Labour rights as human rights I: Freedom of association
Freedom of association and the right to strike INTERNATIONAL HUMAN RIGHTS LAW [email protected] Collective labour rights Freedom of association and right to organise: Forming and joining trade unions (for the protection of ones interests) / trade unions participate in political arena; Right to collective bargaining: Negotiating collective agreements with the employers couterpart for setting working and employment conditions (but not only, cf healt&safety) / bargaining with the State;
Right to strike and collective action: Undertaking conflictual actions against the employer (collective withdrawing from work) / not necessarily connected with the phase of negotiations / political strike; Socio-economic and political dimensions of collective labour rights! Historical features and legal developments Social phenomena brought about by socioeconomic changes; Industrial revolution collectivisation of economic production and accumulation of economic power; Workers struggles; Socio-economic functions of counterbalance
and improvement of labour and living conditions; The three phases of States law: Repression / Toleration / Recognition. Economic globalisation; Legal globalisation. Labour rights as human rights 3 generations of rights: o Civil and political rights; o Socio-economic rights; o Third generation rights. o State-citizens relationship relationships between private parties; o Socio-economic and political and historical contexts.
Labour rights as human rights Campaigns / struggles for labour rights were pioneers of human rights campaigns; Forced labour; Private relationship governed by a private contract; Role of the State (negative v positive duties); Effects of globalisation.
Different advocating agencies NGOs v. Trade unions: NGOs not membership-based / no power from the State / no need for legitimacy / lobbying activity; Trade Unions membership-based / power from the State (employment regulation) / need for twofold legitimacy / bargaining activity; New litigation strategies by Trade Unions. Trade unions Forms of social organising and socio-economic aims; Representing collective
interests; Negotiating conditions of work and employment; Raising workers voice; Conflict. Labour rights and human rights UDHR / ICCPR / ICESCR ILO Convs. ECHR / ESC EUCFR / CCFSRW Sa AC n S HR Pr alv / ot
oc ado ol r ACHPR ASEAN HRD Freedom of association The Human Right Documents UDHR (1948) Art. 20: 1. Everyone has the right to freedom of peaceful assembly and association; 2. No one may be compelled to belong to an association ICCPR (1966) Art. 22.1: Everyone shall have the right to freedom of association
with others, including the right to form and join trade unions for the protection of his interests; ACHR (1969) Art. 16: Everyone has the right to associate freely for ideological, religious, political, economic, labor, social, cultural, sports, or other purposes; ACHPR (1981) Art. 10: Every individual shall have the right to free association provided that he abides by the law; ECHR (1950) Art. 11: Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. ASEAN HRD Art. 27.2: Every person has the right to form trade unions and join the trade union of his or her choice for the protection of his or her interests, in accordance with national laws and regulations. Freedom of association The EU Fundamental Rights Documents
EU Charter of Fundamental Rights (2000/2009) Art. 12: Everyone has the right to freedom of peaceful assembly and to freedom of association at all levels, in particular in political, trade union and civic matters, which implies the right of everyone to form and to join trade unions for the protection of his or her interests; Freedom of association The Labour / Social Rights Documents ICESCR (1966) Art. 8: The right of everyone to form trade unions and join the trade union of his choice, subject only to the rules of the organization concerned, for the promotion and protection of his economic and social interests / The right of trade unions to establish national federations or confederations and the right of the latter to form or join international tradeunion organizations; ESC (1961 / 1996) Art. 5: With a view to ensuring or promoting the freedom of workers and employers to form local, national or international
organisations for the protection of their economic and social interests and to join those organisations, the Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. SSP (1988) Art. 8: The right of workers to organize trade unions and to join the union of their choice for the purpose of protecting and promoting their interests. As an extension of that right, the States Parties shall permit trade unions to establish national federations or confederations, or to affiliate with those that already exist, as well as to form international trade union organizations and to affiliate with that of their choice. The International Labour Organisation ILO
Created with the 1919 Treaty of Versailles post-WWI; Committed with social justice; Tripartite system; Monitoring system No individual complaints; Need for ratification / No enforcement system; CEACR and CFA; Freedom of association among the four core labour rights.
