :
Armed forces : right to organise without limit or subject to
conditions similar to those applicable in the case of public
officials: Denmark, France, the Netherlands, Norway and
Sweden. The report by Austria declares that the question wiil
be dealt with later by legislation; the report of Iceland declares
that this country does not possess armed forces.
Police : right to organise without limit or subject to conditions
similar to those applicable in the case of public officials :
164 Report of the Committee of Experts
16. The analysis of the reports received reveals
that in the majority of the countries no substantial
distinction is made between the different categories.
Nevertheless, some countries make the right of organisation
subject to more or less specific conditions
which may, directly or indirectly, give rise to distinctions
between the different categories of workers or
employers with respect to the exercise of the right
to organise. These conditions, which vary in character,
may be grouped under five main heads :
nationality, political opinions, race, sex and occupation
or employment. Further, in a fairly large number
of countries, legislation prescribes a minimum age
at which a person may belong to an occupational organisation
or, more generally, to any association.
17. Distinctions based on nationality. In nearly
all the States which have submitted reports it would
appear, from the information available, that alien
residents enjoy without distinction the rights and
guarantees prescribed by the Convention. In certain
countries, nevertheless, it would appear that, at least
in principle, aliens may not claim the enjoyment of
these rights. Thus, under the constitutional provisions
in force in Portugal, it would seem that only
citizens enjoy the right of association. A similar
conclusion would appear necessary judging by the
letter of the Constitutions in Belgium and Luxembourg,
but the two countries concerned declare, nevertheless,
that aliens in fact freely enjoy the right to organise.
In Italy the national Constitution accords the right
of association to aliens only on a reciprocal basis;
in practice, nevertheless, it would appear that the
Italian trade unions admit aliens to membership on
condition that they have resided a certain time in the
country. Finally, in a number of States distinctions
based on nationality are prescribed by law. This is
the case, for example, in Honduras and Iran, where
at least two-thirds of the members of a trade union
must be nationals of the country concerned.
18. Distinctions based on political opinions. It
would appear that the legislation in most of the
countries which have submitted reports does not make
any distinction in this connection. In some countries1
the legislation prescribes certain disabilities with
respect to persons who have particular political
opinions. Moreover, the criterion of the political
opinions of workers and employers, although not
expressly laid down by law, also appears to be applied
in a number of other countries; this is the case, for
instance, in the Philippines2, where registered organisations
may not admit to membership persons professing
certain political opinions. In the U.S.S.R.
a fairly similar situation would appear to result from
the provisions of the Constitution3 and from the
Rules of the Trade Unions of the U.S.S.R. The
information furnished in some of the reports does not
Austria, Belgium, Denmark, Finland, France, Iceland, Norway,
Sweden and the United Kingdom. In the report from the United
States it is pointed out that some of the states accord the right
to organise to members of the police but that most of the states
subject this right to certain restrictions or refuse it. In Egypt
and New Zealand, the right to associate, but not for trade union
purposes, is accorded to members of the police forces.
1 This would appear to be the case in Chile (Labour Law,
section 365), the Dominican Republic (Law No. 1443, section j),
Turkey and the Union of South Africa (suppression of Communism
Act, No. 44 of J 950, as amended).
2 Republic Law No. 875, article 17 (d).
8 Article 126 of the Constitution provides • "... the Communist
Party is the leading core of all organisations of the working
people "
make it possible to ascertain whether any such distinctions
exist or not.
19. Distinctions based on race. It would appear
that distinctions based on race exist under legislation
only in one of the States which have presented reports
—the Union of South Africa, in which special legislative
provisions apply to Native and coloured workers.
4 Further references in this report to the Union
of South Africa relate only to organisations of " European
" workers.
20. Distinctions based on sex. It would appear
from the information supplied in the reports examined
that, in nearly all the States which have presented
such reports, no distinction based on sex with regard
to trade union matters is established by legislation.
However, in certain cases restrictions placed by civil
law on the juridical capacity of married women may
constitute an obstacle to their free adhesion to a
trade union. Thus, in Canada, in one province
(Quebec), and in Viet-Nam, women may belong to
a trade union only if their husbands do not object.
Moreover, the reports furnished by a number of
countries do not make it possible to ascertain with
certainty whether women in those countries enjoy
the same trade union rights as do employers and
workers of the male sex.5
21. Distinctions based on occupation or employment.
It is with respect to the occupation or employment
of individuals that distinctions seem to be
made in the largest number of countries. In certain
cases, these distinctions are purely formal and, therefore,
are only of very limited scope. Thus, in certain
countries workers employed in different branches of
industry or different areas may not constitute or
belong to the same trade union but, having established
separate unions on an occupational or regional basis,
they may constitute federations and confederations.
Also, in a fairly large number of countries, public
officials may belong only to trade unions whose membership
is confined to public officials. In certain
other cases, according to the information furnished
by the governments 6, distinctions are made for the
purpose of preventing acts of interference with
workers' trade unions on the part of employers; this
would appear to be the case, especially, in four countries
7, where managerial and supervisory staff may
not belong to the same organisations as the workers
but have the right to establish their own organisations.
22. In a number of countries, nevertheless, clearer
restrictions exist, either because the trade union rights
of certain categories are subject to stricter regulation,
which leads in practice to a refusal of
the right to constitute trade union organisations
within the meaning of Article 10 of the Convention,
or because persons belonging to certain occupations
are in fact deprived of all trade union rights. The
principal distinctions made relate to the following
categories : public officials, persons employed in public
4 The Industrial Conciliation Act, No. 36 of 1937 and the
Native Labour (Settlement of Disputes) Act, No. 48 of 1953.
6 This is the case, for example, with regard to the reports
furnished by the following countries : Egypt, Iran, Iraq, Jordan,
Spain and the Sudan.
6 See Report III, Part IV, prepared for the 39th Session of the
Conference (1956). General Remarks on the Right to Organise
and Collective Bargaining Convention, 1949, pp. 135 ff.
7 Dominican Republic (Law No. 2059, section 302 of 22 June
1949); Cuba (Decree No. 2605 of 7 November 1933); Haiti
(Trade Union Act of 19 July 1947, amended by Act of
2 March 1948); Sweden (such exclusions may be provided by
Collective Agreements Law of 11 September 1936, section 3).
Conclusions concerning Reports Requested under Article 19 of the Constitution 165
or semi-public undertakings, workers employed in
certain branches of industry and employers. These
different distinctions are examined respectively below.
23. With regard to public officials, the large majority
of the States which have presented reports do not
draw any distinction, or prescribe conditions only of
a more or less formal character which do not appear
to place these categories of workers in a special
position with regard to trade union rights. In two
countries (Costa Ricax and Viet-Nam2) provision
is made for special legislation in the case of public
officials or certain categories thereof but, this legislation
not having been enacted, all public officials have
the right to constitute and join organisations. On
the other hand, in two countries {Denmark3 and
Pakistan 3) the conditions which are applied by the
regulations to trade unions of public officials may
limit to a certain degree the possibility of establishing
trade union organisations. In nine countries (Chile i,
Cuba 3, the Dominican Republic 5, Ecuador6, Guatemala
3, Portugal7, Spain8, Turkey9, the United
States—seven states10), the right to organise is refused
entirely in the case of public officials. Further, in
two countries (Iran u and Italy 12) prohibition exists
in respect of certain public officials. Finally, in four
countries (Haiti13, Honduras, MexicoM and the
Sudan) the information available does not make
it possible to ascertain whether such distinctions
exist or, if they do exist, what their extent may be.
24. With regard to employees of undertakings
in the public or semi-public sector, it would appear
that in nearly all the States which have submitted
reports there exists no distinction, except that in
some cases, as with respect to officials, there are also
a number of conditions of a more or less formal
character which are established by the regulations.
However, the reports of three governments (the Dominican
Republic, Haiti13 and Portugal) do not contain
any information on this point. Finally, in three
countries (ChileM, Ecuador (except in the case of
railwaymen) and Guatemala3) workers in these categories
are refused the right to organise.
25. Other distinctions relating to workers employed
in certain branches of industry result either from the
fact that certain undertakings are not included within
the scope of application of trade union legislation,
as is the case in three countries (the Dominican
1 Political Constitution of the Republic of Costa Rica,
7 November 1949, articles 25 and 60.
2 Ordinance No. 23 of 16 November 1952 does not apply to
public officials (an ordinance affecting officials is being prepared).
3 See Observation addressed to the government of this country.
4 Labour Law, section 368.
5 Law No. 2059 of 22 July 1949.
8 Constitution, article 185 (g).
I Decree No. 23048 (with the exception of certain engineers,
etc.).
8 Order of 11 August 1953, section 1, in fine.
8 Law No. 5018 of 20 February 1947.
10 The Government points out, however, that there are doubts
as to the constitutionality of this distinction.
II In the case of the staff of the Ministry of War (Law of
3 March 1946, section 1).
12 In the case of civilian staff responsible for ensuring public
security (Decree No. 205 of 24 April 1945).
18 However, constitutional provisions appear to guarantee
the right of association to officials and workers of all undertakings
(Constitution, article 25).
14 See request for information addressed to the government
of this country.
Republic15, Iran18 and Turkey17) or from the existence
of stricter legislation with regard to certain occupations,
as in Chile18 and Guatemala.3 The most general of
these distinctions apply in the case of workers employed
in agriculture.
26. Finally, in certain countries, the position of
employers differs from that of workers either because
the intervention of the State in the constitution of
their organisations is more marked, as in Egypt19
and Portugal20, or because, as in Byelorussia, the
Ukraine and the U.S.S.R., there are no " private
capitalist owners " and the directors of undertakings
may form organisations the purpose of
which seems to be only " the exchange of scientific
and technical experience or information ", the discussion
of " administrative and managerial problems,
the organisation of work, etc. ". Such organisations
do not appear to conform to the definition given
in Article 10 of the Convention. The reports of
certain countries, Bulgaria and Poland, contain no
information with respect to employers and their
organisations. The report supplied by the Government
of Czechoslovakia merely states that there is
" no provision forbidding employers to establish
organisations ".
Free Establishment of Organisations by Those
Concerned.
27. According to Article 2 of the Convention,
workers and employers shall have the right " to
establish organisations of their own choosing without
previous authorisation ". This right, therefore, has
a twofold aspect : first, the exclusion of all previous
authorisation, and, secondly, the free choice of the
organisation which those concerned may desire to
establish. However, while it would appear from the
information received that the absence of previous
authorisation or of formalities which, in practice, are
equivalent to authorisation, is a necessary condition
for enabling individuals to establish an organisation
of their own choosing, the absence of authorisation
alone is not always sufficient. It is evident that
in most countries the free choice of individuals
is naturally limited by certain constitutional or
legislative provisions which are merely the expression
of the internal legal system of the State and
the existence of which should not give rise to
any problem, in view of the fact that under the provisions
of Article 8, paragraph 1 of the Convention,
" workers and employers . . . shall respect the law of
the land ". Nevertheless, in some cases, the existence
of these provisions does not always appear to be in
complete harmony with Article 8, paragraph 2 of the
Convention, according to which any restrictive provision
" shall not be such as to impair nor shall it be
16 Employees of agricultural undertakings for stock-raising
or forestry which do not permanently employ more than ten
workers, farmers and tenant farmers (Labour Law, section 265).
16 Agricultural workers : legislation is being prepared.
17 Intellectual workers (except journalists employed in private
undertakings).
18 Agricultural workers may organise only in the form of works
unions and the restrictions are such that they result in practice
in depriving seasonal agricultural workers of the right to organise
(see Observations addressed to the government of this country
on the application of the Right to Organise (Agriculture)
Convention, 1921);
19 Legal personality is granted by decree; -employers' organisations
may be made compulsory. .. .
20 The State may make the membership of employers compulsory
" in order to co-ordinate the economic forces of the nation ".
Decree No. 23049 of 23 September 1933.
166 Report of the Committee of Experts
so applied as to impair the guarantees provided
for. . . ".
28. Exclusion of any previous authorisation. It is
evident that the principle of freedom of association
might very often remain a dead letter if employers and
workers were required to obtain any previous authorisation
to enable them to establish an organisation.
Nevertheless, it would appear from the information
received that the fact that it must be possible to create
organisations " without previous authorisation " naturally
has not resulted in liberating the founders of an
organisation from the duty of observing formalities
as to publicity or other similar formalities which may
be prescribed in certain countries either generally,
in respect of all associations, or specifically in respect
of trade unions. It follows, however, from the
provisions of Article 8 of the Convention referred to
above, that the various formalities prescribed, even
though they may be of general application in respect
of all associations, must not be such as to be equivalent
in practice to previous authorisation or as to
constitute such an obstacle to the establishment of an
organisation that it amounts in practice to a prohibition
pure and simple. In this connection, Article 7
of the Convention relates expressly to the acquisition
of legal personality which, in some countries,
constitutes a substantive condition of the existence
and activities of organisations and which, according
to that Article, " shall not be made subject to conditions
of such a character as to restrict " the right of
employers and workers to establish occupational
organisations.
29. It appears from the information received that
in some countries the formalities prescribed by law
(deposit of constitution and rules, registration or
other measures of publicity) are compulsory; in
others, these formalities are only optional. However,
it would seem that the compulsory or optional nature
of the formalities prescribed does not always provide
a sufficient criterion for determining whether there
is or is not a requirement of previous authorisation.
In fact, in some cases, although registration is compulsory,
the authority competent to effect the registration
does not have power to refuse it or, which
amounts to practically the same thing, can refuse
registration only because of a formal defect which
it is always possible to remedy; moreover, in nearly
all cases, refusal may be appealed against to the
courts. In other cases, on the other hand, registration,
while being of an optional nature, may confer
on the registered organisation such rights (legal personality,
right to bargain collectively, immunity
from prosecution in respect of the offence of conspiracy
or other similar offences) that an organisation
deprived thereof might have great difficulties in
" furthering and defending the interests " of its
members; it is clear that in such cases, if the authority
competent to effect the optional registration has power
to refuse this formality in its discretion, the situation
is not very different from that in cases in which previous
authorisation is required.
30. In the majority of the countries which have
furnished sufficiently detailed information in this
connection in their reports 1 it would seem that there
exists in fact no need to obtain previous authorisation
in order to be able to establish an organisation.
This is the case, particularly, in countries in which
1 The information furnished by the following States is not
sufficiently detailed on this point : Iraq, Jordan, Poland, Yugoslavia.
the constitution of an organisation is subject to no
formality2; in those in which the formalities respecting
publicity or registration may not be the subject of
a refusal on the part of the authorities responsible
under the law for effecting such formalities 3; finally,
in countries in which, although the competent authorities
may refuse registration, it would not appear
that such refusal (which, most generally, may be
appealed against to the courts) may be based on
anything other than failure to observe certain formalities
which are not substantive in character.4
31. The situation is less clear in a number of other
countries in which the authorities responsible for
registration have more extensive powers of exercising
judgment in certain cases and in which registration,
whether compulsory or nominally optional, is in
practice necessary to the organisation which is being
founded to enable it to achieve its objects. This
is the case, especially, when the refusal of registration,
which in nearly all cases may be the subject of an
appeal to the courts, may be motivated either by the
existence of another organisation in the occupation
or area5 or by the political opinions of the leaders
of the organisation.6
32. The situation appears even more complex in
certain countries in which, as in Spain, " local " trade
unions must be registered with higher organisations.7
A somewhat comparable situation appears to exist
in the U.S.S.R. in the case of the workers, whose
associations may avail themselves of the titles and
rights of occupational trade unions only if they are
registered by an inter-trade-union organisation8; in
the latter country, moreover, the information furnished
with respect to the right of directors of undertakings
to constitute associations does not specify
what formalities are necessary in order to establish
such bodies.
33. Finally, in four countries (Bolivia 9, Chile 10,
Guatemala u , and Portugalia) registration is compulsory
and the competent authorities appear to be endowed
with very extensive powers, not only to grant or to
refuse registration, but also to give their approval to
the rules of organisations; in addition, it would appear
that in nearly all cases there is no right of appeal to
the courts.
2 Belgium, Canada, Denmark (except in the case of organisations
of public officials, which must be " recognised "), Iceland,
Italy, Luxembourg, Norway, Sweden, Switzerland, the United
Kingdom and Uruguay (in the last two countries, however,
there appears to be a possibility for the founders of an organisation
to choose between registering and not registering, and the
advantages obtained by this formality do not seem indispensable
to enable an organisation to pursue its objects).
8 France, the Federal Republic of Germany, Israel, Tunisia,
Turkey.
•Argentina, Austria, Burma, Ceylon, Costa Rica, Cuba, the
Dominican Republic, Finland, Greece, India, Ireland, Japan,
Mexico, Pakistan (except in the case of organisations of public
officials, which must be " recognised ").
5 Australia (Commonwealth Conciliation and Arbitration
Act, section 82), Egypt (in the case of organisations of workers;
employers' organisations may be made compulsory), Iran, New
Zealand (Industrial Conciliation and Arbitration Act, 1954),
the Sudan, the Union of South Africa (Industrial Conciliation
Act No. 360 of 1937, section 4).
6 The Philippines (Republic Law No. 875, sections 23 (b) (2))
and the United States.
7 Act of 6 December 1940, section 5.
8 Labour Law, sections 152 and 153.
9 Decree of 19 May 1948, sections 1 to 7.
10 Labour Law, Book III, Title I.
11 See Observation addressed to the government of this country.
12 Decree No. 23050, section 8.
Conclusions concerning Reports Requested under Article 19 of the Constitution 167
34. Free choice as to type of organisation to be
established. In a number of countries, the free
choice by those concerned of the organisations which
they desire to establish appears to be more or less
limited by legislative or constitutional provisions.
Thus, in Chile, agricultural workers may constitute
only organisations each of which is limited to one
estate and the objects of which are limited to purposes
of mutual aid and welfare. The free choice of the
founders of an organisation also appears to be limited
in Portugal1 and in Spain 2 by virtue of provisions
which define, in particular, the political objects
which the trade unions must pursue. A somewhat
similar situation appears to result, in the U.S.S.R.,
from the constitutional provisions already mentioned.3
Right of Individuals to Adhere Freely to Organisations.
35. The third guarantee laid down by Article 2
of the Convention is that " workers and employers...
shall have the right... to join " organisations of their
own choosing " subject only to the rules of the organisation
concerned ".* In this connection, it is of
course appropriate to refer to the information already
analysed in the earlier paragraphs, both with respect
to the distinctions made in different cases between
the different categories of persons concerned and with
regard to the establishment or organisations. Among
the countries which have reported and in which, in
most cases, the State refrains from placing obstacles
in the way of the free adhesion of individuals to an
organisation, two tendencies may be observed.
Firstly, there is the tendency seen in those countries
in which, as, for example in Belgium b, Costa Rica6,
Cuba, the Dominican Republic7, France8 and the
Netherlands, in accordance with the traditional conceptions
existing in these countries, the State not
only does not intervene to place obstacles in the way
of the free adhesion of workers or employers to an
organisation but even guarantees to individuals the
right to refuse their adhesion and represses any
constraint which may be exercised with a view to
causing any person to adhere to a given organisation.
A second tendency is to be observed in those countries
in which union security clauses9 are traditionally
inserted in collective agreements or utilised in practice,
as is the case in Australia, Mexico, Sweden, the Union
of South Africa, the United Kingdom and the United
States; in this latter group of countries, however, a
distinction should be drawn between those in which
the State leaves it to employers and workers to negotiate
such clauses in freedom, without intervention10,
and those in which the State makes the utilisation of
such clauses subject to certain conditions and, in
particular, the condition that the rules of the trade
unions shall not contain any rules which are " oppressive
" or discriminatory.11 A special situation is seen
in New Zealand; in that country the obligation to
1 Decree No. 23050, sections 9, 11, and 15 (b) and (c).
2 Labour Charter, Chapter XIII.
8 See paragraph 18 above.
4 See above : footnote 3 to paragraph 15.
5 Law of 24 May 1921, section 1.
6 Constitution, article 25.
7 Labour Law, sections 306 and 307.
8 Labour Law, Book III and 1956 Law.
6 Clauses by virtue of which a worker is obliged to join a
given trade union if he desires to be employed in a particular
occupation or undertaking (closed shop), or by virtue of which
all the workers in an undertaking may be obliged to join a
trade union (union shop), etc.
10 Sweden, the Union of South Africa and the United Kingdom.
11 Australia, Mexico and the United States.
adhere to a trade union may result not only from a
clause to that effect inserted in a freely negotiated
agreement; the obligation, which is prescribed by law,
may result in certain occupations from a binding
arbitration award. In this connection, the Government
indicates in its report that certain clauses relating
to this system, the abrogation of which would encounter
opposition " in the country as a whole ",
are not " strictly in harmony " with the Convention.
Finally, in certain countries (e.g. Chile12, Portugal13
and Spain 14) individuals may be obliged, by law, to
join a trade union which they have not chosen.
B. Rights and Guarantees Applicable to Organisations
36. The rights and guarantees which may be
enjoyed by organisations of workers and employers
are defined in Articles 3, 4 and 5 of the Convention.
The different rights prescribed in these Articles of the
Convention may be enumerated as follows : the right
to draw up their constitutions and rules, the right to
elect their representatives in full freedom, the right
to organise their administration and activities and to
formulate their programmes (Article 3 (1)), the right
to establish and join federations and confederations,
the right to affiliate with international organisations
(Article 5). The guarantees prescribed are three in
number : organisations shall not be liable to be
dissolved or suspended by an administrative authority
(Article 4); the public authorities shall refrain from
any interference which would restrict or impede the
lawful exercise of the rights of organisations (Article 3
(2)); finally, because naturally organisations are
obliged "to respect the law of the land ", the same safeguard
clause as is prescribed in the case of employers
and workers as individuals is also valid in respect of
their organisations : the law of the land " shall not
be such as to impair nor shall it be so applied as to
impair the guarantees provided..." (Article 8 (2)).
37. The information furnished in the reports with
respect to each of the rights enumerated above will
be analysed in turn; however, this examination will
naturally be made having regard to the last two
guarantees mentioned which, being of general application,
could not be the subject of entirely separate
examination; then, the information furnished on the
methods of suspending and dissolving organisations
will, in its turn, be considered.
38. Drawing-up of constitutions and rules. There
exists a very large variety of situations in the countries
which have reported and furnished information on
this point. In a considerable number of cases,
national laws and regulations either include no special
provisions relating to the contents of constitutions
and rules or simply give an enumeration of questions
which must be dealt with in those rules. In other,
also numerous, cases, on the other hand, the legislation
contains provisions which are frequently very
detailed but which, in general, are only of formal
character and do not appear likely to infringe the
rights of the organisations : it would appear, even,
that these detailed requirements have in some cases
the purpose of preventing a situation arising at a
later date in which the trade unions would have to
cope with complicated legal problems which could
arise as the result of constitutions and rules being
12 Labour Law, Book III, Title I.
13 In the case of employers (see above, footnote 20 to paragraph
26).
"Labour Charter, Chapter XIII, section 2 and Law of
6 December 1940, sections 1 and 17.
168 Report of the Committee of Experts
drawn up in insufficient detail. However, in a number
of countries, it would appear that constitutions and
rules must be submitted for previous approval by the
authorities, whose power of decision does not appear
to be limited by any specific rules. This is the case
in Chile \ Ecuador2, Egypt (with respect to employers'
organisations), Portugal3 and Spain. In the last
two countries, it would seem, even, that approval
can be given only if the constitution and rules are in
accordance with the social policy of the Government.
39. Election of representatives. The analysis of
the information received shows that there are two
principal categories of rules applicable in the case of
elections : firstly, procedural rules and, secondly,
rules defining the conditions as to eligibility which
persons must fulfil. With regard to the rules of
procedure, it would seem that, in the large majority
of the States which have made reports, no special
rule exists. In the countries in which such rules
exist, it would seem that their particular purpose is
to avoid any dispute arising as to the result of the
election; this would seem to be the case, for example,
in Greece, where elections are presided over by a judge.
In other countries (Chile4, Cuba5 and Turkey) a labour
inspector may (or must, as the case may be) be
present at elections; in this connection, the Committee
has already pointed out that in certain cases
this requirement may be incompatible with Article 3,
paragraph 2, of the Convention. Finally, it would
appear that in certain countries the rules applicable
to the election of trade union officers cannot be
regarded simply as procedural rules because, as in
Portugal6, the results of the elections must be officially
approved or, as would seem to be the case in
Spain, the higher trade union leaders are appointed
by the Government.
40. With regard to the qualifications with which
trade union leaders must comply in order to be eligible,
it would seem that the national laws and regulations
of a large number of countries contain no specific
provisions on this point. In certain countries, however,
it is provided that persons who have been
subject to a penal sentence are ineligible. In some of
those cases, nevertheless, it is provided that this rule
shall not apply in the case of sentences pronounced
in respect of a political offence.7 In some ten countries
all the trade union leaders, or at least a certain
proportion of them, must belong to the occupation in
respect of which the organisation carries on its
activities8, which in certain cases might involve a
limitation of the free choice of representatives. In
some dozen countries, national legislation establishes
a prohibition based on nationality : only nationals
may be trade union officers.9 The problem raised
by a provision of this kind is fairly complex; the
Committee has already had occasion to refer to it
in one of its earlier reports.10 It may be admitted that
in certain cases a provision of this kind cannot give rise
1 Decree No. 1030 of 26 December 1949.
2 Labour Law, section 363;
8 Decree No. 23050, section 8.
4 Decree No. 1030, section 29.
5 See Observations addressed to the government of this country.
6 Decree No. 25116 of 12 March 1935.
' This is the case, for example, in France and Tunisia.
8 Cuba, Ecuador, Haiti, Honduras, India, Iran, Japan (in
respect of public employees), Pakistan, Viet-Nam.
8 Argentina, Chile, Costa Rica, Cuba, Ecuador, Finland,
France, Haiti,' Honduras, Iran, Mexico, Tunisia (Tunisian and
French), Viet-Nam.
10 See Report III, Part IV, prepared for the 37th Session of
the International Labour Conference (1954), p. 39.
to difficulty. However, everything depends on the
manner in which such a clause is applied in practice.
In fact, it is not impossible that according
to local circumstances the application of a provision
of this kind might lead in practice to a refusal
of all right to organise to certain categories
of workers. In some countries, certain persons may
also be removed from their functions as trade union
officers by reason of their political opinions. However,
whereas in certain cases this exclusion relates
only to persons belonging to a particular political
party11, in other countries, on the contrary, it would
seem that adherence to any political party other than
that which is in power is necessarily excluded.12
Finally, it is evident that certain of the distinctions
referred to above with respect to individuals enjoying
the rights and guarantees prescribed in the Convention
are also applicable in the case of trade union leaders.13
41. Right of organisations to organise their administration
and activities and to formulate their programmes.
In a large number of countries which have
made reports, it would seem that there is no limitation
on the right of organisations to " organise their
administration and activities and to formulate their
programmes ".14 In these countries workers' and
employers' organisations are of course obliged " to
respect the law of the land ", but it would seem that
this common law rule is not formulated in such a
manner that it may constitute a limitation on the
potential activities of organizations; moreover, control
over the activities of organisations can be effected
only a posteriori and nearly always by the judicial
authorities or under their control. In a number of
countries there exist provisions relating specifically
to occupational organisations and prohibiting them
in general terms from engaging in any political activities.
15 The extent of such a prohibition is naturally
very variable, according to how it is applied in
practice. In certain cases the governments indicate
that the object of the prohibition is solely to prevent
trade unions from abandoning their occupational role
in order to transform themselves into political parties,
and add that, in fact, the existing trade unions have
never been limited in their activities by a provision
of this kind.16 However, as the Committee has had
occasion to remark, such provisions, of general scope
and referring especially to trade unions, may, by
establishing a prohibition a priori, raise difficulties
by the fact that the interpretation given to them in
practice may change at any moment and restrict
considerably the possibility of action of the organisations.
In this connection the Committee thinks
it useful to make reference to the resolution adopted
by the International Labour Conference at its 35th
11 The Philippines (see Observation addressed to the government
of this country), the Union of South Africa and the
United States (in the case of organisations which wish to enjoy
certain advantages) (Communist Party in all three cases).
12 Spain (Labour Charter, Chapter XIII, section 4) and the
U.S.S.R. (Constitution, section 126).
13 See above, paragraphs 17 to 26.
14 This would appear to be the case, for example, in the following
countries : Austria, Belgium, Canada, Denmark, Finland,
France, Greece, Haiti, Iceland, Ireland, Israel, Italy, Japan,
Luxembourg, Mexico, the Netherlands, New Zealand, Norway,
the Sudan, Sweden, Switzerland, Tunisia, the United Kingdom,
the United States.
- 15 This is the case, it would appear, in the following countries :
Costa Rica (Labour Law, section 280), Cuba (see Observations
addressed to the government of this country), the Dominican
Republic (Labour Law, section 314), Ecuador (Labour Law,
section 363 (8)), Iran, Turkey and Viet-Nam.
18 In particular, Cuba.
Conclusions concerning Reports Requested under Article 19 of the Constitution 169
Session (Geneva, 1952) in which it is stated, among
other things, that when trade unions undertake or
associate themselves with political action, this action
should not be " of such a nature as to compromise the
continuance of the trade union movement or its social
or economic functions, irrespective of political changes
in the country ". It would therefore seem that States
should be able, but without prohibiting in general
terms and a priori all political activities by occupational
organisations, to entrust to the judicial
authorities the task of repressing abuses which might,
in certain cases, be committed by organisations which
had lost sight of the fact that their fundamental
objective should be " the economic and social advancement
of the workers ". Finally, in some countries
there do not exist, properly speaking, provisions
prohibiting organisations from engaging in any
political activity. However, this may result indirectly
from legislative 1 or constitutional2 provisions which
closely associate the activities of occupational organisations
with those of the political party in power.
42. It is also evident that, as the Governing Body
Committee on Freedom of Association has emphasised,
the degree of freedom enjoyed by occupational
organisations in determining and organising their
activities depends very largely upon certain legislative
provisions of general application relating to the
right of free meeting, the right of free expression and,
in general, to civil and political liberties enjoyed by the
inhabitants of a country. In this connection the
information supplied in the reports of the governments
has not enabled the Committee always to assess
very accurately the exact effect of these general provisions
on the possibilities of action by organisations.
It has nevertheless appeared to the Committee that
in a large number of the countries which have furnished
reports, if not in most of them, the rules applicable
in this connection do not appear to be calculated
to impede the possibilities of action of the organisations.
43. Right of federation and confederation. Under
the terms of Article 5 of the Convention, workers'
and employers' organisations shall have the right to
establish and join federations and confederations.
Generally speaking, in the very large majority of the
countries which have furnished information on this
point, the constitution of federations or confederations
is not subject to rules different from those applicable
to the constitution of basic organisations by individuals.
Reference should therefore be made to the analysis
made above on the basis of the information furnished
on the rules applicable to the establishment of the
workers' and employers' organisations. In a certain
number of countries, however, there exist special
rules of procedure applicable to the case under
review; thus, in certain countries3 the regulations
prescribe a specified majority, generally two-thirds,
by which the members of each organisation may
validly decide to constitute a federation or to affiliate
with an existing federation. In certain countries,
special rules in this connection are applicable only in
the case of organisations of public officials, which
may only federate among themselves.4 In other
countries it would seem that the right of federation
1 Portugal, Spain (see above, footnotes 1 and 2 to paragraph
34).
2 U.S.S.R. See above, paragraph 18.
3 Honduras, Iran (Rules of 3 March 1946, section 10), Turkey
(Law No. 5018 of 20 February 1947, section 8).
4 Canada (in one province—Quebec), Japan, the Union of
South Africa.
or confederation itself is refused to organisations
of public officials or is granted only on certain conditions.
8 The prohibition of federation is sometimes
more general in character and applies to organisations
catering for workers employed in certain
activities, as, for example, in agriculture in Chile.6
In other cases the right of federation of all organisations
would appear to be subject to previous authorisation.
7 Finally, in certain cases the adhesion of
organisations to a federation or confederation may be
compulsory : this is the case, for example, in Egypt8
and in Spain, where, as was pointed out earlier in
connection with the establishment of the basic organisations
it would appear that " local " trade unions
are obliged to federate because their registration must
be effected by the higher trade union organisation; a
somewhat similar situation would appear to ensue
in the U.S.S.R. from the fact that only associations
registered with an inter-union organisation may avail
themselves of the title and rights of a trade union.
44. The right of organisations to affiliate with
international confederations. The right of organisations
to affiliate with international organisations
established by Article 5 of the Convention does
not appear to be subject to any particular formality
in almost all reporting countries. However,
it would seem that in certain cases this right may be
limited indirectly in countries in which there is an
absolute and general prohibition of organisations
from engaging in political activities or when this
prohibition results, as seen above, from legislative or
constitutional provisions which closely associate
organisations with the political party in power.
Moreover, it would seem that in countries in which
there exist limitations on the right of organisations to
establish or join federations or confederations, the
same rules are applicable with respect to affiliation
with international organisations. However, it would
seem that in two countries 9 affiliation of organisations
with international organisations is subject to
previous authorisation. Finally, in Portugal, such
affiliation appears very limited.
45. Suspension and dissolution of organisations.
Article 4 of the Convention provides a fundamental
guarantee for organisations by stipulating that they
shall not be liable to be dissolved or suspended " by
administrative authority ". Here again the scope of
such a provision may vary considerably according
to the civil liberties which the inhabitants of a country
in fact enjoy. It would seem that, in some cases, the
de-registration of an organisation may have the same
results as does a suspension or even a dissolution.
Nevertheless, the effect of such a measure of deregistration
can vary according to whether registration
constituted or did not constitute a formality necessary
to enable the organisation to achieve its objects (see
above, paragraphs 28 and 29) and according to the
grounds on which the decision may be taken. That
is why the information received with respect to the
de-registration of organisations will be examined at the
same time as that which relates to suspension and
dissolution properly so-called.
46. According to the information received suspension
by administrative authority appears to be impos-
6 For example, Ceylon, India, Iran.
6 See Observations made by the Committee with respect to the
application of the Right of Association (Agriculture) Convention,
1921 (No. 11).
' Portugal (Decree No. 23050, section 8), the Union of South
Africa.
8 In the case of employers' organisations.
9 Honduras, Turkey.
170 Report of the Committee of Experts
sible in nearly all the countries reporting. Among
these countries, some specify that the power of suspension
is accorded to the judicial authorities in
cases in which organisations contravene the law.1
In three countries 2 the suspension of organisations
may be pronounced by an administrative authority
but the suspension may be the subject of an appeal
to the courts ; moreover, it would seem that in Argentina
the suspended occupational organisation can
subsist as an association at common law. Finally,
three countries3 furnish no information on this point
in their reports.
47. With regard to dissolution, which, according
to Article 4, shall not be ordered by the administrative
authorities, it would seem that, in the majority of
countries reporting, this decision can be taken only
by the judicial authorities. However, in some of
these countries4 the dissolution of organisations
results from their de-registration by the competent
authority but it would seem that such a decision
would be taken only where the organisation contravenes
the law and its own rules and that further, the
decision to de-register can always be the subject
of an appeal to the courts. In certain cases 5 dissolution
is preceded by an order of suspension made
by the competent administrative authorities, which
results in the case coming immediately before the
judicial authorities (or, alternatively, on pain of
being held to be null and void, the order must
immediately be referred to such authorities), and it
is for the judicial authorities to decide whether or not
there should be a dissolution ; in the event of a negative
decision, the order of suspension appears
automatically to be terminated.
