Relationship between Rights of Association and Representation and Occupational Safety and Health
Joint consultation and participation can be effective only in an environment where there is adequate recognition of and respect for the right of employers and workers to associate freely and for their organizations to be able to represent their interests effectively. In a very real sense, therefore, respect for the right to organize can be seen to be an essential precondition of an effective occupational safety and health strategy at both the national and international level and at the workplace. That being the case, it is necessary and appropriate to look more closely at ILO standards relating to freedom of association, bearing in mind their application in the context of the prevention of work-related injury and disease and the compensation and rehabilitation of those who have incurred such injury or disease. Freedom of association standards require that there be proper recognition in law and practice of the right of workers and employers to form and to join the organizations of their choice and of the right of those organizations, once established, to formulate and to implement freely their programmes.
Rights of association and representation also underpin tripartite (governments, employers and workers) cooperation in the field of occupational health and safety. Such cooperation is promoted in the context of ILO standard-setting, for example, by:
- enjoining governments to consult with representative organizations of employers and workers in relation to the formulation and implementation of policy on occupational health and safety at the national or regional level (e.g., Asbestos Convention, 1986 (No. 162), Article 4 and Occupational Safety and Health Convention, 1981 (No. 155), Articles 1 and 8)
- encouraging joint consultation and cooperation on occupational safety and health matters at the level of the workplace (e.g., Prevention of Major Industrial Accidents Convention, 1993 (No. 174), Article 9(f) and (g))
- requiring the joint participation of employers and workers in the formulation and implementation of occupational safety and health policy in the workplace (see especially Occupational Safety and Health Convention, 1981 (No. 155), Articles 19 and 20 and Occupational Safety and Health Recommendation, 1981 (No. 164), para 12).
ILO and Rights of Association and Representation
The “right of association for all lawful purposes by the employed as well as by the employers” was one of the methods and principles set out in Article 41 of the original Constitution of the ILO. This principle now finds express recognition in the Preamble to the Constitution as one of the essential preconditions of the establishment of social justice, which is itself seen as the essential precondition of universal and lasting peace. Together with the principle of tripartism, it is also accorded express recognition in Article I of the Declaration of Philadelphia, which was appended to the Constitution in 1946. This Constitutional endorsement of the importance of respect for the principles of freedom of association helps provide one of the juridical bases for the capacity of the Fact-Finding and Conciliation Commission on Freedom of Association and the Governing Body’s Committee on Freedom of Association to inquire into alleged breaches of the principles of freedom of association.
As early as 1921 the International Labour Conference adopted the Right of Association (Agriculture) Convention (No. 11), which requires ratifying States to “secure to all those engaged in agriculture the same rights of association and combination as to industrial workers”. It does not, however, say anything about the rights which are to be accorded to the industrial workers with whom those engaged in agriculture are to enjoy parity! Attempts to adopt a more general instrument dealing with freedom of association in the 1920s foundered upon the rocks of employer and government insistence that the right to form and join trade unions must be accompanied by a correlative right not to join. The matter was re-opened in the period immediately after the Second World War. This duly resulted in the adoption of the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), 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).
Conventions Nos. 87 and 98 are among the most important and the most widely ratified of all ILO Conventions: as of 31 December 1996, Convention No. 87 had attracted 119 ratifications, while No. 98 had attracted 133. Between them they embody what can properly be regarded as the four key elements in the notion of freedom of association. They are regarded as the benchmark for the international protection of freedom of association for trade union purposes, as reflected, for example, in Article 8 of the International Covenant on Economic, Social and Cultural Rights and Article 22 of the International Covenant on Civil and Political Rights. Within the ILO structure, they form the basis for the principles of freedom of association as developed and applied by the Governing Body’s Committee on Freedom of Association and the Fact-Finding and Conciliation Commission on Freedom of Association, even though in technical terms those bodies derive their jurisdiction from the Constitution of the Organization rather than the Conventions. They also constitute a major focus for the deliberations of the Committee of Experts on the Application of Conventions and Recommendations and of the Conference Committee on the Application of Conventions and Recommendations.