Freedom of association The ILO ILO Constitution (1944) recognition of the principle of freedom of association ILO Declaration of Fundamental Principles and Rights at Work (1998) freedom of association and the effective recognition of the right to collective bargaining; ILO Conv. 87 on Freedom of association and the right to organise (1948) Art. 2: Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation; Art. 11: Each Member  undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.
ILO Conv. 98 on Right to organise and collective bargaining (1949) Art. 2: 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. Rights to collective bargaining and collective action No human rights instrument explicitly mentions the rights to collective bargaining and collective action; Difference with many national Constitutions; Only enshrined in social and labour rights instruments; Strongly protected in the international labour standards system of the ILO; Emphasis on national contexts and legislations.
Collective bargaining without the right to strike is collective begging! The right to strike Right to strike as socio-economic right: Rebalancing the employment relationship; Improving wages and working conditions Key aspect of collective bargaining. Right to strike as political right: Participation in workplace life (industrial democracy); Challenge to employers policies; Challenge to governments policies (workers voice). Right to strike as civil liberties:
Freedom of association individual entitlement but collective exercise; Freedom from forced labour right to withdraw from working; Freedom of speech collective exercise of political expression. The right to collective bargaining / strike in social rights documents ICESCR (1966) Art. 8.1(c): The right of trade unions to function freely subject to no limitations other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order or for the protection of the rights and freedoms of others; Art. 8.1(d): The right to strike, provided that it is exercised in conformity with the laws of the particular country;
SSP (1988) Art. 8.1(b): The States Parties shall ensure the right to strike. The right to collective bargaining / strike in social rights documents ESC (1961/1996) Art. 6: With a view to ensuring the effective exercise of the right to bargain collectively, the Parties undertake: to promote joint consultation between workers and employers; to promote, where necessary and appropriate, machinery for voluntary negotiations 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; to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes;
and recognise: the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into. The right to collective bargaining / strike in EU Fundamental Rights documents EU Charter of Fundamental Rights (2000/2009) Art. 28: Workers and employers, or their respective organisations, have, in accordance with Community law and national laws and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in cases of conflicts of interest, to take collective action to defend their interests, including strike action.
but case law has subordinated the exercise of collective labour rights in the EU system to the exercise of economic freedoms (Laval and Viking). The right to collective bargaining / strike in ILO documents ILO Con. 98 on right to organise and right to collective bargaining Art. 4: Measures appropriate to national conditions shall be taken, where 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. ILO Conv. 154 on collective bargaining
Art. 2: the term collective bargaining extends to all negotiations which take place between an employer, a group of employers or one or more employers' organisations, on the one hand, and one or more workers' organisations, on the other, for (a) determining working conditions and terms of employment; and/or (b) regulating relations between employers and workers; and/or (c) regulating relations between employers or their organisations and a workers' organisation or workers' organisations. The right to collective bargaining / strike in ILO documents The right to strike is not mentioned in any ILO Conv. East / West conflict in Cold War; Fear of workers on potential restrictions;
Yet the right to strike has been deemed as part of the freedom of association by the ILO Committees: Recognised by CFA as essential mean for pursuing collective activities for the defence of workers interests in accordance with ILO Convs.; CFA jurisprudence adopted by CEACR strike as essential mean available to workers for promoting their social and economic interests; Employers pressure (since 2012) against the recognition of right to strike within ILO system. Labour rights and human rights Individual complaints v. Collective complaints / reporting and monitoring system:
Human rights instruments based on a system of individual complaints; Labour rights instruments mainly based on systems of reporting and monitoring / collective complaints. Integrated approach in human rights case law! Freedom of association Case Law: The integrated approach Inter-American Court of Human Rights: Baena Ricardo et al. v. Panama (2001) In labour union matters, freedom of association consists basically of the ability to constitute labour union organisations, and to set into motion their internal structure, activities and action programme, without any intervention by the public authorities that could limit or impair the exercise of the respective right.