48. In a number of countries 6 it would seem that
dissolution can be pronounced by the administrative
authorities, but in most cases an appeal to the courts
against the measure is provided; it does not appear
clearly however from the information furnished
whether the appeal suspends the measure of dissolution
or not. Finally, in countries in which basic organisations
must be registered with higher trade union
organisations7 it would appear that the latter organisations
are competent to order at one and the same
time de-registration and dissolution.
C. Rights and Guarantees of Inter- Union Organisations
49. According to Article 6 of the Convention federations
and confederations shall enjoy the same rights
and guarantees as are prescribed in the Convention
in the case of basic organisations. According to the
information furnished in the reports examined by the
Committee, in all the countries which have furnished
information on this point, with the exception of five,
the same rules as apply to organisations are also
applicable to federations and confederations. In
two countries 8 federations and confederations appear
1 Honduras, Iran, New Zealand, Turkey.
2 Argentina, Ceylon, Haiti.
'Egypt, Greece, the Sudan.
4 Austria, Cuba, Ecuador, Finland, Haiti, Israel, Mexico,
Turkey and Viet-Nam.
6 Austria, Cuba, Denmark, Finland and Iceland.
•Bolivia, Chile, Ceylon, Ecuador, Egypt (in the case of
employers' organisations), Guatemala (see Observations addressed
to the government of this country), Portugal, the Union
of South Africa (by virtue of the Suppression of Communism
Act).
7 Spain, the U.S.S.R. (in the case of the latter country, however,
no information is furnished with respect to directors of
undertakings).
to be subject to financial regulations which are somewhat
stricter than those applying in the case of
organisations. In Chile federations or confederations
created by works unions or by unions of agricultural
workers may have only cultural or welfare objects. In
Honduras federations and confederations may not declare
a strike or lock-out. Finally, in the Union of
South Africa it would seem that the competent Minister
may, in certain cases, grant or refuse registration and
order the de-registration of federations or confederations,
that is to say, in effect, order their dissolution.
Legal Methods Employed by the Various States
50. Like the Right to Organise and Collective
Bargaining Convention, 1949, with respect to which
the Committee endeavoured last year to distinguish
the different methods adopted or already existing
to ensure its application, the Freedom of Association
and Protection of the Right to Organise Convention,
1948, in no way makes necessary the adoption of
special legislation when the rights and guarantees
which it provides for individuals, workers and employers,
or organisations and federations and confederations,
are effectively ensured by practice. However,
while it would appear that in a certain number of
countries9 the recognition of the right to organise
follows from the suppression of the old offences of
combination and restraint of trade, it is to be observed
that, even in countries whose legal systems are based
on common law, special legislative provisions have
very often been adopted to guarantee the rights
provided in the Convention for employers and workers
and their respective organisations.10 It would appear
from the information communicated that, in the very
large majority of the countries which have made
reports, the right to organise, or, more generally,
the right of association is guaranteed by a constitutional
provision. In most of these countries, moreover,
special laws have been enacted to define and delimit
the scope of these rights and guarantees. In
some of these countries the legislation adopted for
this purpose contains, as has already been pointed
out, detailed, and sometimes exceedingly detailed,
provisions with regard, among other things, to the
constitution of trade unions. Although such provisions
do not place any obstacle in the way of the free
constitution of organisations and, on the contrary,
appear to be intended to prevent certain legal difficulties
from arising and to guide trade unions when
the trade union movement is in its first stage of development,
it may nevertheless be doubted whether such
an accumulation of details is always necessary. In
other cases legislative or constitutional provisions
result indirectly in limiting the free choice of individuals
or in considerably restricting the right of individuals
to form an organisation or, in some cases,
even amount to a pure, and simple prohibition.
While collective agreements are very extensively
utilised as the means of ensuring the guarantees laid
down in the Right to Organise and Collective Bargaining
Convention, 1949 (No. 98), as the Committee
pointed out in its report in 1956, it is not surprising
that very few countries refer to such agreements in
their reports on the present Convention, in view
of the fact that this instrument deals essentially with
relations between the State, as the public power,
and individuals and their organisations. Finally,
in some cases the reports explain that the application
8 Egypt and Turkey (fixing of a maximum limit on contributions
from federated organisations).
9 E.g. the United Kingdom.
10 E.g. Australia.
Conclusions concerning Reports Requested under Article 19 of the Constitution 171
of the standards laid down in the Convention, or
of some of them, is ensured by means of arbitration
awards1 or defined in detail and reinforced by case law.2
Problems Raised by the Convention and Ratification Prospects
51. The reports examined also contain information
concerning : (a) the sharing of competence in federal
States; (b) difficulties of application; (c) amendments
made to legislation and practice in order to give
effect to the Convention ; (d) ratification prospects.
52. Federal States. Among the ten federal States
which have reported on the measures taken to
give effect to the Convention, two {Austria and
Mexico) have not stated specifically whether the
application of this instrument falls within the competence
of the federal authorities or of the authorities
of the constituent units; however, the information
furnished in their reports would appear to indicate
that the federal authorities have jurisdiction, at least
as regards legislation. The reports of Argentina3,
Switzerland4, and the United States 5 indicate that
jurisdiction is vested in the federal authorities. On
the other hand, it would appear that in Australia,
Canada 6, India 7 and the U.S.S.R.8 legislative competence
for the questions dealt with in the Convention
is shared between the federal authorities and the
authorities of the constituent units.
53. Difficulties of application. None of the reports
furnished pursuant to article 19 of the Constitution
points out any difficulties of application as such.
However, some governments express doubt as to the
exact obligations which the Convention imposes on
governments9, or as to the compatibility with the
provisions of this instrument of regulations laid down
by the State in respect of the right to organise of public
officials10, or, finally, as to the real effect of the formality
of registration11. Among the 16 States which
have ratified the Convention and have reported
pursuant to article 22 of the Constitution, the application
of the standards laid down in the instrument
appears, in almost all cases, to give rise to no particular
difficulty. However, in some cases the Committee
has had-to draw attention to provisions which
appear to it to be incompatible with these standards,
involving discrimination between the various categories
entitled to the right to organise : in one case, as
regards agricultural workers12, in two cases, as regards
public officials who are denied the right to organise.13
1 Australia, New Zealand.
2 France, Sweden.
3 The Convention is " legally a matter for the federal authorities
". Cf. Report III, Part II, prepared for the 40th Session
of the Conference (1957), p. 61.
4 " Any action in connection with the Convention could be
taken only by the federal authorities." (Ibid., p. 79.)
5 " The Convention is regarded by the Government as appropriate
under the constitutional system for federal action."
(Ibid., p. 84.)
6 There exists a " division of legislative jurisdiction as between
the federal and provincial authorities ". (Ibid., p. 64.)
7 " ' Trade unions ' is a concurrent subject under the Constitution."
(Ibid., p. 73.)
8 The Convention " is the responsibility of the federal authorities
of the U.S.S.R. and the authorities of the constituent
republics, each within their respective fields of competence".
(Ibid., p. 83.)
• Japan, Switzerland, the United States.
10 India, Japan.
11 India, Viet-Nam.
12 Guatemala.
13 Cuba, Guatemala (in the latter country, the prohibition also
extends to employees of public undertakings).
Further, with respect to the exclusion of any previous
authorisation and administrative dissolution, the
Committee has had to make observations in one case.14
Moreover, the Committee has very often found
it necessary to request further information on the
matters included in the first annual report furnished
by the governments. That is why (as indicated in the
general part of its report) it appears to the Committee
that it would be very useful to supplement the
annual report form relating to this Convention. In
most cases, once these details have been furnished, the
Committee has been able to satisfy itself that the
national legislation of the States in question contained
no provisions which seemed incompatible with the
Convention in respect of the points raised. In one
case 16, nevertheless, the information requested has
not yet been furnished. In four other cases, after
having noted the further information furnished, the
Committee has had to point out to the governments
concerned that the relevant provisions in their national
legislation did not appear to be compatible with
certain of the standards laid down in the Convention16,
or that the situation was still not clear.17
54. Amendments made to national legislation and
practice. A number of the reports received indicate
that amendments have already been made to legislation
in order to give effect to certain provisions of
the Convention; in other reports the governments
express their intention of making amendments to
existing legislation dealing with matters directly or
indirectly related to the provisions of the Convention.
With respect to the amendments already made, four
States indicate the action taken in their reports :
Argentina has repealed various laws which established
a system of unitary trade unionism, restricted the right
to strike and contained numerous provisions incompatible
with the exercise of the duties of trade union
officers. The report of Honduras points out that,
because its legislation had been enacted subsequent
to the adoption of the Convention, it had been possible
to take the provisions of the Convention into
account. Turkey explains that its Associations Act
has been amended so as to free federations and confederations
from the need to obtain the previous
authorisation of the competent Minister. Finally,
the report of France points out that, in order to put
an end to a situation created by an Order dating from
the termination of hostilities and which had established
a monopoly in respect of engagement in certain undertakings
in favour of a particular trade union organisation,
a new law has now been adopted by Parliament
which prohibits any pressure being exerted on
an individual to force him to adhere to an organisation
which he has not chosen freely.
55. With regard to amendments which are contemplated,
the Governments of Costa Rica, Ecuador
and Haiti declare that they wish to repeal provisions
in their legislation which permit the administrative
dissolution of organisations. In Italy a new law
regulating industrial relations is to be promulgated
very shortly. The Government of the Sudan states
that a new law is being studied, which would provide
for the registration of federations and confederations
in order that such organisations might be accorded
14 Guatemala.
15 Mexico (right to organise of public officials).
16 Cuba (programmes of organisations), Pakistan (organisations
of public officials), the Philippines (registration and legal personality).
17 Denmark (public officials' organisations).
172 Report of the Committee of Experts
legal personality. Finally, the report of Switzerland
refers to a Bill dealing with collective agreements
and the extension of such agreements and to a further
examination of the Labour Bill.
56. Ratification prospects. Among the States
which have reported pursuant to article 19 of the
Constitution, eight have recently ratified this instrument
: Byelorussia, the Dominican Republic, the
Federal Republic of Germany, Honduras, Israel,
Poland, Ukraine and the U.S.S.R. Further, according
to the report, the Convention is in course of
ratification in Luxembourg. The report of Iran
states that no obstacles exist to prevent or delay
ratification, since national legislation is in harmony
with the Convention. According to the reports,
ratification is being considered in Egypt and Greece.
The Government of Ceylon declares that, having
decided not to ratify the Convention for the moment,
it intends to take up the examination of the question
again at a later date. Several governments wish to
bring their national legislation into harmony with the
Convention before they take steps to ratify the instrument.
This is the case in Costa Rica, Ecuador,
Haiti and Italy, already mentioned in the preceding
paragraph. Among the countries which indicate
the considerations preventing or delaying ratification
of the Convention (and apart from those cases in which
governments wish to satisfy themselves as to the
exact extent of the obligations which they would
assume as a result of ratification *), some refer to
difficulties of a constitutional nature : this is the case
in Canada, which indicates that ratification would be
very difficult because of the division of jurisdiction
in respect of the matters dealt with in the instrument
between the federal Government and the provincial
governments. Other countries consider that certain
provisions in their national legislation prevent ratification
: this is the case, for example, in New Zealand,
which indicates that certain provisions restricting
the freedom of choice of organisation to which persons
may wish to belong are not in complete harmony
with the Convention but that the abolition of this
system would encounter opposition on the part of the
large majority of those concerned; likewise, Viet-
Nam considers that the right of the administrative
authorities to inspect trade union constitutions and
rules when unions are being registered constitutes an
obstacle, but that this system, which must be maintained
in order to avoid the courts declaring union constitutions
to be null and void, is necessary in view of
the present state of trade union development. Iraq
and Jordan also refer to the insufficient development
of occupational organisations to explain why it is
impossible to ratify the Convention. Finally, the
Government of Portugal states that, having regard
to the system in that country, ratification of the Convention
is impossible.
Conclusions
57. On several occasions already the Committee
has emphasised the fundamental importance which
the International Labour Organisation attaches to the
Freedom of Association and Protection of the Right
to Organise Convention, 1948, the principles of which
are regarded as an essential factor in social progress.
This Convention, which on the occasion of the first
examination of reports furnished thereon pursuant to
article 19 in 1953 had already been ratified by 14 States,
has now received 26 ratifications. It appears to the
1 See paragraph 53 above : Difficulties of application.
Committee that the number of ratifications, which
may be considered encouraging when it is remembered
that the instrument was adopted by the Conference
less than ten years ago, will in a short time be considerably
increased.
58. The Committee has been happy to observe
that, among the States whose reports it has examined,
national legislation, in a relatively considerable number
of cases, contains no provisions which appear to be
incompatible with the standards laid down in the
Freedom of Association and Protection of the Right
to Organise Convention, 1948. As might be expected,
this is the case (with two or three exceptions) with
the 16 States which have ratified the Convention and
have reported pursuant to article 22 of the Constitution.
As regards States which have not ratified
the Convention, the Committee has observed that,
in addition to the relatively large number in which
no real obstacles to ratification would appear to
exist, in a considerable number of cases only very
slight amendments to national legislation would
appear to be required to enable the Convention to be
ratified.
59. Examination of the various laws and regulations
in force has led the Committee to the conclusion
that, as already emphasised, it might be desirable
for the legislation of certain countries relating to
occupational associations to be simplified. Nevertheless,
in view of the universal character of this Convention,
which is compatible both with systems under
which organisations of workers and employers are
based on the general law of association, and with
systems under which the right to organise is the subject
of very detailed special regulations, the existence
of such provisions should not constitute an obstacle
to ratification. In fact, here again, more than in
all other fields covered by international labour
Conventions, respect for established international
standards is not merely a question of conformity of
legislation, because such respect does not automatically
result from the simple fact that the legislation
contains no provision which goes against the rights
and guarantees prescribed by the Convention. With
respect to freedom of association and protection of the
right to organise, the Committee cannot emphasise
too strongly that national practice is of exceptional
importance, in as much as such practice necessarily
reflects the more general background of the civil and
political liberties enjoyed by the inhabitants of a
country.
60. In a number of States, moreover, the Committee
has observed that full effect was not given to
one or more of the provisions of the Convention, the
application of which, nevertheless, does not seem to
present any particular difficulty. It may be hoped,
therefore, that the economic and social development
of these countries and, more especially, the progress
made by occupational organisations, will enable
them to grant fairly quickly to workers and employers,
and to their respective organisations, the rights and
guarantees provided for in the Convention.
61. The Committee has, however, been particularly
struck by the existence in certain countries—
relatively few, it is true—of legislative or constitutional
provisions which in effect indirectly restrict
the rights and guarantees provided for in the Convention
or sometimes even lead to the prohibition, pure
Conclusions concerning Reports Requested under Article 19 of the Constitution 173
and simple, of the free exercise of the right to organise;
in certain cases, moreover, while the principle of the
right to organise is proclaimed in general terms, special
legislative provisions or particular regulations result
in the restriction, or even the suppression, of the rights
and guarantees prescribed. It appears to the Committee
that the existence of provisions of this kind
needs to be pointed out all the more because, although
there can be no doubt as to their incompatibility
with the standards laid down in the Convention, their
effect is often difficult to discern at first sight and may
accordingly escape notice.
Geneva, 13 April 1957.
(Signed) P. TSCHOFFEN,
Chairman.
H. S. KIRKALDY,
Reporter.
Appendix. Reports Requested and Reports Received by 13 April 1957
Reports requested
Nos. of
Conventions
Nos. of
Recommendations
No. of
reports
requested
Reports received
Nos. of
Conventions
Nos. of
Recommendations
No. of
reports
Afghanistan . . . .
Albania
Argentina
Australia
Austria
Belgium
Bolivia
Brazil
Bulgaria
Burma
Byelorussia
Canada
Ceylon
Chile
China
Colombia
Costa Rica
Cuba
Czechoslovakia . . .
Denmark
Dominican Republic
Ecuador
Egypt
Ethiopia
Finland
France
Germany (Fed. Rep.)
Greece
Guatemala . . . .
Haiti
Honduras
Hungary
Iceland
India
Indonesia
Iran
Iraq
Ireland
Israel
Italy
Japan
Jordan
Lebanon
Liberia
Libya
Luxembourg . . . .
81, 87
81, 87
87
81, 87
81
81, 87
81, 87
87
81
81, 87 !
81, 87
81 2, 87
81, 87
81, 87
81, 87
81, 87
81, 87
81
8 7 ••
81, 87
81 2, 87
81, 87
87 •'
87
87
81, 87 •
81, 87
81
87
81, 87
81, 87
87
87 :
87
87
81, 87
81, 87
81, 87
81, 87
81, 87
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
81
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
82
4
4
3
4
2
3
4
4
3
3
4
4
4
4
4
4
4
2
4
3
3
4
4
4
2
2
3
3
2
3
4
4
3
3
4
4
3
2
3
3
3
4
4
4
4
4
87
81, 87
—
81
81, 82
81, 82
81, 82
81, 82
87
81, 87
81, 82
81, 87
81, 87
81, 87
81, 87
81, 87
—
81, 87
81
87
87
81, 87
_
—
87
87
—
87
81, 87
81
87
81, 87
87
—
87
87
87
81, 87
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
—
—
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
81, 82
1 Members on 27 December 1955. date on which reports were requested.
8 This State has ratified the Convention.
Document No. 232
ILC, 43rd Session, 1959, Report III (Part IV), Report of the
Committee of Experts on the Application of Conventions
and Recommendations, pp. 101–129
REPORT m
^
(PART IV)
INTERNATIONAL LABOUR
CONFERENCE
FORTY-THIRD SESSION
GENEVA, 1959
Third Item on the Agenda :
Information and Reports on the Application
of Conventions and Recommendations
REPORT OF THE COMMITTEE
OF EXPERTS ON THE APPLICATION OF CONVENTIONS
AND RECOMMENDATIONS
(Articles 19, 22 and 35 of the Constitution) X?oc£>
i • J
i
INTERNATIONAL LABOUR OFFICE
GENEVA, 1959
Price t $1.75 ; 10 ». 6 d.
I. FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANISE, COLLECTIVE
BARGAINING AND COLLECTIVE AGREEMENTS
GENERAL REMARKS OF THE COMMITTEE CONCERNING THE FREEDOM OF ASSOCIATION AND PROTECTION
OF THE RIGHT TO ORGANISE CONVENTION, 1948 (No. 87), THE RIGHT TO ORGANISE AND COLLECTIVE
BARGAINING CONVENTION, 1949 (No. 98), THE RIGHT OF ASSOCIATION (NON-METROPOLITAN TERRITORIES)
CONVENTION, 1947 (No. 84) AND THE COLLECTIVE AGREEMENTS RECOMMENDATION, 1951 (No. 91)
Introduction
1. This is the first time that the Committee has
been called upon to examine at the same time reports
furnished by States Members of the Organisation,
under article 19 of the Constitution, on a series of
international instruments dealing mainly with freedom
of association, collective bargaining and collective
agreements.1 The main purpose of freedom of association,
as envisaged in the instruments adopted by
the Conference, is to enable individual members of
occupational organisations, as well as the organisations
themselves, to defend their interests. This may
be done especially through collective negotiations
which, leaving aside the case of public officials, are
designed in most cases to conclude, revise or renew
collective agreements. The Committee has accordingly
taken the view that it would be useful to submit
observations relating to the different instruments in a
single report.
2. These observations are based essentially on the
information furnished in the reports emanating from
160 different countries: 74 States Members of the
I.L.O.2 and 86 non-metropolitan territories.3 In
1 These Conventions and Recommendation have already been
selected separately by the Governing Body as subjects for
reports pursuant to article 19 of the Constitution. These reports
were examined respectively by the Committee in 1953, 1956 and
1957.
2 Afghanistan, Albania, Argentina, Australia, Austria, Belgium,
Bolivia, Brazil, Bulgaria, Burma, Byelorussia, Canada,
Ceylon, Chile, China, Colombia, Costa Rica, Cuba, Czechoslovakia,
Denmark, Dominican Republic, Ecuador, Finland,
France, Federal Republic of Germany, Ghana, Greece, Guatemala,
Republic of Guinea, Haiti, Honduras, Hungary, Iceland,
India, Indonesia, Iran, Iraq, Ireland, Israel, Italy, Japan, Jordan,
Luxembourg, Federation of Malaya, Mexico, Morocco, Netherlands,
New Zealand, Nicaragua, Norway, Pakistan, Peru,
Philippines, Poland, Portugal, Rumania, El Salvador, Spain,
Sudan, Sweden, Switzerland, Thailand, Tunisia, Turkey,
Ukraine, Union of South Africa, U.S.S.R., United Arab
Republic (Egypt), United Kingdom, United States, Uruguay,
Venezuela, Viet-Nam, Yugoslavia.
8 Australia: Nauru, New Guinea, Norfolk Island, Papua;
Belgium : Belgian Congo, Ruanda-Uruandi ; Denmark : Faroe
Islands, Greenland; France : Algeria, Cameroons, Comoro
Islands, French Equatorial Africa, French Polynesia, French
Somaliland, French West Africa, Guadeloupe, French
Guiana, Madagascar, Martinique, New Caledonia, Réunion,
St. Pierre and Miquelon, Togoland; Italy : Trust Territory of
Somaliland; Netherlands: Netherlands Antilles, Surinam,
Netherlands New Guinea; New Zealand: Cook Islands and
Niue, Tokelau Islands, Western Somoa; Union of South Africa :
South West Africa; United Kingdom : Aden, Antigua, Bahamas,
Barbados, Basutoland, Bechuanaland, Bermuda, British Guiana,
British Honduras, British Somaliland, British Virgin Islands,
Brunei, Cyprus, Dominica, Falkland Islands, Fiji, Gambia,
Gibraltar, Gilbert and Ellice Islands, Grenada, Guernsey,
Hong Kong, Jamaica, Jersey, Kenya, Malta, Isle of Man,
Mauritius, Montserrat, Nigeria, North Borneo, Northern
Rhodesia, Nyasaland, St. Christopher-Nevis-Anguilla, St.
Helena, St. Lucia, St. Vincent, Sarawak, Seychelles, Sierra
Leone, Singapore, Solomon Islands, Southern Rhodesia,
Swaziland, Tanganyika, Trinidad and Tobago, Uganda, Zanzibar;
United States: Alaska, American Samoa, Guam, Hawaii^
Puerto Rico, Trust Territory of Pacific Islands, Virgin Islands.
other words, the information examined relates to
92.5 per cent, of the States Members 4 and to more
than 88.6 per cent, of the non-metropolitan territories.
5
3. As in previous years, the observations of the
Committee relating to the three Conventions dealing
with freedom of association and protection of the
right to organise are based not only on the information
furnished, pursuant to article 19 of the Constitution,
by States which have not ratified those Conventions,
but also on the various annual reports transmitted by
the States which have ratified them. In certain cases,
account has also been taken of information already
utilised by the Committee in 1956 6 and in 1957 7 in
respect of countries which have omitted, this time,
to furnish reports pursuant to article 19 of the Constitution.
Further, the Committee has thought it
useful to take account of information furnished in
annual reports on the application of the Right of
Association (Agriculture) Convention, 1921 (No. II).8
Finally, the information relating to collective bargaining
and collective agreements is derived from reports
pursuant to article 19 concerning the Collective
Agreements Recommendation, 1951 (No. 91), and
also from reports furnished, both under article 19
and under article 22 of the Constitution of the I.L.O.,
on the three Conventions mentioned above.
4. In 1953 and in 1957 the Committee pointed out
the difference between its own task and the work of
the " Committee on Freedom of Association " of the
Governing Body of the I.L.O. and of the " Committee
on Freedom of Employers' and Workers' Organisations
". In particular, the Committee felt bound to
point out that, with respect to the Conventions, the
scope of its conclusions was clearly different according
to whether the country had ratified these Conventions
or not. In respect of the States which are bound by
these Conventions, it is the duty of the Committee to
indicate, where necessary, the legislative provisions
or established practice which are not in harmony
with the Convention and should be repealed or
amended in accordance with the international obligations
undertaken by the States in question by virtue
of their ratification; the situation is the same with
regard to the non-metropolitan territories to which,
pursuant to a declaration transmitted under article 35
4 No information was available in respect of the following
States: Ethiopia, Lebanon, Liberia, Libya, Panama, Paraguay.
5 No information was available in respect of the following
territories : Portugal: Angola, Cape Verde, Macao, Mozambique,
Portuguese Guinea, Portuguese Indies, S. Tomé and Principe,
Timor; Spain: Spanish Guinea, Spanish West Africa; United
States: Panama Canal Zone.
0 See I.L.O. : Report of the Committee of Experts on the
Application of Conventions and Recommendations, Report III
(Part IV), International Labour Conference, 39th Session,
Geneva, 1956 (Geneva, 1956), p. 135.
'Idem, 40th Session, Geneva, 1957, p; 161.
8 As, for example, in respect of China.
101
REPORT OF THE COMMITTEE OF EXPERTS
of the Constitution of the I.L.O., a Convention is
applicable without modification—or, where it is
applicable with modifications, having regard to such
modifications. On the other hand, in the case of
States which are not bound by these Conventions, the
Committee in its conclusions must confine itself to
noting the position of law and practice in the countries
concerned in regard to the matters dealt with in
the Conventions in question, in so far as the information
furnished in reports received pursuant to article 19
enable it to do so. Non-metropolitan territories
whose international relations are the responsibility of
a State which has ratified one of these Conventions,
but to which the Convention concerned is not applicable
are, so to speak, in an intermediate position. In
fact, according to the established procedure, the
Committee must be kept informed periodically,
through annual reports, of the evolution of the situation
and of the nature of the local conditions which
prevent or delay the partial or complete application
of the Convention.
5. The present report is divided into two chapters.
The first, which deals with freedom of association and
protection of the right to organise, is intended to
afford a general view of the situation in all the countries
considered, in the field covered by the Freedom
of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), by Articles 1 and 2 of the
Right to Organise and Collective Bargaining Convention,
1949 (No. 98), and by Articles 2 and 3 of the
Right of Association (Non-Metropolitan Territories)
Convention, 1947 (No. 84). The second chapter,
which deals with collective bargaining and collective
agreements, contains an analysis of the information
available in the field covered by the Collective Agreements
Recommendation, 1951 (No. 91), and by the
other Articles of the two last mentioned Conventions.
6. The Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87), has
been ratified by 36 States9 ; it has been declared
applicable without modification to 27 non-metropolitan
territories 10; it has been declared applicable
subject to modifications to 11 non-metropolitan
territories.11 The Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), has been
ratified by 40 States 12; it has been declared applicable
without modification to 23 non-metropolitan terri-
8 Albania, Austria, Belgium, Burma, Byelorussia, Cuba,
Denmark, Dominican Republic, Finland, France, Federal
Republic of Germany, Guatemala, Republic of Guinea, Honduras,
Hungary, Iceland, Ireland, Israel, Italy, Luxembourg,
Mexico, Netherlands, Norway, Pakistan, Panama, Philippines,
Poland, Rumania, Sweden, Tunisia, Ukraine, U.S.S.R., United
Arab Republic (Egypt), United Kingdom, Uruguay, Yugoslavia.
10 Denmark: Greenland; France: Cameroons, Comoro Islands,
French Equatorial Africa, French Guiana, French Polynesia,
French Somaliland, French West Africa, Guadeloupe, Madagascar,
Martinique, New Caledonia, St. Pierre and Miquelon,
Réunion, Togoland; Netherlands: Netherlands Antilles, Surinam,
Netherlands New Guinea; United Kingdom: Aden, Dominica,
Guernsey, Jersey, Malta, Isle of Man, Nigeria, St. Lucia,
Trinidad and Tobago.
11 United Kingdom: Basutoland, Bechuanaland, British
Guiana, British Honduras, Gibraltar, Grenada, Jamaica,
Mauritius, North Borneo, Nyasaland, St. Vincent, Sarawak,
Sierra Leone, Swaziland, Uganda.
12 Albania, Argentina, Austria, Belgium, Brazil, Byelorussia,
Cuba, Denmark, Dominican Republic, Finland, France,
Federal Republic of Germany, Guatemala, Republic of Guinea,
Haiti, Honduras, Hungary, Iceland, Indonesia, Ireland, Israel,
Italy, Japan, Luxembourg, Morocco, Norway, Pakistan,
Philippines, Poland, Rumania, Sudan, Sweden, Tunisia, Turkey,
Ukraine, U.S.S.R., United Arab Republic, United Kingdom,
Uruguay, Yugoslavia.
tories13; it has been declared applicable with modifications
to one non-metropolitan territory.14 The
Right of Association (Non-Metropolitan Territories)
Convention, 1947 (No. 84), has been ratified by four
States responsible for the international relations of
such territories 15; it is applicable without modification
to 55 non-metropolitan territories.16
Content of Reports
7. In a considerable number of cases, the governments
of the States which have not ratified the Conventions
under review have made reference to information
furnished in earlier reports or have reproduced
such information; in fact, Convention No. 87 was
the subject of reports under article 19 examined in
1953 and 1957 and Convention No. 98 of reports
examined in 1956. The same is true in certain cases
in respect of reports on Recommendation No. 91,
which was also the subject of reports under article 19
examined in 1956. It should nevertheless be pointed
out that the reports of certain States were particularly
detailed as, for example, the reports of Argentina
(Recommendation No. 91), Australia (Convention
No. 87 and Convention No. 98), India (Convention
No. 98 and Recommendation No. 91), United States
(Convention No. 98, Convention No. 84 and Recommendation
No. 91), and the U.S.S.R. (Recommendation
No. 91). On the other hand, the information
given by certain governments was extremely brief:
this is so, for instance, in the case of Afghanistan,
which confines itself to an indication that the two
Conventions and the Recommendation in question
have been brought to the notice of the competent
authorities, and in the case of Colombia, which
indicates simply that the Conventions are going to be
submitted to Congress for ratification. Further, it
should be pointed out that account has also been
taken of the earlier reports made by certain countries
which have omitted to furnish the reports requested:
Iraq, which had indicated that its legislation concerning
freedom of association was not in conformity
with Convention No. 87, and Jordan, which stated
that no relevant legislation existed. Finally, it should
be noted that new legislative provisions have been
adopted in certain countries since the despatch, by
the governments, of the reports which the Committee
was called upon to examine 17: it has not been possible
to take account of these in the present observations.
Finally, the Committee wishes to emphasise that the
13 France: French Guiana, Guadeloupe, Martinique, Réunion;
United Kingdom: Aden, British Guiana, British Honduras,
Dominica, Gibraltar, Grenada, Guernsey, Jamaica, Jersey, Isle
of Man, Mauritius, Nigeria, North Borneo, St. Lucia, St. Vincent
Sarawak, Sierra Leone, Trinidad and Tobago, Uganda.
14 United Kingdom: Northern Rhodesia.
15 Belgium, France, New Zealand and the United Kingdom.
In addition, Italy, which has not ratified this Convention, has
accepted the obligations of the Convention on behalf of the
Trust Territory of Somaliland (see note below).
16 Belgium: Belgian Congo, Ruanda-Urundi; France: Cameroons,
Comoro Islands, French Equatorial Africa, French
Polynesia, French Somaliland, French West Africa, Madagascar,
New Caledonia, St. Pierre and Miquelon, Togoland; Italy:
Trust Territory of Somaliland; New Zealand: Cook Islands and
Niue; United Kingdom: Aden, Antigua, Bahamas, Barbados,
Basutoland, Bechuanaland, Bermuda, British Guiana, British
Honduras, British Virgin Islands, Cyprus, Dominica, Falkland
Islands, Fiji, Gambia, Gibraltar, Grenada, Hong Kong, Jamaica,
Kenya, Malta, Mauritius, Montserrat, Nigeria, North Borneo,
Northern Rhodesia, Nyasaland, St. Christopher-Nevis-Anguilla,
St. Helena, St. Lucia, St. Vincent, Sarawak, Seychelles, Sierra
Leone, Singapore, Southern Rhodesia, Swaziland, Tanganyika,
Trinidad and Tobago, Uganda, Zanzibar.
17 This is the case, it would seem, in respect of Ghana and
Thailand.
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CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
footnotes to the following paragraphs should not be
regarded as exhaustive, but as giving, as far as possible,
representative examples based on the information
available to it.
Chapter I. Freedom of Association and Protection
of the Right to Organise
8. The three Conventions under review provide for
a number of rights and guarantees to be accorded to
individuals and also to their occupational organisations.
The Freedom of Association and Protection of
the Right to Organise Convention, 1948 (No. 87), provides
in the first place that individuals (workers and
employers) shall have the right to establish freely
organisations of their own choosing and to adhere
freely to such organisations (Article 2) ; secondly, the
organisations of workers and employers in question,
that is to say, organisations for the purpose of
" furthering and defending the interests " of their
members (Article 10), shall enjoy certain rights
(Article 3, paragraph 1, and Article 5) and certain guarantees
intended to ensure their freedom of action
(Article 3, paragraph 2, and Article 4); higher organisations,
federations and confederations, shall enjoy
the same rights and guarantees as do the primary
trade union organisations (Article 6); finally, under
Article 11, States shall take all necessary and appropriate
measures to ensure that workers and employers
may exercise freely the right to organise. Articles 1
and 2 of the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), provide that
workers 18, as members of occupational organisations,
shall enjoy adequate protection against acts of antiunion
discrimination in respect of their employment
(Article 1), and that workers' and employers' organisations
shall enjoy guarantees against acts of interference
by each other (Article 2). The Right of
Association (Non-Metropolitan Territories) Convention,
1947 (No. 84), provides that employers and
employed shall have the right to associate for all
lawful purposes (Article 2) and that occupational
organisations shall have the right to conclude collective
agreements (Article 3).
9. It is necessary to consider separately, therefore,
in so far as the information available in respect of the
different countries considered permits of this19, the
situation of individuals from the point of view of
freedom of association and protection of the right to
organise, the rights and guarantees enjoyed by the
primary trade union organisations and, finally, the
rights and guarantees enjoyed by higher organisations
(federations and confederations).
18 See paragraph 11 below as to the difference between the
scope of this Convention and the scope of the preceding Convention
with regard to the individuals protected.
19 The information available for the following countries does
not make it possible to gauge the extent to which effect is given
to the Conventions under consideration; in certain cases the
governments themselves state either that legislation is not in
conformity with these Conventions, or that there is no legislation
relating to the freedom of association or the protection of
the right to organise:
Member States: Afghanistan, Albania, Bolivia, Bulgaria,
Czechoslovakia, Hungary, Iraq, Jordan, Peru, Rumania, United
Arab Republic (Syria), Venezuela, Yugoslavia. Non-metropolitan
territories: Australia: Nauru, New Guinea, Norfolk Island,
Papua (according to the report there are no trade union organisations,
and no legislative provisions in this connection); New
Zealand: Tokelau Islands, Western Samoa (the right of association
is guaranteed by the Constitution, but there are no other
legislative provisions in this connection); United States: Trust
Territory of Pacific Islands, American Samoa (ibid.).
Aï SITUATION OF INDIVIDUALS FROM THE POINT OF
VIEW OF FREEDOM OF ASSOCIATION AND PROTECTION
OF THE RIGHT TO ORGANISE
10. The survey of the information available concerning
the rights and guarantees enjoyed by individuals
(workers and employers) entails, in the first
place, consideration of the categories of individuals
who enjoy freedom of association and those to whom
the right to organise is denied, and, secondly, consideration
as to how far the individuals concerned may,
under the national legislation, enjoy the different
rights and guarantees accorded to them by the
Conventions.