Despite the pivotal role of Conventions Nos. 87 and 98, it should be appreciated that they are by no means the only formal standard-setting instruments which have been adopted under the auspices of the ILO in the field of freedom of association. On the contrary, since 1970 the Conference has adopted further four Conventions and four Recommendations dealing in greater detail with various aspects of the principles of freedom of association, or with their application in certain specific contexts:
- the Workers’ Representatives Convention (No. 135) and Recommendation (No. 143), 1971
- the Rural Workers’ Organizations Convention (No. 141) and Recommendation (No. 149), 1975
- the Labour Relations (Public Service) Convention (No. 151) and Recommendation (No. 158), 1978
- the Collective Bargaining Convention (No. 154) and Recommendation (No. 163), 1981
Principles of Freedom of Association
The core elements
The core elements of the principles of freedom of association as embodied in Conventions Nos. 87 and 98 are:
- that “workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization” (Article 2 of Convention No. 87)
- that organizations of employers and workers, once established, should have the right “to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes” (Article 3(1) of Convention No. 87). Furthermore, the public authorities must “refrain from any interference which would restrict this right or impede the lawful exercise thereof” (Article 3(2))
- that workers are to enjoy “adequate protection against acts of anti-union discrimination in respect of their employment” (Article 1(1) of Convention No. 98)
- that “measures appropriate to national conditions shall be taken, where necessary, to encourage and to promote the full development and utilization of machinery for voluntary negotiation between employers and employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements” (Article 4 of Convention No. 98)
All of the guarantees provided by Convention No. 87 are subject to the proviso set out in Article 8(1): “in exercising the rights provided for in this Convention workers and employers and their respective organizations... shall respect the law of the land”. This in turn is subject to the further proviso that the “law of the land shall not be such as to impair, nor shall it be applied so as to impair, the guarantees provided for in this Convention.”
It should also be noted that by virtue of Article 9(1) of Convention No. 87 it is permissible, but not necessary, to qualify the application of the guarantees set out in that Convention to members of the police and of the armed forces. Article 5(1) of Convention No. 98 is to the same effect, while Article 6 of that instrument stipulates that the Convention “does not deal with the position of public servants engaged in the administration of the State, nor shall it be construed as prejudicing their rights or status in any way.”
The right to join
The right of workers and employers to form and to join the organizations of their choice is the pivot of all of the other guarantees provided by Conventions Nos. 87 and 98 and by the principles of freedom of association. It is subject only to the qualification set out in Article 9(1) of the Convention. This means that it is not permissible to deny any group of workers other than members of the police or the armed forces the right to form or join the trade unions of their choice. It follows that denial or restriction of the right of public servants, agricultural workers, school teachers and so on to form or join the organizations of their choice would not be consistent with the requirements of Article 2.
It is, however, permissible for the rules of a trade union or an employer organization to restrict the categories of workers or employers who may join the organization. The point is that any such restriction must be the result of the free choice of the members of the organization – it must not be imposed from outside.
The right to associate set out in Article 2 is not accompanied by any correlative right not to associate. It will be recalled that earlier attempts to adopt a general freedom of association convention failed because of the insistence by employer and some government delegates that the positive right to associate must carry with it a negative right not to associate. This issue was again raised in the context of the debates on Conventions Nos. 87 and 98. However on this occasion a compromise was effected whereby the Conference adopted a resolution to the effect that the extent to which trade union security devices (such as the “closed” or “agency” shop and check-off arrangements for trade union dues) were permissible or otherwise was a matter to be determined by national law and practice. In other words, the Conventions are considered neither to condone nor to condemn the closed shop and other forms of union security device, although such measures are not regarded as acceptable if they are imposed by law rather than adopted by agreement of the parties (ILO 1994b; ILO 1995a).
Perhaps the most difficult issue which has arisen in the context of Article 2 relates to the extent to which it can be said to endorse the notion of trade union pluralism. In other words, is it consistent with Article 2 for the law to limit, directly or indirectly, the right of workers (or employers) to form or join the organization of their choice through the application of administrative or legislative criteria?