under such freedom it is possible to assume that each person may determine, without any pressure, whether or not she or he wishes to form part of the association. This matter, therefore, is about the basic right to constitute a group for the pursuit of a lawful goal, without pressure or interference that may alter or denature its objective. Freedom of association Case Law: The integrated approach Inter-American Court of Human Rights: Baena Ricardo et al. v. Panama (2001): ILO Constitution / ILO Conventions / San Salvador Protocol; ILO Committees (CEACR and CFA) decisions; This Court feels that, in trade union matters, freedom of
association is of the utmost importance for the defence of the legitimate interests of the workers, and falls under the corpus juris of human rights. Freedom of Association and trade union activities The early ECHR case law National Union of Belgian Police (1975) / Swedish Engine Drivers Union (1976) / Schmidt and Dahlstrm (1976): Right to collective bargaining and to strike are: not included in the scope of Art. 11 ECHR; although important means for the protection of workers interests, they are not the only ones; they are not imperative for the enjoyment of freedom of trade union association;
They are already recognised in the CoE through ESC. The right to collective bargaining The evolution of ECHR case law Gustafsson (1996): Art. 11 ECHR safeguards the protection of occupational interests of union-members through trade union actions; Collective agreements are one the means at disposal; Right to collective bargaining recognised by ESC, ICESCR, ILO Convs legitimate means. Wilson and Palmer (2002): ESC, ILO Convs. and jurisprudence considered as relevant material; Art. 11 protects individuals from public authority interference but entails obligation for State to secure trade union activities;
Art. 11 ECHR includes the right of trade union members to be represented in negotiations by trade unions. The right to collective bargaining The evolution of ECHR case law The turning point Demir and Baykara (2008): Interpreting method: ECHR to be interpreted in accordance with other relevant international law and jurisprudence of competent organs; ECHR as living instrument to be interpreted according to presentday conditions; Considered sources of law shall not be necessarily ratified by the concerned State; Specialised international sources (ICCPR, ICESCR, ILO Convs., ESC, EUCFR) and case law of competent organs and practices of States as sources for ECHR interpretation.
The right to collective bargaining The evolution of ECHR case law Demir and Baykara (2008): effects on Art. 11 ECHR scope Public employees cannot be excluded from freedom of association scope; Art 11 is subject to evolution depending on particular developments in labour relations; having regard to the developments in labour law, both international and national, and to the practice of Contracting States in such matters, the right to bargain collectively with the employer has, in principle, become one of the essential elements of the right to form and to join trade unions for the protection of [ones] interests set forth in Art. 11 ECHR.
The right to collective bargaining The evolution of ECHR case law Demir and Baykara (2008): the ruling the collective bargaining in the present case and the resulting collective agreement constituted, for the trade union concerned, an essential means to promote and secure the interests of its members. Absence of legislation to secure such a right constitutes interference with trade union freedom of the trade union concerned as protected by Art. 11 ECHR. Although prescribed by law, and pursuing a legitimate aim (prevention of disorder), the measure was not necessary in a democratic society no pressing social need for excluding public employees from collective bargaining.
The right to strike The evolution of ECHR case law Schmidt and Dahlstrm (1976) Court rejects applicants claim on right to strike as organic right included in Art. 11 ECHR; UNISON (2002 - inadmissible) Court recognises right to strike as important mean for the protection of occupational interests of the workers; Dilek at al. (2008) Court finds Turkey in violation of Art. 11 ECHR for prohibiting any kind of collective action to public employees as not necessary in a democratic society; Enerji Yapi-Yol Sen (2009) Right to strike is functionally interwoven with freedom of association (intrinsic corollary) / Right to collective bargaining without strike is deprived of its substance; Danilenkov (2009) Protection from union discrimination / Violation of Art. 11 for sanctions against workers participating in a strike; Ognevenko (2018) Complete ban on strike violates Art. 11 and protection
against dismissal for taking part in a strike. The right to strike The evolution of ECHR case law National Union of Rail, Maritime and Transport Workers (2014) definition of protection standards of right to strike in ECHR: Defined according to specialised international sources and competent bodies case law and element of comparative law; Strike action is clearly protected by Art. 11; Right to engage into collective bargaining but no right to collective agreement; Right for trade union to seek to persuade the employer but right to strike not imply a right to prevail; Margin of appreciation for the States in deciding how to secure trade union freedom and protection of occupational interests of union member;
Ban on secondary action in the UK justified by pressing social need due to the safeguard of national economy from spill-over effect national Parliaments know better the domestic situation! Freedom of Association Freedom of association has 2 main and inherent aspects: 1. As an individual human right individual right of any person to join a collective organisation (civil liberty); 2. As a collective labour right Indispensable condition for the operation of collective labour relations (collective entitlement). Where do those aspects conflict? Freedom of association Case Law: The negative side
Does freedom of association imply also a freedom not to associate? Individual interest v. collective interest; Closed-shop agreements compatible with freedom of association as human right? ECtHR case law: Young, James and Webster (1981) dismissal for refusal to comply with closed-shop agreement; Sigurjnsson (1996) legal obligation to join a taxi-driver union; Srensen and Rasmussen (2006) compulsory union membership as condition for employment. Art. 11 encompassing negative freedom of association and obligations for the States to provide protection also in private parties relationships (private autonomy v. collective interest).