/. Individuals Enjoying the Right to Organise
11. The scope, from the point of view of individuals,
of the three Conventions under review, is not exactly
the same. Article 2 of the Freedom of Association
and Protection of the Right to Organise Convention,
1948 (No. 87), which applies to " workers and
employers without distinction whatsoever ", is exceedingly
broad in scope. It is limited only by Article 9 of
the Convention, which permits each State to decide
the extent to which members of the armed forces
and police shall or shall not enjoy the rights and
guarantees provided for. This last provision is also
embodied in Article 5 of the Right to Organise and
Collective Bargaining Convention, 1949 (No. 98),
Article 6 of which, moreover, provides that the Convention
does not deal with the position of public
servants engaged in the administration of the State;
further, Article 1 of this Convention, which refers to
acts of anti-union discrimination in respect of employment,
can naturally not be applied either to independent
workers or to employers. Finally, the Right of
Association (Non-Metropolitan Territories) Convention,
1947 (No. 84), is applicable, like the Freedom
of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), to employers, but does
not cover all workers because, according to Article 1
of the Convention, the right of association shall be
guaranteed to those who are " employed ".
12. The analysis of the reports received reveals
that in the majority of the countries no distinction 20
or no substantial distinction is made between the
different categories. Nevertheless, some countries
make the right of organisation subject to more or less
specific conditions which may, directly or indirectly,
give rise to distinctions between the different categories
of workers or employers with respect to the
exercise of the right to organise. These distinctions
may, according to the frequency with which they are
found in the different legislative systems, be grouped
as follows: firstly, those which are found most often
and which relate to certain occupations or employments;
secondly, other distinctions, which may be
grouped under four main heads : sex, race, nationality,
political opinions ; thirdly, in certain countries special
provisions are applicable to employers; finally, there
20 Member States : Austria, Belgium, Canada (federal
legislation), Finland, France, Federal Republic of Germany,
Republic of Guinea, Honduras, Iceland, Israel, Italy, Luxembourg,
Morocco, Netherlands, Norway, Sweden, Switzerland,
Tunisia, United Kingdom. Non-metropolitan territories: France:
all non-metropolitan territories; Italy: Trust Territory of
Somaliland; New Zealand: Cook Islands; United Kingdom:
Aden, Antigua, Bahamas, Basutoland, Bechuanaland, British
Guiana, British Somaliland, British Virgin Islands, Brunei,
Cyprus, Falkland Islands, Gilbert and Ellice Islands, Guernsey,
Jersey, Malta, Isle of Man, Montserrat, St. Christopher,
St. Helena, St. Lucia, St. Vincent, Seychelles, Sierra Leone,
Singapore, Trinidad and Tobago.
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REPORT OF THE COMMITTEE OF EXPERTS
exist in certain countries distinctions applicable to
particular categories of persons.
Distinctions Based, on Occupation or Employment.
13. The occupations in respect of which distinctions
are made include, in particular, public officials,
workers in public or semi-public undertakings,
agricultural workers and independent workers.
14. The extent of the distinctions established by
legislation varies somewhat. In certain cases, it would
seem that these distinctions are of a more or less
secondary nature and do not, in fact, place any
important restriction on the freedom of association of
individuals ; in other cases, they appear to limit more
strictly the choice of individuals and the scope of
activity of the organisations which they may establish ;
finally, restrictions in certain other cases may lead in
practice to a prohibition of the free establishment of,
or free adherence to, trade union organisations.
15. Distinctions of a more or less secondary nature.
Under certain legal systems senior supervisory staff
who represent the employer are not permitted to
belong to the same unions as do other workers in the
undertaking, but they may freely establish their own
trade unions.21 According to the explanations given
by certain governments, the purpose of these provisions
is to prevent acts of interference with workers'
trade unions. In other cases, the establishment of
trade unions is possible only where the workers (or
employers) belong to the same occupation or region.
It would seem that this piohibition of workers employed
in different branches of industry or in different
regions establishing or joining the same trade union
may be of a purely formal character. That is the case,
for instance, when these separate primary organisations
(constituted for an occupation or for a region)
may freely establish and join federations and confederations
and, again, where the law does not prohibit
workers who are not or are no longer employed
in the occupation concerned from being chosen
as trade union officers 22; thus in a fairly considerable
i number of countries public officials may only join
trade unions whose membership is limited to such
officials. This ensues, in certain cases, from a legislative
provision or special regulation providing for
the establishment of separate trade unions, or from
provisions in union rules, or from the fact that officials
may not join organisations which may utilise certain
methods of action and, in particular, the strike
weapon.23. In two countries 2i, there is provision that
special legislation shall be enacted with respect to
public officials or certain categories thereof but, this
legislation not having been adopted, the reports
indicate that all officials have the right to establish
and join organisations in freedom. In certain countries,
the distinctions of a formal nature applicable in
the case of public officials apply also to workers
employed in undertakings in the public or semipublic
sector.
21 Canada (Quebec), Cuba, Dominican Republic, Haiti,
Philippines, Sweden (by virtue of a collective agreement).
22 France (Book III of the Labour Code, section 7), Algeria
(ibid.), Guiana (ibid.), Guadeloupe (ibid.), Martinique (ibid.),
Réunion (ibid.), Cameroons (Overseas Labour Code, 1952,
Title II, section 9), Comoro Islands (ibid.), French Equatorial
Africa (ibid.), French Polynesia (ibid.), French Somaliland
(ibid.), French West Africa (ibid.), Madagascar (ibid.), New
Caledonia (ibid.), St. Pierre and Miquelon (ibid.), Togoland.
23 Austria, Switzerland, United Kingdom (Great Britain),
Union of South Africa, etc.
21 Costa Rica (articles 25 and 60 of the Constitution), Viet-
Nam (Ordinance No. 23 of 16 November 1952).
16. More marked distinctions. The prohibition of
the adherence of certain particular workers to the
same organisations as other workers or the fact that
workers employed in different branches of industry,
or in different regions may not establish or join the
same trade union is supplemented in certain cases by a
twofold prohibition which may restrict the freedom
of association of these workers: firstly, the separate
trade unions established on an occupational or
regional basis may not freely establish or join federations
or confederations and, secondly, only workers
who are engaged in and continue to be engaged in the
occupation concerned may be chosen to act as trade
union leaders.23 In certain cases, these distinctions
are applicable only in the case of public officials26 ;
in other cases they are applicable both to public
officials and to workers employed in undertakings in
the public or semi-public sector.27 In a number of
countries, the trade unions of workers in certain
occupations, and especially agriculture, do not enjoy
the same rights as do other trade unions.28 This question
will be examined in greater detail when the scope
of the activities of organisations comes to be considered.
Finally, in certain cases the definitions
contained in existing legislation do not always make
it possible to ascertain if certain workers enjoy the
same rights as others.29
17. Distinctions leading to prohibition. These distinctions
assume different forms. In some cases, foremen
and higher grades are prohibited not only from
belonging to the same trade unions as other workers
but even from establishing special trade unions.30
There also exist distinctions the prohibitive nature
of which is sometimes difficult to perceive at first
sight. Thus, in certain countries in which the population
includes only a minority who know how to read
and write, legislative provisions or regulations require
that workers shall produce a certificate attesting that
they can read and write 31 or even, in some cases,
25 Member States: Brazil (Labour Code, section 515),
Colombia (Labour Code, section 388), Ecuador (Labour Code,
section 369, and Decree No. 762 of 13 May 1946, section 1),
Non-metropolitan territories: United Kingdom: Hong Kong
(Ordinance No. 8 of 1948, section 13; in addition it does not
appear that the Trade Union Ordinance applies to persons
working on their own account), Kenya (Ordinance No. 23 of
1952, section 29), North Borneo, Sarawak (Ordinance No. 10
of 1947, section 14(A) and 14(B), as amended in 1948), Tanganyika
(Ordinance No. 11 of 1957, section 2).
26 Ceylon, India, Pakistan, United Kingdom (Northern
Ireland). An analogous factual situation may be caused by the
illegality of strikes by officials. Costa Rica, Haiti, United
States, Sudan (Trade Unions Ordinance, 1957, section 27(2),
prohibition of political activity and federation with any " political
organisation ").
" China, Japan, Union of South Africa and South-West
Africa.
28 Member State: Brazil (Decree No. 5452 of 1949, sections 543
and 624; Decree No. 7038 of 1944; Decree No. 9070 of 1946).
Non-metropolitan territories: United Kingdom: Barbados,
Dominica, Swaziland (the immunities provided for in sections 17,
18 and 19 of the Trade Unions Proclamation do not apply to
agricultural workers).
29 This is particularly the case for certain United Kingdom
non-metropolitan territories: British Honduras (agricultural and
non-wage-earning workers, Ordinance No. 1 of 1951, section 2),
Gambia (Cap. 139 of the Laws of Gambia, section 2), Grenada
(non-wage-earning workers, Ordinance No. 20 of 1951, section 2),
Kenya (Ordinance No. 23 of 1952, section 2—agricultural
workers), Nigeria (non-wage-earning workers ; furthermore,
under the legislation, seasonal workers appear to be excluded;
Schedule to Chapter 218 of the Laws of Nigeria), Tanganyika
(Ordinance No. 48 of 1956, section 2—non-wage-earning
workers), Zanzibar (Decree No. 3 of 1941 as amended by
Decree No. 7 of 1942—agricultural workers).
30 Japan.
81 Guatemala, Nicaragua (see observations addressed to these
countries).
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CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
that workers employed for less than three years shall
have successfully followed a course of secondary study
for at least two years32; in certain cases, these provisions
affect only agricultural workers ; in other cases,
the provisions are of general application but, having
regard to the nature of the occupational distribution
of the population and of the often seasonal character
of agricultural employment, they result in fact in a
denial of all right to organise to such workers.
18. In certain countries, prohibition of certain
agricultural workers and independent workers from
establishing and joining trade unions is the result of a
combination of various legislative provisions or
regulations.33 In other cases, the exclusion of certain
workers results from the definition of the term
" worker " or from the fact that the undertakings in
which they are employed are excluded from the
scope of the legislation.34 Finally, in a few cases the
provisions in force result in the right to organise
being denied to certain workers ; those concerned may
be public officials35, workers employed in undertakings
in the public or semi-public sector38, or,
again, agricultural workers.37
Other Distinctions.
19. Distinctions based on sex. It would appear
from the information available that in nearly all the
States considered no distinction with regard to trade
union matters based on sex is established by legislation.
In certain cases, even, where restrictions might
result from provisions contained in the civil code,
legislation provides specifically that a married woman
may join a trade union without the authorisation of
38 Belgian Congo and Ruanda-Urundi (Ordinance No. 21-57,
section 1); as a transitional measure, it is provided that the
workers in question should have successfully completed the full
primary course.
33 Byelorussia, U.S.S.R. (see observations addressed to these
countries in 1958 with respect to the application of Convention
No. 11) and Ukraine.
34 Member States : Iran, El Salvador (agricultural workers
and domestic servants; Legislative Decree No. 353, 1951,
section 1), Turkey, Union of South Africa (agricultural workers
and domestic servants ; (Industrial Conciliation Act, section 2 (2)).
Non-metropolitan territories : United Kingdom : Fiji (Chapter 79
of the Laws of Fiji, section 8 (a); the Government has taken
measures to amend this provision), Mauritius (seasonal workers),
Southern Rhodesia (agricultural workers) ; United States :
Alaska (agricultural workers and domestic servants), Hawaii
(idem), Puerto Rico (idem), Virgin Islands (idem).
35 Member States : Chile (Labour Code, section 368), Cuba
(Decree No. 2605 of 7 November 1933), Dominican Republic
(Act No. 2059 of 22 July 1949), Ecuador (section 185g of the
Constitution), Guatemala (Decree of 29 February 1956,
section 9 (2)), Nicaragua (the Labour Code does not apply to
public officials), Portugal (Legislative Decree No. 23048), Spain
(Ordinance of 11 August 1953, section 1 infine), Turkey (Act
No. 5018 of 20 February 1947), United States (seven states).
In Iran (Act of 3 March 1946, section 1) and Italy (Legislative
Decree No. 205 of 24 April 1945), this prohibition applies only
to certain categories of officials. Non-metropolitan territories :
United Kingdom : Fiji (Chapter 79, Laws of Fiji, section 2),
Sarawak (Ordinance No. 10 of 1947, section 15) and it would
also appear to be the case in Southern Rhodesia.
36 Member States: Brazil (except in the case of industrial
organs; Labour Code, section 566), Chile (Labour Code,
section 368), Ecuador (except in the case of railwaymen;
article 185^ of the Constitution), Guatemala (Decree of 29 February
1956, section 9 (2), Peru (Legislative Decree No. 11377,
section 49). Non-metropolitan territories: United Kingdom:
Sarawak (Ordinance No. 10 of 1947, section 15), and it would
also appear to be the case in Southern Rhodesia.
" Chile (see observation addressed to this country in connection
with the application of Convention No. 11) ; Guatemala
(Labour Code, sections 235 to 239); Nicaragua (regulation
6 of the Regulations concerning Trade Unions).
her husband.38 In other cases, however, restrictions
result from limitations placed on the juridical capacity
of married women; thus, in two countries 39, women
may not join a trade union if their husbands object.
Moreover, the reports furnished by a number of
countries do not make it possible to ascertain with
certainty whether women in those countries enjoy
the same trade union rights as do employers and
workers of the male sex.
20. Distinctions based on nationality. In nearly all
the countries reports from which have been examined
it would appear that alien residents enjoy without
distinction the rights and guarantees prescribed by
the Conventions. In certain countries, nevertheless,
constitutional provisions relating to the right of
association, and more especially to the right to
organise, apply only to citizens of the country concerned.
40 However, in certain of these cases 41 the
governments concerned declare that aliens in fact
freely enjoy the right to organise. In one country 42
the national Constitution accords the right of association
to aliens on a reciprocal basis; in practice,
nevertheless, it would appear from the information
available that trade union organisations in that country
admit aliens to membership on condition that they
have resided there a certain time. In some cases
there are certain legal restrictions on the functions
which aliens may perform as members of trade
unions.43 In three countries 44, at least two-thirds of
the members of a trade union must be nationals of
the country concerned. In one country, legislation
accords the right to organise only to nationals.45
Finally, in four countries, the fact that the enjoyment
of the right to organise in trade unions, within the
limits assigned by national legislation and practice,
appears to be reserved exclusively to citizens, results
not only from constitutional provisions but also
from legislation.48
21. Distinctions based on race. Among the countries
whose reports have been examined it would
seem that, in almost all cases, there exists no distinction
based on race. In one country, however, different
legislation is applied respectively to Europeans and
non-Europeans, but it would seem that the legal
effect of these two different enactments is the same.47
88 Member States: France (Labour Code, Book III, section
5), Republic of Guinea (Act of 12 December 1952, section 7),
Morocco (Dahir No. 1-57-119 of 16 July 1957 respecting Occupational
Organisations, section 5). Non-metropolitan territories:
France: Algeria, French Guiana, Guadeloupe, Martinique,
Réunion (Labour Code, Book III, section 5), Cameroons,
Comoro Islands, French Equatorial Africa, French Polynesia,
French Somaliland, French West Africa, Madagascar, New
Caledonia, St. Pierre and Miquelon and Togoland (Labour
Code, 1952, section 7).
89 Canada (in one province: Quebec) and Viet-Nam.
40 Member States: Belgium, Denmark, Luxembourg, Portugal.
Non-metropolitan territories: Denmark: Faroe Islands,
Greenland.
41 Member States: Belgium, Denmark, Luxembourg. Nonmetropolitan
territories: Denmark: Faroe Islands, Greenland.
42 Italy.
48 This is the case of Gibraltar (United Kingdom) (Trade
Unions and Trade Disputes Act, Chapter 128 of the Laws of
Gibraltar, section 17).
41 Colombia (Labour Code, section 384), Honduras (Legislative
Decree No. 101 of 6 June 1955, section 8 (3)), Iran (Trade
Unions Regulations of 9 November 1955, regulation 17).
45 Peru.
46 Byelorussia (article 101 of the Constitution; section 151 of
the Labour Code), Ukraine (article 106 of the Constitution;
section 151 of the Labour Code), U.S.S.R. (article 126 of the
Constitution; Russian S.F.S.R., section 151 of the Labour Code).
" Indonesia.
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REPORT OF THE COMMITTEE OF EXPERTS
In another case 48, existing legislation is applicable
only to non-Natives ; the Government of that country
has indicated however that new legislation is being
prepared which will apply without distinction to all
workers. In certain cases, distinctions based on race
may, in fact, result indirectly from provisions relating
primarily to certain occupations or emplpyments or
requiring workers to have reached a certain level of
education.49 Further, in some cases, such distinctions,
although not prescribed by legislation, may result
from the clauses of collective agreements and from
trade union rules.50 Finally, in two cases 51, distinctions
based on race result from the fact that more
restrictive legislative provisions are applicable in the
case of Natives and coloured workers.
22. Distinctions based on political opinions. In this
respect it would appear that the legislation in most of
the countries reports from which have been examined
does not make any distinction. In certain cases even,
while the law prescribes that the founder members of
a trade union shall not have been convicted by a court
of law, it is also provided that such incapacity shall
not be occasioned by sentences in respect of political
offences (offences against the Press Laws, etc.).52 In
some countries 53, trade union legislation prescribes
certain disabilities with respect to persons who have
particular political opinions. Moreover, the criterion
of the political opinions of workers or employers,
although not expressly laid down in the trade union
legislation, also appears to be applied in a number
of countries; this is the case, for instance, where
registered organisations may not admit to membership
persons professing certain political opinions.54 A
similar situation would appear to result in certain
countries from constitutional and legislative provisions
which exclude adherence to any party other
than that which is in power.55
Distinctions Affecting Employers.
23. In almost all the countries reports from which
have been examined by the Committee, there exist
no distinctions affecting employers specifically. In
certain cases, nevertheless, in connection with employers,
the reports refer to the legislation relating to
the economic organisation of certain occupations,
chambers of commerce, chambers of industry, chambers
of agriculture, affiliation to which is obligatory in
certain cases for the persons carrying on the occupations
in question.56 It is however doubtful whether
48 Non-metropolitan territory: United Kingdom: Southern
Rhodesia. (However, the Government points out that workers
may not be refused employment because they are not union
members.)
48 See paragraph 17.
50 That is the reason why, in some countries—see paragraph 38
—the utilisation of union security clauses is subject to regulation.
61 Union of South Africa and South West Africa (Industrial
Wages and Conciliation Ordinance, 1952; the parts of this
Ordinance relating to trade unions apply only to non-Natives).
6S France (Labour Code, Book III, section 4), Algeria (ibid.),
French Guiana (ibid.), Guadeloupe (ibid.), Martinique (ibid.),
Réunion (ibid.).
53 This would seem to be the case in Chile (Labour Code,
section 365), the Dominican Republic (Act No. 1443, section 1),
Turkey (Penal Code, amended in 1951, sections 141 and 142)
and the Union of South Africa (Suppression of Communism
Act, No. 44 of 1950, section 5). In Iran members of" workers' "
trade unions must not have belonged to any political body or
party (Trade Union Regulations of 1955, regulation 2 (i)).
64 Philippines (Act No. 875, section 17 (d)).
ss Byelorussia (article 101 of the Constitution), Ukraine
(article 106 of the Constitution), U.S.S.R. (article 126 of the
Constitution).
68 Portugal (Legislative Decree No. 23049 of 23 September
1933); United Arab Republic (Egypt: Act No. 73 of 1947, as
amended, and Act No. 112 of 1954).
these economic organisations, constituted under thè
aegis of the State and often placed under its control
and which it is compulsory for the persons in question
to join, really correspond to trade union organisations
within the meaning of the Conventions under review.
The same question would appear to arise with respect
to organisations in other countries in which employers
may belong only to mixed organisations
which also admit workers.57
Distinctions Affecting Certain Individuals.
24. The reports of certain countries, referring to the
economic and social régime existing in such countries,
emphasise that as there are no employers who are
" private capitalist owners ", the directors of state
undertakings have no interests to defend and could
not, therefore, constitute trade unions within the
meaning ascribed to the term in the Conventions
under consideration.58 The Committee has devoted
particular attention to this question. It noted that
nothing in the text of the Conventions in question or
in the preparatory work which led to their adoption
would make it appear that the terms used in these
Conventions imply any reference whatsoever to the
mode of ownership of the undertakings (private
property or state property, etc.); furthermore it
would appear that nothing authorises the State to
decide for itself whether the individuals covered by
these Conventions have or do not have any interest
in establishing trade union organisations. Consequently
the Committee considers that in the States
which have ratified the Freedom of Association and
Protection of the Right to Organise Convention,
1948 (No. 87), all " workers and employers, without
distinction whatsoever ", including the directors of
undertakings belonging to the State, should be able
to enjoy the rights and guarantees laid down in the
Convention.
2. Rights and Guarantees Enjoyed by Individuals
25. According to the provisions of the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No. 87), the individuals concerned
(workers and employers) shall have (a) the right to
establish organisations in freedom 59, (b) the right to
choose freely the type of organisation which they
wish to establish, and (c) the right to join the organisation
of their own choosing in freedom, subject only
to the rules of the organisation concerned. Under
the provisions of Article 1 of the Right to Organise
and Collective Bargaining Convention, 1949 (No. 98),
workers shall enjoy adequate protection against acts
of anti-union discrimination in respect of their employment.
These different points will be examined
separately.
Free Establishment of Organisations.
26. According to Article 2 of the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No. 87), workers and employers
shall have the right to establish organisations " without
previous authorisation ". It is evident that the
principle of freedom of association might very often
remain a dead letter if employers and workers were
required to obtain any previous authorisation to
enable them to establish an organisation, be it
authorisation concerning the formation of the trade
" Portugal (in certain industries), Spain.
68 Byelorussia, Ukraine, U.S.S.R.
59 Article 2 of the Right of Association (Non-Metropolitan
Territories) Convention, 1947 (No. 84), provides that employers
and employed shall have the right to associate for all lawful
purposes.
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CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
union organisation itself, need to obtain discretionary
approval of the constitution or rules of the organisation,
or, again, authorisation for taking steps prior
to establishment of the organisation, as would be the
case, for instance, if any authorisation were required
in order to convene the general meeting to constitute
the organisation. Nevertheless, this naturally does
not mean that the founders of an organisation are
freed from the duty of observing formalities as to
publicity or other similar formalities which may be
prescribed in certain countries either generally in
respect of all associations, or specifically in respect
of trade unions. Indeed, according to Article 8,
paragraph 1, of the Convention, " workers and employers
. . . shall respect the law of the land ".
However, under the provisions of paragraph 2 of
Article 8 the law of the land shall not " be such
as to impair, nor shall it be so applied as to impair, the
guarantees provided for " in the Convention. Consequently,
the various formalities prescribed, even
though they may be of general application in respect
of all associations, must not be such as to be equivalent
in practice, so far as trade union organisations are
concerned, to previous authorisation, or as to constitute
such an obstacle to the establishment of an
organisation that they amount in practice to prohibition
pure and simple ; this would naturally be the case
if, for example, the meeting called to establish the trade
union were to be subject to any previous authorisation.
Moreover, Article 7 of the Convention relates expressly
to the acquisition of legal personality which, in some
countries, constitutes a substantive condition of the
existence and activities of organisations; according
to Article 7, the acquisition of legal personality by
workers' and employers' organisations " shall not
be made subject to conditions of such a character
as to restrict " the right of workers and employers to
establish occupational organisations in freedom.60
27. It appears from the information received that
in some countries the formalities prescribed by law
(deposit of constitution and rules, registration or
other measures of publicity) are compulsory; in
others, these formalities are optional. However, it
would seem that the compulsory or optional nature
of the formalities prescribed does not always provide
a sufficient criterion for determining whether there
is or is not a requirement of previous authorisation.
In fact, in some cases, although registration is compulsory,
the authority competent to effect the registration
does not have power to refuse it or, which
amounts to practically the same thing, can refuse
registration only because of a formal defect which it
is always possible to remedy; moreover, where refusal
is possible it may be appealed against to the courts.
In other cases, on the other hand, registration, while
being of an optional nature, may confer on the
registered organisation such rights (legal personality,
right to bargain collectively, immunity from prosecution
in respect of the offence of conspiracy or
other similar offences) that an organisation deprived
thereof might have great difficulties in " furthering
and defending the interests " of its members or even
be placed in practice in a position in which it would
be impossible for it to do so; it is clear that in such
cases, if the authority competent to effect the optional
registration has power to refuse this formality in its
discretion, the situation is not very different from that
in cases in which previous authorisation is required.
80 Article 2 of the Convention must also be considered bearing
in mind the provisions of Article 11, which obliges States that
have ratified this international instrument to " take all necessary
and appropriate measures to ensure that workers and employers
may exercise freely the right to organise ".
28. Even in the absence of any previous authorisation
properly so called—whether relating to the formalities
for constituting organisations or to the
meeting of the general constituent meeting—it would
appear that in some cases, and especially where public
officials and workers employed in public or semipublic
undertakings are concerned, a prohibition of
the establishment of an occupational organisation
capable of " furthering and defending the interests "
of its members may result from the " recognition " by
the government of another organisation. This is
clearly the case, for example, when the law itself
specifies the privileged organisation by name.61 It may
also be the case where the regulations relating to
" recognition " impose on the organisations of workers
concerned a form which may restrict their freedom
of action and does not lay down " objective " criteria
for the recognition, for a fixed period, of an organisation
for the purposes of " representation " or " negotiation
",62
29. It would appear from the information examined
that, having regard to the nature of the formalities
relating to the establishment of trade union
organisations, the different countries considered fall
into three groups:
— those in which any previous authorisation is
excluded ;
— those in which, in certain cases, the formalities
prescribed may be assimilated to a certain extent
to previous authorisation;
— finally, those in which the obtaining of previous
authorisation is required, whether this results
from a specific provision to that effect or from the
nature of the formalities prescribed, this authorisation
being given by the government itself or by
an independent authority or by a body to which
competence has been delegated by the State.
30. Exclusion of any previous authorisation. In the
majority of the countries in respect of which the
information examined was sufficiently detailed with
regard to this matter, it would seem that there exists
in fact no need to obtain previous authorisation in
order to be able to establish an organisation of
employers or workers. This is the case, particularly,
in countries in which the constitution of an organisation
is subject to no formality.63 It is also the case
in countries in which the formalities respecting
publicity or registration may not be the subject of a
refusal on the part of the authorities responsible
under the law for effecting such formalities.64 It is
the same, finally, in countries in which, although the
competent authorities may refuse registration, it
would not appear that such refusal (which may be
61 This is the case, for example, in Byelorussia (section 152
of the Labour Code) and in Poland (section 5 of the Act of
1 July 1949 respecting trade unions).
62 This is the case in respect of public officials in Mexico and
Pakistan (see observations addressed to these countries in 1958
with regard to Convention No. 87, in Report III (Part IV),
prepared for the 42nd Session of the Conference, pp. 55 and 56).
83 Member States: Belgium, Canada, Denmark (except for
public officials), Federal Republic of Germany, Iceland, Italy,
Luxembourg, Norway, Sweden, Switzerland, United Kingdom,
Uruguay. Non-metropolitan territories: Denmark: Faroe Islands.
Greenland; United Kingdom: Guernsey, Jersey, Isle of Man,
St. Helena; United States: American Samoa, Trust Territory
of Pacific Islands.
84 Member States: France, Republic of Guinea, Israel, Tunisia,
Turkey. Non-metropolitan territories: France: Algeria, Cameroons,
Comoro Islands, French Equatorial Africa, French
Guiana, French Polynesia, French Somaliland, French West
Africa, Guadeloupe, Madagascar, Martinique, New Caledonia,
Réunion, St. Pierre and Miquelon, Togoland.
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REPORT OF THE COMMITTEE OF EXPERTS
appealed against to the courts) may be based on
anything other than failure to observe certain formalities
which are not substantive in character.65
31. Previous authorisation in certain cases. This
situation arises in a number of countries in which the
authorities responsible for registration have more
extensive powers of exercising judgment and in which
registration, whether compulsory or nominally optional,
is in practice necessary to the organisation
which is being founded to enable it to achieve its
objects.66 This is the case, for example, when registration
may be refused on the ground of the existence
of another organisation in the occupation or area.67
As the Committee has already had occasion to
emphasise, such provisions, the usefulness of which
in countries in which the trade union movement is
still in its early stages may be arguable, involve a risk
of interference on the part of the authorities responsible
for effecting registration which does not appear
to be compatible with Article 3, paragraph 2, or with
Article 8, paragraph 2, of the Freedom of Association
and Protection of the Right to Organise Convention,
1948 (No. 87). In other countries, registration may be
refused on the ground of the presumed political
opinions of the leaders of the organisation.68 The
fact that in certain cases such refusal may be appealed
against to the courts naturally constitutes a guarantee
against an illegal or unfounded decision on the part
of the authorities responsible for effecting registration.
However, it would appear that when legislation makes
it possible, directly or indirectly, to exercise substantial
control in cases such as those referred to above, the
existence of a procedure of appeal to the courts does
65 Member States: Austria, Burma, Ceylon (except for public
officials), Colombia, Costa Rica, Cuba, Dominican Republic,
Ecuador, Finland, Greece, Honduras, India (except for public
officials and public services employees), Ireland, Japan, Mexico
(except for public officials), Pakistan (except for public officials),
Viet-Nam. Non-metropolitan territories: Italy: Trust Territory
of Somaliland; New Zealand: Cook Islands; United Kingdom:
Aden, Antigua, Bahamas, Barbados, Basutoland, Bechuanaland,
Bermuda, British Guiana, British Honduras, British Somaliland,
British Virgin Islands, Cyprus, Dominica, Falkland Islands,
Fiji, Gibraltar, Gilbert and Ellice Islands, Grenada, Jamaica
(however, in cases where registration is refused, an appeal may
only be made in certain cases), Malta, Montserrat, Nigeria
(however, registration may be refused if objections are raised
by third parties: Chapter 218 of the Laws of Nigeria, section 15
(d)), Northern Rhodesia, St. Christopher, St. Lucia, St. Vincent,
Seychelles, Solomon Islands, Southern Rhodesia, Swaziland,
Trinidad and Tobago, Zanzibar.
60 A special situation exists in Morocco, where section 1 of
the decree of 17 July 1957 makes it possible for the administration
to oppose the formation of an organisation within a certain
period. In two non-metropolitan territories of the United
Kingdom (Kenya and Uganda) a special situation also exists
by reason of the fact that, before obtaining registration, trade
unions may be required to undergo a probationary period,
during which they cannot enjoy all the privileges of trade unions.
67 Member States: Australia (Conciliation and Arbitration
Act, section 82), Iran, New Zealand (Conciliation and Arbitration
Act, 1954), Sudan (Trade Unions Act of 1957, section 11
(dj) and the Union of South Africa (Industrial Conciliation
Act, No. 28 of 1956, section 4). Non-metropolitan territories:
United Kingdom: Hong Kong (Ordinance No. 8 of 1948,
section 10), Kenya (Ordinance No. 23 of 1952, section 16 (d)),
North Borneo, Nyasaland (Chapter 120 of the Laws of Nyasaland,
section 10, as amended in 1957), Sarawak (Ordinance
No. 10 of 1947, as amended in 1948, section 10), Sierra Leone
(Chapter 242 of the Laws of Sierra Leone, section 13; in addition
there is no right of appeal if registration is refused, ibid.,
section 14), Southern Rhodesia (for non-Natives); Union of
South Africa: South West Africa (Wages and Industrial Conciliation
Act, 1952, section 20 (3) and (4)).
68 Philippines (Act No. 875, section 23 (b) (2); the Government
has however decided to propose that the legislation be
amended on this point) and United States (Labor-Management
Relations Act, 1947, section 9 (h)); a similar position appears
to exist in the following United States non-metropolitan territories:
Alaska, Hawaii, Puerto Rico and the Virgin Islands.
not appear to be a sufficient guarantee; in effect this
does not alter the nature of the powers conferred on
the authorities responsible for effecting registration,
and the judges hearing such an appeal—except in
certain cases 69—would only be able to ensure that
the legislation had been correctly applied. On the
other hand, in the absence of judicial supervision,
even when the authorities responsible for registration
have in principle only a procedural right of supervision,
abuses may occur70; this risk of abuse is still
greater if the authorities responsible for registration
have the right to refuse registration where there
already exists another trade union in the occupation,
etc., and are not subject to judicial supervision.71
Finally, in some cases the legislation contains provisions
which, in practice, may considerably hinder
or even render impossible the establishment of a trade
union. This may be the case, for instance, when
legislation requires that the members of a trade union,
or at least a certain proportion of them, shall be able
to read and write 72, or where the minimum number
of members of a trade union is fixed at obviously too
high a figure.73
32. Previous authorisation or equivalent formalities.
In a number of countries, registration by administrative
authorities is compulsory and the competent
authorities are endowed with very extensive powers,
either in granting or refusing registration, or in giving
their approval to the rules of organisations 74; in
certain cases there is the possibility of an appeal to
the courts. Nevertheless, here again, it would appear
that the existence of a judicial procedure permitting
of an appeal against refusal of registration cannot
alter the nature of the conditions prescribed by
legislation and which in fact are equivalent to previous
authorisation.
33. In a number of countries 75, a similar result
comes about by indirect means. Under the legislation
of these countries, applicable to common law associa-
89 Exceptions are in fact possible in cases in which a legislative
provision is held to be unconstitutional, either in proceedings
for a declaration to that effect or when the unconstitutionality
of the provision is raised by way of defence, and in cases in
which subsidiary legislation is held to be ultra vires in similar
circumstances.
'° This is the case in the following non-metropolitan territories:
United Kingdom: Brunei (Societies Act, section 6 (5)),
Singapore (Ordinance No. 3 of 1940, sections 16 and 17).
n This is the case in Hong Kong (Ordinance No. 8 of 1948,
sections 10 and 11).
72 See paragraph 17 above.
73 This is the case in respect of workers in the United Arab
Republic (Egypt), where a works union must have at least
50 founder members and other unions at least 200 founder
members (Legislative Decree No. 319 of 1952).
74 Member States: Bolivia (Decree of 19 May 1948), Brazil
(Labour Code, sections 517, 520 and 558), Chile (Labour Code,
Book III, Title I and Decree No. 1030 of 26 December 1949),
China (Trade Unions Act, 1947, sections 8 and 9), Guatemala
(Labour Code, section 217), Haiti (Act of 17 July 1947, as
amended by the Act of 22 February 1948, section 8), Iran
(Regulations of 9 November 1955, regulation 46), Federation
of Malaya (Trade Unions Enactment, 1940, section 14), Netherlands
(Act of 22 April 1855, as amended by Acts of 2 July 1934
and 13 May 1939), Nicaragua (Trade Unions Regulations of
1951, regulation 13), Peru (Decree of 23 March 1936, sections
118-119), Portugal (Legislative Decree No. 23050, section 8),
El Salvador (Decree No. 353, sections 9 to 12), United Arab
Republic (Egypt: in the case of employers: Act No. 112 of 1954).
Non-metropolitan territories: Netherlands: Surinam, Netherlands
New Guinea; United Kingdom: Solomon Islands (Trade Unions
and Trade Disputes Regulations, No. 1 of 1946), Tanganyika
(Ordinance No. 48 of 1956, section 13 (1) (c)).
70 Byelorussia (sections 152 and 153 of the Labour Code),
Poland (sections 5, 6, 9 and 10 of the Act of 1 July 1949 respecting
Trade Unions), Spain (Labour Charter, Chapter XIII),
Ukraine (sections 152 and 153 of the Labour Code), U.S.S.R.
(Russian S.F.S.R.: sections 152 and 153 of the Labour Code).
