Freedom of Association Programme International Training Centre of the ILO

International LabourStandards and Processes on Freedom of Association:The added value of the ILO framework Freedom of Association Programme International Training Centre of the ILO

Presentation outline • The ILO framework on Freedom of association (dimensions and added value) • The rationale for the international recognition of FOA in the labour context (justification) • The sources and content of international labour law on Freedom of association (principles and standards) • The international means of promoting their implementation and enforcement (processes and procedures)

I. The ILO framework on Freedom of Association Dimensions and added value

Outline of Part I • The ILO framework on FOA • The components of the ILO framework • The dimensions of FOA for trade union purposes • The added valueof the ILO framework on FOA • Increased legitimacy • Increased effectiveness

1) The ILO Framework on Freedom of Association Essential components and dimensions

The components of the ILO framework on FOA • Substantive content • Fundamental Principles • International Labour Standards (ILS) • Processes for ensuring implementation • Institutional Framework and Machinery (mechanisms) • Practices and Procedures (processes)

The dimensions of FOAfor Trade Union purposes • The essential features of FOA for trade union purposes include: • The principle and right to freedom of association; • The right to organize; • The right to bargain collectively; • The right to strike; • The right to protection of related civil liberties; • The right to protection against acts of anti-union discrimination.

2) The added-value of the ILO framework on Freedom of Association Purpose andLegitimacy

Legitimacy of purpose and outcomes • Legitimacy of purpose (objectives) • Universal and lasting peace through social justice • Social justice through fairer distribution and effective participation • Legitimacy of outcomes (standards) • Tripartism: Strength of consensus • Universalism: Scope of application

Social justice as a purpose: Promoting a participatory process Promoting a distributive approach Subsidiarity as a means: Top-down approach to promote effective bottom-up action Support for rather than interference in Legitimacy of purposeand means

Tripartism: Greatest strength of consensus: standards stemming from the conciliation of the most diverse interests (employers, workers and governments) Flexibleapproach reflecting tripartism: standards drafted to be suitable for local transposition anywhere Universalism: Broadest level of consensus: standards formulated at the highest (international) level Universal scope of standards: universal application of standards supported by international recognition of their reliability and relevance Legitimacy of meansand outcomes

From legitimacy to effectiveness • The ILO framework is characterized by legitimacy of purpose, means and outcomes. • Increased legitimacy favours increased effectiveness, notably: • Effectiveness of implementation • Effectiveness of collective action.

II. The Rationale for the International Recognition of Freedom of Association for Trade Union Purposes Justification

Outline of Part II • The rationale for the international recognition of FOA in the labour context • The special status of FOA as both a fundamentalright and a fundamental mean • The pivotal role of FOA as a fundamental component of the enabling framework for ensuring decent work.

Freedom of association as a fundamental right A fundamental human right A fundamental worker right A precondition to the exercise of other rights Freedom of association as a fundamental mean A fundamental pillar of labour regulation A fundamental means of worker empowerment The pivotal role ofFreedom of Association

Freedom of association as a fundamental worker right • More than a standard, a “mean” of implementing all international labour standards • A means of achieving not only decent work, but better conditions of work • More than a principle, a “precondition” to social action and securing a voice at work • A precondition to collective action and social dialogue

The meaning of “Freedom” • What is freedom? Freedom implies autonomy. • The word “autonomy” is based on two Greek words: “auto”, meaning “self”, and “nomos” meaning “law”. • So to be autonomous is to be self-ruling. • And to be self-ruling implies having a power of choice.

The limitation of “Freedom” • Evidently, however, the exercise of all freedoms is inherentlyconstrained by the freedom of others. • Such that at most, we may behave with a relative and limited degree of autonomy, under certain conditions. • Such a limitation can be described in terms of interaction. • We can also call this interaction “heteronomy”, to stress that all relatively autonomous individuals are inherently related in this way.

The exercise of “Freedom” • Thus, any power of choice is inherently constrained by the power of choice of others • In this sense, there seems to be perfect equality. • But what happens when this equality is absent due to an imbalance in power relationships?

The central role of trade unionaction in ensuring “Freedom” • The exercise of fundamental freedoms though trade union action is the most effective means of minimizing the adverse implications of the fundamental power imbalance in worker-employer relationships. • This brings us back to the pivotal role of freedom of association.