There are two sets of competing interests in this context. On the one hand, Article 2 is clearly meant to protect the right of workers and employers to choose the organization to which they wish to belong and to choose not to belong to organizations with which they are out of sympathy on political, denominational or other grounds. On the other hand, governments (and indeed trade unions) may argue that the excessive proliferation of trade unions and employer organizations which may be an incident of unrestricted freedom of choice is not conducive to the development of free and effective organizations or the establishment and maintenance of orderly industrial relations processes. This was an issue of particular difficulty in the Cold War era, when governments often sought to restrict the range of unions to which workers could belong on ideological grounds. It remains a highly sensitive issue in many developing countries where governments, for good reason or ill, wish to prevent what they see as the excessive proliferation of trade unions by placing restrictions on the number and/or size of unions which can operate in a given workplace or sector of the economy. The ILO’s supervisory bodies have tended to adopt a fairly restrictive approach to this issue, permitting trade union monopolies where they are the result of the free choice of the workers in the country concerned and permitting the adoption of “reasonable” registration criteria, but taking exception to legally imposed monopolies and “unreasonable” registration criteria. In doing so, they have attracted considerable criticism, especially from governments in developing countries which accuse them of adopting a Eurocentric approach to the application of the Convention – the point being that the characteristically European concern with the rights of the individual is said to be inconsistent with the collectivist traditions of many non-European cultures.
Organizational autonomy and the right to strike
If Article 2 of Convention No. 87 protects the fundamental right of employers and workers to form and to join the organization of their choice, then Article 3 can be seen to provide its logical corollary by protecting the organizational autonomy of organizations once established.
As the wording of Article 3(1) clearly indicates, this would include the drafting, adoption and implementation of the constitutions and rules of organizations and the conduct of elections. However, the supervisory bodies have accepted that it is permissible for the public authorities to impose minimum conditions upon the content or administration of rules for the purpose of “ensuring a sound administration and preventing legal complications arising as a result of constitutions and rules being drawn up in insufficient detail” (ILO 1994b). However, if such conditions are excessively detailed or onerous in application then they are likely to be adjudged to be inconsistent with the requirements of Article 3.
Over the years the supervisory bodies have consistently taken the view that “the right to strike is an intrinsic corollary of the right to organize protected by Convention No. 87” (ILO 1994b):
The Committee [of Experts] considers that the right to strike is one of the essential means available to workers and their organizations for the 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 questions and to labour problems of any kind which are of direct concern to the workers.
This is one of the most controversial aspects of the entire jurisprudence relating to freedom of association and in recent years in particular it has come in for vigorous criticism from employer and government members of the Conference Committee on the Application of Conventions and Recommendations. (See, for example, International Labour Conference, 80th Session (1993), Record of Proceedings, 25/10-12 and 25/58-64 and International Labour Conference, 81st Session (1994), Record of Proceedings, 25/92-94 and 25/179-180.) It is, however, a firmly entrenched feature of the jurisprudence on freedom of association. It finds clear recognition in Article 8(1) (d) of the International Covenant on Economic, Social and Cultural Rights and was endorsed by the Committee of Experts in its 1994 General Survey on Freedom of Association and Collective Bargaining (ILO 1994b).
It is important to appreciate, however, that the right to strike as recognized by the supervisory bodies is not an unqualified one. In the first place, it does not extend to those groups of workers in relation to whom it is permissible to attenuate the guarantees set out in Convention No. 87, namely members of the police and armed forces. Furthermore, it has also been determined that the right to strike may legitimately be denied to “public servants acting as agents of the public authority” and to workers engaged in essential services in the sense of “services whose interruption would endanger the life, personal safety or health of the whole or part of the population.” However, any restrictions upon the right to strike of workers in these latter categories must be offset by compensatory guarantees, such as “conciliation and mediation procedures leading, in the event of a deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that the latter be able to participate in determining and implementing the procedure, which should furthermore provide sufficient guarantees of impartiality and rapidity: arbitration awards should be binding on both parties and once issued should be implemented rapidly and completely” (ILO 1994b).
It is also permissible to impose temporary restrictions upon the right to strike in times of “acute national emergency”. More generally, it is permissible to impose preconditions such as balloting requirements, exhaustion of conciliation procedures and so on, upon the exercise of the right to strike. However, all such restrictions must “be reasonable and... not such as to place a substantial limitation on the means of action open to trade union organizations”.
The right to strike is often described as the weapon of last resort in collective bargaining. If Article 3 is interpreted so as to protect the weapon of last resort, it seems reasonable to suppose that it must also protect the process of collective bargaining itself. The supervisory bodies have indeed taken this view on a number of occasions, but in general they have preferred to base their jurisprudence on collective bargaining upon Article 4 of Convention No. 98. (For more detailed discussion of the ILO jurisprudence on the right to strike, see Hodges-Aeberhard and Odero de Dios 1987; Ben-Israel 1988).