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CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
tions and providing for previous authorisation
(registration or approval of rules) by the administrative
authorities, only trade union organisations, or some
of them, are exempt from this administrative formality.
Nevertheless, in order to have a legal existence
and to be able to function, these organisations must be
registered with an inter-union organisation which
itself prescribes the cases in which it will grant or
refuse registration. In other words, it would appear
that in these countries the legislation gives to the
inter-union organisations76 (and in certain cases,
even, to one of such organisations designated by
name " ) the right to supervise the establishment of
any new primary organisation and, if it wishes, to
oppose the formation of such an organisation. The
fact that the legislation in question refers in some
cases in general terms to inter-union organisations and
in other cases to an organisation designated by name
does not alter the character and effect of this compulsory
formality; in effect, in all these cases the
individuals wishing to establish a trade union organisation
must, by virtue of legislation, obtain the previous
authorisation of an inter-union organisation and the
result is that the formation of a primary union
organisation independent of the inter-union organisations
already constituted is impossible. The effect of
such legislative provisions becomes all the more
apparent when it is observed that in each of the
countries in question there exists only a single higher
inter-union organisation which, in each case, has very
close ties with the political party in power.
34. Finally, it would appear that in a number of
countries the prior control of the State may be
exercised through the medium of legislation relating
to public and private meetings. In fact, in so far as
all meetings, including meetings of trade union
organisations, require previous authorisation by the
government or administrative authorities, the holding
of the general meeting to constitute a trade union—
that is, the formation of the organisation itself—
depends, in fact as well as in law, on the good will
of the competent authorities.78
Free Choice as to Type of Organisation To Be Established.
35. It would appear from the information available
that the absence of the need for previous authorisation
or of formalities which in practice are equivalent
to authorisation is a necessary condition for enabling
individuals to establish an organisation of their own
choosing; however, the absence of the need for
authorisation alone is not always sufficient. In the
majority of countries for which information is available,
the free choice of individuals in respect of the
organisation which they wish to establish does not
appear to be restricted by any legal rules.79 On the
"Ukraine (Labour Code, section 152), U.S.S.R. (Russian
S.F.S.R.: Labour Code, section 152).
"Byelorussia (Labour Code, section 152), Poland (Act of
1 July 1949 respecting trade unions, section 5), Spain (Labour
Charter, Chapter XIII).
78 Byelorussia (decree of 15 May 1935 respecting the procedure
for convening congresses (general assemblies, conferences and
meetings)), Spain (circular of the National Trade Unions
Office of 7 November 1951), Ukraine (the above-mentioned
decree of 15 May 1935), U.S.S.R. (the above-mentioned
decree of 15 May 1935).
70 Member States: Austria, Belgium, Canada (federal legislation),
Denmark (except for public officials), Finland, France,
Federal Republic of Germany, Republic of Guinea, Honduras,
Iceland, Ireland, Israel, Italy, Japan (except for public officials
and public services employees), Luxembourg, Mexico (except
for public officials), Norway, Pakistan (except for public
officials), Sweden, Switzerland, Tunisia, United Kingdom.
Non-metropolitan territories: Denmark: Faroe Islands (appaother
hand, in certain countries, the freedom of choice
of organisations which workers or employers may
establish is more or less limited, directly or indirectly,
by legislation. Thus, in one country 80, agricultural
workers may constitute only organisations each of
which is limited to one estate and the objects of which
are limited to purposes of mutual aid and welfare.
In another country 81, it is the choice of the employers
which appears to be limited by the legislation in force.
The free choice of the founders of an organisation
also appears to be limited in two countries82 by virtue
of provisions which define, in particular, the political
objects which the trade unions must pursue. It is
however, doubtful whether the organisations considered
83, which are of a mixed character because
they include both workers and employers, really
correspond to the occupational organisations covered
by the Convention. Moreover, in some countries 84,
the free choice of the organisation to be set up is
considerably limited by the provisions of national
legislation, which, as pointed out earlier, make it
compulsory for primary trade union organisations
to be registered by central federations of unions.
Right of Individuals to Adhere Freely to Organisations.
36. According to Article 2 of the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No. 87), workers and employers
shall have the right to join organisations of their own
choosing " subject only to the rules of the organisation
concerned ". It would appear from the discussions
prior to the adoption of the Convention, and especially
from the rejection by the Committee on Freedom of
Association of the Conference of an amendment
which would have accorded to workers and employers
the "right not to join"85, that Article 2 of the
Convention leaves it to the practice and regulations
of each State to decide whether it is appropriate to
guarantee the right of workers and employers not
to join an occupational organisation, or on the other
hand, to authorise and, where necessary, to regulate
the use of union security clauses and practice.
37. In a number of countries86, in accordance
with the traditional concepts of the right of association
rently with the exception of public officials), Greenland (idem);
France: all non-metropolitan territories; Italy: Trust Territory
of Somaliland; United Kingdom: Aden, Antigua, Bahamas,
Barbados, Basutoland, Bechuanaland, Bermuda, British Guiana,
British Honduras, British Somaliland, British Virgin Islands,
Cyprus, Dominica, Falkland Islands, Gibraltar, Gilbert and
Ellice Islands, Guernsey, Jamaica, Jersey, Malta, Isle of Man,
Mauritius, Montserrat, St. Christopher, St. Helena, St. Lucia,
St. Vincent, Seychelles, Trinidad and Tobago, Zanzibar.
80 Chile (see observations addressed to this country with
respect to the application of Convention No. 11).
81 United Arab Republic (Egypt)—see paragraph 23.
"Portugal (Decree No. 23050, sections 9, 11 and 15 (b)
and (e)) and Spain (Labour Charter, Chapter XIII).
83 Portugal (for certain industries), Spain.
84 Byelorussia (sections 152 and 153 of the Labour Code),
Spain (Act of 6 December 1940, section 5), Ukraine (sections 152
and 153 of the Labour Code), U.S.S.R. (Russian S.F.S.R.:
Labour Code, sections 152 and 153).
851.L.O. : Record of Proceedings, International Labour
Conference, 30th Session, Geneva, 1947 (Geneva, 1948), p. 571.
85 This is the case in the following countries. Member States:
Austria (Act of 5 April 1930), Belgium (Act of 24 May 1921,
section 1), Colombia (Labour Code, section 379), Costa Rica
(Labour Code, section 271), Cuba (Decree No. 2605, section III),
Dominican Republic (Labour Code, sections 306 and 307),
Ecuador (Constitution, article 185), France (Labour Code,
Book III and Act of 1956), Republic of Guinea (Act of 1956),
Luxembourg (Act of 11 May 1936, section 134), El Salvador
(Decree No. 353, section 23), Switzerland (Code of Obligations,
section 322tó). Non-metropolitan territories: France; Algeria
(Footnote continued overleaf)
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REPORT OF THE COMMITTEE OF EXPERTS
existing in those countries, the law guarantees to all
workers, and in some cases to all employers, the right
to refuse to adhere to a trade union organisation and
represses any constraint which may be exercised with
a view to causing any person to adhere to a given
organisation.
38. In a number of other countries, union security
clauses are traditionally inserted in collective agreements
or utilised in practice. In some of these countries
8', however, the utilisation of such clauses is
subject to certain conditions and, in particular, in
order that it shall be made possible for individuals
to " comply with " 88 the rules of the organisation
concerned, those rules must, under the regulations in
force, not contain any rules which are " oppressive
or discriminatory ". In other countries, on the other
hand, the State leaves employers and workers free
to negotiate union security clauses without interference.
89
39. A special situation is seen in one country
where the obligation to adhere to a trade union may
result not only from having a clause to that effect
inserted in a freely negotiated collective agreement;
the obligation, which is prescribed by law, may result
in the case of certain occupations from a binding
arbitration award. In this connection, the government
had indicated earlier in its report that certain provisions
relating to this system, the abrogation of which
would encounter opposition in the country as a whole,
are not " strictly in harmony " with the Convention.80
40. Finally, in certain countries, individuals may
be obliged by virtue of legislation to join a trade union
which they would not have chosen91, or be denied
any possibility of choice between different organisations
by reason of the fact that legislation provides
that only a single primary trade union organisation
may exist in each undertaking.92 As the Committee
has already emphasised, such provisions do not appear
to be compatible with the Conventions under review,
especially when they are applicable to public officials
and to workers employed in state undertakings.93
These provisions result in the establishment, by
legislation, of a trade union monopoly which must be
distinguished both from union security clauses and
practices and from objective criteria established by
regulations for determining the most representative
organisation which shall be recognised for the purposes
of collective bargaining during a given period, and
(Act of 1956), Cameroons (ibid.), Comoro Islands (ibid.),
French Equatorial Africa (ibid.), French Guiana (ibid.), French
Polynesia (ibid.), French Somaliland (ibid.), French West
Africa (ibid.), Guadeloupe (ibid.), Madagascar (ibid.), Martinique
(ibid.), New Caledonia (ibid.), Reunion (ibid.), St. Pierre
and Miquelon (ibid.), Togoland (ibid.). To a certain extent
a similar situation appears to exist in Southern Rhodesia
(United Kingdom).
87 This is the case, for example, in the following member
States: Australia (Conciliation and Arbitration Act, section 140),
Mexico, United States (Labor-Management Relations Act, 1947,
ecstion 8). A similar situation appears to exist in the following
United States non-metropolitan territories : Alaska, Hawaii,
Puerto Rico, Virgin Islands.
88 See Article 2 of the Convention.
88 Member States: Sweden, Union of South Africa, United
Kingdom. Non-metropolitan territories: this appears to be the
case in most of the United Kingdom non-metropolitan territories.
80 New Zealand.
81 Chile (Labour Code, Book III, Title II), Portugal (Legislative
Decree No. 23049 of 23 September 1933), Spain (Labour
Charter, Chapter XIII, section 2, and Act of 6 December 1940,
sections 1 and 17).
62 Byelorussia (sections 156 and 157 of the Labour Code),
Ukraine (ibid.), U.S.S.R. (Russian S.F.S.R.: ibid.).
83 Mexico (Statute for Workers in the Service of Authorities
of the Union, sections 47, 49, 50 and 60).
also from the factual situations in which primary trade
union organisations join together voluntarily in a
single federation or confederation.94
Protection against Acts of Anti-Union Discrimination
in Respect of Employment.
41. This protection is provided for in general terms
in Article 11 of the Freedom of Association and
Protection of the Right to Organise Convention, 1948
(No. 87). One aspect of this protection is defined in
Article 1 of the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), which provides
that workers shall enjoy adequate protection against
acts of anti-union discrimination in respect of their
employment. Finally, Article 3 of the same Convention
provides that appropriate machinery shall be established
" where necessary " for the purpose of ensuring
respect for the right to organise.95 As pointed out
earlier96, this Convention does not deal with the
position of public servants engaged in the administration
of the State97 ; it may, however, be queried to what
extent, in a country in which the rights and guarantees
laid down in the Freedom of Association and Protection
of the Right to Organise Convention, 1948
(No. 87), are fully and effectively respected in the case
of officials, the latter could really be subjected to acts
of anti-union discrimination in respect of their
employment.
42. The protection prescribed by the Right to
Organise and Collective Bargaining Convention, 1949
(No. 98), applies more particularly, in connection with
the engagement of a worker, to acts calculated to make
his employment subject to the condition that he shall
not join a union or shall relinquish trade union
membership. It also extends to acts calculated to
cause the dismissal of or otherwise prejudice a worker
by reason of his union membership or participation
in union activities.
43. According to the information available in
respect of the large majority of countries, the governments
consider that in one way or another workers
are protected against any acts of anti-union discrimination
in respect of their employment.
44. In a certain number of countries, it would
seem that the laws which are intended to protect
workers against such acts of anti-union discrimination
are of general scope and applicable both in connection
with engagement and in connection with dismissal.
This is the case, for example, in countries in which
the protection results from the application of general
principles of domestic law: in certain countries, indeed,
any infringement or attempted infringement of the
rights of others committed by any person either by
individuals or by officials in the exercise of their
functions, is punishable; in so far, therefore, as the
domestic law (including the Constitution) recognises
the right of association in trade unions, any act of
anti-union discrimination in respect of employment
would be punishable.98 In other countries, protection
84 See observation addressed to Mexico in 1958 (Report III
(Part IV), 1958, p. 56).
85 It would appear from the information available that in none
of the countries considered has it appeared necessary to set up
special machinery for this purpose; in most cases labour courts,
the ordinary law courts and conciliation and arbitration
agencies assume these functions.
86 See para. 11.
87 On the other hand, the Convention does apply to workers
employed in public or semi-public undertakings.
88 This would seem to be the case, for example, in Italy, in
Switzerland, and in a number of Latin American countries, and
in the following non-metropolitan territories of the United States :
American Samoa, Trust Territory of Pacific Islands.
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CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
in this respect is provided for by special legal provisions,
which prescribe penal sanctions or the award
of damages against those guilty of acts of anti-union
discrimination."
45. It would appear, nevertheless, from the
analysis of this information that, in certain countries,
the extent of the legal guarantees enjoyed by workers
against such measures of discrimination varies according
to whether the guarantee is considered as one to
be accorded in connection with engagement or as one
to be accorded against the dismissal of a worker. In
certain countries, legislation prohibits only measures
of discrimination on engagement and does not contain
any special provision protecting the worker against
arbitrary dismissal in this connection. This is the case,
for instance, in a fairly considerable number of countries
in which an employer is not bound to give
reasons for effecting a dismissal.100 On the other hand,
in some countries workers are protected against
measures of discrimination in connection with dismissal,
but legislation contains no measure of protection
in this connection applicable to engagement.101
46. The study of the information available also
affords a clear view of the different methods by which
the guarantees laid down in the Convention are ensured
to the workers. These methods vary considerably
according to the juridical techniques utilised for regulating
conditions of employment and, especially, contracts
of employment: intervention of the State through
laws or regulations, on the one hand, or predominance
of collective agreements, on the other. They also
vary according to the historical background of trade
union development in the different countries, the
present strength of the trade union organisations and
the experience of their leaders.
47. It is also clear from the information available
that none of the methods of protection utilised appears
to make it possible to ensure effectively a total and
absolute guarantee against acts of anti-union discrimination
: in fact, in cases in which protection is ensured
by legal provisions, it may often be difficult, if not
impossible, for a worker to furnish proof that an
employer has refused to engage him because of his
trade union membership; the same difficulty is encountered
in connection with dismissal, and especially
in cases in which an employer is not bound to give
reasons for a dismissal. That is the reason why, in
89 Member States: Austria, Belgium (Act of 24 May 1921),
Brazil (Penal Code, section 199 and Labour Code, section 543),
Byelorussia (Labour Code and Penal Code), Canada (Labour-
Management Relations Act, 1948, sections 4 and 5, and Criminal
Code, section 367), Colombia (Penal Code, section 309),
Costa Rica (Labour Code, section 271), France (Act of 1956),
Greece (Act No. 281 of 1914, section 23), Republic of Guinea
(Act of 1956), Iran (Labour Act, 1949, section 12), Japan (Trade
Union Law, No. 25 of 1946), Luxembourg (Act of 11 May
1936, section 4), Federation of Malaya (Employment Ordinance
1955, section 8), Nicaragua (Labour Code, section 190), Turkey
(Trade Unions Act, 1947, section 9 and Labour Code, section
13(4)), Ukraine (Labour Code and Penal Code), Union of South
Africa (Industrial Conciliation Act, 1956, section 78), U.S.S.R.
(Russian S.F.S.R.: Labour Code and Penal Code), United
States (Labor-Management Relations Act, 1947, section 80 (a))
Non-metropolitan territories: France: Algeria (Act of 1956),
Cameroons (ibid.), Comoro Islands (ibid.), French Equatorial
Africa (ibid.), French Guiana (ibid.), French Polynesia (ibid.),
French Somaliland (ibid.), French West Africa (ibid.),
Guadeloupe (ibid.), Madagascar (ibid.), Martinique (ibid.),
New Caledonia (ibid.), Réunion (ibid.), St. Pierre and Miquelon
(ibid.), Togoland (ibid.); United States: Alaska, Hawaii,
Puerto Rico, Virgin Islands.
100 This is the case, for instance, in Iran and Switzerland.
101 Australia, Ceylon, Haiti, India, Italy, Poland, Viet-Nam.
The same situation exists in fact in New Zealand in virtue of
union security clauses.
certain countries, legislation accords special and more
extensive protection to leaders of trade unions ; having
regard to the fact that it is these leaders above all who,
by reason of their activities, are likely to become
victims of acts of anti-union discrimination, the
legislation of these countries provides that the dismissal
of a trade union leader may take place only in certain
cases, which are strictly defined, and only with the
authorisation of a labour inspector or a judicial
authority.102
48. Even in countries in which protection against
acts of anti-union discrimination is ensured to a very
substantial degree, by the existence of powerful and
well-organised trade unions, cases would appear to
arise in which some employers refuse to employ
organised workers. It should be observed, however,
that in this case, and especially when there is no
underemployment in the country or where the number
of skilled workers is low, conditions of employment
in such undertakings necessarily follow the pattern
of those in undertakings which employ organised
workers; moreover, it would seem that very often
workers employed in these undertakings do not
themselves demand the right to organise; finally, it
would appear that, in these cases, the powerful and
well-organised trade unions which exist prefer to
tolerate these practices, which on the whole are
exceptional, rather than to accept any intervention
by the State.
B. RIGHTS AND GUARANTEES APPLICABLE TO PRIMARY
ORGANISATIONS
49. The rights and guarantees which shall be
enjoyed by organisations of workers and employers
are defined in Articles 3, 4, 5, 8, and 10 of the Freedom
of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), in Article 2 of the Right
to Organise and Collective Bargaining Convention,
1949 (No. 98), and in Article 3 of the Right of Association
(Non-Metropolitan Territories) Convention, 1947
(No. 84).
50. The different rights prescribed in the case of
trade union organisations may be enumerated as
follows: the right to draw up their constitutions and
rules, the right to elect their representatives in full
freedom, the right to organise their administration, the
right to organise their activities, including collective
bargaining and formulating their programmes, the
right to establish and join federations and confederations,
the right to affiliate with international organisations.
51. The guarantees prescribed are four in number:
organisations shall not be liable to be dissolved or
suspended by an administrative authority; they shall
enjoy adequate protection against any acts of interference
by each other; the public authorities shall
refrain from any interference which would restrict or
impede the lawful exercise of the rights of organisations;
finally, as organisations are naturally bound
" to respect the law of the land ", the same safeguard
as is prescribed in the case of employers and workers
as individuals is also applicable in the case of organisations
: the law of the land " shall not be such as to
102 Bulgaria (Labour Code, section 38), Greece (Act No. 1803
of 1951), Honduras (Trade Unions Act), Luxembourg (Order
of 8 May 1928 section 17), El Salvador (Legislative Decree
No. 353 of 1951, sections 36 and 39). The same situation exists
in Italy by virtue of the provisions of an agreement concluded
between the employers' and workers' confederations (lnterconfederational
Agreement of 8 May 1953).
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REPORT OF THE COMMITTEE OF EXPERTS
impair, nor shall it be so applied as to impair, the
guarantees provided for . . . ".
52. The information available with respect to each
of the rights and guarantees enumerated above will
be analysed in turn; this examination will naturally
be made having regard to the last two guarantees
mentioned, which, being of general application, could
not be the subject of entirely separate examination.
Drawing up of Constitutions and Rules.
53. In the majority of the countries considered, it
would seem that the relevant laws and regulations
contain no provisions calculated to infringe the right
of organisations to draw up their constitutions and
rules in freedom. Thus, in a fairly considerable number
of cases, legislation contains no special provisions
relating to the contents of constitutions and rules.103
In other cases, fairly numerous, the legislation simply
enumerates matters which must be dealt with in the
rules.104 Finally, in a number of countries, legislation
contains provisions which are frequently very detailed
but which, in general, are only of a formal character
and do not appear likely to infringe the rights of the
organisations 105: it would appear, even, that these
detailed requirements have in some cases the purpose
of preventing a situation arising at a later date in which
the trade unions would have to cope with complicated
legal problems which could arise as a result of constitutions
and rules being drawn up in insufficient
detail. Although, in the majority of cases, these
detailed, or even meticulously detailed, provisions do
not in themselves appear to place any obstacle in the
way of the free constitution of organisations, it may
nevertheless be doubted whether such an accumulation
of details is always necessary.
54. In certain other countries the right of organisations
to draw up their constitutions and rules in
freedom appears to be considerably restricted. This is
the case, for instance, in countries in which the legislation
provides that the rules of a primary trade union
organisation must necessarily be approved by a higher
inter-union organisation and be drafted in accordance
with directives issued by a central federation of trade
unions ; it follows that a primary trade union may not
draw up its rules in full freedom (Article 3 of the
Convention) since, in virtue of the law, the central
federations of trade unions to which affiliation is
compulsory determine the contents of these rules
themselves.106 This is also the case in certain other
103Member States: Belgium, Canada (federal legislation),
Denmark (except for officials), Federal Republic of Germany,
Ireland, Italy, Luxembourg, Norway, Sweden, United Kingdom,
Uruguay. Non-metropolitan territories: Belgium: Belgian Congo
and Ruanda-Urundi; United Kingdom: Isle of Man, St. Helena.
101 Member States: Austria, Ceylon, Finland, France, Republic
of Guinea, Iceland, Israel, Morocco, Pakistan, Sudan,
Tunisia, Viet-Nam. Non-metropolitan territories: France: all
non-metropolitan territories; Italy: Trust Territory of Somaliland;
New Zealand: Cook Islands; United Kingdom: Aden,
Antigua, Bahamas, Barbados, Basutoland, Bechuanaland,
Bermuda, British Guiana, British Honduras, British Somaliland,
British Virgin Islands, Brunei, Cyprus, Dominica, Gambia,
Gilbert and Ellice Islands, Grenada, Hong Kong, Jamaica,
Kenya, Malta, Mauritius, Montserrat, Nigeria, North Borneo,
Northern Rhodesia, Nyasaland, St. Christopher, St. Lucia,
St. Vincent, Sarawak, Seychelles, Sierra Leone, Singapore,
Solomon Islands, Southern Rhodesia, Tanganyika, Trinidad
and Tobago, Zanzibar.
ios Argentina, Bolivia, Colombia, Costa Rica, Cuba, Dominican
Republic, Ecuador, Guatemala, Honduras, Mexico.
106 Byelorussia (Labour Code, sections 152 and 153), Poland
(Act of 1 July 1949 respecting trade unions, sections 5, 6, 9 and
10), Spain (Labour Charter, Chapter XIII), Ukraine (Labour
Code, sections 152 and 153), U.S.S.R. (Russian S.F.S.R.:
ibid.).
countries in which it would appear that constitutions
and rules must be submitted for previous approval by
the authorities, whose power of decision does not
appear to be limited by any specific rules.107 In two
of these countries it would seem, even, that approval
can be given only if the constitutions and rules are in
accordance with the social policy of the government.108
Election of Representatives.
55. The analysis of the information available
shows that there are two principal categories of rules
applicable in the case of elections of representatives :
firstly, procedural rules prescribed by national legislation,
and secondly, rules defining the conditions as to
eligibility which persons must fulfil.
56. With regard to procedure, it would seem that,
in the large majority of the States in respect of which
information was available, no special rules exist.109 In
some countries in which such rules do exist, it would
seem that their particular purpose is to avoid any
dispute arising as to the result of the election; this
would seem to be the case for example in one country
where elections must be presided over by a judge.110
57. In other countries, on the other hand, the rules
of procedure do not appear to offer all the guarantees
prescribed by the Convention. This is the case, for
instance, where a labour inspector may (or must, as
the case may be) be present at elections m ; it is also
the case where the legislation provides that trade union
leaders may not be re-elected112, their maximum
period of office being fixed in certain cases at one year;
as the Committee has already pointed out, such
requirements do not appear to be compatible with
Article 3, paragraph 2, of the Convention, which
provides that the public authorities shall refrain from
any interference which would restrict the rights of
organisations or impede the lawful exercise thereof.
Finally, in some countries, the results of the elections
107 Chile (Decree No. 1030 of 26 December 1949), Colombia
(Labour Code, section 383), Ecuador (Labour Code, section
363), Iran (Regulations of 9 November 1955, regulation 15),
Nicaragua (Regulations of 1951 respecting trade unions,
regulations 12 and 13), Peru (Decree of 23 March 1936, section
118), Portugal (Decree No. 23050, section 8), Spain (Act of 6
December 1940, sections 5 and 11), United Arab Republic
(Egypt: in the case of employers' organisations).
ios Portugal and Spain.
109 This is the case for the following member States: Argentina,
Australia, Austria, Belgium, Burma, Canada (federal legislation),
Ceylon, Denmark, Finland, France, Federal Republic
of Germany, Republic of Guinea, Haiti, Honduras, Iceland,
India, Indonesia, Ireland, Israel, Italy, Luxembourg, Morocco,
Netherlands, Norway, Pakistan, Philippines, Sudan, Sweden,
Switzerland, Tunisia, Turkey, United Kingdom, United States,
Uruguay, Viet-Nam. Non-metropolitan territories: Denmark:
Faroe Islands, Greenland; France: all non-metropolitan territories;
Italy: Trust Territory of Somaliland; New Zealand:
Cook Islands; United Kingdom: Aden, Antigua, Bahamas,
Barbados, Basutoland, Bechuanaland, Bermuda, British Guiana,
British Honduras, British Somaliland, British Virgin Islands,
Brunei, Cyprus, Dominica, Falkland Islands, Fiji, Gambia,
Gibraltar, Gilbert and Ellice Islands, Grenada, Guernsey, Hong
Kong, Jamaica, Jersey, Kenya, Malta, Isle of Man, Montserrat,
Nigeria, North Borneo, Northern Rhodesia, Nyasaland,
St. Christopher, St. Helena, St. Lucia, St. Vincent, Seychelles,
Sierra Leone, Solomon Islands, Southern Rhodesia, Swaziland,
Trinidad and Tobago, Zanzibar; United States: Alaska, Guam,
Hawaii, Trust Territory of Pacific Islands, Puerto Rico, Virgin
Islands.
110 Greece (Act No. 148/1945).
111 Chile (Decree No. 1030, section 29), Cuba and Turkey.
112 Brazil (Labour Code, section 515), Nicaragua (Regulations
of 1959 respecting trade unions, regulation 35), El Salvador
(Decree No. 353 of 1951, section 14).
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CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
must be officially approved 113, and, in one country,
the higher trade union leaders are appointed by the
government.114
58. With regard to the qualifications with which
trade union leaders must comply in order to be eligible
it would seem that the laws and regulations of a large
number of the countries considered contain no specific
provisions115; in certain countries, however, there
exist certain restrictions. For example it is sometimes
provided that persons who have been convicted of a
crime are ineligible. However, in certain of these
cases it is provided that this rule shall not apply in
the case of sentences pronounced in respect of political
offences.
59. Restrictions, the exact scope of which it is
more difficult to appreciate, exist in certain countries :
this is the case, for example, where the legislation
establishes a disqualification based on nationality:
only nationals may be trade union officials 116; the
problem raised by a provision of this kind is fairly
complex and the Committee has already had occasion
to refer to it in its earlier reports.117 It may be admitted
that in certain cases a provision of this kind
cannot give rise to difficulty. However, everything
depends on the manner in which such clauses are
applied in practice. In effect, it is possible that, in
given circumstances, a provision of this kind might
in practice lead to a refusal to certain categories of
workers or employers of the right freely to elect their
representatives.
60. Even more marked restrictions exist in a
number of other countries. Especially, it would seem
that in most cases the distinctions mentioned in
paragraphs 16 to 24 above in respect of individuals to
whom the rights and guarantees prescribed by the
Convention should apply are also applicable in the
case of trade union leaders. It should nevertheless be
pointed out that in certain cases the distinctions based
on occupation and employment which are applicable
to members of trade union organisations are not
applicable to the leaders of such organisations: this is
the case, for instance, when it is provided that leaders
may be recruited from outside the occupation con-
11S Portugal (Decree No. 25116 of 12 March 1935). In
Nicaragua the Inspectorate General of Labour may order the
complete or partial dissolution of the executive committee of a
trade union when it considers that it does not carry out its
functions (Trade Unions Regulations, regulation 39).
114 Spain (Act of 6 December 1940, section 12).
115 Member States: Denmark, Federal Republic of Germany,
Iceland, Ireland, Israel, Norway, Pakistan (except as regards
public officials), Sweden, United Kingdom, Uruguay. Nonmetropolitan
territories: Denmark: Faroe Islands, Greenland;
United Kingdom: Aden, Antigua, Bahamas, Barbados, Basutoland,
Bechuanaland, Bermuda, British Guiana, British Honduras,
British Somaliland, British Virgin Islands, Brunei, Cyprus,
Dominica, Falkland Islands, Fiji, Gambia, Gilbert and Ellice
Islands, Grenada, Guernsey, Jamaica, Jersey, Malta, Isle of Man,
Montserrat, Northern Rhodesia, Southern Rhodesia, St. Christopher,
St. Helena, St. Lucia, St. Vincent, Seychelles, Sierra
Leone, Singapore, Solomon Islands, Swaziland, Trinidad and
Tobago.
116 Member States: Argentina, Brazil, Chile, Colombia, Costa
Rica, Cuba, Ecuador, Finland, France, Haiti, Honduras, Iran,
Mexico, Morocco, Nicaragua, Peru, El Salvador, Tunisia (there
is not an absolute prohibition, but the election of leaders of alien
nationality may be opposed by the Government), Viet-Nam.
Non-metropolitan territories: France: Algeria, Cameroons,
Comoro Islands, French Equatorial Africa, French Guiana,
French Polynesia, French Somaliland, French West Africa,
Guadeloupe, Madagascar, Martinique, New Caledonia, Réunion,
St. Pierre and Miquelon, Togoland; and to some extent,
United Kingdom: Gibraltar (Trade Union and Trade Disputes
Ordinance, section 17).
117 See Report III (Part IV), prepared for the 40th Session of
the Conference (Geneva, 1957), p. 168, para. 40.
cerned or where former members of a trade union who
no longer carry on the occupation in question may
continue to be members and leaders of trade unions 118
or, again, when the legislation simply prescribes the
proportion of the leaders who must belong to the
occupation concerned 119 ; in the case of the countries
in which this proportion is defined by national legislation,
the governments state that the provisions have
the essential purpose of preventing trade unions from
being used as tools by politicians.
61. On the other hand, it would seem that when
provisions in national legislation provide that all the
trade union leaders shall belong to the occupation in
respect of which the organisation carries on its
activities 1Z0, the guarantees laid down in the Convention
may be impaired. In fact, in such cases, the
dismissal of a worker who is a trade union leader may,
by reason of the fact that dismissal causes him to lose
his status as a trade union officer, infringe the freedom
of activity of the organisation and its right to elect
representatives in freedom, and may even leave the
way open for acts of interference by the employer.
62. Finally, in a few countries, certain persons may
also be removed from their functions as trade union
officers by reason of their political opinions. Whereas
in certain cases this exclusion relates only to persons
belonging to a particular political party m , in other
countries, on the contrary, it would seem that adherence
to any political party other than that which is in
power is necessarily excluded.122
Right of Organisations to Organise Their Administration
in Freedom.
63. It would appear that the legislation of a large
number of countries contains no special provisions
with respect to the manner in which organisations
shall ensure their own administration.123 In certain
countries, however, the legislation contains rules
providing, for example, for the holding of an annual
general meeting, the keeping of minutes of meetings,
the obligation to take decisions, or at least the most
important decisions, by secret ballot, the need for a
certain quorum of members for meetings in certain
118 See countries listed in footnote 22.
119 Federation of Malaya (two-thirds), India (one-half).
120 Member States: Brazil, Colombia, China, Cuba, Ecuador,
Haiti, Honduras, India (in respect of public officials), Iran,
Japan (in respect of public employees : National Public Service
Law, section 98, Local Public Service Law, section 52, Public
Corporations and National Enterprises Labour Relations Law,
section 4 (3), Local Public Enterprises Labour Relations Law,
sections 5 (3)), Pakistan, Peru, El Salvador, Viet-Nam. Nonmetropolitan
territories: United Kingdom: Hong Kong (Ordinance
No. 8 of 1948, section 13; however, in certain cases exceptions
may be authorised), Kenya (Trade Union Ordinance,
1952, section 29), Mauritius (Ordinance No. 36 of 1954, section
13), Nigeria (Chapter 218 of the Laws of Nigeria, Schedule),
North Borneo (Ordinance No. 28 of 1947, section 14 B),
Sarawak (Ordinance No. 10 of 1947, section 14 A), Tanganyika
(Ordinance No. 48 of 1956, section 25).
181 Chile (Act No. 5839 of 30 September 1948, section 36),
Philippines (Republic Act No. 875), Union of South Africa
(Suppression of Communism Act, 1954, section 5), United
States (Labor-Management Relations Act, 1947, section 9 (It)
and Suppression of Communism Act, 1954).
1SS Byelorussia (article 101 of the Constitution), Spain
(Labour Charter, Chapter XIII, section 14), Ukraine (Constitution,
article 106), U.S.S.R. (Constitution, article 126).
"* Member States: Austria, Belgium, Denmark, Finland,
France, Federal Republic of Germany, Republic of Guinea,
Haiti, Iceland, Ireland, Israel, Italy, Luxembourg, Morocco,
Norway, Sweden, Switzerland, Tunisia, United Kingdom,
Uruguay. Non-metropolitan territories: Denmark: Faroe
Islands, Greenland; France: all non-metropolitan territories;
Italy: Trust Territory of Somaliland; United Kingdom: Guernsey,
Jersey, Isle of Man, St. Helena.
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REPORT OF THE COMMITTEE OF EXPERTS
cases, the obligation to provide that certain prescribed
majorities shall be required for certain decisions and,
finally, the obligation to keep the accounts of the trade
union in accordance with certain rules, etc. Generally
speaking, it does not seem that such requirements can
infringe the rights and guarantees prescribed by the
Conventions when their application is left to the members
of the trade unions themselves, each member
having the right to require the committee to ensure the
application of the rules of the trade union and to
respect existing legislation; to this end, the legislation
of certain countries also provides that, on the petition
of a certain number of members of the trade union, a
question may be brought before the judicial
authorities.124
64. In a certain number of countries, however, the
application of legislative provisions relating to the
administration of trade unions is not left to the members
of the trade union but is the subject of external
supervision. Thus, trade unions may be obliged to
furnish to an official specially appointed for that
purpose reports showing that the administration has
actually been carried on in accordance with law
(summary of minutes, accounts, etc.). The analysis of
the legislative provisions in force does not always
make it possible to appreciate the real extent of such
supervision. It is clear that in so far as these measures
of supervision are utilised only in order to prevent
abuses and to protect the members of the trade union
themselves against mismanagement of their funds,
they may have a certain usefulness, especially in
countries in which the trade union movement is only
just beginning to develop. However, it would seem
that provisions of this kind may, in certain cases,
entail a danger of interference by the public authorities
in the administration of trade unions and that this
interference may be of such a nature as to restrict the
rights of organisations or impede the lawful exercise
thereof, contrary to Article 3, paragraph 2, of the
Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87). It may be
/ considered, nevertheless, that there is a certain
measure of guarantee against such interference where
the official appointed to exercise supervision enjoys
some degree of independence of the administrative
authorities and where he himself is subject to the
control of the judicial authorities.125 On the other
hand, it would seem that these guarantees do not
always exist where the supervision is exercised by the
Minister of Labour or by his services 126 or where no
judicial control exists.127
Right of Organisations to Organise Their Activities and
to Formulate Their Programmes.