Freedom of association as aprecondition to worker empowerment • Without freedom of association, there is no possibility of collective action. • Without collective action, workers remain isolated and unable to influence the conditions under which they work. • Without such influence, disempowered workers cannot achieve decent work, much less secure better conditions of work.

Freedom of association as a precondition to collective bargaining: • Collective bargaining is the most effective mean to restore the fundamental imbalance in employer-employee power relationships: • Collective action enables workers to negotiateon an equal (or more equal) footing with their employer • Collective bargaining is a means for ensuring equitable self-regulation though worker empowerment.

Collective bargaining asa pillar of labour regulation (1) • Collective bargaining is one of the two fundamental means of labour regulation: • The first mean of labour regulation is the adoption of protective legislation: the imposition of minimum terms and conditions of work by public authorities (for e.g. minimum standards legislation, health and safety legislation). • This isdirect legislative intervention.

Collective bargaining asa pillar of labour regulation (2) • Collective bargaining is one of the two fundamental means of labour regulation: • The second mean of labour regulation is the adoption of a legislative framework for collective bargaining: this is meant to favour the negotiation of terms and conditions of work by the parties themselves (self-regulation). • This can be called indirect legislative intervention.

Collective bargaining asa pillar of labour regulation (3) • What is the purpose of a legislative framework for collective bargaining? • To set the proper conditions to ensure the free, universal and effective exercise by all of the right to collective bargaining. • To ensure that the parties can bargain on an equal footing.

Collective bargaining as an essential component of FOA • Collective bargaining is the instrumental expression of freedom of association at work. • Collective bargaining is the primary mean of ensuring a voice at work. • Collective bargaining allows workers to further and defend their interests.

The meaning of “the effective recognitionof the right to collective bargaining” • An inherent commitment to equality. • An inherent commitment to universal access. • An inherent commitment to effectiveaccess. • An inherent commitment to inclusive democracy.

Freedom of association as a precondition to social dialogue • Without freedom of association, social dialogue remains socialmonologue. • A prerequisite for effective social dialogue is autonomous and representative social partners. • Social dialogue, which means active interaction among represented groups, it can be bipartite, tripartite or tripartite plus. • All forms of social dialogue implyfreedom of association and the effective recognition of the right to organize and to bargain collectively.

Freedom of association as a precondition to tripartism The ILO Principle of Tripartism: • Tripartism means active interaction among governments, workers and employer as representative, equal and independent social partners • The tripartite structure of the ILO enables the representatives of workers and employers to participate on an equal footing with those of governments in all discussions and decision-making.

Freedom of association as a precondition to sustained progress • The ILO is based on the recognition that freedom of expression and association are essential to sustained progress: • Declaration of Philadelphia, Article I (b). • The synergy between freedom of association and development: • The establishment and operation of organizations for the representation of sectoral interests is one of the most important ways of guaranteeing a maximum level of balance between economic and social matters.

The links between Freedom of association and Social protection • Collective action is the essential mean to secure improved conditions of work, including improved health and safety protections and other conditions of social protection. • Without freedom of association workers cannot make use of this mean. • Thus, securing universal enjoyment of the fundamental right to freedom of association is the first step towards improving health and safety protections and other conditions of social protection.

The links between Collective Bargaining and Equality Freedom of association as an essential component of the enabling framework for ensuring decent work

The links between Freedomof association and Equality • Freedom of association is a precondition to restoring vertical equality: • Labour law developed in response to the recognition of the fundamental inequality of bargaining relationships: vertical inequality due to worker subordination. • As a precondition to any form of collective action and therefore collective bargaining, freedom of association is the precondition to restoring vertical equality.

Collective bargaining as premisedupon workers’ horizontal equality • Restoring vertical equality presupposes equality of access to collective representation, i.e, universal enjoyment by all workers • But traditionally disadvantaged groups also suffer from various forms of discrimination, which can bedirect (overt), indirect or systemic • For women, the problem is compounded by persistingbeliefs in gender subordination.