The autonomy of organizations of employers and workers is also addressed in Articles 4 to 7 of Convention No. 87 and in Article 2 of Convention No. 98. Article 4 provides that such organizations must not be “liable to be dissolved or suspended by administrative authority”. This does not mean that trade unions or employers’ organizations cannot be deregistered or dissolved where they have, for example, engaged in gross industrial misconduct or have not been run in accordance with their rules. But it does mean that any such sanction must be imposed through a duly constituted court or other appropriate body, rather than by administrative diktat.
Article 5 protects the rights of organizations to form and join federations and confederations and also the right of organizations, federations and confederations to affiliate with international organizations of employers and workers. Furthermore, according to Article 6, the guarantees set out in Articles 2, 3 and 4 apply to federations and confederations in the same way as to first level organizations, while Article 7 stipulates that the acquisition of legal personality by organizations of employers or workers must not be made subject to “conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4.”
Finally, Article 2(1) of Convention No. 98 requires that organizations of employers and workers are to enjoy “adequate protection against acts of interference by each other or each other’s agents or members in their establishment, functioning or administration”. In practical terms, it seems somewhat unlikely that trade unions would or could effectively interfere with the internal functioning of employer organizations. It is quite conceivable, however, that in certain circumstances employers or their organizations would seek to interfere with the internal affairs of workers’ organizations – for example, by providing some or all of their funds. This possibility finds express recognition in Article 2(2):
In particular, acts which are designed to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations, shall be deemed to constitute acts of interference within the meaning of this Article.
Protection against victimization
For the guarantees set out in Conventions Nos. 87 and 98 to be meaningful in practice, it is clearly necessary that individuals who exercise their right to form or join organizations of workers be protected against victimization on account of having done so. This logic finds recognition in Article 1(1) of Convention No. 98, which, as indicated, requires that “workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment.” Article 1(2) takes the matter further:
Such protection shall apply more particularly in respect of acts calculated to:
(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;
(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.
Anti-union discrimination for these purposes would include refusal to employ, dismissal and other measures such as “transfer, relocation, demotion, deprivation or restrictions of all kinds (remuneration, social benefits, vocational training)” which may cause serious prejudice to the worker concerned (see also Termination of Employment Convention, 1982 (No. 158), Article 5(a), (b) and (c), as well as ILO 1994b, para.212).
Not only must there be comprehensive protection against anti-union discrimination as defined, but by virtue of Article 3 of Convention No. 98, there must also be effective means of enforcing those protections:
Legal standards are inadequate if they are not coupled with effective and expeditious procedures and with sufficiently dissuasive penal sanctions to ensure their application ... The onus placed on the employer to prove the alleged anti-union discriminatory measures are connected with questions other than trade union matters, or presumptions established in the worker’s favour are additional means of ensuring effective protection of the right to organize guaranteed by the Convention. Legislation which allows the employer in practice to terminate the employment of a worker on condition that he pay the compensation provided for by law in any case of unjustified dismissal... is inadequate under the terms of Article 1 of the Convention. Legislation should also provide effective means for implementing means of compensation, with the reinstatement of the dismissed worker, including retroactive compensation, being the most appropriate remedy in such cases of anti-union discrimination (ILO 1994b).
The guarantee set out in Article 4 of Convention No. 98 has been interpreted so as to protect both the right to engage in collective bargaining and the autonomy of the bargaining process. In other words it is not consistent with Article 4 for employers and workers to be denied the right to engage in collective bargaining if they wish to do so—bearing in mind that it is not inconsistent with the Convention to deny these rights to members of the police or the armed forces and that “the Convention does not deal with the position of public servants engaged in the administration of the State”. Not only must the parties be free to engage in collective bargaining if they so choose, but they must be permitted to reach their own agreement on their own terms without interference by the public authorities – subject to certain qualifications for “compelling reasons of national economic interest” (ILO 1994) and to reasonable requirements as to form, registration and so on.