65. In a large number of the countries considered,
it would seem that there is no limitation on the right
124 Greece.
125 This would seem to be the case in a considerable number
of non-metropolitan territories of the United Kingdom in
respect of the Registrar of Trade Unions, who is responsible for
effecting registration and for supervision of trade union organisations.
126 Brazil (Labour Code, section 550), Chile (Act No. 5839
of 30 September 1948, section 37, and Decree No. 1030 of
26 December 1949, Chapter IX), Colombia (Labour Code,
sections 353, 410 and 441), Costa Rica (Labour Code, section
275 (I)), United Arab Republic (Egypt), Iran (Regulations of
9 November 1955, regulations 28-30), Peru (Decree of 23
March 1936, section 122), Portugal, El Salvador (Legislative
Decree No. 353 of 1951, section 41), Turkey (Associations Act,
sections 28, 29, 31, 32).
127 Non-metropolitan territories: United Kingdom: Hong Kong
(Ordinance No. 8 of 1948, sections 23 and 24), Jamaica (Chapter
389 of the Laws of Jamaica, section 16).
of organisations to organise their activities and to
formulate their programmes in freedom.128 In these
countries workers' and employers' organisations are,
of course, obliged " to respect the law of the land ",
but it would seem that this common law rule is not
formulated in such a manner as to constitute a limitation
on the potential activities of organisations;
moreover, control over activities of organisations can
be effected only a posteriori and only by the judicial
authorities or under their control.
66. In certain countries organisations catering for
specific categories of workers are more limited, from
the point of view of their potential activities, than are
other organisations. Such limitations are comprehensible
in the case of public officials, whose conditions
of employment are dependent on a status which
leaves no possible scope for the negotiation of collective
agreements; the same is true of the limitations
imposed by public service regulations, legislation or
court decisions, according to which officials acting as
organs of the public power may not take part in
strikes.
67. In respect of workers other than public
officials, certain limitations may also be imposed by
national legislation in connection with the negotiation,
scope and contents of collective agreements. This
question will be treated in greater detail in Chapter II
of this Part of the present report.
68. The problem of the prohibition of strikes by
workers other than public officials acting in the name
of the public powers raises questions which are often
complex and delicate. It is certain that such a prohibition
may sometimes constitute a considerable restriction
of the potential activities of trade unions. That is
why, in certain countries, this prohibition which, in
some cases, is only temporary in character and
intended to ensure that all means of conciliation shall
first be exhausted 129, applies only to essential services;
it would seem, nevertheless, that while the concept of
" essential services " is extremely restricted in scope in
certain countries, in other countries it embraces a large
number of activities, sometimes including even
agriculture.130 In other countries compulsory conciliation
procedures which must have been exhausted
before a strike is called apply to all branches of
activity.131 Finally, in certain countries organisations
do not have the right to use the strike weapon; in
three countries, this prohibition applies only to certain
128 This appears to be the case in the following member
States: Austria, Belgium, Denmark, Finland, France, Federal
Republic of Germany, Iceland, Ireland, Israel, Italy, Japan,
Norway, Sweden, Switzerland, Tunisia, United Kingdom,
United States, Uruguay. Non-metropolitan territories: Denmark:
Faroe Islands, Greenland; France: all non-metropolitan territories;
New Zealand: Cook Islands; United Kingdom: Aden,
Antigua, Bahamas, Barbados, Basutoland, Bechuanaland,
Bermuda, British Guiana, British Somaliland, British Virgin
Islands, Cyprus, Dominica, Fiji, Gambia, Gibraltar, Gilbert and
Ellice Islands, Grenada, Guernsey, Hong Kong, Jamaica, Jersey,
Malta, Isle of Man, Mauritius, Montserrat, Northern Rhodesia,
Nyasaland, St. Christopher, St. Helena, St. Lucia, St. Vincent,
Solomon Islands, Seychelles, Sierra. Leone, Swaziland, Trinidad
and Tobago, Zanzibar; United States: Alaska, Guam, Hawaii,
Puerto Rico, Virgin Islands.
129 This is the case, for instance, in the following member
States: Canada (apparently), Italy, Japan. Non-metropolitan
territories: United Kingdom: the majority of the territories for
whose international relations this State is responsible.
130 This is the case, for example, in Brazil (Decree No. 5452
of 1943, sections 543 and 624; Decree No. 7038 of 1944; Decree
No. 9070 of 1946).
131 Greece, Iran, Luxembourg, Union of South Africa (except
for African workers), Viet-Nam. ,
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CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
workers 132; in three other countries it would seem to
apply to all workers.133 However this may be, there is
a possibility that this prohibition may run counter to
Article 8, paragraph 2, of the Freedom of Association
and Protection of the Right to Organise Convention,
1948 (No. 87), according to which " the law of the
land shall not be such as to impair, nor shall it be so
applied as to impair, the guarantees provided for " in
the Convention, and especially the freedom of action
of trade union organisations in defence of their
occupational interests; it is therefore necessary that,
in every case in which certain workers are prohibited
from striking, adequate guarantees should be accorded
to such workers in order fully to safeguard their
interests.134 This principle has been emphasised on
numerous occasions by the Governing Body of the
I.L.O. on the recommendation of its " Committee on
Freedom of Association ".
69. In a number of countries there exist provisions
relating specifically to occupational organisations and
prohibiting them in general terms from engaging in
any political activities.135 The extent of such a prohibition
is naturally very variable, according to how it is
applied in practice. In certain cases the governments
indicate 136 that the object of this prohibition is solely
to prevent trade unions from abandoning their
occupational role in order to transform themselves
into political parties and add that, in fact, the existing
trade unions have never been limited in their activities
by a provision of this kind. However, as the Committee
has had occasion to remark, such provisions,
of general scope and referring especially to trade
unions, may, by establishing a prohibition, a priori,
raise difficulties by reason of the fact that the interpretation
given to them in practice may change at
any moment and restrict considerably the possibility
of action of the organisations. In this connection,
the Committee thinks it useful to make reference to
the resolution adopted by the International Labour
Conference at its 35th Session (Geneva, 1952) in
which it is stated, among other things, that when
trade unions undertake or associate themselves with
political action, this action shall not be " of such a
nature as to compromise the continuance of the trade
union movement or its social or economic functions,
irrespective of political changes in the country ". It
would therefore seem that States should be able,
without prohibiting in general terms and a priori all
political activities by occupational organisations, to
entrust to the judicial authorities the task of repressing
abuses which might, in certain cases, be committed
by organisations which had lost sight of the fact that
their fundamental objective should be " the economic
and social advancement " of their members.
188 Brazil (Legislative Decree No. 9070 of 1952), Chile (Act
No. 8987 of 3 September 1947, section 2); Union of South
Africa, in the case of African workers (Act No. 48 of 1953, as
amended).
138 Portugal (Legislative Decree No. 23870), Spain (Labour
Charter, Chapter XI, 2), Turkey (Act No. 3008 of 1936).
184 See, for instance, I.L.O. : Official Bulletin, Vol. XL, 1957,
No. 2, 25th Report of the Governing Body Committee on
Freedom of Association, p. 124, para. 308, and p. 128, para. 319
(e).
136 Brazil (Labour Code, section 521), Colombia (Labour
Code, section 396), Costa Rica (Labour Code, section 280),
Cuba (Decree No. 2605 of 1933), Ecuador (Labour Code,
section 363 (8)), Honduras (Trade Union Act, section 2), Iran
(Regulations of 9 November 1955, regulation 14), Nicaragua
(Regulations concerning trade unions, regulation 4), El Salvador
(Legislative Decree No. 353 of 1951, section 23), Turkey
(Trade Unions Act of 1947, section 5), Viet-Nam (Trade Unions
Ordinance 1952, section 1).
186 This is the case, for instance, in respect of Cuba.
70. Finally, in some countries, although there do
not exist, properly speaking, provisions prohibiting
organisations from engaging in any political activity
whatsoever, this appears to result indirectly from
legislative or constitutional provisions which closely
associate the activities of occupational organisations
with those of the political party in power.137
71. It is also evident that, as the Governing Body
Committee on Freedom of Association has emphasised,
the degree of freedom enjoyed by occupational organisations
in determining and organising their activities
depends very largely upon certain legislative provisions
of general application relating to the right of
free meeting, the right of free expression and, in
general, to civil and political liberties enjoyed by the
inhabitants of the country. In this connection, the
information available has not enabled the Committee
always to assess very accurately the exact effect of
these general provisions on the possibilities of action
by organisations. It has, nevertheless, appeared to
the Committee that in a very large number of the
countries under review, if not in most of them, the
rules applicable in this connection do not appear to
be likely to impede the possibilities of action of the
organisations.138
Right of Federation and Confederation.
72. Under the terms of Article 5 of the Freedom
of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), workers' and employers'
organisations shall have the right to establish and
join federations and confederations. According to
Article 6 of the same Convention, the provisions of
Article 2, which define the rights of individuals,
workers and employers, are also applicable in the
case of primary organisations which desire to establish
a federation or a confederation.
73. Generally speaking, it would appear from the
information available that in the very large majority
of the countries under review the rules applicable to
the constitution of primary organisations are, mutatis
mutandis, applicable to the constitution of federations
and confederations. If reference is made to the
analysis made above139 on the basis of the information
available on the rules applicable to the establishment
of primary organisations by individuals, workers or
employers, it will be observed that in a large number
of countries the right to establish federations and
confederations is accorded to all primary trade union
organisations " without distinction whatsoever " ; that
the establishment of federations or confederations is
not subject to any " previous authorisation " ; that the
primary trade union organisations may freely choose
the inter-union organisation which they wish to establish;
finally, that the primary trade union organisations
187 Byelorussia (Constitution, article 101); Portugal (Decree
No. 23050, sections 9, 11 and 15); Spain (Labour Charter,
Chapter XIII); Ukraine (Constitution, article 106); U.S.S.R.
(Constitution, article 126).
138 See, however, para. 34.
139 See in particular paras. 11 if. However, in a number
of cases it would seem that the legislation makes no provision
for the registration of federations and confederations, whereas
this formality is necessary in the case of primary trade unions.
This is the case for example in the following United Kingdom
non-metropolitan territories: Aden, Basutoland, Bechuanaland,
British Guiana, British Honduras, British Somaliland,
British Virgin Islands, Brunei, Dominica, Falkland Islands, Fiji,
Gambia, Gilbert and Ellice Islands, Grenada, Jamaica, Malta,
Mauritius, Nigeria, Northern Rhodesia, Nyasaland, St. Lucia,
Seychelles, Sierra Leone, Solomon Islands, Southern Rhodesia,
Swaziland, Trinidad and Tobago, Zanzibar.
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REPORT OF THE COMMITTEE OF EXPERTS
may also choose freely the inter-union organisation
with which they wish to affiliate.
74. The same analysis reveals, on the other hand,
that in certain countries special distinctions are made
in respect of certain organisations, especially with
regard to public officials, workers employed in undertakings
in the public or semi-public sector, agricultural
workers 14°, workers belonging to certain
races m , and employers 142, and certain individuals.143
75. Similarly, in countries in which the formalities
relating to the establishment of primary organisations
may be assimilated to previous authorisation, these
formalities would also appear to be applicable to the
establishment of federations and confederations.144
In the countries in which the establishment of primary
organisations is subject to previous authorisation or
to formalities which are equivalent to it, the previous
authorisation is also necessary to enable a federation
or confederation to be established.145 The same is
true in those countries in which, as was indicated
earlier, the establishment of primary organisations
is subject to previous authorisation by inter-union
organisations. In these countries indeed, the fact
that only the trade union organisations registered
with the inter-union organisations can style themselves
trade unions and act as trade unions and the
fact that a primary trade union which might wish
to separate from the inter-union organisation to which
it belongs in order to establish a new trade union
organisation would naturally be deregistered by its
original inter-union organisation, which would terminate
its legal existence, make the establishment of
new federations or confederations impossible.146 In
certain cases this previous control by existing interunion
organisations is, as noted earlier, supplemented
by an administrative control, in view of the fact that
the convocation of any meeting is subject to previous
authorisation by the administrative authorities.147 It
would appear further that in one country in respect
of which, on the basis of the information available,
it has not been possible to establish whether the
primary trade union organisations are or are not
subject to previous authorisation, the formation of
federations or confederations is subject to previous
authorisation.148 Finally, in another country, the
establishment of federations and confederations by
trade unions is prohibited.149
76. According to the information available, it
would appear that in the countries in which individuals,
workers and employers, do not seem to be able to
choose freely the organisation which they wish to
establish, the primary trade union organisations also
do not possess any freedom of choice with respect
to the federation or confederation which they wish
to establish.160
140 See paras. 16, 17 and 18.
141 See para. 21.
112 See para. 23.
143 See para. 24.
144 See para. 31.
145 See para. 32.
140 See para. 33.
147 See para. 34.
148 Union of South Africa (Industrial Conciliation Act, No. 28
of 1951, section 80).
149 El Salvador (Decree No. 353 of 1951: Preamble). A
similar situation exists in Ceylon in respect of organisations of
public officials; the Government states in its report that it has
been decided to amend the Trade Unions Ordinance so as to
permit organisations of public officials to federate between
themselves.
160 See para. 35.
77. The same is true in respect of those countries
in which individuals may be obliged, by virtue of
legislation, to join a trade union which they have not
chosen or may be denied any possibility of choice of
membership as between different organisations: in
these countries the primary trade union organisations
also do not appear to be able to choose in freedom
the inter-union organisation to which they wish to
affiliate.151
Right of Organisations to Affiliate with international
Organisations.
78. The right of organisations to affiliate with
international organisations established by Article 5
of Convention No. 87 appears to be free from any
particular formality in almost all reporting countries.
152 However, it would seem that in certain
cases this right may be limited indirectly in countries
in which there is an absolute and general prohibition
of organisations from engaging in political activities
or when this prohibition results, as seen above, from
legislative or constitutional provisions which closely
associate organisations with the political party in
power.153 Moreover, it would seem that in countries
in which there exist limitations on the right of organisations
to establish or join federations or confederations,
the same rules are applicable with respect to affiliation
with international organisations: thus it is that, for
example, in countries in which a trade union may not
legally exist unless it is affiliated to a national interunion
organisation, the trade union could not freely
adhere to an international trade union organisation
without first obtaining the previous consent of its
original national inter-union organisation which, if it
were opposed to the affiliation, could terminate its
legal existence by cancelling its registration.154
Finally, it would seem that in certain countries the
affiliation of organisations with international organisations
is subject to previous authorisation155 or is
prohibited.156
Suspension and Dissolution of Organisations.
79. Article 4 of the Freedom of Association and
Protection of the Right to Organise Convention,
1948 (No. 87) provides that organisations shall not be
liable to be dissolved or suspended " by administrative
authority ". However, while it would appear from the
information available that the prohibition of the
dissolution or suspension of an organisation by
administrative authority is a necessary condition for
161 See para. 40.
152 This is the case in the following member States: Australia,
Austria, Belgium, Canada (federal legislation), Denmark,
Finland, France, Federal Republic of Germany, Republic of
Guinea, Honduras (adherence need only be notified), Iceland,
India, Ireland, Italy, Japan, Luxembourg, Mexico, Morocco,
New Zealand, Norway, Pakistan, Sweden, Switzerland, Tunisia,
United Kingdom, Uruguay. Non-metropolitan territories:
Denmark: Faroe Islands, Greenland; France: all non-metropolitan
territories; United Kingdom: St. Helena, where United
Kingdom legislation is applicable, mutatis mutandis, with certain
exceptions (see end of paragraph 78) it appears that in most of
the non-metropolitan territories of the United Kingdom there
are no legislative provisions prohibiting organisations from
adhering to international organisations.
"» See paras. 69 and 70.
154 See para. 33.
186 Member States: Brazil (Act No. 2802 of 18 June 1956);
Brunei (Ordinance No. 15 of 1951); China (Trade Union Law,
section 34); Turkey (Act of 1947, section 5). Non-metropolitan
territories: United Kingdom: Hong Kong (Ordinance No. 8 of
1948, section 14), North Borneo, Sarawak (Ordinance No. 7
of 1950, section 4).
is« Portugal (Legislative Decree No. 23050 of 23 Sep. 1933,
section 10).
- U6 -
CONCLUSIONS CONCERNING REPORTS RECEIVED
ensuring respect for freedom of association and
protection of the right to organise, this procedural
guarantee does not necessarily constitute an adequate
condition: in fact, according to the terms of Article 8,
paragraph 2, of the Freedom of Association and
Protection of the Right to Organise Convention,
1948 (No. 87), the law of the land " shall not be such
as to impair, nor shall it be so applied as to impair,
the guarantees provided f o r . . . ". Here again, therefore,
it would seem that the extent of the guarantees
against arbitrary suspension or dissolution enjoyed
by trade union organisations is liable to vary considerably
according to the extent of the freedoms
enjoyed in fact by the inhabitants of a country.
80. It would also seem from the information
available that, in some cases, the cancellation of the
registration of an organisation may have the same
results as does a suspension or even a dissolution.
Nevertheless, it is clear that the effect of such a measure
of cancellation of registration will vary according to
whether registration constituted or did not constitute
a formality necessary to enable the organisation to
achieve its objectives (see paragraphs 25 to 34) and
according to the grounds on which the decision may
be taken. For this reason, the information available
with respect to the cancellation of registration of
organisations will be examined at the same time as
that which relates to suspension and dissolution
properly so called.
81. Suspension of organisations. According to the
information available, suspension by administrative
authority appears to be impossible in nearly all the
countries considered.157 In some of these countries
the power of suspension is accorded to the judicial
authorities in cases in which organisations contravene
the national legislation which, itself, does not seem to
contain any provision which may infringe the guarantees
laid down in the Conventions. In other
countries, the suspension or cancellation of registration
of organisations may be ordered by an administrative
or quasi-administrative authority, but the
suspension may be the subject of an appeal to the
courts and the grounds on which such a decision may
be taken are not likely to infringe the rights and
guarantees enjoyed by organisations.158 In other
cases the order of suspension has no effect unless,
within a fairly brief period, it has been confirmed by
the judicial authorities 159, or unless a petition for
dissolution is brought immediately before the courts
of law.160 Finally, in certain cases, it would appear
that there exists a possibility of administrative suspension
for a more or less limited period.161
" ' This is the case in the following member States : Belgium,
Canada, France, Republic of Guinea, Ireland, Israel, Italy,
Luxembourg, Norway, Sweden, Tunisia, United Kingdom.
Non-metropolitan territories: France: all the non-metropolitan
territories; United Kingdom: Isle of Man, St. Helena.
168 Member States: Ceylon, India, Pakistan, Sudan. Nonmetropolitan
territories: Italy: Trust Territory of Somaliland
(Ordinance No. 2 of 1954, section 3, and Ordinance No. 5 of
1956, section 1); the majority of the territories of the United
Kingdom (it would appear that cancellation of registration does
not entail dissolution unless it is confirmed by the Supreme
Court or unless no appeal is lodged within the period prescribed).
It appears that the same situation exists in the Cook Islands
(New Zealand).
169 Cuba (Associations Act, 1888, section 12).
160 Member States: Austria (section 28, Act of 1951 ) ; Denmark
(Constitution, Article 78 (3)); Finland (Act of 1919, section 21);
Iceland (Article 73 of the Constitution). Non-metropolitan
territories: Denmark: Faroe Islands (section 78 of the Constitution),
Greenland (ibid.)).
1,1 Member States: Brazil (Labour Code, section 553); Haiti
(section 76, Act of 1947); New Zealand (Industrial Arbitration
and Conciliation Act, 1954). Non-metropolitan territories:
United Kingdom: Kenya (Ordinance No. 23 of 1952, section 17).
UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
82. Dissolution of organisations. In the majority
of the countries in respect of which information was
available, it would seem that dissolution can be
ordered only by the judicial authorities and the
grounds on which such a decision may be given,
according to the legislation in force, do not appear
likely to infringe the rights and guarantees accorded
by the Conventions to trade union organisations and
their members.162 Thus, in certain countries, the
dissolution of organisations results from cancellation
of their registration by the competent authority, but
it would seem that such a decision can be taken only
where the organisation contravenes trade union
legislation (which does not seem to contain any
provision likely to infringe the prescribed rights and
guarantees) or its own rules and that, further, the
decision to deregister can always be the subject of an
appeal to the courts.163 In certain cases, the dissolution
is preceded by an order of suspension made by the
competent administrative authorities, which results
in the case coming immediately before the judicial
authorities (or, alternatively, if the order is not
immediately referred to such authorities, it becomes
null and void) and it is for the judicial authorities to
decide whether or not there should be a dissolution;
in the event of a negative decision, the order of suspension
appears automatically to be terminated.164
83. In countries in which the founder members of
primary trade union organisations must obtain previous
authorisation or comply with equivalent formalities,
the authority responsible for effecting registration
or approving the rules may order dissolution.
165 Likewise, where primary trade union organisations
are obliged to register with higher inter-union
organisations, it would seem that it is these bodies
which, by cancelling the registration, terminate the
legal existence of the organisation.166 Here again, it
should be pointed out that in all the countries considered
there exists a single inter-union organisation
which, in each case, is very closely associated with the
political party in power. Finally, in a number of
countries, it would seem that dissolution can be
ordered by the administrative authorities or by the
government.167
Protection of Organisations against Acts of Interference
by Each Other.
84. According to Article 11 of the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No. 87), States shall "take all
necessary and appropriate measures to ensure that
182 This is the case in the following member States: Belgium,
Canada (federal legislation), Denmark, Finland, France,
Republic of Guinea, Iceland, Ireland, Italy, Luxembourg,
Norway, Sweden, Tunisia, United Kingdom, Uruguay. Nonmetropolitan
territories: Denmark: Faroe Islands, Greenland;
France: all non-metropolitan territories; United Kingdom:
Guernsey, Jersey, Isle of Man, St. Helena.
163 This is the case in the countries referred to in footnote 158
to para. 81, with the exception, as regards the non-metropolitan
territories of the United Kingdom, of Jamaica (where appeal
is not always possible (Chapter 382 of the Laws of Jamaica,
section 22)), Southern Rhodesia (idem, Act of 1945, section 18
(2)).
164 This is the case in the countries referred to in footnotes 159
and 160.
165 See para. 32.
166 See para. 33.
167 Member States: Byelorussia (Civil Code, section 18);
Portugal (Legislative Decree No. 23050, section 20); Ukraine
(Civil Code, section 18); Union of South Africa (in certain
cases—Industrial Conciliation Act 1956, sections 12 and 13);
U.S.S.R. (Russian S.F.S.R.: Civil Code, section 18). Nonmetropolitan
territories: United Kingdom: Brunei (Societies Act,
1948, section 9 (1)).
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REPORT OF THE COMMITTEE OF EXPERTS
workers and employers may exercise freely the right
to organise ". One aspect of this protection is defined
in Article 2 of the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), according to
the terms of which workers' and employers' organisations
shall enjoy adequate protection against any acts
of interference by each other or each other's agents
or members in their establishment, functioning or
administration. Paragraph 2 of this Article assimilates
to acts of interference the establishment of workers'
organisations dominated, controlled or supported by
financial or other means by an employer or an employers'
organisation. Finally, Article 3 of the same
Convention provides for the establishment " where
necessary " of machinery appropriate to national conditions
for the purpose of protecting organisations
against acts of interference.168 Here again, it should
be observed that according to Article 6 thereof, the
last mentioned Convention " does not deal with the
position of public servants engaged in the administration
of the State " ; but nevertheless it would appear
that any act of interference by the State with organisations
of oificials would, in fact, contravene the provisions
of Article 3, paragraph 2, of the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No. 87), which is applicable to
oificials and which provides that the public authorities
shall refrain from any interference which would
restrict the rights of organisations or impede the lawful
exercise thereof.
85. Although, in principle, the first paragraph of
Article 2 is intended to protect both employers'
organisations and workers' organisations, the information
available does not refer, in the majority of cases,
to the protection of employers' organisations against
acts of interference. In certain cases, nevertheless, the
generality of the terms employed in the reports suggests
that, as provided for in the Convention, all
occupational organisations—both of employers and of
workers—enjoy measures of protection prescribed by
the legislation. The information available in respect
of certain countries, on the other hand, refers directly
only to the protection of workers' organisations.
Finally, certain governments indicate in their reports
that no special protection for employers' organisations
exists.169
86. In a number of countries this protection
appears to be ensured by general or special legislative
provisions : principles of the law relating to incorporation
17°, penal code 171, legislation relating to freedom
of association 172, provisions to this effect included in
labour legislation or labour codes 173 (including texts
regulating the registration of organisations or collective
agreements, etc.).
188 See footnote 95.
168 This is the case, for instance, in respect of Canada (federal
legislation).
170 Greece, Italy, Switzerland, Turkey.
171 India.
172 Belgium, Finland, Japan, Turkey.
^Member States: Australia (federal legislation), Brazil,
Byelorussia, Canada (federal legislation), Colombia, Costa Rica,
Cuba, Finland, France, Federal Republic of Germany, Republic
of Guinea, Honduras, Japan, Nicaragua, Philippines, Turkey,
Ukraine, U.S.S.R., United States (federal legislation, and the
legislation of about one-half of the states). Non-metropolitan
territories: France: Algeria (Labour Code, Book I, section 31 (/)),
French Guiana (ibid.), Guadeloupe (ibid.), Martinique (ibid.),
Réunion (ibid.), Cameroons (Labour Code of 1952, section 73),
Comoro Islands (ibid.), French Equatorial Africa (ibid.),
French Polynesia (ibid.), French Somaliland (ibid.), French
West Africa (ibid.), Madagascar (ibid.), New Caledonia (ibid.),
St. Pierre and Miquelon (ibid.), Togoland (ibid.); United States:
Hawaii, Puerto Rico.
87. It is evident that in so far as the right to lodge
a complaint against acts of interference belongs to the
actual members of an organisation or to a certain
proportion of them as fixed by law, the measures of
control prescribed, for the most part entrusted to the
judicial authorities, do not appear to be of such a
nature as to infringe the freedom of action of the
organisations. This seems to be the case, for instance,
in countries in which protection against acts of interference
is ensured by application of the principles of
the law dealing with incorporation.
88. On the other hand, it would seem that the effect
of the supervisory measures prescribed is often difficult
to ascertain when, for instance, it is provided that
trade unions which do not offer sufficient guarantees
of their independence may be refused registration or
be deprived of the right to negotiate collective agreements.
The protection of trade union organisations
against acts of interference by each other through the
medium of administrative supervision may give rise
to the same difficulties as were indicated earlier in
connection with the supervision of the administration
of organisations.174 While such a tutelage on the part
of the State may be justified to some extent in countries
in which trade unions are just beginning to
develop, such measures should, it would seem, only
be transitional in character and should be abrogated
as soon as circumstances permit.
89. In a certain number of countries, it would seem
that there exist no legislative provisions for the
purpose of ensuring protection of organisations against
acts of interference by each other and that the guarantees
prescribed by the Convention are applied in
practice: certain governments indicate in this connection
in their reports that the strength and development
of the trade union organisations or the maturity of
the trade union leaders are sufficient to shelter these
organisations from any act of interference.175 In some
countries this factual situation is also enshrined in a
kind of contractual Charter which determines the
relations which shall exist between organisations of
employers, on the one hand, and organisations of
workers, on the other, and which, for many years, has
served as a basis for all collective negotiations.176
90. Finally, it would seem difficult to assess to
what extent acts of interference are possible—and in
what manner these acts of interference might manifest
themselves—in countries in which employers or
directors of undertakings belong to the same organisations
as the workers of the undertakings managed by
them.177
C. RIGHTS AND GUARANTEES OF HIGHER
ORGANISATIONS
91. According to Article 6 of the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No. 87), federations and confederations
shall enjoy the same rights and guarantees as
are prescribed in the Convention in the case of primary
organisations. It would appear from the information
available that in almost all the countries considered
174 See paras. 63 and 64.
175 Austria, Ghana, Israel, Federation of Malaya, Netherlands,
Tunisia, United Kingdom, Viet-Nam.
176 Denmark, Norway, Sweden. A similar situation appears
to exist in Morocco in virtue of compliance by organisations
with the recommendations of the Higher Collective Agreements
Council.
" ' Byelorussia, Portugal (for certain . industries), Spain,
Ukraine, U.S.S.R .. _ . . ' . ..
- 118 -
CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
the provisions applicable to primary organisations
also apply to federations and confederations.
92. If reference is made to the preceding analysis
it will be observed that in a large number of countries
federations and confederations may freely draw up
their constitutions and rules, elect their representatives,
organise their administration and activities, formulate
their programmes and affiliate with international
organisations. Further, it is to be noted that they are
not liable to be suspended or dissolved by administrative
authority and that they enjoy adequate
protection against acts of interference by other
organisations.
93. In a number of other countries, the restrictions
placed on primary organisations apply also to federations
and confederations. The result is that in certain
cases the rules of these inter-union organisations must
be the subject of approval178; that they may not for
various reasons choose certain persons as leaders as,
for example, by reason of the fact that they do not
belong to the occupation179 or by reason of the
political opinions of the persons concerned180; that
the administration of these inter-union organisations
is the subject of more or less strict supervision181;
that their activities and their means of action are more
or less restricted182; that they may be suspended or
dissolved by administrative authority183; finally, that
they may not freely adhere to international organisations.
184
94. Finally, in a few countries inter-union organisations
appear to be subject to stricter rules than are
the primary trade union organisations. Thus, in one
country, federations established by works unions or by
unions of agricultural workers may have only cultural
or welfare objects.185 In two countries federations and
confederations appear to be subjected to financial
control of a stricter nature than is applied to primary
organisations.186 In certain countries inter-union
organisations may not declare a strike or lockout.187
Finally, it would seem that in one country the competent
Minister may, in certain cases, cancel the registration
of federations or confederations, that is to say,
in effect, order their dissolution.188 It should also be
remembered that in one country trade union organisations
are prohibited from establishing federations and
confederations.189
Chapter n. Collective Bargaining and Collective Agreements
95. More or less detailed provisions regarding
collective bargaining and collective agreements may be
found in the Right to Organise and Collective Bargaining
Convention, 1949 (No. 98), in the Right of Association
(Non-Metropolitan Territories) Convention,
1947 (No. 84), and in the Collective Agreements
Recommendation, 1951 (No. 91). As already indicated
(see paragraph 11), the scope of these two Conventions
1,8 See para. 54.
178 See paras. 60 and 61.
180 See para. 62.
181 See para. 64.
182 See paras. 67,'68, 69 and 71.
1,3 See paras. 81 and 82.
181 See para. 78.
185 Chile.
188 Egypt and Turkey.
187 Colombia (section 434 of the Labour Code), Honduras
(Legislative Decree No. 101 of 6 June 1955, section 33).
188 Union of South Africa (Industrial Conciliation Act, No. 28
of 1956, section 80).
"• See para. 75. •>.•..'
does not extend to all the workers covered by the
Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87). As for the
Collective Agreements Recommendation, 1951
(No. 91), it contains no provision defining its scope
as regards workers. Nevertheless, this would not seem
to entail the impossibility for associations of certain
of these workers, e.g. public officials, to negotiate on
behalf of their members with a view to defending or
promoting their interests ; as already indicated, public
officials are free in many countries to establish associations
which represent them in their relations with the
administration.
96. The Right to Organise and Collective Bargaining
Convention, 1949 (No. 98), provides, in Article 4,
that measures appropriate to national conditions shall
be taken when necessary to encourage and promote
the full development and utilisation of machinery for
voluntary negotiation between employers or employers'
organisations and workers' organisations
with a view to the regulation of terms and conditions of
employment by means of collective agreements. The
Right of Association (Non-Metropolitan Territories)
Convention, 1947 (No. 84) provides, in Article 3, that
all practicable measures shall be taken to assure to
trade unions which are representative of the workers
concerned the right to conclude collective agreements
with employers or employers' organisations. It also
provides, in Articles 5, 6 and 7, that the procedures for
investigating and settling disputes must be as simple
and expeditious as possible and that representatives of
workers and employers must be associated in these
procedures. Moreover, in Article 4, it provides for
the consultation and association of representatives of
employers' and workers' organisations in the establishment
and application of provisions for ensuring
the protection of workers and the application of labour
legislation. As regards the Collective Agreements
Recommendation, 1951 (No. 91 ), it deals with collective
bargaining machinery, the definition of collective
agreements, their effects, extension and interpretation
and the supervision of their application, as well as
various other questions (publicity measures, etc.).
97. It appears from the information available, and
particularly from the information supplied on the
application of the Right of Association (Non-Metropolitan
Territories) Convention, 1947, that frequently
the procedure for the settlement of disputes, and even
sometimes the procedure for the investigation of
disputes, is generally established on a contractual basis
and merely constitutes one of the aspects of voluntary
collective bargaining machinery. Moreover, the
agreements concluded by parties in the course of, or
at the end of, a procedure for the settlement of a
collective labour dispute, are generally assimilated to
collective agreements concluded in accordance with
the normal procedure. It therefore seems to be
extremely difficult, if not impossible, to make a clear
distinction between machinery for drawing up collective
agreements on the one hand, and procedures for
the investigation and settlement of conflicts on the
other hand : these two types of procedures, which in
some countries are entirely separate, may both be considered
from the point of view of an international
comparative analysis as falling within the general
framework of collective bargaining machinery, in its
widest sense.190 Consequently, it appears that the
information available may be analysed by examining,
190 In view of the fact that the Committee has not been called
upon to examine the effect given to the Voluntary Conciliation
and Arbitration Recommendation, 1951 (No. 92), the present
general remarks relate more specifically to collective agreements.
. .V
~ W9 -
REPORT OF THE COMMITTEE OF EXPERTS
one after the other, the three following questions:
collective bargaining machinery, the scope and effect
of collective agreements and the application of such
agreements. Finally, as regards non-metropolitan
territories, it will be possible to examine the information
available regarding collaboration and consultation
with employers' and workers' organisations and their
association in the establishment and working of
provisions which are to ensure the protection of
workers and application of the labour legislation.
A. COLLECTIVE BARGAINING MACHINERY
98. Neither the two Conventions under consideration
nor the Recommendation specify exactly what
procedure should be adopted or followed in regard to
collective bargaining. Paragraph 1 of the Recommendation
provides that appropriate machinery should
be established, by means of agreement or legislation,
to negotiate, conclude, revise and renew collective
agreements or to assist the parties in such action. It is
appropriate, therefore, to examine first of all the
manner (contractual or legislative) in which collective
bargaining machinery is established and then the
nature of this machinery.
Manner in Which Machinery is Established.
99. As already noted by the Committee in 1956,
collective bargaining machinery may, in accordance
with the Recommendation, be established either by
means of agreements between the parties or by means
of legislation. This does not mean, of course, that
either of these methods should be adopted in any
country to the exclusion of the other, and the two
systems generally exist side by side. Consequently it is
not possible to draw a Une of division between the
countries where collective bargaining machinery is set
up by agreement between the parties, and those where
it is established by law. Nevertheless, the various
countries may be classified, grosso modo, in three
groups: those in which the contractual system predominates;
those where both the contractual and the
legislative system exist or supplement one another;
and finally those in which collective bargaining
machinery is generally established by legislative
measures.
100. Predominantly contractual system. A typical
example of the contractual procedure for negotiating
collective agreements may be found in a country where
the organisations of employers and workers have
themselves established a network of joint committees
and similar bodies on a local, regional and national
level and where special importance is attached to those
clauses of collective agreements which relate to
collective bargaining machinery.191 In a certain
number of other countries where parties have adopted
a different method of obtaining similar results, the
point of departure is a national or basic agreement by
which the central employers' and workers' organisations
determine the principles to be followed in
collective bargaining, which principles are subsequently
embodied in collective agreements.192 Predominantly
contractual procedures for the establish-
191 United Kingdom. A similar tendency may be found in a
certain number of non-metropolitan territories for whose
international relations the United Kingdom is responsible:
according to information supplied in reports, the officials of the
local labour departments make every effort to encourage
employers and workers to establish collective bargaining
machinery by means of collective agreements.