The limitations of existing modelsin ensuring universal access • Existing labour relations frameworks for collective bargaining often fail to capture the specific problems of access faced by traditionally disadvantaged (marginalized) groups • Hence the recognition of the need to address another type of inequality: horizontal inequality

Horizontal and Vertical Inequality • Horizontal inequality is inequality between workers due to structural and/or personal discrimination • Vertical inequality is inequality between a worker and his/her employer due to worker subordination and the resulting imbalance in the power relationship

The core principles of freedom of association and non-discrimination Complementarity and interdependence

The interface between Freedom of association and Non-discrimination • The need to ensure both horizontal and vertical inequality underscores the complementarity and interdependence of the core principles of freedom of association and non-discrimination • A precondition to the effective enjoyment by all of the right to freedom of association is the elimination of all forms of discrimination

International recognitionof these core principles • Both the principle of freedom of association and the principle of non-discrimination are universally recognized as fundamental human rights in international instruments. • Theprinciple of “freedom of association and the effective recognition of the right to collective bargaining” and the principle of “non-discrimination and the elimination of discrimination in respect of employment and occupation” are recognized as fundamental workers rights in the 1998 ILO Declaration on Fundamental Principles and Rights at Work.

ILO recognition of these core principles • The preamble of the ILO Constitution affirms the cardinal importance of the core principles of freedom of association and non-discrimination. • Articles I (b) and II (a) of the ILO Declaration of Philadelphia assert that freedom of expression and association are essential to sustained progress and that discrimination poses a threat to human dignity.

ILO renewed commitment to the coreprinciples of FOA & CB and Non-discrimination • The 1998 ILO Declaration on Fundamental Principles and Rights at Work reaffirms that: • Freedom of association and collective bargaining, and the elimination of discrimination in respect of employment and occupation are so central to the achievement of social justice and the ILO decent work agenda, that its Members have a good faith obligation to respect, to promote and to realize them whether or not they have ratified the Conventions on the subject.

Equality at work: the enabling framework for decent work (1) • The pivotal notion implied in this statement is that the core principles of freedom of association and non-discrimination are complementary and interdependent. • Together these principles provide the enabling framework for ensuring equality at work.

Equality at work: the enabling framework for decent work (2) • This enabling framework is reinforced by the other two fundamental principles affirmed in the 1998 ILO Declaration, namely: • The need to eliminate forced labour; and • The need to eradicate the worst forms of child labour.

Status of forced and child labour • In the case of forced labour and the worst forms of child labour, there is no balance of power to rectify or equality to restore because these forms of work admit no freedom. • As a result, these forms of workcannot be “improved”; only eliminated.

Ensuring decent work for allthrough equality at work • The effective realization of both the principle offreedom of association and the principle ofnon-discriminationis needed to ensure equality at work (as the enabling framework for decent work). • Both principles are necessary to promote a vision of sustainable development and workplace governance which reconciles economic with social goals. • At the same time, when properly articulated together, both principles can foster the achievement of social justice in amutually supportive way.

FOA’s equality challenge • Equality and the principle of non-discrimination are fundamental components of Freedom of association. • Unequal access to collective bargaining is an equality challenge. • Ensuring universal access to the full enjoyment of FOA, including the effective exercise of organisational rights, contributes to the promotion of equality of opportunities and treatment on grounds such as gender, disability and religion.

The links between collectivebargaining and equality • Unequal access to collective bargaining is an equality challenge. • At the same time, obstacles in the way of achieving equality at work can be eliminated through collective bargaining.

Negotiating equality • An equality agenda can enhance the scope, effectiveness and legitimacy of collective action. • An equality agenda serves to remedy inequality and discrimination. • Collective action has proved particularly effective in remedying inequality and discrimination.

The interface between collective bargaining and equality • The negotiation process has contributed to the promotion of equality of opportunities and treatment on grounds such as gender, disability and religion. • In turn, an equality agenda can enhance the scope, effectiveness and legitimacy of collective bargaining.

Collective bargaining, an essentialmean of achieving pay equity • Women’s groups and trade unions have been able to use pay equity legislation to win some significant gains • Not only in terms of wages, but also • In terms of addressing the related problems of pervasive and persistent undervaluing that underlies the resistance to women’s claims.

Freedom of Association Programme International Training Centre of the ILO