Article 4 has not, however, been interpreted as protecting the right to recognition for purposes of collective bargaining. The supervisory bodies have repeatedly emphasized the desirability of such recognition, but have not been prepared to take the further step of determining that refusal to recognize and/or the absence of a mechanism whereby employers can be obliged to recognize the unions to which their employees belong constitutes a breach of Article 4 (ILO 1994b; ILO 1995a). They have justified this interpretation on the basis that compulsory recognition would deprive collective bargaining of its voluntary character as envisaged by Article 4 (ILO 1995a). As against that, it might be argued that the ostensible right to engage in collective bargaining must inevitably be compromised if employers are to be free to refuse to engage in such bargaining notwithstanding that they have the right so to bargain if they wish. Furthermore, permitting employers to refuse to recognize the unions to which their employees belong seems to sit somewhat uneasily with the duty to “promote” collective bargaining, which appears to be the principal purpose of Article 4 (Creighton 1994).
Application of Freedom of Association Principles in the Context of Occupational Safety and Health
It was suggested earlier that ILO standards relating to occupational safety and health endorse the concept of bipartite or tripartite involvement in three principal contexts: (1) the formulation and implementation of policy at national and regional level; (2) consultation between employers and workers at the level of the workplace; and (3) joint participation between employers and workers in the formulation and implementation of policy at the level of the workplace. It should be clear from the foregoing that the effective involvement of employers and (especially) workers in all three contexts is crucially dependent upon adequate recognition of their rights of association and representation.
Respect for the right to form and to join organizations is clearly an essential precondition of all three forms of joint involvement. Consultation and participation at the governmental level is feasible only where there are strong and effective organizations which can be seen to be representative of the interests of their constituencies. This is necessary both for ease of communication and so that government will feel constrained to take seriously the views expressed by the representatives of employers and workers. A fortiori, consultation and participation at the level of the workplace is a realistic proposition only if workers have the capacity to form and to join organizations which can represent their interests in discussions with employers and their organizations, provide back-up resources for worker representatives, assist in dealings with public inspectorates and so on. Theoretically, worker representatives could operate at the level of the workplace without having any necessary connection with a more broadly based organization, but the reality of power relations in most workplaces is such that they are unlikely to be able to do so in an effective manner without the support of an industrial organization. At the very least, workers must have the right to have their interests represented in this manner if they so choose.
The organizational autonomy of employer and worker organizations is also an essential precondition of meaningful participation at all levels. It is necessary, for example, that worker organizations should have the right to formulate and to implement their policies on occupational safety and health issues without outside interference, for purposes of consultation with government in relation to: (1) issues such as the legal regulation of hazardous processes or substances; or (2) the formulation of legislative policy relating to compensation for work-related injury or the rehabilitation of injured workers. Such autonomy is even more important at the level of the workplace, where worker organizations need to develop and maintain a capacity to represent the interests of their members in discussion with employers on occupational safety and health issues. This might include having rights of access to workplaces for union officials and/or health and safety specialists; invoking the assistance of the public authorities in relation to hazardous situations; and in certain circumstances organizing industrial action in order to protect the health and safety of their members.
To be effective, organizational autonomy also requires that trade union members and officials be accorded adequate protection against victimization on grounds of their trade union membership or activities, or on account of their having initiated or participated in legal proceedings relating to occupational safety and health matters. In other words, the guarantees against discrimination set out in Article 1 of Convention No. 98 are as relevant to trade union activity relating to occupational safety and health as to other forms of union activity such as collective bargaining, membership recruitment and so on.
The right to engage in autonomous collective bargaining is also a crucial element in effective worker participation in relation to occupational safety and health. The guarantees set out in Article 4 of Convention No. 98 are important in this context. However, as indicated, those guarantees do not extend to the right to be recognized for purposes of such bargaining. On the other hand provisions such as Article 19 of the Occupational Safety and Health Convention, 1981 (No. 155) may be seen as coming very close to requiring trade union recognition in the context of occupational safety and health:
There shall be arrangements at the level of the undertaking under which:
- representatives of workers in an undertaking are given adequate information on measures taken by the employer to secure occupational safety and health and may consult their representative organizations about such information provided they do not disclose commercial secrets;
- workers and their representatives in the undertaking are given appropriate training in occupational safety and health;
- workers or their representatives and, as the case may be, their representative organizations in an undertaking, in accordance with national law and practice, are enabled to inquire into, and are consulted by the employer on, all aspects of occupational safety and health associated with their work...
In practical terms it would be very difficult to give effect to these provisions without according some kind of formal recognition to the role of workers’ organizations. This in turn serves to emphasize yet again the importance of adequate recognition of rights of association and representation as a precondition of the development and implementation of effective occupational safety and health strategies at both the national and enterprise level.