182 Denmark (Agreement of September 1899 and General
Rules of 21 December 1956), Norway (National Agreement of
1935), Sweden (Basic Agreement of 1938).
ment of collective bargaining machinery, with official
machinery playing a very minor role and with legislation
generally limited to providing a legal framework
for collective agreements, are to be found in a certain
number of other countries.193
101. Mixed procedures. In most countries contractual
collective bargaining machinery is to be found
side by side with machinery established by legislation.
The importance of the two types of machinery varies
considerably in the countries in question. As a rule
it seems that the object of the relevant legislative
provisions is invariably to promote free joint negotiation
between employers and workers or their representatives,
and these legislative measures do not preclude
the conclusion of agreements negotiated directly
by the parties without recourse to the official machinery,
nor the establishment of collective bargaining
machinery through collective agreements. In general
the object of all such machinery established by law is
either to assist the parties in negotiations or to help
them establish for themselves collective bargaining
machinery. Moreover, in certain cases it appears that
the standard-setting provisions merely give legal
recognition to existing machinery. Nevertheless it
would seem that a distinction may be made between
three principal types of machinery.
102. In a certain number of countries there does
not appear to be any permanent collective bargaining
machinery established by law. The national legislation
merely provides that the government or the competent
administrative services may set up machinery to assist
the workers and employers in their negotiation, when
necessary.194
103. In other countries the legislation provides
for the setting up of joint committees or councils in
all or most occupations and the collective agreements
concluded within the framework of this machinery
cover the majority of workers.195
104. Finally, in some countries in addition to the
contractual machinery it would seem that employers'
and workers' organisations may have recourse to
legally established machinery, provided that they have
first been registered. Although certain privileges may
thus be obtained (in particular the possibility of
obtaining the sole right to represent the workers in
question), this procedure also entails certain restrictions
since registered organisations must renounce
the right to having recourse to strikes or lockouts as
a method of action.196
193 For example Federal Republic of Germany, India, Ireland,
Pakistan, Switzerland, United States.
191 This is the case for example in the following member
States: France (Labour Code, Book I, section 31 (f)), Republic
of Guinea (Act of 1952, section 73), Honduras (Legislative
Decree of 14 March 1955 section 3), India (Bombay, Industrial
Relations Act, 1946), Ireland (Industrial Relations Act, 1946,
Parts IV and V), Japan (Law No. 174 of 1949, sections 20 et
seq.), Morocco (Dahir of 17 April 1957, sections 20 and 22),
Philippines (Act of 17 June 1953, sections 20 et seq.), Viet-Nam
(Labour Code of 1956, section 77); and in the following nonmetropolitan
territories: France: Algeria (Labour Code, Book I,
section 31 (/)); French Guiana (ibid.), Guadeloupe (ibid.),
Martinique (ibid.), Réunion (ibid.), Cameroons (Labour Code
of 1952, section 73), Comoro Islands (ibid.), French Equatorial
Africa (ibid.), French Polynesia (ibid.), French Somaliland
(ibid.), French West Africa (ibid.), Madagascar (ibid.), New
Caledonia (ibid.), St. Pierre and Miquelon (ibid.), Togoland
(ibid.).
195 For example Belgium (Legislative Decree of 9 June 1945),
Luxembourg (Grand Ducal Order of 6 November 1945),
Netherlands (Decree of 5 October 1945), Union of South
Africa (Act No. 36 of 1937, sections 18 et seq. (respecting non-
Natives only)).
196 For example Australia and New Zealand (Industrial Conciliation
and Arbitration Act, 1954).
120 —
CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
105. Predominantly legislative procedures. In a
certain number of countries where the authorities
wished to encourage employers' and workers' organisations
to fix working conditions and wages by means
of collective agreements, a legislative framework was
established for this purpose by the enactment of
detailed provisions regarding collective bargaining,
grievance procedure, the effect of agreements, etc.107
106. Finally, in certain other countries the legislation
provides for the conclusion of collective agreements
through which the full and concrete application
of legislative standards is to be ensured.198
Methods Utilised.
107. In countries where collective bargaining
machinery is predominantly established on a contractual
basis, collective agreements establish certain
procedural rules (time limits, periods of notice, etc.),
and also provide for the setting up of joint negotiation
committees. Moreover, in some of these countries
collective agreements sometimes include provisions
for the protection of the trade union (closed shop,
union shop, etc.).199
108. In countries where there are mixed procedures
the legislation also sometimes prescribes procedural
rules, the establishment of joint committees,
which may be permanent or not, and in some cases
provides for the assistance of officials from the labour
department, etc.
109. As part of the measures to assist parties to
collective agreements and help them in the conclusion
of collective agreements, the national legislation of
some countries prescribes rules regarding the representative
bargaining agent which is to negotiate in the
name of all the workers. In some cases the representative
character of several organisations may be
recognised.200 In other cases the legislation provides
specifically that only one organisation may be recognised
for the purpose of concluding collective agreements
for a given industry or region.201 The decision
regarding the recognition of an organisation is sometimes
general in scope (regional or industrial level),
and sometimes is limited to a specified undertaking,
plant or part of an undertaking. Finally, in some
countries the legislation provides that only one trade
union may represent the workers in each undertaking
but establishes no rule regarding the manner in which
the organisation in question is to be selected202,
probably in view of the fact that all the other trade
unions must be affiliated to an all-union organisation
and because of the fact that there is only one all-union
organisation in each of these countries.
110. It should be stressed that collective bargaining
machinery established—either contractually or in
virtue of legislation—for the purpose of concluding
1,7 This would appear to be the case in many countries of
Latin America.
108 This is the case, in particular, in Byelorussia, Ukraine and
the U.S.S.R.
198 In particular see para. 38.
200 This is the case for example in France (Labour Code,
Book I, section 31 (e)) and in all non-metropolitan territories of
France (Labour Code of 1952, section 73).
201 This is the case for example in Canada (Industrial Relations
and Industrial Disputes Act, 1948, sections 7 et seq.),
the United States (Labor-Management Relations Act, 1947,
section 10 (9)), Mexico (Labour Code, 1931, section 43), New
Zealand (Industrial Conciliation and Arbitration Act, 1954,
sections 60 et seq.).
202 This is the case for example in Byelorussia (Labour Code,
section 157), Ukraine (Labour Code, section 157) and the
U.S.S.R. (Labour Code, section 157). .
collective agreements, may also, in practice, serve as
conciliation machinery in many countries. Conversely,
in many cases the conciliation bodies set up by law
are required, in particular, to assist parties who have
reached a deadlock in the course of negotiations
regarding collective agreements 203; in other countries
the competence of the conciliation services extends to
all types of disputes and particularly to disputes arising
in the course of bargaining.204
B. SCOPE AND EFFECT OF COLLECTIVE AGREEMENTS
111. The Collective Agreements Recommendation,
1951 (No. 91) contains, in Part II, a definition of
collective agreements; in Parts III and IV, provisions
regarding the effects of collective agreements; and in
Part V, provisions regarding the extension of collective
agreements. The analysis of the information available
will be made with reference to each of these points.
Definition of Collective Agreements.
112. The Recommendation defines collective agreements
as agreements in writing relating to working
conditions and terms of employment concluded
between employers, or 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,
workers' representatives on the other hand.
113. In most of the countries in question the definition
given by the national legislation is in conformity
with that established by the Recommendation; in
countries where the expression is not defined by any
legislative text, the collective agreements which are
concluded in practice between employers' and workers'
organisations correspond with the definition given
by the Recommendation. Nevertheless, certain divergencies
exist in some countries: these divergencies
relate in some cases to the persons or organisations
which may be parties to a collective agreement and in
others to the contents of collective agreements.
114. The parties to collective agreements. As
regards workers, the most common difference is due
to legislative provisions in virtue of which workers'
representatives, as opposed to workers' organisations,
are not entitled to conclude collective agreements.205
This implicit exclusion of the possibility for workers'
representatives to conclude collective agreements may
doubtless be explained in countries where these
203 This is the case for example in Greece (Act No. 3239 of
1955, section 9), Haiti (Act of 23 October 1947), Ireland (Industrial
Relations Act, 1946, Parts IV and V), Israel (Settlement of
Labour Disputes Act, 1957), United Kingdom (Conciliation
Act, 1956).
204 This is the case for example in Brazil (Labour Code,
section 650), Finland (Act No. 570 of 1946), United Arab
Republic (Egypt) (Legislative Decree No. 318 of 1952).
206 This is the case for example in the following member
States: Costa Rica (Labour Code of 1943, section 54), Dominican
Republic (Labour Code of 1943, section 92), France (Labour
Code, Book I, section 31 (a)), Republic of Guinea (Labour
Code 1952, section 68), Indonesia (Act No. 21 of 1954, section 1),
Japan (Law No. 174 of 1949, section 14), Mexico (Labour Code
of 1931, section 42), Nicaragua (Labour Code of 1945, section
22), Thailand (Act of 1 November 1949, section 112), United
Arab Republic (Egypt) (Act No. 97 of 1950, section 1), Viet-Nam
(Labour Code of 1956, section 70); and in a number of nonmetropolitan
territories: France: Algeria (Labour Code, Book I,
section 31 (a)), French Guiana (ibid.), Guadeloupe (ibid.),
Martinique (ibid.), Réunion (ibid.); Cameroons (Labour Code
of 1952, section 68), Comoro Islands (ibid.), French Equatorial
Africa (ibid.), French Polynesia (ibid.), French Somaliland
(ibid.), French West Africa (ibid.), Madagascar (ibid.), New
Caledonia (ibid.), St. Pierre and Miquelon (ibid.), Togoland
(ibid.).
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REPORT OF THE COMMITTEE OF EXPERTS
matters are regulated by statute law, by the need to
define collective agreements otherwise than individual
contracts and, in certain cases, by the prohibition of
concluding contracts on behalf of other persons ; this
exclusion has certain disadvantages in countries where
the trade union organisations have not yet reached a
sufficient degree of development: in the first place the
conclusion of collective agreements is rendered
impossible, and in the second place it may be felt that
in the absence of trade unions the fact that some
workers should be chosen by their fellow workers as
their representatives in collective bargaining should
facilitate the setting up of trade unions. However,
the importance of these factors should not be exaggerated
: in countries where the legislation contains no
provisions restricting the rights and guarantees
necessary to ensure freedom of association, there may
be a tendency towards a proliferation in the number
of trade unions.206
115. As regards employers, a difference may exist
either because the legislation makes no provision for
the conclusion of collective agreements by an individual
employer 207 or because there are no employers'
organisations in the countries concerned which, as
indicated above, may be due to legislative provisions.208
Finally, special reference should be made to a case
where collective agreements are concluded on behalf
of employers and workers by their respective representatives
within the one organisation.209
116. Contents of collective agreements. The information
available shows that in a considerable
number of countries no legislative provision exists to
restrict in any way the right of the contracting parties
to insert in collective agreements any question of
mutual interest which they wish to settle by this
procedure.210 However in a certain number of countries
the legislation establishes to some extent the
minimum contents of collective agreements by providing,
for example, that they should include clauses
on a certain subject such as wages, dismissal, grievance
procedure or questions of form; however such
enumeration is not exclusive.211 In practice considerable
variety is to be found in the contents of
collective agreements which may set out detailed rules
covering all matters respecting working conditions and
labour relations in a given industry or trade or which
may be limited to a single problem such as holidays
with pay; these two extreme types of collective agreements
frequently exist side by side in a single country.
208 See in this connection more particularly I.L.O. : Record of
Proceedings, Fourth Asian Regional Conference, New Delhi,
November 1957 (Geneva, 1958), Appendix VI: Report of the
Committee on Labour-Management Relations; and idem:
African Labour Survey, (Geneva, 1958), Ch. VII.
207 Austria (Act of 26 February 1947, section 2), Brazil
(Labour Code, section 611).
203 This is the case for example in Byelorussia, Ukraine and
the U.S.S.R. (see para. 24).
209 Spain (Act of 28 April 1958, section 6).
210 This is the case for example in Sweden, the United Kingdom
and the United States.
211 This is the case for example in the following member
States: Brazil (Labour Code of 1943, section 619), France—as
regards collective agreements which may be extended (Labour
Code, Book I, section 31 (c) and (g)), Republic of Guinea (Act
of 12 December 1952, sections 70 and 74), Tunisia (Decree of
5 November 1949, section 16); and in the following non-metropolitan
territories: France: Algeria (Labour Code, Book I, section
31 (c) and (g)), French Guiana (ibid.), Guadeloupe (ibid.),
Martinique (ibid.), Réunion (ibid.); Cameroons (Labour Code
of 1952, sections 70 and 74), Comoro Islands (ibid.), French
Equatorial Africa (ibid.), French Polynesia (ibid.), French
Somaliland (ibid.), French West Africa (ibid.), Madagascar
(ibid.), New Caledonia (ibid.), St. Pierre and Miquelon (ibid.),
Togoland (ibid.).
117. It also appears from the information available
that, even if this is not specifically prescribed by law,
collective agreements may not contain clauses which
are unlawful or which are contrary to legislative
provisions of a public nature (dispositions d'ordre
public).212 There are also frequent cases in which
collective agreements may not fix wage rates lower
than the minimum rates established by some other
method.213
118. In certain countries legislation restricts to a
certain extent the right of parties to determine the
contents of collective agreements. Thus in one country
the competent minister may withhold his approval of
a collective agreement if it is contrary to the government's
economic or social policy214; in another
country collective agreements may not contain any
clause conflicting with the State's economic policy and
the terms of the agreements are drafted by a public
service 215; in yet other countries collective agreements
may not include clauses which are seriously prejudicial
to the national economy216; in another country the
wage rates set out in collective agreements may not
be lower than a minimum, nor higher than a maximum
determined by a national board 2"; finally, in a certain
number of countries, collective agreements may not
include clauses respecting wage rates, these being
fixed by the economic plan, but they must on the
other hand contain provisions respecting the individual
and collective standards of production so as to ensure
that the objectives fixed by the economic plan shall be
attained or even exceeded.218
Effects of Collective Agreements.
119. Part III of the Recommendation indicates
how the principle of non-derogation from collective
agreements should be applied, describing the effect of
a collective agreement on individual contracts and the
extent to which clauses differing from those of a
collective agreement may be maintained in contracts.
It is therefore appropriate to examine successively:
the binding effect of collective agreements as regards
the parties ; the binding effect of collective agreements
as regards workers who are not members of the trade
union having concluded the agreement; and finally,
the effect of collective agreements on individual
contracts.
120. Binding effect as regards the parties. It appears
from the information available that the main differences
between the reporting countries as regards the effects
of collective agreements are due to the systems of law,
that is whether collective agreements are governed by
common law or statute law. Under the common law
system, where collective agreements lack any statutory
basis, they are excluded from the jurisdiction of the
courts and may be regarded as having the character
of " gentlemen's agreements " which are the basis of
individual contracts. This is the only system existing
in a limited number of countries 219; it may also be
212 This is the case, in particular, in the countries mentioned
in para. 37 in which union security clauses are prohibited.
213 This matter was dealt with in detail in the Committee's
report for 1958, which contained general conclusions regarding
" Minimum Wage-Fixing Machinery ".
214 Greece (Act No. 3239 of 1955, section 20 (2)).
216 Portugal (Legislative Decree No. 36173, sections 8 and 26).
216 Spain (Act of 24 April 1958, section 2) ; the position appears
to be similar in Brazil (Labour Code, section 518).
217 Netherlands.
219 Byelorussia, Ukraine, U.S.S.R.
219 United Kingdom and the majority of this country's nonmetropolitan
territories.
- 122 -
CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
found in other countries in company with, but independently
of, collective bargaining machinery established
by law.220
121. In countries where these matters are governed
by statute law, the legislation generally provides that
the two signatory parties to a collective agreement and
the persons on whose behalf they acted are bound by
the agreement and must ensure its application and
respect its provisions for as long as the agreement
remains in force. In certain countries the legislation
expressly authorises damage suits by and against
either party for breach of collective agreements.221
In other countries the collective agreement has not the
same effect in the case of employers as in that of workers;
thus as regards the management of the undertaking
the collective agreement constitutes a legal obligation,
whereas in the case of the workers it constitutes moral
and political obligations.222
122. Binding effect as regards third parties who are
employed in the undertaking. The purpose of Paragraph
4 of the Recommendation is to solve the
practical difficulties which may arise where an employer
bound by a collective agreement has among
his employees workers who are not members of the
trade union which is a party to the agreement in
question. In many countries the law expressly provides
that an employer shall be bound by the terms of
a collective agreement to which he is a party even as
regards those of his workers who are not members of
the contracting organisation.223 Nevertheless in some
cases this rule is only applicable if a certain proportion
of the workers in the undertaking are members of the
organisation having concluded the collective agreement
224, or if the collective agreement does not
otherwise provide225, or if it is specifically ordered by
decision of the minister.226
123. In the absence of specific legislative provisions
on this subject, the question of the extension
of collective agreements to workers who are not
220 For example Australia, Ireland, New Zealand, Union of
South Africa.
221 This is the case, in particular, in the United States (Labor-
Management Relations Act of 1947, section 301).
222 See for example Byelorussia, Ukraine, U.S.S.R.
823 This is the case for example as regards the following
member States: Argentina (Act No. 14250, section 1), Austria
(Act of 26 February 1947, section 10), Canada (Industrial
Relations and Disputes Investigation Act, 1948, section 18),
Dominican Republic (Labour Act of 1951, section 109), Finland
(Act No. 436 of 1946, section 4), France (Labour Code, First
Book, Part II, section 31 (e)), Guatemala (Labour Code of
1947, section 50 (b)), Republic of Guinea (Act of 1942, section
72), Israel (Collective Bargaining Law of 1957, sections 15
and 16), Mexico (Labour Code of 1931, section 48), Netherlands
(Decree of 5 November 1945, section 17), New Zealand as
regards some cases (Government Service Tribunal Act of 1948
and Government Railway Act of 1949), Tunisia (Decree of
5 November 1949, section 2), and also as regards the following
non-metropolitan territories: France: Algeria (Labour Code,
Book I, section 31 (e)), French Guiana (ibid.), Guadeloupe
(ibid.), Martinique (ibid.), Réunion (ibid.); Cameroons (Labour
Code of 1952, section 72), Comoro Islands (ibid.), French
Equatorial Africa (ibid.), French Polynesia (ibid.), French
Somaliland (ibid.), French West Africa (ibid.), Magagascar
(ibid.), New Caledonia (ibid.), St. Pierre and Miquelon (ibid.),
Togoland (ibid.).
224 For example Costa Rica (Labour Code of 1943, section 55),
Colombia (Labour Code of 1950, section 471), Japan (Law
No. 174 of 1949, section 17), United Arab Republic (Egypt)
(Act No. 97 of 1950, section 14).
225 This is the case for example in the following member
States: Ceylon (Act of 1950, section 8 (2)), France (Labour Code,
Book I, section 31 (e)), Honduras (Decree of 29 August 1957,
section 8), Morocco (Dahir of 17 April 1957, sections 5 and 13),
Viet-Nam (Labour Code of 1956, section 73); and in the nonmetropolitan
territories indicated in footnote 223.
"• For example Indonesia (Law No. 21 of 1954, section 11 (1 )).
members of the contracting organisations is frequently,
ensured either by arbitration awards or on an
entirely voluntary basis by the employers themselves
227; this practice may be subject to the right of
the contracting parties to specify in the collective
agreement that it shall be applicable only to members
of the contracting organisations.228
124. In a certain number of countries the problem
of the application of collective agreements to workers
who are not members of the contracting organisations
does not arise in view of the fact that the organisations
are considered as representing all the workers employed
in the undertaking in question; in some cases
this is the result of a procedure of recognition in
virtue of which any trade union may claim the quality
of bargaining agent in a specified unit229, and in other
cases it is due to the legal monopoly of representation.
230
125. Effect of collective agreements on individual
contracts. The effect of collective agreements on the
individual contracts of workers covered by a collective
agreement varies from country to country. In some
cases legislative provisions prescribe that the collective
agreement is binding and constitutes an integral part
of these contracts 231 ; in other cases the law provides
that any clause in a contract which is less favourable
than a provision of a collective agreement shall be
null and void and replaced by the corresponding
provisions of the collective agreement.232 In yet other
cases the legislative provisions specify that the standard
fixed by the collective agreements shall constitute
minimum standards.233 In certain cases the law does
not prohibit clauses in an individual contract which
are contrary to a collective agreement provided this
is permitted by the agreement itself.231
126. Most countries recognise the validity of
clauses in individual contracts which are more favourable
than those in the collective agreement in so far
as they relate to clauses specifying minimum standards
227 For example Denmark, Federal Republic of Germany,
Norway, United Kingdom.
228 For example Belgium, India.
229 For example India, United States.
230 For example Bulgaria, Byelorussia (Labour Code, section
157), Poland (Act of 1 July 1949 respecting trade unions,
section 5), Ukraine (Labour Code, section 157), U.S.S.R.
(Labour Code, section 157).
231 For example as regards member States: Argentina
(Decree No. 2739, section 7), Austria (Act No. 76 of 1947,
section 6), Brazil (Labour Code of 1943, section 444), Chile
(Labour Code of 1931, section 18), France (Labour Code,
Book I, section 31 (e)), Greece (Act No. 3239, section 3),
Republic of Guinea (Labour Code, 1952, section 72), Israel
(Collective Agreements Law, 1957, section 19), Morocco (Dahir
of 17 April 1957, section 5); and as regards non-metropolitan
territories: France: Algeria (Labour Code, Book I, section
31 (e)), French Guiana (ibid.), Guadeloupe (ibid.), Martinique
(ibid.), Réunion (ibid.); Cameroons (Labour Code of
1952, section 72), Comoro Islands (ibid.), French Equatorial
Africa (ibid.), French Polynesia (ibid.), French Somaliland
(ibid.), French West Africa (ibid.), Madagascar (ibid.), New
Caledonia (ibid.), St. Pierre and Miquelon (ibid.), Togoland
(ibid.)
232 For example Finland (Act No. 436 of 1946, section 6),
Federal Republic of Germany (Act of 9 April 1949, section 4),
Honduras (Decree of 29 August 1957, section 8), Indonesia
(Law No. 21 of 1954, section 9), Japan (Law No. 174 of 1949,
section 16), Netherlands (Act of 24 December 1927, section 12,
and Decree of 5 October 1945, section 17), Switzerland (Code of
Obligations, section 3236«), Turkey (Code of Obligations,
sections 311 and 316), United Arab Republic (Egypt) (Act
No. 97 of 1950, section 9).
233 For example Spain (Act of 24 April 1958, section 3).
231 For example Denmark, Sweden (Act of 22 June 1928,
section 4), Union of South Africa.
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REPORT OF THE COMMITTEE OF EXPERTS
of protection.235 Nevertheless a number of differences
exist either in virtue of the collective agreements
themselves or in virtue of legislative provisions. Some
restrictions are due to provisions specifying that the
parties to a collective agreement may specify that its
clauses shall be considered as maximum standards, in
which case the individual contracts may not of course
contain any clause which is more favourable than
those of the collective agreement236, or to provisions
specifying that the collective agreement may, by
special clause, preclude any variations.237 In some
countries the legislative prohibition of inserting
stipulations, in individual contracts, which are contrary
to a collective agreement is interpreted as
applying also to more favourable clauses.238 Finally
in one country the legislation specifically prohibits
the insertion in contracts of conditions more favourable
for the workers than those contained in an
approved collective agreement.239
Extension of Collective Agreements.
127. Part IV of the Recommendation provides
that, where appropriate, measures to be determined
by national laws or regulations should be taken to
extend all or certain stipulations of collective agreements
so that they become generally binding on all
the employers and workers included within the
industrial and territorial scope of the agreements.
According to the information available, the national
legislation and regulations of a large number of
countries provide for the extension of collective
agreements to third parties who are not directly bound
by them, usually by conferring on the government, a
minister, or a special body, the power to make
collective agreements generally binding for all the
employers and all the workers falling within the
occupational or territorial scope of the collective
agreement in question.240 In most cases the legislation
285 This is the case for example in the following member States:
Argentina (Decree No. 2739, section 7), Austria (Act of
26 February 1947, section 2), France (Labour Code, Book I,
section 31 (e)), Federal Republic of Germany (Act of 9 April
1949, section 4), Greece (Act No. 3239, section 3), Republic
of Guinea (Act of 1952, section 72), Honduras (Decree of
29 August 1957, section 8), Morocco (Dahir of 17 April 1957,
section 5), Switzerland (Code of Obligations, section 323
quater), United Arab Republic (Egypt) (Act No. 97 of 1950,
section 9); and as regards non-metropolitan territories: France:
Algeria (Labour Code, Book I, section 31 (e)), French Guiana
(ibid.), Guadeloupe (ibid.), Martinique (ibid.), Réunion (ibid.);
Cameroons (Labour Code of 1952, section 72), Comoro Islands
(ibid.), French Equatorial Africa (ibid.), French Polynesia
(ibid.), French Somaliland (ibid.), French West Africa (ibid.),
Madagascar (ibid.), New Caledonia (ibid.), St. Pierre and
Miquelon (ibid.), Togoland (ibid.).
236 For example Japan.
237 For example Israel (Collective Agreements Law of 1957,
sections 21 and 22).
238 For example Norway (Act of 5 May 1927, section 3 (3),
Sweden (Act of 22 June 1928, section 3).
289 Netherlands (Decree of 5 October 1945, section 17).
210 For example member States: Austria (Act of 26 February
1947, section 14), Belgium (Legislative Decree of 9 June 1945),
Brazil (Labour Code, section 612), Canada (Collective Agreements
Act of Quebec), Ceylon (Industrial Disputes Act of 1950,
section 10), Colombia (Labour Code of 1950, section 472),
Costa Rica (Labour Code of 1943, section 63), Cuba (by
special Presidential Decrees), France (Labour Code, Book I,
Part II, section 31 (/)), Federal Republic of Germany (Act of
9 April 1949, section 5), Greece (Act No. 3239, section 5 (2)),
Guatemala (Labour Code of 1947, section 54), India (Bombay
Industrial Relations Act, section 114 and Central Provinces
and Berar Industrial Disputes Settlement Act, section 54),
Indonesia (Law No. 21 of 1954, section 11 (2)), Ireland (Industrial
Relations Act 1946, section 26), Israel (Collective Agreements
Law of 1957, section 25), Japan (Law No. 174 of 1949,
section 18), Luxembourg (Grand Ducal Order of 6 October
1947, section 22), Mexico (Labour Code of 1931, section 58),
prescribes conditions for extension which are in
conformity with those prescribed in Paragraph 5 (2)
of the Recommendation.
128. The most widespread of the required conditions
relates to the representative character of the
collective agreement, i.e. provisions requiring that the
agreement should be of predominant importance in
the opinion of the authorities 241, that it has been
concluded by sufficiently representative organisations242
or that it covers at least a given proportion of the
workers and sometimes also of the employers in the
trade and region concerned.243
129. In certain cases the procedure for the extension
of collective agreements can only be initiated at
the request of one of the parties to the collective
agreement244 or of both parties245 and/or at the
request of a representative organisation or joint
body.246 These provisions do not necessarily exclude
the right of public authorities to initiate the procedure
for the extension of collective agreements when this is
considered desirable.247 Application for the extension
of an agreement may even, in one country, be made
by any member of an association which is a party
to the agreement.248
130. A third condition to the extension of collective
agreements which exists in many countries and
which is intended to safeguard the interests of third
parties, is that the employers and workers to whom
the agreement is to be made applicable by its exten-
Morocco (Dahir of 17 April 1957, section 23), Netherlands
(Act of 25 May 1937 and Decree of 5 October 1945, section 12),
New Zealand (Industrial Conciliation and Arbitration Act 1954,
section 107), Portugal (Legislative Decree of 23 September
1933, section 33), Switzerland (Act of 28 September 1956),
Tunisia (Decree of 5 November 1949, section 11), Union of
South Africa (Act No. 36 of 1937, section 48); non-metropolitan
territories: France: all non-metropolitan territories.
241 For example Austria (Act of 26 February 1947, section 14),
Canada (Collective Agreements Act of Quebec), Ireland (Industrial
Relations Act of 1946, section 27 (3)), Israel (Collective
Agreements Law of 1957, section 25), Union of South Africa
(Act No. 36 of 1937, section 48 (2)).
212 For example Belgium (Legislative Decree of 9 June 1945),
Ceylon (Industrial Disputes Act of 1950, section 10), Tunisia
(Decree of 5 November 1949, section 12).
243 For example Colombia (Labour Code of 1950, section 472),
Costa Rica (Labour Code of 1943, section 63 (b)), Federal
Republic of Germany (Act of 9 April 1949, section 5), Greece
—in certain cases—(Act No. 3239, section 5 (2)), Guatemala
(Labour Code of 1947, section 54), Japan (Law No. 174 of
1949, section 18), Mexico (Labour Code of 1931, section 58),
Morocco (Dahir of 17 April 1957, section 23), Netherlands
(Act of 25 May 1957, section 2), New Zealand (Industrial
Conciliation and Arbitration Act of 1954, section 106), Switzerland
(Act of 28 September 1956, section 2 (3) subject however
to certain exceptions), Uruguay (Act No. 9675 of 1937, section 2).
244 For example Canada (Collective Agreements Act of
Quebec), Ceylon (Industrial Disputes Act of 1950, section 10 (6)),
Costa Rica (Labour Code of 1943, section 63 (D)), Federal
Republic of Germany (Act of 9 April 1949, section 5), Ireland
(Industrial Relations Act 1946, section 27), Israel (Collective
Agreements Act 1957, section 25), Japan (Law No. 174 of
1949, section 18), Luxembourg (Grand Ducal Order of 6 October
1945, section 22), Morocco (Dahir of 17 April 1957, section 23),
Tunisia (Decree of 5 November 1949, section 12).
245 For example Switzerland (Act of 28 September 1956,
section 1).
246 For example Austria (Act No. 76 of 1947, section 14),
Belgium (Legislative Decree of 9 June 1945, section 12), France
(Labour Code, Book I, section 31 (f)), Netherlands (Act of
25 May 1937, section 4), Union of South Africa (Act No. 36
of 1937, section 48).
247 For example member States: France (Labour Code,
Book I, section 31 (/)), Israel (Collective Agreements Law
of 1957, section 25), Morocco (Dahir of 17 April 1957, section
23); non-metropolitan territories: France: all non-metropolitan
territories.
248 New Zealand (Industrial Conciliation and Arbitration Act,
1954, sections 105 and 107).
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CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
sion be given an opportunity of submitting their
observations. Thus, for example, it may be provided
that the collective agreements in question should be
published or posted up 249 or that a joint body should
be consulted prior to extension.250
131. In a certain number of countries it has not
been considered necessary to provide for the possible
extension by legislation of the provisions of collective
agreements to all workers and employers in a given
industry or region. As a rule this is the result of the
conception of collective agreements in these countries,
where they are considered primarily as instruments
for regulating terms of employment by direct negotiation
and are not therefore appropriate for subsequent
extension to persons who were not parties to the
agreement.251 This does not, of course, prevent the
authorities from issuing regulations on conditions
of work in a given branch of industry or region which
are based on the collective agreements in force.
Finally, effects similar to the legal extension of agreements
are sometimes obtained by regulations concerning
contracts placed by public authorities which
provide that the undertakings affected must ensure
for their workers wages and conditions of work that
are not less favourable than those prescribed by the
collective agreements in force for the industry or
occupation in question.252 It should be noted that
this system also exists in certain countries side by
side with the system for the extension of collective
agreements, described above.253
132. In a certain number of cases, no measures
exist as regards the extension of collective agreements
and this is due to the fact that the provisions set out
in these collective agreements do not constitute so
much a set of standards applicable to all undertakings
as a system of mutual obligations assumed by the
management and the representatives of the workers
in a given undertaking, in which due account is taken
of the special problems and requirements of the said
undertaking.254
C. APPLICATION OF COLLECTIVE AGREEMENTS
133. Part V of the Recommendation provides for
an appropriate procedure for the settlement of disputes
arising out of the interpretation of a collective agreement;
Part VI of the Recommendation provides that
the supervision of the application of collective agreements
should be ensured by the parties to the agree-
249 For example member States: Austria (Act of 26 February
1947, section 14), Canada (Collective Agreements Act of
Quebec), Ceylon (Industrial Disputes Act of 1950, section 10
(4)), Costa Rica (Labour Code of 1943, section 63 (D)), France
(Labour Code, Book I, Part II, section 31 (k)), Guatemala
(Labour Code of 1947, section 54), Ireland (Industrial Relations
Act of 1946, section 27), Israel (Collective Agreements Law
of 1957, section 26), Mexico (Labour Code of 1931, sections 59
and 61), Morocco (Dahir of 17 April 1957, section 24), Netherlands
(Act of 25 May 1937, section 4), Switzerland (Act of
28 September 1956, section 9), Viet-Nam (Labour Code of
1956, section 86); non-metropolitan territories: Fiance: all nonmetropolitan
territories.
850 For example Federal Republic of Germany (Act of 9 April
1949, section 5), Greece (Act No. 3239, sections 5 (2) and 28),
Tunisia (Decree of 5 November 1939, section 12).
251 See for example Canada (excluding Quebec), Finland,
Norway, Sweden, United Kingdom (except in individual cases),
United States.
252 For example United Kingdom and many non-metropolitan
territories for whose international relations the United Kingdom
is responsible.
! " For example France and many non-metropolitan territories
for whose international relations France is responsible.
254 For example Byelorussia, Ukraine, U.S.S.R.
ment or by the bodies existing in each country for
this purpose, or by bodies established ad hoc; finally,
Part VII of the Recommendation deals with measures
of publicity, registration and the minimum duration
of collective agreements. The information available
with regard to these measures will be examined below.
Interpretation of Collective Agreements.
134. According to the Recommendation a procedure
for the settlement of disputes arising out of the
interpretation of collective agreements should be
established by agreement between the parties or by
law. As in the case of collective bargaining machinery,
the fact that the procedure for the settlement of
disputes arising out of the interpretation of a collective
agreement may be established either by agreement
between the parties or by legislation does not mean
that either of these methods should be adopted in a
given country to the exclusion of the other. In this
respect also there are many countries in which the two
systems are to be found side by side. Nevertheless,
the part played by statutory procedures seems to vary
considerably: it may merely encourage the setting up
of a voluntary contractual procedure or it may
provide for the establishment of conciliation and
arbitration boards, labour courts or other machinery.
135. It is usual for collective agreements themselves
to contain clauses for the adjustment of disputes
regarding their interpretation generally ; by these
provisions the parties may even undertake to accept
the awards on such legal disputes handed down by
the bodies established for this purpose by mutual
agreement. While in certain countries this disputes
machinery is set up entirely voluntarily by the
parties 255, in others legislative provisions require each
collective agreement to provide for the settlement of
disputes concerning interpretation.256 Nevertheless
even in the countries where disputes are generally
settled through contractual disputes machinery, it has
often been found useful to provide other machinery
to which recourse may be had as a last resort and
after resort to the contractual machinery 257 ; this procedure
takes the form of mediation, conciliation or
arbitration.
136. In a fairly large number of other countries, the
settlement of disputes regarding the interpretation of
collective agreements is ensured by the establishment
of labour courts or other machinery performing
similar functions.258 As in the above-mentioned case,
265 For example Ceylon, Denmark, Federal Republic of
Germany, India, Japan as regards private industry, Luxembourg,
New Zealand, Norway, United Kingdom, United States, Viet-
Nam.
256 For example member States: Canada (Industrial Relations
and Disputes Investigation Act 1948, section 19), France
—as regards collective agreements liable to extension—(Labour
Code, Book I, section 31 (2)), Republic of Guinea, Japan—as
regards public corporations, etc.—(Law No. 257 of 1948,
section 19), Thailand (Act of 1 November 1956, section 114),
Tunisia (Decree of 5 November 1949, section 16); nonmetropolitan
territories: France: all non-metropolitan territories.
! " For example Israel (Settlement of Labour Disputes Law
1957), Luxembourg (Grand Ducal Order of 6 October 1945,
section 27), United States (Labor-Management Relations Act,
1947, section 204). United Kingdom (Industrial Disputes Act
1951, Industrial Courts Act 1919, Conciliation Act 1896).
258 For example Argentina (Act No. 14250, Ch. II), Brazil
(Labour Code of 1943, section 625), Chile (Labour Code of 1931,
Book IV), Costa Rica (Labour Code of 1943, section 497),
Finland (Act No. 437 of 1946), Federal Republic of Germany
(Act of 3 September 1953, section 2), Mexico (Labour Code of
1931, section 336), Sweden (Act of 22 June 1928, section 11),
Turkey (Act of 30 January 1950).
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REPORT OF THE COMMITTEE OF EXPERTS
the labour courts frequently may not hear actions until
negotiation through the contractual procedure has
proved unfruitful.
137. In countries where these matters are governed
by statute law, the ordinary courts are not always
called upon to play the same part; it appears from the
information available that this procedure is only one
of various methods of settling disputes. In general, it
is utilised mahaly for settling individual disputes259,
but in some countries the ordinary courts may be
required to settle collective disputes even if the
legislation grants certain immunities to the organisations
involved.260
138. In a certain number of countries it is usual for
the competent minister or the labour departments to
give interpretations on questions concerning the
application of collective agreements.261
139. In certain cases where a special procedure has
been established as regards collective agreements
having been extended and having acquired force of
law, questions of interpretation may either be brought
before the ordinary courts262 or may fall within the
jurisdiction of the labour courts.263
Supervision of the Application of Collective Agreements.
140. Part VI of the Recommendation provides
that the supervision of the application of collective
agreements should be ensured by the parties themselves
or by bodies already existing or established for this
purpose.
141. It appears from the reports that in many
countries the parties to collective agreements are alone
responsible for the supervision of their application,
whether they act directly or through machinery set up
by them for this purpose.264 In other cases, in addition
to the supervision exercised by the parties themselves,
the control of the application of collective agreements
is ensured by the labour department or ministry concerned
265, by the inspection services 266 or by a special
service set up for this purpose 267 ; such supervision by
official bodies may, however, be subject to a specific
request by the parties.268
142. Special mention should be made of the case of
collective agreements having been given force of law.
259 For example Belgium.
260 For example member States: Netherlands, Sweden (Collective
Agreements Act of 1928, section 8), United States
(Labor-Management Relations Act of 1947, section 301); nonmetropolitan
territories: United States: Alaska, Hawaii, Puerto
Rico, Virgin Islands.
201 For example Ceylon (Industrial Disputes Act, 1950, section
10 (a)), Cuba, Greece, Spain, Uruguay (Decree of 26 February
1946).
202 For example Union of South Africa.
203 For example Ireland (section 33 of Industrial Relations
Act, 1946).
261 For example Belgium, Canada, Federal Republic of
Germany, Greece, Japan, Iceland, Norway, Sweden, Switzerland
(Code of Obligations, sections 3222>w and yiiter), United
Kingdom, United States.
266 For example Ceylon (Industrial Disputes Act, 1950,
sections 41 and 44), Chile, Cuba, Dominican Republic (Labour
Code of 1951, sections 390 and 391), Spain, United Arab
Republic (Egypt).
206 For example Austria (Act No. 147/1957, section 3),
Guatemala (Labour Code of 1947, section 278), Luxembourg
(Grand Ducal Order of 6 October 1945, section 28), New
Zealand (Industrial Conciliation and Arbitration Act, 1954,
sections 199 et seq.).
267 For example Netherlands.
2,8 For example Morocco (Dahir of 17 April 1957, section 21),
Union of South Africa (Act No. 36 of 1937, section 62).
There are countries in which, even for such agreements,
the parties bear the full responsibility for ensuring
their application269, but in others the supervision of
the application of extended agreements, as opposed to
that of agreements valid only as regards their signatories,
is always entrusted to official bodies.270
Miscellaneous.
143. Part VII of the Recommendation deals with
the publicising, registration, and minimum duration
of collective agreements. These provisions were
intended to serve as examples to governments of the
measures of application which might usefully be
adopted. As the Recommendation refers specifically
in this connection to action through national laws
and regulations, no mention is made below of the
many countries where similar results are obtained
through contractual measures or by the prevailing
practice.
144. The attention of workers is frequently drawn
to the collective agreement applicable in their undertaking
by the posting up of the text of the collective
agreement in question or of a statement that the
collective agreement is applicable and may be consulted
on the premises, this measure being required by
law.271 The registration or deposit of collective
agreements is required by the national legislation in
the great majority of countries 272 although special
reference is not made in all cases to registration of
subsequent changes made in agreements. Occasionally
the relevant legislative provisions refer only to collective
agreements having been given force of law 273
269 For example Switzerland.
2,0 For example Belgium (Legislative Decree of 9 June 1945,
section 14), Canada (Collective Agreements Act of Quebec),
France (Labour Code, Book I, Part II), section 31 (y)), Ireland
(Industrial Relations Act, 1946, section 32 (1)).
271 For example Austria (Act of 26 February 1947, sections 7
and 8), Ceylon (Industrial Disputes Act of 1950, section 10 (b)),
Dominican Republic (Labour Code of 1951, section 104),
Finland (Act No. 436 of 1946, section 12), France (Labour
Code, Book I, section 31 (u)), Federal Republic of Germany
(Act of 9 April 1949, section 7), Honduras (Decree of 29 August
1957, section 12), Morocco (Dahir of 17 April 1957, section 6),
New Zealand (Industrial Conciliation and Arbitration Act,
1954, section 183), Union of South Africa (Act No. 36 of 1937,
section 58 (c)).
272 For example member States: Argentina (Decree No. 6582/
1954, section 5), Austria (Act of 26 February 1944, section 7),
Brazil (Labour Code of 1943, section 613), Canada (Industrial
Relations and Disputes Investigation Act, 1948, section 52),
Ceylon (Industrial Disputes Act, 1950, section 6), Chile (Labour
Code of 1931, section 19), Colombia (Labour Code of 1950, section
469), Costa Rica (Labour Code of 1943, section 57), Cuba (Decree
No. 446 of 1934, sections II and IV, and Decree No. 798 of 1938,
section 86), Dominican Republic (Labour Code of 1951, section
104), Finland (Act No. 436 of 1946, section 2), France (Labour
Code, Book I, section 31 (d)), Federal Republic of Germany
(Act of 9 April 1949, section 6), Greece (Act No. 3239, section 2),
Guatemala (Labour Code of 1947, section 52), Honduras
(Decree of 29 August 1957, section 5), India (Central Industrial
Disputes Act, 1947, section 2 (p), and Relevant Rule of the Corresponding
Rules of 1957, section 75), Indonesia (Government
Order No. 49/1954, section 5), Israel (Collective Agreements
Law, 1957, section 10), Mexico (Labour Code of 1931, section
45), Morocco (Dahir of 17 April 1957, section 3), Netherlands
(Decree of 5 October 1945, section 13), Nicaragua (Labour
Code of 1945, section 25), Norway (Act of 5 May, 1927, section 3),
Pakistan (Industrial Disputes Act, 1947, section 2(p)), Philippines
(Act of 17 June 1953, section 19), Portugal (Legislative Decree of
6 March 1947, section 28), Spain (Act of 28 April 1958, Tunisia
(Decree of 5 November 1949, section 21), United Arab Republic
(Egypt) (Act No. 97 of 1950, section 4), Viet-Nam (Labour Code
of 1956, section 83); non-metropolitan territories: France: all
non-metropolitan territories.
273 For example Belgium (Legislative Order of 9 June 1945,
section 14), Ireland (Industrial Relations Act, 1946, section 26).
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CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
or to collective agreements concluded in accordance
with a specified procedure or in a given branch.27*
145. The national legislation prescribes in some
cases the minimum period—varying between six
months and three years—during which collective
agreements should be deemed to be binding in the
absence of any provision on this subject in the agreement
itself.275 Similar effects are obtained by legislative
provisions fixing a long period of notice 276, or
authorising suspension of the legal effect of notices.277
D. CONSULTATION AND COLLABORATION WITH
EMPLOYERS' AND WORKERS' ORGANISATIONS
146. The Right of Association (Non-Metropolitan
Territories) Convention, 1947 (No. 84) provides, in
Article 4, that all practicable measures shall be taken
to consult and associate the representatives of employers'
and workers' organisations in the establishment
and working of arrangements for the protection of
workers and the application of labour legislation.
Since the two other Conventions selected by the
Governing Body of the I.L.O., on which reports were
due this year under article 19 of the Constitution, do
not contain any similar provisions, the only information
available relates, therefore, to non-metropolitan
territories. Nevertheless, the Committee noted
with interest that the more general problem of collaboration
between the public authorities and employers'
and workers' organisations on the industrial and
national level has been included in the agenda of the
43rd Session of the Conference, to which the present
report will also be submitted. Moreover, a number of
Conventions of general application, adopted by the
Conference since 1919, provide for consultation of
employers' and workers' organisations as regards
certain points and collaboration with these organisations
in some cases: this is the case, in particular,
of the Conventions concerning minimum wage-fixing
machinery in regard to which the Committee was
called upon to submit general remarks in 1958.278
147. It appears from the information available
that in the majority of non-metropolitan territories,
the employers' and workers' organisations or their
representatives are consulted on most of the questions
regarding the protection of workers and are associated
in the application of the measures adopted for this
purpose. The manner in which such consultation and
collaboration is ensured varies from territory to
territory.
274 For example Australia (Conciliation and Arbitration Act,
section 175), Haiti (Act of 23 October 1947, section 3), New
Zealand (Industrial Conciliation and Arbitration Act, 1954,
section 103 (6)), Union of South Africa (Act No. 36 of 1937,
section 31), United States (Railway Labor Act, section 5).
276 For example Argentina (Legislative Decree No. 2739/1956,
section 8), Canada (Industrial Relations and Disputes Investigation
Act, 1948, section 20), Colombia (Labour Code of 1950,
section 477), Costa Rica (Labour Code of 1943, section 58),
Guatemala (Labour Code of 1947, section 53), India (Industrial
Disputes Act, section 19 (2)), Israel (Collective Agreements Law,
1957, section 14), Netherlands (Act of 24 December 1927,
section 19), Norway (Act of 5 May 1927, section 3), Pakistan
(Industrial Disputes Act, 1947, sections 2 (p) and 19 (2)),
Spain (Act of 24 April, 1958, section 12), Switzerland (Code of
Obligations, section 322 ter), Turkey (Code of Obligations,
sections 316-317).
2,6 For example Finland (Act 436 of 1946, section 3).
s " For example Greece (Act No. 323, section 4).
278 I.L.O.: Report of the Committee of Experts on the Application
of Conventions and Recommendations, Report III (Part IV),
International Labour Conference, 42nd Session, Geneva, 1958
(Geneva, 1959), pp. 106 ff.
148. In a large number of territories279 the methods
of collaboration of the public authorities with employers
and workers developed in an arbitrary manner;
originally this collaboration occurred in connection
with the setting up of minimum wage-fixing machinery
and in accordance with the local conditions and
requirements. It was only at a later date that labour
advisory boards were instituted: the representatives
of employers and the representatives of workers or
of their respective organisations, if any exist, meet in
equal numbers and on equal terms. The competence
of the advisory boards varies considerably from
territory to territory and in the light of the social
development and constitutional situation in each
territory.
149. In other territories the labour legislation
provides for the setting up of various committees,
boards and councils.280 Thus, in each territory there
are " labour advisory committees " composed of equal
numbers of representatives of employers and workers.
The competence of these committees is of a general
character; in some cases they must necessarily be
consulted by the governments on draft regulations by
which the application of labour legislation is to be
ensured. In addition there are also technical advisory
committees which examine industrial health and safety
problems, and in which employers and workers are
represented on equal terms, together with technical
experts acting in an advisory capacity. Finally, in
these territories the collaboration of representatives
of employers and workers in the application of
measures for the protection of workers is ensured in
particular within the tripartite boards of the manpower
offices, and in special courts, such as labour tribunals281,
which are required to settle individual
disputes.
150. In some territories the consultation of employers'
and workers' organisations is ensured at the prelegislative
stage when the competent parliamentary
committees give a hearing to all the persons concerned.
282
151. It appears from the information available
that the question of collaboration between the public
authorities and employers' and workers' organisations,
particularly when it is necessary to associate these
organisations in the application of protective measures,
is closely finked with that of determining the organisations
to be regarded as representative. It follows
that if the selection of the organisations which are to be
called upon to collaborate in applying measures for
the protection of workers is made in an arbitrary
fashion, the trade union rights of workers and employers,
or of some of them, may be adversely affected.
It would, therefore, seem that neither the manner in
which such collaboration between the public authorities
and employers' and workers' organisations is
effected, nor the rules drawn up in this connection,
should be such as to impair the principle of freedom
of association and protection of the right to organise.
278 This is the case, in particular, in a large number of territories
for whose international relations the United Kingdom
is responsible.
290 For example France: Cameroons (Labour Code of 1952,
sections 145 et seq.), Comoro Islands, French Equatorial
Africa, French Polynesia, French Somaliland, French West
Africa, Madagascar, New Caledonia, St. Pierre and Miquelon,
Togoland.
281 These courts consist of a chairman and two assessors
representing employers, and two representing workers.
282 This appears to be the case in a certain number of nonmetropolitan
territories for whose international relations the
United States is responsible.
- 127 -
REPORT OF THE COMMITTEE OF EXPERTS
Conclusions
152. The scope of the general conclusions which
can be drawn from the information available to the
Committee is evidently different in respect of questions
relating to collective bargaining and collective agreements,
on the one hand, and questions relating to
freedom of association and protection of the right to
organise, on the other.
153. The voluntary negotiation of collective agreements
is one of the essential means open to workers
and employers and their respective organisations of
" furthering and defending " their interests. The study
of these questions, therefore, is the natural outcome
of any study of freedom of association and protection
of the right to organise. It is from this aspect and
having regard to the contents of the other instruments
which were selected by the Governing Body for reports
under article 19 of the Constitution that the Committee
has viewed this problem. Admittedly, the examination
of the situation in the different countries in the field
of collective bargaining and collective agreements
might have been carried out from a different angle:
the voluntary negotiation of collective agreements
may also be regarded as a point of departure for a
study of the problem of labour-management relations.
Such a study, supplementing the examination made
by the Committee this year, would certainly give a
fuller and more precise picture of the situation in
the different countries with regard to collective bargaining.
It would nevertheless appear that, in order to
make it possible to carry out an examination in this
way, it would be necessary that the information
furnished by the governments should not be limited
to information amounting, in essence, to a description
of the legislation in force, as was the case, with a few
exceptions, both in 1956 and this year.
154. One case cited from the information available
gives a striking example of the difference which may
exist, in respect of voluntary negotiation of collective
agreements, between the situation of law and the
situation of fact in the different countries: thus, in one
country283, in which the legislation has for many
years contained very detailed provisions concerning
collective agreements, it would seem that the first
collective agreement to be concluded did not enter
into force until 1957; in another country284, on the
other hand, in which the legislation contains only a
very few provisions dealing with this question,
125,000 collective agreements protecting 17 million
workers were in force in 1956. That is why the Committee
expresses the hope that, if it should in the
future be asked to undertake a new examination of
this question, a special appeal will be addressed to
governments urging that the information which they
furnish should not be limited to a description of their
law but should also include as many data as possible
with respect to the factual position : statistics (number
of collective agreements in force and number of
workers to whom they are applicable), factors which
favour or hinder the development of collective agreements,
reasons which militate in favour of the system
of bargaining in operation in the country concerned,
attitude of the parties, etc.
155. In the field of freedom of association and
protection of the right to organise, the Committee
has already had occasion to emphasise on several
occasions, and especially in its General Remarks in
sss Dominican Republic.
SM United States.
1957, that actual practice is of exceptional importance,
inasmuch as such practice necessarily reflects the
more general background of the civil and political
liberties enjoyed by the inhabitants of a country. In
this connection, the Committee has noted with interest
that, pursuant to a decision of the Governing Body,
a study of the practice in respect of freedom of association
in the various States Members of the Organisation
has just been embarked upon by the I.L.O., which
will also be responsible for maintaining up-to-date
documentation on these matters. It has also noted
with interest that the Human Rights Commission of
the United Nations has undertaken to assemble
documentation on the legislation and practice of the
different States in respect of the various rights enunciated
in the Universal Declaration of Human Rights.
156. The general survey which the Committee has
made this year reveals the importance, in all countries,
of maintaining the " rule of law ", which alone can
ensure respect for fundamental human rights. This is
essential, irrespective of the nature of the political,
economic and social system.
157. Whenever the information available has
permitted it to follow such a course, the Committee
has not contented itself with examining merely the
legislation relating to trade unions and to associations.
In fact, as is laid down in Article 8, paragraph 2, of the
Freedom of Association and Protection of the Right
to Organise Convention, 1948 (No. 87), it is necessary
that the law of the land and not only the law relating
to trade unions and associations should not impair
the guarantees provided for. In this connection, it
appears to the Committee that it would be extremely
useful for separate studies to be undertaken of certain
more general aspects of the legislation of the different
countries, and also on certain particular aspects of
such legislation, in respect of trade union organisations,
including, for example, the holding of their general
assemblies and meetings, the rules applicable to their
administration, the election of their representatives
and leaders, etc. Such research, which might usefully
be supplemented by a study of the decisions of the
courts or other tribunals, in the different countries
considered, in respect of freedom of association and
protection of the right to organise, would constitute a
very useful addition to the work of the Committee.
158. The successive examinations made by the
Committee since 1953 of the different Conventions
dealing with freedom of association and protection of
the right to organise have enabled it to observe that
progress (frequently of a very substantial nature) has
been realised or is in process of being realised, in
applying the rights and guarantees laid down in these
Conventions.
159. If one considers, for instance, the number of
States which have ratified the Freedom of Association
and Protection of the Right to Organise Convention,
1948 (No. 87) or the Right to Organise and Collective
Bargaining Convention, 1949 (No. 98), it is to be
observed that in the last few years the number of
ratifications of these Conventions has increased considerably.
In 1953, when the Committee was called
upon for the first time to examine reports furnished
on Convention No. 87 under Article 19 of the Constitution,
14 ratifications had been registered; now,
the number of ratifications is 36. In 1953 Convention
No. 98 had received only 11 ratifications ; the number
has now risen to 40. Admittedly, these ratification
figures do not always exactly reflect the situation,
because the legislation is not always in complete
- 128 -
CONCLUSIONS CONCERNING REPORTS RECEIVED UNDER ARTICLES 19 AND 22 OF THE CONSTITUTION
conformity with the Conventions. The Committee
has nevertheless noted with satisfaction that, in respect
of a certain number of countries where the Freedom
of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), is in force, no modifications
of national law and practice have been necessary
as a result of ratification. Further, among the States
in respect of which the Committee has had to point
out that certain legislative provisions did not appear
to be in conformity with the Convention, the difficulties
in question relate in certain cases to relatively
small categories of workers: most usually, public
officials. In this connection, the Committee has noted
with satisfaction that in several of these countries—
this is the case, it would seem, in Mexico and Pakistan
—the difficulties encountered are being resolved and
the governments concerned are now studying new
legislative provisions intended to ensure fuller application
of the Conventions.
160. It is also interesting to observe that among the
States which in 1957 had not yet ratified the Freedom
of Association and Protection of the Right to Organise
Convention, 1948 (No. 87), there are some which,
since then, have ratified the Convention and have
amended certain provisions in their legislation in
order to make them conform more fully to the Convention.
This is the case, for example, in Honduras,
where the requirement of previous authorisation
formerly imposed on organisations as a condition for
affiliation with international organisations has been
abolished.
161. Progress, sometimes substantial, can also be
observed in the case of States which have not yet
ratified the Convention. In this connection, it is interesting
to note that a fairly large number of States
indicate that they are contemplating ratifying the
Convention or even, in certain cases, that they have
already initiated the domestic procedure to this end :
this is the case, for example, in respect of Colombia,
Costa Rica, Ecuador, Greece, Iran and Japan. Other
countries, on the other hand, indicate that they are
encountering certain difficulties and that they cannot,
at least for the moment, contemplate ratification.
This is the case, for example, of India, Indonesia, the
Federation of Malaya (which refers in this connection
to the state of emergency in the country) and Morocco
(by reason of the fact, as is pointed out in the report,
that the establishment of trade union organisations is
subject to a certain degree of control by the Government).
In a fairly considerable number of cases, it is
interesting to observe that, irrespective of the intentions
of the government with regard to ratification of this
Convention, amendments have already been made to
existing legislation, or are on the point of being made,
for the purpose of rendering the national legislative
situation more in accordance with international standards.
Thus, in Ceylon, the Government is studying
amendments to the Trade Unions Ordinance in order
to render more flexible the regulations applicable to
organisations of public officials. Likewise in Haiti
and Viet-Nam, draft legislation intended to ensure
greater freedom for trade union organisations is
being studied. Finally, in a number of countries in
which the legislation does not seem to contain any
provisions incompatible with the guarantees prescribed
in the Conventions under review, the governments
are giving attention to supplementing the existing
legislation on collective negotiations: this is the case,
for example, in Switzerland, where new legislation
relating to collective agreements was recently adopted,
and in Luxembourg, where the Government is studying
legislative provisions relating to the right to strike
and to the exercise of this right.
162. An equally striking example of the considerable
increase in the geographical field of application
of the Freedom of Association and Protection
of the Right to Organise Convention, 1948 (No. 87),
and the Right to Organise and Collective Bargaining
Convention, 1949 (No. 98), is furnished by the increase
in the number of non-metropolitan territories to which
these Conventions have become applicable, since
1953, without modification. In 1953 the Freedom of
Association and Protection of the Right to Organise
Convention, 1948 (No. 87), was applicable without
modification only to six non-metropolitan territories;
it is now applicable without modification to 27 nonmetropolitan
territories, to which it would appear
proper to add six or seven other territories in respect
of which, although the Convention has been declared
applicable with modifications, the modifications appear
to relate only to formal matters and are not likely
to infringe the rights and guarantees laid down in the
Convention.285 Moreover, the Committee has observed
with interest that, in the case of the territories to which
the Convention has not yet been declared applicable,
the legislation, in a fairly considerable number of
instances, does not appear to contain any provision
incompatible with the rights and guarantees laid down
in the Convention. The Right to Organise and
Collective Bargaining Convention, 1949 (No. 98),
which, in 1953, was applicable without modification
only to three non-metropolitan territories, is now
applicable without modification to 23 non-metropolitan
territories.
163. All this progress, which has been realised in a
relatively short period, constitutes an encouragement
to the work accomplished by the International Labour
Organisation: the Conference itself has emphasised
on several occasions that this work can assume its
full significance only if freedom of association is
effectively ensured and if governments take the
necessary measures to repeal or amend legislative
provisions which infringe or are likely to infringe the
rights of workers, employers and their respective
organisations. The Committee has noted with
satisfaction that appreciable results have already been
achieved in this connection and that, in numerous
cases, the governments indicate that they are endeavouring
to continue their activities in this direction.
285 This is the case, it would seem, with regard to the following
territories: United Kingdom: Basutoland, Bechuanaland, British
Honduras, Grenada, Swaziland.
- 129 -
Document No. 233
ILC, 58th Session, 1973, Report III (Part 4B), Freedom of
Association and Collective Bargaining, General Survey by
the Committee of Experts on the Application of
Conventions and Recommendations, pp. 43–47
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FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING 43
practically at any time. There are also countries where the legislation contains provisions
relating to the investigation by the authorities of union finances or of internal
union matters in general. In such cases the authorities are empowered to intervene
when they presume that certain irregularities have occurred or when they have
received complaints from union members in this connection.1
104. Supervision by the public authorities of union finances should not normally
exceed the periodic reporting requirements established in many countries. Inspection
and furnishing of information whenever requested by the authorities at their discretion
entail a danger of interference in the internal administration of trade unions
which may be of such a nature as to restrict the guarantees of the Convention. Investigatory
measures should be restricted to exceptional cases, when they are justified
by especial circumstances such as presumed irregularities resulting from annual
statements or reported by members of the trade union. As the Committee had
already stated 2 there is a certain measure of guarantee against undue interference
where the official appointed to exercise supervision enjoys some degree of independence
of the administrative authorities and where he himself is subject to the control
of the judicial authorities. These guarantees, however, do not always exist where the
supervision is exercised by the administrative labour services or where no judicial
control exists. The general principle concerning the judicial control of internal acts
of an occupational organisation in order to ensure an impartial and objective procedure
is particularly relevant in regard to the administration of trade union property
and finances.
ACTIVITIES AND PROGRAMMES
105. In the main, workers' and employers' organisations have the right to organise
their activities and to formulate their programmes in freedom, and in several
countries the legislation enumerates extensively the various types of activities which
such organisations may develop. This does not exclude, however, certain legal
restrictions imposed in a number of countries on some of their activities, specifically
occupational or otherwise, or the existence, in exceptional cases, of general provisions
which may be applied in such a manner as to impair the guarantees provided
for in the Convention.3 Restrictions on activities which are not of an occupational
character, such as commercial or religious activities, may result from special provisions
to this effect4 or from the legal definition of the objects of a trade union, which
confines these objects to the study and defence of the economic, industrial, commercial
and agricultural interests of their members and is understood to prohibit any activity
of an exclusively lucrative nature.6 This kind of restriction, where it exists, does not
s. 57), Nigeria (Trade Unions Ordinance, s. 28), Singapore (Trade Unions Ordinance, ss. 44 and 45),
Trinidad and Tobago (Trade Unions Ordinance, s. 16).
1 For example, Argentina (Decree No. 969 of 1966, s. 12, as amended by Decree No. 2477 of
1970), Barbados (Trade Union Act, s. 35), United Kingdom (Industrial Relations Act, 1971, s. 83).
2 RCE, General Survey, 1959, para. 64.
3 For example, when the legislation provides that trade unions shall subordinate their respective
interests to the interests of the national economic system, in co-operation with the State and the
higher organs of production and labour (Portugal, Legislative Decree No. 23055 of 1933, s. 9).
See also, in this connection, Committee on Freedom of Association, 113th Report, Case No. 266
(Portugal), para. 54.
4 With regard to commercial activities, for example, Colombia (Labour Code, ss. 355 and
379), Costa Rica (Labour Code, s. 280), Guatemala (Labour Code, s. 226). With regard to religious
activities, for example, Colombia (Labour Code, s. 379), Ecuador (Act No. 70-05), Paraguay
(Labour Code, s. 302).
6 For example, France (Labour Code, Book IV, s. L.411-1).
44 REPORT OF THE COMMITTEE OF EXPERTS
appear to constitute an obstacle to the furthering and defending of the interests of
workers and employers by their organisations. As regards the prohibition of commercial
activities, the situation may deserve re-examination in the light of the development
of trade union activities in general. In any case restrictions of this type
should not prevent trade unions from promoting and developing, for example, producers'
and consumers' co-operatives.1
106. With regard to activities which have an occupational character or are
closely connected with the furtherance of the social and economic interests of workers
and employers, there are certain restrictions which merit special consideration,
namely those concerning collective bargaining (which will be examined in the relevant
chapter), the right to strike and political activities.
107. The right to strike is subject to restrictions in many countries, but the
scope and severity of these restrictions may vary to a considerable extent, ranging
from temporary prohibition and prohibition for only certain categories of
workers, to prohibition of a general character applicable to all workers. A general
prohibition of strikes may result from specific provisions in the law2, and
it may also result, for all practical purposes, from the cumulative effect of the
provisions relating to the established dispute settlement machinery, according to
which labour disputes are channelled through compulsory conciliation and arbitration
procedures leading to a final award or decision which is binding on the
parties concerned.3 A similar situation may arise in cases where in the absence of
an agreement reached by the parties, disputes can be settled by compulsory arbitration
or decision at the discretion of the public authorities.4 Severe restrictions
may also occur where the procedure to be followed before a strike can be called is
so cumbersome that in practice lawful strike action becomes almost impossible; the
effect of restrictions of this kind is accentuated where the workers have not yet been
able to develop strong and experienced organisations. A general prohibition of
strikes constitutes a considerable restriction of the opportunities open to trade unions
for furthering and defending the interests of their members (Article 10 of Convention
No. 87) and of the right of trade unions to organise their activities (Article 3); it
should be recalled, in this connection, that Article 8 of the Convention establishes
that the law of the land shall not be such as to impair nor shall it be so applied as to
1See, in this connection, the Co-operatives (Developing Countries) Recommendation, 1966
(No. 127), Paragraph 16.
2 For example, Portugal (Legislative Decree No. 23870 of 1934).
3 For example, Brazil (Act No. 4330 of 1964, ss. 10, 23 and 25, Consolidated Labour Laws,
s. 872), Cuba (Act No. 1022 of 1962, s. 36), Dominican Republic (Labour Code, ss. 374, 377, 633
and 655), Haiti (Labour Code, ss. 190,191,192,197,199 and 210), Iran (Labour Code, Chapter IX),
Libyan Arab Republic Labour Law, ss. 143 and 146), Mali (Labour Code, ss. 268, 269, 274, 278
and 280), Paraguay (Labour Code, ss. 284, 296, 302 and 308), Peru (Supreme Decree of 8 August
1956, s. 2, Supreme Decree No. 009 of 1963 and Supreme Decree No. 006-71-TR of 1971), Spain
(Decree No. 1376 of 1970), Tanzania (Tanganyika) (Permanent Labour Tribunal Act, 1967), Zambia
Ondustrial Relations Act, 1971).
The situation is somewhat different in the USSR, where the Labour Code of the RSFSR
establishes (s. 10) that disputes between the management of an undertaking and the trade union
committee concerned arising on the occasion of the conclusion of a collective agreement shall be
settled by the higher economic and trade union organs, with the participation of the parties.
4 For example, Ethiopia (Labour Relations Proclamation, ss. 2 and 18), India (Industrial
Disputes Act, 1947, ss. 10 and 23), Malaysia (Essential (Industrial Relations) Regulation 1969),
Mauritania (Labour Code, Book IV, ss. 40 and 48), Nigeria (Trade Disputes (Emergency Provisions)
Decree, 1968 and Trade Disputes (Emergency Provisions) (Amendment), Decree, 1969), Singapore
(Industrial Relations Ordinance, 1960), Sri Lanka (Industrial Disputes Act, 1950, s. 4, as amended
by Act No. 62 of 1957).
FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING 45
impair the guarantees provided for in the Convention, including the right of trade
unions to organise their activities.
108. The situation is different where the law only imposes a temporary prohibition
on strikes, as for example, during the conciliation and arbitration procedure,
or during a cooling-off period, or before the lapse of a period of strike notice, or
during the currency of a collective agreement. Restrictions of this type exist in several
countries and they have usually been accepted by the Committee on Freedom of
Association, with the proviso that the conditions which have to be fulfilled, under
the law, in order to render a strike lawful, should be reasonable and, in any event,
not such as to place a substantial limitation on the means of action open to trade
union organisations.1
109. The situation may also be different where the right to strike is denied to a
certain category of workers, especially public servants and workers in essential
services. With regard to the former, it may be considered that the recognition of the
principle of freedom of association does not necessarily imply the right to strike.
While in many countries they are prevented from going on strike, in others their
right to strike is recognised.2 Strikes in essential services are also forbidden in a
number of countries, although in certain cases the prohibition depends on whether
the authorities decide to refer any unsettled dispute in this sector to compulsory
arbitration. The concept of essential services may vary according to national legislation,
and sometimes this term is used in a wide sense including such activities as
the production, supply and distribution of fuel, dockwork, public transport, markets,
agriculture, or all other activities which the government may consider appropriate.3
The Committee on Freedom of Association has called attention to the abuses that
might arise out of an excessively wide definition in the law of the term "essential
services" and has suggested that the prohibition of strikes should be confined to
services which are essential in the strict sense of the term.4
110. In certain countries strikes may be prohibited if the authorities consider
that they may be prejudicial to the public order or to the general interest, or may
affect economic development.5 Provisions drafted in such general terms entail the
risk of being applied in a wide range of circumstances and not only in cases of real
emergency, thus creating an obstacle in the free organisation of trade union activities.
111. In all the cases where strikes may be prohibited for certain workers,
particularly civil servants and persons engaged in essential services, it is important
that sufficient guarantees should be accorded to these workers in order to safeguard
their interests, such as adequate, impartial and speedy conciliation and arbitration
procedures in which the parties concerned can participate at all stages and in which
the awards are binding on both parties and are fully and promptly implemented.
1 See, for example, Committee on Freedom of Association, 58th Report, Case No. 192 (Argentina),
para. 445; 92nd Report, Case No. 454 (Honduras), para. 185.
2 This appears to be the case, for example, in Dahomey, France, Italy, Ivory Coast, Mexico,
Norway, Senegal, Sweden, Togo.
3 See, for example, Colombia (Labour Code, s. 430), Costa Rica (Labour Code, s. 369), Kenya
(Trade Disputes Act, 1965), Malawi (Trade Disputes (Arbitration and Settlement) Ordinance),
Pakistan (Industrial Relations Ordinance, 1969), Sierra Leone (The Regulation of Wages and
Industrial Relations Act, 1971), Trinidad and Tobago (Industrial Relations Act, 1972), Uganda
(Trade Disputes (Arbitration and Settlement) Act, 1964).
4 See, for example, Committee on Freedom of Association, 74th Report, Case No. 363 (Colombia),
para. 230.
5 See, for example, Argentina (Act No. 16939 of 1966), Chile (Act No. 12927 of 1958), Ivory
Coast (Labour Code, s. 183), Mali (Labour Code, s. 278), Pakistan (industrial Relations Ordinance,
1969, s. 32, as amended), Senegal QLabour Code, s. 238), Tunisia (Labour Code, s. 387).
46 REPORT OF THE COMMITTEE OF EXPERTS
112. Finally, there is the special situation in some countries where trade unions,
having voluntarily decided to register with the authorities (which in turn entitles
them to use the state machinery for the settlement of labour disputes by means of
conciliation and arbitration proceedings with binding awards), are not allowed to
strike if a strike ban has been included in an award or where they are bound by the
terms of an award.1
113. In several countries the legislation provides for certain restrictions on the
political activities of occupational organisations, or such activities may be completely
prohibited. In some cases 2, trade unions are not allowed to make financial
contributions to a political party or to persons running for political office. More
often, however, the law contains a flat prohibition for the organisations to engage
in party politics 3 or in any political activity whatsoever.4 The extent of such prohibition
depends on the interpretation given to the term political activity and on the
practical application of the legislation. As the Committee has already indicated on
previous occasions, such provisions of a general scope and referring especially to
occupational organisations, may, by establishing a prohibition a priori, raise difficulties
by reason of the fact that the interpretation given to them in practice may
change at any moment and restrict considerably the possibility of action of the
organisations.5 A general prohibition of political activities of any kind is not only
incompatible with the principles and guarantees of the Convention, but it would
also seem to be unrealistic as regards its application in actual practice. Trade unions
may wish to make publicly known their position on matters of economic and social
policy which affect their members or even decide to give support to a
political party as a means towards the advancement of their economic and
social objectives. It is important, however, that when trade unions—at the decision
of their members—undertake or associate themselves with political action for these
purposes, this action shall not be "of such a nature as to compromise the continuance
of the trade union movement or its social and economic functions, irrespective of
political changes in the country".6 It is for these reasons that the Committee would
again stress that States should be able, without prohibiting in general terms and
a priori all political activities by occupational organisations, to entrust to the judicial
authorities the task of repressing abuses which might, in certain cases, be committed
by organisations which had lost sight of the fact that their fundamental objective
should be the economic and social advancement of their members.7
114. There are a number of countries where through legislative or other means
trade unions are closely associated with a political party.8 Here again, references
1 This is the case in Australia (Commonwealth Conciliation and Arbitration Act) and New
Zealand (Industrial Conciliation and Arbitration Act).
2 For example, Argentina (Decree No. 969 of 1966, section 2), Liberia (Labour Practices
Law, section 4110).
3 For example, Argentina (Decree No. 9080 of 1965), Brazil (Consolidated Labour Laws,
section 521), Colombia (Labour Code, section 379), Costa Rica (Labour Code, section 280), Ecuador
(Act No. 70-05), El Salvador (Labour Code, section 207), Guatemala (Labour Code, section
207).
4 For example, Chad (Labour Code, section 36), Ethiopia, (Labour Relations Proclamation,
section 22), Greece (Legislative Decree No. 890, section 5), Madagascar (Labour Code, section 3),
Paraguay (Labour Code, section 302), Somalia (Labour Code, section 28).
6 See, for example, RCE, General Survey, 1959, para. 69.
6 Resolution concerning the independence of the trade union movement, adopted by the
International Labour Conference in 1952.
7 RCE, General Survey, 1959, para. 69.
8 For example, Byelorussian SSR (Constitution, article 101), Mauritania (see Committee on
Freedom of Association, 127th Report, Case No. 660, paras. 257-306), Spain (Trade Unions Act,
FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING 47
may be made to the resolution on the independence of the trade union movement,
1952, which establishes that governments should not attempt to transform the trade
union movement into an instrument for the pursuance of political aims nor should
they attempt to interfere with the normal functions of a trade union movement
because of its freely established relationship with a political party.
sections 1, 34 and 52), Tanzania (Tanganyika) (National Union of Tanganyika Workers (Establishment)
Act, 1964, First Schedule, section 3(2)), Ukrainian SSR (Constitution, article 106), USSR
(Constitution, article 126).
Document No. 234
ILC, 69th Session, 1983, Report III (Part 4B), Freedom of
Association and Collective Bargaining, General Survey by
the Committee of Experts on the Application of
Conventions and Recommendations, pp. 58–70
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International Labour Conference
69th Session 1983
Report III
(Part 4 B)
Third Item on the Agenda:
Information and Reports on the Application
of Conventions and Recommendations
Freedom of Association and Collective Bargaining :
General Survey
Report of the Committee of Experts on the Application of Conventions
and Recommendations (Articles 19, 22 and 35 of the Constitution)
International Labour Office
Geneva 1983
CHAPTER VII
Right of workers' and employers' organisations
to organise their administration and activities
and to formulate their programmes
180. Article 3 of Convention No. 87 provides that workers' and
employers' organisations have the right "to organise their
administration and' activities and to formulate their programmes" and
that "the public authorities shall refrain from any interference which
would restrict this right or impede the lawful exercise thereof".
181. As with the other rights guaranteed by Article 3, the
principle of non-interference by the public authorities, recognised in
paragraph 2 of this Article, is essential to protect the free exercise
by the organisations of the right to organise their administration and
activities and to formulate their programmes.
Administration
182. As indicated in Chapter VI above, trade union legislation
in many countries contains provisions relating to the contents of the
constitutions and rules of organisations, particularly as regards the
management of funds. The purpose of these provisions is often to
protect the rights of the members and to provide for a sound
administration and, as such, they are not incompatible with the
Convention.
183. Generally speaking, trade unions are required to include in
their rules all relevant provisions concerning the source of the
organisation's funds (admission fees, if any, regular contributions,
special contributions and dues, fines, if any), the use of its funds,
its internal financial administration and, sometimes, the distribution
of assets in the event that the organisation is dissolved, wound up or
merged. These provisions are mainly intended to ensure as far as
possible the honest and efficient management of union funds and other
assets.
181. Many countries have specific legislative provisions on the
subject, generally desiqned tc prevent abuses and tc protect the
members against bad administration of their funds.
185. Sometimes, however, the legislation confers on the public
authorities extensive powers whereby they can exercise permanent
control over the administration of funds. This is the case in
countries where the law establishes the minimum contribution of
members,* specifies the proportion of union funds that has to te paid
» For example, Ecuador (labour Code, s. «U3); India (Trade Onions
Act, s. 6).
FREEDOM OF ASSOCIATIOR AND COLLECTIVE BARGAINING 59
to the federations,' or reguires that the budget, expenditure or
investment of a trade union must be approved by the public
authorities.2 In some countries organisations are prohibited by law
from receiving funds from abroad without the prior authorisation of the
ministry cf labour.3
186. The legislation of many countries stipulates that periodic
financial reports (usually annual) must be submitted to the compétent
authorities, which are often empowered to reguest additional
information on any point that is not clear. The degree of supervision
that may be exercised by the authorities sometimes exceeds a formal
requirement that unions must furnish financial returns at regular
intervals. In such cases the ministry cf labour* or the registrars may
apparently request information or inspect books of account practically
at any time.. There are also countries whose legislation contains
provisions relating to the investigation by the authorities of union
finances or of internal union matters in general. In these cases the
authorities are empowered to intervene when they presume that certain
irregularities have occurred or when tbey have received complaints from
union members.
187. The Committee considers that, although the application of
legislative provisions and union rules concerning an organisation's
administration must by and large be left to the members of the trade
union, the principles set out in the Convention do not exclude external
control of the internal acts of an organisation where they are alleged
or where there are major reasons for believing them to be against the
law (which should not of course infringe the principles of freedom of
association) or the union's constitution.
188. Supervision of union finances should not normally go beyond
a requirement for the organisation to submit periodic financial
returns. If, on the other hand, the administrative authority has
» For example, Iraq (Labour Code).
2 For example, Syrian Arab Republic.
3 Philippines (Labour Code, s. 271); Zambia (Industrial Relations
Act and information supplied by the Government). See also para. 25c
below.
* For example, Argentina (Act No. 22105/1979 on occupational
associations); Bolivia (General Labour Act, s. 101); Colombia (Labour
Code, s. «86); Costa Rica (Latour Code, ss. 275 and 279); Dominican
Republic (Resolution No. 13/197«); Haiti (Labour Code, s. 278); Kuwait
(Labour Act, s. 76); Libyan Arab Jamahiriya (Act No. 107/1975, ss. 18-
22); Nicaragua (Labour Code, s. 36); Panama (Labour Code, s. 376 («));
Philippines (Labour Code, s. 275); Syrian Arab Republic (Decree No.
8«, ss. 32, 3« and 35, and Legislative Decree No. 250, s. 6).
5 For example, Bangladesh (Industrial Relations Ordinance, s. 10);
Ghana (Trade Onions Ordinance, s. 26); India (Trade Onions Act, s. 26);
Kenya (Trade Onions Ordinance, s. 50); Nigeria (Decree No. 31/73, ss.
42-43) ; Pakistan (Industrial Relations Ordinance, s. 8); Trinidad and
Tobago (Trade Onions ordinance, s. 16).
In Malaysia (Trade Onions Act, s. 57) and Singapore (Trade Onions
Act, s. 53), the Registrar is empowered to verify the administration of
union funds at any "reasonable" moment.
60 REPORT OF THE COMMITTEE OF EXPERTS
discretionary power to examine the books and other documents of an
organisation, conduct an investigation and demand information at any
given time, there is a grave danger of intevference which may be of
such a nature as to restrict the guarantees provided for in Convention
No. 87. Investigatory measures should be restricted to exceptional
cases, when they are -justified by special circumstances such as
presumed irregularities that are apparent from annual financial
statements or complaints reported by members of the trade union.
Furthermore, in order to guarantee the impartiality and objectivity of
the procedure, these controls should be conducted subject to review by
the competent judicial authority. legislation which empowers the
administrative authorities to investigate the internal affairs of a
union at their entire discretion does not conform to the principles of
the Convention.*
Inviolability of union premises.
correspondence and communications
189. Freedom to administer a trade union implies that it should
te able to dispose of its assets unhindered and that the public
authorities should refrain from interfering without due cause with the
organisation's premises and correspondence.
190. Although most legal systems provide for the protection of
private premises, and therefore of union premises and correspondence,
they often make exceptions in emergency situations or in the interests
of public order. Hhile recognising that, as for any other associations
or individuals, a trade union cannot claim immunity against the
searching of its premises, the Committee considers that it should cnly
be possible for such action to be taken when a warrant has been issued
for the purpose by the regular judicial authority, when the authority
is satisfied that there is good reason to presume that such a search
will produce evidence for criminal proceedings under the ordinary law
and provided the search is restricted to the purpose for which the
warrant was issued.
activities and programmes
191. Workers' and employers' organisations should have the right
to organise their activities and formulate their programmes in complete
freedom, although this would appear to be the case in a substantial
number of countries, some impose certain legal restrictions on the
i In the case of Uruguay, the Committee noted with satisfaction in
1982 that act No. 15137/1981 and Regulation No. 513/981 represented a
considerable improvement over the original draft Bill; in particular,
the limitation on the duration of trade union assemblies and the
extensive powers accorded to the public authorities to reguest reports
on trade union activities had been removed.
With regard to Barbados, the Committee noted with satisfaction in
1975 an amendment to section 35 of the Trade Onions Act enabling trade
unions to appeal to the Supreme Court against decisions of the
Registrar of Trade Onions concerning violations of the regulations on
the use of union funds.
FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING 61
guarantees provided for under the Convention, in particular on
political activities ar.d the right to strike.1
Political activities
192. In certain countries the law restricts the political
activities of trade unions, for example by prohibiting them from making
financial contributions to a political party or to persons seeking a
political appointment.2
193. Elsewhere, there is a total ban on political activities.
In many cases, for instance, the law prohibits the organisations purely
and simply from engaging in party politics or any political activity
whatsoever.3
19tt. By contrast, legislative or other provisions ir. certain
countries establish close links between the trade unions and the sole
political party in power.«
195. It is increasingly apparent, as was mentioned during the
preparatory work on Convention Ko. 87,s that a trade union's activities
cannot be restricted solely to occupational guestions, since the choice
of a general policy - in economic affairs for example - is bound to
have consequences on the situation of workers (remuneration, holidays,
working conditions, the running of enterprises, etc.). Developments in
the trade union movement show that the promotion of working conditions
through collective bargaining, though still a major feature of trade
union action, increasingly involves participation by organisations in
economic and social policy making bodies. This in turn means that
trade unions must be able to devote attention to matters of general
interest - i.e. "political" in the broadest sense of the word - and
that, for example, they must be able to express their views publicly on
a government's economic and social policy, since the fundamental
objective of the trade union movement is to ensure the development of
the social and economic well-being cf all workers.
» As for restrictions on collective bargaining, see below. Chapter
XII.
2 For example, Liberia (labour Practices law, s. 1110).
3 For example, Argentina (Act No. 22105/1979, s. 8); Brazil
(Consolidated Labour Laws, s. 521) ; Chad (Labour Code, s. 36);
Colombia (Labour Code, s. 378a, Decree No. 2655/1954 and Resolution No.
4/1952); Costa Bica (Labour Code, s. 280): El Salvador (Labour Code,
s. 229(a)); Ecuador (Labour Code, s. 443); Kuwait (Labour Act, s. 73);
Nicaragua (Labour Code, s. 204); Paraguay (Labour Code, s. 302); Peru
(Decree No. 009/1961); Somalia (Labour Code, s. 28); Turkey (1982
Constitution, Art. 52).
In the case of Madagascar, the Committee noted with satisfaction
in 1976 that the new Labour Code eliminated a sentence in the previous
Code forbidding trade unions to engage in any political activity.
* See para. 13 5 above.
s During the preparatory work on Convention No. 87, the Horkers'
members and several Government members opposed any amendment of the
text proposed by the Office that miqht restrict trade union activities
solely to occupational matters. See ILO, Record of Proceedings. ILC,
30th Session, 1947, p. 570.
62 REPORT OF THE COHHITTEE CF EXPEFTS
196. However, as the International Labour Conference indicated
in its 1952 resolution concerning the independence of the trade union
movement, when trade unions in accordance with the law and practice of
their respective countries and at the decision of their members decide
to establish relations with a political party or to undertake
constitutional political action as a means towards the advancement of
their economic and social objectives, such political relations or
actions should not be of such a nature as to compromise the continuance
of the trade union movement or its social and economic functions,
irrespective of political changes in the country.
197. Boreover, when governments endeavour to enlist the
collaboration of the trade unions in the implementation of their
economic and social policy, they should appreciate that the value of
such collaboration depends largely on the freedom and independence cf
the trade union movement, as an essential factor in social progress,
and should not seek to transform it into a political instrument for the
attainment of their own political objectives. Finally, they should not
attempt to interfere in the normal activities of a union under the
pretext of its freely established relationship with a political party.
198. The Committee therefore considers that legislative
provisions prohibiting all political activities or, on the contrary,
establishing a close link between the unions and a political party are
incompatible with the principles of the Convention.
Protest action and the right to strike
199. Workers' organisations have a number of means at their
disposal to promote and defend their economic and social interests.
Some of these are simple protest actions, for example protest meetings
or petitions, which do not cause any direct damage to the etplcyer.
Others, however, are aimed at exertinq pressure by causing prejudice to
the employer, e.g. slowing down of work (go-slow), the strict
application of the rules (work-to-rule), or recourse to strike action.
200. The Committee considers that the right to strike is one of
the essential means available to workers and their organisations for
the promotion and protection of their economic and social interests.
These interests not only have to do with obtaining better working
conditions and pursuing collective demands of an occupational nature,
but also with seeking solutions to economic and social policy guestions
and to labour problems of any kind which are of direct concern to the
workers.i
2C1. In international law, the riqht to strike is explicitly
recognised in Article 8 of the International Covenant on Economic,
Social and Cultural Bights. At the regional level, the European Social
Charter was the first international text to recognise explicitly the
right to strike in the case of a conflict of interests, subject to any
commitments under collective agreements in force.
202. The study of national legislation shows that the extent to
which the right to strike is recognised differs from country to
country: while tacitly or explicitly accepted in some countries, in
many others it is limited by restrictions of varying scope and
severity.
i See, for example, ILO: Committee on Freedom of Association, 214th
Report, Case No. 1081, para. 261.
FREEDOM OF ASSOCIATION AND COLLECTIVE BARGAINING 63
203. As regards the majority of the socialist countries, their
legislation contains no provision relating to the legality or
illegality of a strike. In vie« of the nature of the particular
economic and political systems of these countries, the governments
consider that trade unions have no need to resort to direct action in
order to defend their interests.
General prohibition of strikes
20«. A general prohibition of strikes and the suspension of the
right to strike, such as occurs in certain countries, may arise from
specific provisions in the law.» The prohibition of strikes may also
result, for all practical purposes, from the cumulative effect of the
provisions relating to the established dispute settlement machinery,
according to which labour disputes are channeled through compulsory
conciliation and arbitration procedures leading to a final avard or
decision which is bindinq on the parties concerned; a similar
situation may arise in cases where, in the absence of an agreement
between the parties, disputes can be settled by compulsory arbitration
or decision at the discretion of the public authorities.2 Under these
systems, it is possible to prohibit or put a rapid stop to almost any
strike.
205. A general ban on strikes seriously limits the means at the
disposal of trade unions to further and defend the interests of their
members (Article 10 of the Convention) and their right to organise
their activities (Article 3) and is, therefore, not compatible with the
principles of freedom of association.
206. A general prohibition of strikes or a temporary suspension
of the right to strike sometimes results from provisions adopted under
» For example, Argentina (Act No. 21261/1976 prorogued by Act No«
21400/1976); Bangladesh (Ordinance No. XXVI/1982, s. 8); Chad
(Ordinance No. 30/1975); Colombia (for federations and confederations,
Labour Code, s. «17) ; Liberia (Decree No. 12/1980); Nicaragua (Decrees
Nos. 911/1981 and 955/1982); Pakistan (Proclamation of 16 October
1979); Syrian Arab Republic (Agricultural Labour Code, s. 160);
Thailand (Decree No. 3/1976, read in conjunction with ss. 133 and IUI
of the Industrial Relations Act).
2 For example, Algeria (Act No. 82-05,, ss. 40-U2); Eolivia
(General Labour Act, s. 113(c)); Brazil (Consolidated Labour Laws, s.
872); Colombia (Act No. «8/1968, s. 3); Cyprus (Rule 79B); Dominican
Republic (Labour Code, ss. 37«, 377, 633 and 655); Ecuador
(Constitution, Article 31K and Labour Code, s. «66); Ethiopia (Labour
Proclamation of 1975, ss. 99 and 106); Gabon (Labour Code, s. 239 et
seq.); Ghana (Industrial Relations Act, 1965, ss. 18 and 21); India
(Industrial Disputes Act, 19«7, s. 10); Jamaica (Labour Relations and
Industrial Disputes Act, 1975, as amended, s. 15); Kenya (Trade
Disputes Act, 1965, ss. 21 and 22); Lesotho (Laws Nos. 3« of 1975 and
21 of 1982); Halaysia (Industrial Relations Act, s. 26); Balta
(Industrial Relations Act, s. 27); Mauritius (Industrial Relations
Act, ss. 82-83); Mauritania (Labour Code, Book IV, ss. «0 and U8);
Nigeria (Industrial Disputes Decree No. 7/1976); Paraguay (Labour
Procedure Code); Singapore (Industrial Relations Act, s. 31); Sri
Lanka (Industrial Disputes Act, ss. «0 and «3); Sudan (Industrial
Relations Act, 1976, ss. 17-31); Tanzania (Permanent Labour Tribunal
Act, 1967, s. 22); Tunisia (Labour Code, ss. 38« to 387); Zambia
(Industrial Relations Act, 1971).
6U REPORT OF THE COMMITTEE OF EXPERTS
emergency powers or may be attributed by governments to the existence
of a crisis. The Committee considers that, inasmuch as the prohibition
or general suspension of strikes constitutes a major restriction cf one
of the essential means available to workers and their organisations for
furthering and defendinq their interests, such measures cannct be
justified except in a situation of acute national crisis, and then only
for a limited period.
Specific restrictions on the
right to strike
207. In some countries the legisation, while admitting the
principle of the right to strike, introduces a number cf more or less
important restrictions on such action: these restrictions concern
certain categories of workers; or they are imposed in the light of the
objectives of the strike or the methods employed; or they are derived
from provisions imposing time limits which must elapse before workers
can resort to strike action.l
Restrictions relating to public
servants and workers in
essential services
208. National legislations differ radically on the subject of
the legality or otherwise of work stoppaqes decided by public servants.
A comparison of current legislation in a number of countries shows that
a variety of possibilities are provided for, along with several
possible solutions.
209. At one extreme there are countries whose legislation
specifically recognises the right to strike of public servants2 and
where, if a dispute can be settled neither by existing machinery nor
through consultation or negotiation, they can lawfully engage in strike
action. The laws and regulations in force may, however, restrict the
exercise of this right by people in certain positions.'
210. Some countries make no distinction between strikes in the
public sector and strikes in other sectors of the economy: public
servants must simply observe the normal procedure laid down in the
general legislation of the country.*
211. In another qroup of countries, there are no laws or
regulations concerning the legality or otherwise of strikes by public
1 With regard to Panama, the Committee noted with satisfaction in
1982 that Act No. 8/1981 had removed the limitation imposed on the
exercise of the right to strike which made such exercise subject to the
condition that the demands for better working conditions made by
workers should not, in the opinion of the administrative authority,
affect the profitability of the undertaking.
2 For example, Benin, Canada, Comoros, Finland, France, Greece,
Ivory Coast, Luxembourg, Mexico, Niger, Norway, Portugal, Senegal,
Sweden, Togo, Zaire.
3 See para. 212 below.
« For example Italy and Sweden.
FREEDOM OF ASSOCIATION AHD COLLECTIVE BARGAINING 65
servants. Since the silence of the legislation on the matter is open
to different interpretations, various legal solutions have been adopted
by the countries concerned in such cases. On the one hand, the
legality of a strike may be tacitly recognised or implied t-y the
government's attitude towards the recognition or registration cf trade
unions.1 (If a trade union's constitution, rules or other documents
that have to be submitted to a competent authority provide for strike
action and the authority does net raise any objection, it can be
assumed that work stoppages are legal.) On the other hand, the issue
may remain a matter of controversy.2 Finally, the absence of any
general or specific provisions relating to strikes in the public
service may be interpreted as their tacit prohibition.3 In a number of
countries, the legislation explicitly denies the right of public
servants to strike.*
212. Even the fact that the right to strike in the public
service is explicitly or tacitly recognised does not mean that all
public servants enjoy unlimited freedom in this respect. On the
contrary, various limitations and restrictions have been introduced by
law and in practice in a considerable number of countries that
authorise strikes in the public service. These restrictions appear to
be based on a variety of criteria, such as the level of responsibility
of the officials concerned, their place in the administration
hierarchy, the nature of the services they perform and the conditions
in which a strike is called and conducted.s
213. Numerous countries also have provisions prohibiting or
limiting strikes in essential services. However, the concept of
essential services varies from one national legislation to another. In
some cases, a long list of such services is given in the law itself;6
i For example, Israel, Madagascar, United Kingdom.
2 For example, Austria, Belgium, Denmark, Netherlands.
3 For example. Federal Republic of Germany.
* For example, Bolivia, Brazil, Burundi, Chile, Colombia, Costa
Rica, Ecuador, Guatemala, Honduras, Kuwait, Lebanon, Morocco,
Nicaragua, Philippines, Rwanda, Switzerland, Syrian Arab Republic,
Thailand, Trinidad and Tobago, United States, Uruguay, Zimbabwe.
s For example, Canada, Finland, Japan, Luxembourg, Madagascar,
Mexico, Norway.
• For example, Brazil (Legislative Decree No. 1612/1978); United
Republic of Cameroon (Labour Code, s. 165, paragraph 3, and Decree No.
7U/969, s. 2); Canada (the legislation of the Province cf Alberta);
Colombia (Labour Code, s. «3C and Decrees Nos. «1V1952, 1593/1959,
1167/1963 and 57 and 534/1967); Costa Rica (Labour Code, s. 369;
however, subsection (b) of s. 369 (concerning transport and port werk)
has been declared unconstitutional); Dominican Republic (Labour Code,
ss. 370 and 371); Guyana (Law on Public Utilities, Cap. 5<»:01); India
(Essential Services Maintenance Act, No. UO, 1981) ; Jamaica (Labour
Relations and Industrial Disputes Act, 1975, as amended, ss. 15 and
28); Kenya (Trade Disputes Act, 1965); Lesotho (Act No. 3U/1915,
amended in 1982); Malawi (Trade Disputes (Arbitration and Settlement)
Ordinance) ; Pakistan (Industrial Relations Ordinance, ss. 31-33) ;
Poland (Trade Unions Act, 1982, s. 40(1) and (2)); Sri Lanka (Essential
Services Act, 1979); Swaziland (Industrial Relations Act, 1980, s. 65
and Note No. 54/1982); United States (Labor-Management Relations Act,
(Footnote continued on next page)
66 ilEPORT OF THE COMMITTEE OF EXPEETS
sometimes, the definition of such services covers all activities which
the government may consider appropriate or all strikes that may be
contrary to public order, the general interest or economic
development.>
214. In the opinion of the Committee, the principle whereby the
right to strike may be limited or prohibited in the public service or
in essential services, whether public, semi-public or private, would
become meaningless if the legislation defined the public service or
essential services too broadly. As the Committee has already mentioned
in previous general surveys,2 the prohibition should be confined to
public servants acting in their capacity as agents of the public
authority or to services whose interruption would endanger the life,
personal safety or health of the whole or part of the population.'
Moreover, if strikes are restricted or prohibited in the public service
or in essential services, appropriate guarantees must be afforded to
protect workers who are thus denied one of the essential means of
defending their occupational interests. Restrictions should be offset
by adeguate impartial and speedy conciliation and arbitration
procedures, in which the parties concerned car. take part at every stage
and in which the awards should in all cases be binding on both parties.
Such awards, once rendered, should be rapidly and fully implemented.
(Footnote continued from previous page)
1947, ss. 206-210); Venezuela (Labour Act (Begulations), s. 393) ;
Zambia (Industrial Relations Act, s. 3).
In New Zealand, the Industrial Relations Act, 1973, lays down
certain procedures to be followed before calling a strike in essential
industries and export slaughterhouses (sections 125 and 125A) . The
Trade Act, 1975, authorises the Court of Arbitration to order a
resumption of work on the grounds that the economy of the country is or
may be seriously affected by a strike. A reguest to this effect may be
addressed to the Court by a Minister or by a person directly affected
by the strike (section 119C). Finally, an amendment to the Industrial
Relations Act adopted in 1981 confers special powers on the Minister of
Labour in the event of a strike or threat of strike in essential
industries and export slaughterhouses affecting the public interest
(section 125B-E).
i For example, Cyprus (Supply and Services (Transitional Powers)
(Continuation) Law, Cap. 175A); Philippines (Labour Code, s. 264);
Trinidad and Tobago (Industrial Relations Act, s. 65); Tunisia (Labour
Code, s. 389).
2 See RÇJ, Report III (Part IV), ILC, 43rd Session, 1959, para. 68,
and General Surveys of 1973, para. 109, on freedom of association and
collective bargaining and of 1978 on forced labour, para. 123. See
also, ILO: Committee on Freedom of Association, 218th Report, Case No.
1131, para. 779.
3 The Committee on Freedom of Association has, for example,
considered that the hospital sector and air traffic control are
essential services; but it has considered that banking, agricultural
activities, ports, the metal, petrol, tobacco, and printing industries,
teaching and radio and television, for example, are not essential
services in the strict sense of the term.
FEEEDOH OF ASSOCIATION ÄHD COLLECTIVE BABGAINING 67
Bequisltioninq. minimum service
215. Under the legislation of some countries, workers on strike
can be requisitioned.' The requisitioning of workers could be abused as
a oeeans of settling labour disputes, and such action is therefore to be
avoided except where, in particularly serious circumstances, essential
services have to be maintained. Beguisitioning may be justified by the
need to ensure the operation of essential services in the strict sense
of the term. In other sectors of the economy, on the other hand, the
Committee considers that, if a total and prolonged stoppage of work in
a major industrial sector is liable to endanger the life, safety or
health of the population and cause an acute national emergency, the
maintenance of a minimum service - concerning a specified category of
workers - would seem to be justified. For such a measure to be
acceptable, the minimum service should be restricted to operations that
are strictly necessary to avoid endangering the life, personal safety
or health of the whole or part of the population; at the same time,
the workers' orqanisations should, if they wish, be able to participate
in defining the minimum service alonq with the employers and public
authorities.* Such a system could also be used in the case of essential
services in order to avoid a total ban on strikes in these services.
Restrictions relating to the
objectives of a strike
216. In many countries political strikes are explicitly or
tacitly recognised as unlawful. Elsewhere, restrictions on strikes can
be applied in such a way that any strike may be considered as
threatening the security of the State. The Committee considers that
trade union organisations ought to have the possibility of recourse to
protest strikes, in particular where aimed at criticising a
government's economic and social policies. However, strikes that are
purely political in character do not fall within the scope of the
principles of freedom of association.'
217. As for sympathy strikes, where workers come out in support
of another strike, they are recognised as lawful in certain countries.*
It would appear that more frequent recourse is being had to this form
» For example, Cyprus (Supply and Services (Transitional Powers)
(Continuation) Law, Cap. 1754); Portugal (Legislative Decree No.
637/74); Tunisia (Labour Code, s. 389); Upper Volta (Ordinance Ho.
82.003/1982).
2 See, for example, ILO: Committee on Freedom of Association, 204th
Report, Case No. 952, para. 162; 221st Beport, Case No. 1097, para. 84.
In Greece, for essential services, only a minimum service must be
ensured in the case of a strike. The unions participate in defining
the number and composition of the teams required for the essential
service (Law No. 1264, 1982, s. 21).
3 See, for example, ILO: Committee on Freedom of Association, 139th
Beport, Cases Nos. 737-744, para. 124.
« For example, France, Federal Bepublic of Germany, India, Italy,
Spain (in its ruling of 8 April 1981 the Constitutional Tribunal
considered that the provision declaring sympathy strikes unlawful was
unconstitutional in that it tended to limit the exercise of the right
to strike to those "directly" concerned), Sweden, United Kingdom.
68 REPORT OF THE COMHITTEE OF EXPERTS
of action because of the structure or the concentration of industries
or the distribution of work centres in different regions of the world.
The Committee considers that a general prohibition of sympathy strikes
could lead to abuse and that workers should be able to take such action
provided the initial strike they are supporting is itself lawful.
Restrictions relating to the
methods used
218. Bhere the right to strike is guaranteed by a country's
legislation, the first guestion that arises is whether the action taken
by the workers constitutes a strike as defined by the law. Normally
speaking, any work stoppage can be described as a strike, however short
or limited it may be. The problem would seem to be more complicated,
however, where there is no stoppage but merely a slowing down of work
(go-slow) or the strict application of the rules (work to rule).
Staggered, sit-down and lightning strikes, repeated walk-outs and
picketing also pose a problem. The Committee shares the opinion of the
Committee on Freedom of Association that, as far as the methods of
exercising the right to strike are concerned, restrictions on working
to rule, the occupation of an enterprise or working premises, sit-down
strikes and picketing can only be justified if the action ceases to be
peaceful.
Provisions imposing a waiting
period on strikes
219. In a large number of countries the law reguires notice to
be given of an intention to strike, allows for a cooling-off period or
stipulates that the majority of the workers concerned or the general
assembly of the union must first signify their approval of a strike
order.» Such procedures should not be so cumbersome as to render the
lawful strike impossible in practice.
220. The legislation of many countries reguires workers to
notify the administrative authorities of an intention to strike and to
resort to conciliation and arbitration procedures before a strike is
allowed to commence.2
221. Finally, there is the special situation in some countries
where trade unions, having voluntarily decided to register with the
authorities (which in turn entitles them to use the official machinery
for the settlement of labour disputes by means of conciliation and
arbitration proceedings with binding awards), are not allowed tc strike
> For example, Burundi, Denmark, Honduras, Philippines, Poland,
Switzerland, united Kingdom/Hong Kong, Onited States.
2 In this regard, in countries where conciliation and arbitration
are voluntary, due account should be taken of the Voluntary
Conciliation and Arbitration Recommendation, 1951 (No. 92), whose
Paragraph 7 states that "no provision of this Recommendation nay te
interpreted as limiting in any way whatsoever the right to strike", fis
to compulsory conciliation and arbitration procedures, which can in
practice be tantamount to a ban on strikes, the Committee draws
attention to the comments in paragraph 20t above.
FBEEDOH OF ASSOCIATION AND COLLECTIVE BABGAINING 69
if a strike ban has been included in an award or where they are bound
by the terms of an award.1
Sanctions against strikes
222. Host legislation that restricts the right to strike
contains clauses providing for sanctions against workers who infringe
these provisions. In some countries, striking illegally is a penal
offence punishable by a fine or term of imprisonment.2 Elsewhere,
engaging in an unlawful strike may be considered an unfair practice and
incur the corresponding civil action and disciplinary sanctions.
223. As regards strikes the Committee considers that penal
sanctions should only be imposed where there are violations of strike
prohibitions which are in conformity with the principles of freedom of
association. In addition, in these cases the sanctions should be
proportionate to the offences committed, and penalties of imprisonment
should not be imposed in the case of peaceful strikes. The Committee
considers that the application of disproportionate penal sanctions does
not favour the development of harmonious industrial relations.
*
* *
22«. Interference by the administrative authorities in trade
union activities may raise difficulties in the application cf Article
3 of Convention No. 87, particularly where an organisation's financial
administration is concerned. The principles embodied in the Convention
do not exclude the possibility of external control over the internal
activities of an organisation if it is believed or alleged that the law
or a union's rules are being infringed. In order to guarantee an
impartial and objective procedure, however, such control should be
subject to review by independent judicial authorities. Similarly, the
inviolability of the premises and correspondence of trade union
organisations should be secured by judicial guarantees.
1 For example, Australia (Conciliation and Arbitration Act), New
Zealand.
z For example, Bahamas (Industrial Eelations Act, s. 72);
Bangladesh (Ordinance No. XXVI/1982, s. 8); Philippines (Labour Code,
s. 273) ; Poland (Trade Onion Law, 1982, s. i»7 provides for sanctions
against strike leaders); USSR (Penal Code of the BSFSB, s. 190).
In Japan, penal sanctions for strike action have been imposed by
the Supreme Court on certain workers who have organised or instigated
strikes in public services.
As regards the legislation in the USSB, the Committee en Freedom
of Association has noted the formal assurance given by the Government
of the OSSE that a collective stoppage of work is not, and never has
been regarded as absenteeism and that Soviet legislation does not
provide, and never has provided any sanction in respect of a collective
stoppage of work for the purpose of supporting the claims of the
workers. The Committee has recommended the Government of the OSSE to
take appropriate steps to ensure that this assurance is generally known
to the workers concerned (23rd Beport, Case No. Ill, para. 227). As
regards section 190 of the Penal Code of the BSFSE mentioned above, the
Government states that it does not share the Committee's opinion as
concerns the interpretation given to this provision and the possibility
of systematically applying penal sanctions in cases of strikes.
70 REPOET OF THE COMMITTEE OF EXPERTS
225. The most common restrictions on the right of trade unions
to organise their activities and to formulate their programmes appear
to concern the political activities of organisations and the right to
strike. Given the development of the trade union movement, union
action cannot nowadays be restricted solely to occupational matters.
A general prohibition of political activities is not only incompatible
with Convention No. 87 but it is also unrealistic for all practical
purposes. Trade unions often undertake some measure of political
action, including support for a political party, which they may consider
necessary for the advancement of their economic and social
objectives. Thus organisations should be able to make public their
views on a government's economic and social policy, provided that their
political action does not compromise the continuity of the union
movement or of its economic and social functions; governments, in turn,
must not endeavour to use organisations as political instruments.
226. With regard to the right to strike, a general prohibition
sometimes the result of express provisions or, as in many countries,
the cumulative effect of provisions concerning the official disputes
settlement machinery - constitutes a considerable limitation on the
means available to trade unions to further and defend the interests of
their members and on their right to organise their activities. A
prohibition of this nature can only be -justified in circumstances of
acute national crisis and for a limited duration. A permanent ban on
strikes should only be imposed on public servants acting in their
capacity as public authority officials and on workers in essential
services, and should be compensated by the existence of adeguate
impartial and speedy conciliation and arbitration procedures. Finally,
restrictions relating to the objectives of a strike and to the methods
used should be sufficiently reasonable as not to result in practice in
a total prohibition or an excessive limitation of the exercise of the
right to strike.
Volume 4 - Documents 148-234