Freedom of Association and the right to strike Freedom of association has 2 main and inherent aspects: 1. As individual human right individual right of any person to join or not join a collective organisation; 2. As collective labour right Indispensable condition for the operation of collective labour relations and trade union activities (ILO CFA). It is impossible to deal with freedom of association as a labour right
without dealing with the right to collective bargaining and the right to strike! Integrated approach as method for defining human rights in a labour right perspective by looking at the specialised agencies. The right to strike Case law of competent organs ILO CEACR / CFA: Right to strike as intrinsic corollary of right to organise; Essential and legitimate means for the promotion and defence of social and economic interests of the workers; General prohibition of secondary strike not compatible with ILO standards;
No sanctions and no dismissals for participating in a lawful strike; Possible restrictions for public employees participating in the administration of the State; Public or private economic interests are not mentioned as possible justifications for restrictions; State of emergency. The right to strike Case law of competent organs European Committee of Social Rights (Digest, 2008): Right to strike to be guaranteed in any industrial dispute concerning conflict of interests; Restrictions shall be prescribed by law, serve a legitimate purpose and necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public
interest, national security, public health or morals; Restrictions in essential services only in so far as they concern provisions for minimum services. The current state of trade union rights on the global scale The current state of trade union rights on the global scale 5+ No guarantee of rights due to breakdown of the rule of law: Sudan, Yemen, Libya, Syria, Iraq, Central Republican Africa ; 5 No guarantee of rights: Colombia, Mexico, Turkey, Nigeria, Algeria, Iran, Zambia, India, China, Guatemala, Belarus, Qatar, South Korea, Fiji, Assassination / kidnapping / violence on unionists / dismissals of workers participating in strikes Arrests of union leaders No legal protection;
4 Systematic violations of rights: USA, Mexico, Poland, Jordan, Ivory Coast, Cameroon, Tunisia, Thailand Scarce legal protection / Restrictive law on trade union matters / Impunity for employers not to comply with collective agreements / Dismissals of workers participating in strikes; 3 Regular violations of rights: Spain, Portugal, UK, Argentina, Ethiopia, Chile, Tanzania, Russia, Australia Difficulties for trade unions to exercise their rights Unsupportive governments Ban on strike (in nationalized industries and certain sectors) and violence; 2 Repeated violations of rights: Ireland, Serbia, Bosnia, Ghana, Switzerland, Japan, Brazil Dismissals and not enough protection against anti-union discrimination; 1 Irregular violations of rights: Sweden, Denmark, Uruguay, Italy, France, Iceland Stop on social dialogue Court rulings Collective bargaining denied in some sectors.
General features of Global Framework Agreements Collective agreements applied in Multinational Companies (MNCs); Negotiated between MNCs and Global Union Federations (GUFs) private parties; Different from Codes of Conduct bilateral and negotiated tools; Entirely voluntary mechanism: no legal framework / no mandatory obligation; Enforcing and promoting workers rights in non-state contexts. Where do GFAs stem from? Globalisation / Privatisation of labour regulation; Capital mobility v. labour standards; Role of the States in regulating labour reshaped emergence of company as leading actor influence in national law;
Ensuring core labour rights in MNCs; Establishing social dialogue and collective bargaining in MNCs. Instrument of labour and employment regulation. Who negotiates? On the employers side: management of MNCs Mainly headquartered in EU (France, Germany and Spain); Outside EU mainly in USA (but also Brazil, South Africa, Russia, New Zealand); On the employees side: GUFs (and European Industry Federations): Representing workers on global scale; Signed also by more than one GUF;
Signed also by national unions and / or works councils to facilitate implementation; Representing mandate in negotiations? Why do they negotiate? On the MNC side: Corporate social responsibility; Social partnership in the MNC good labour relations; On the GUF side: Recognition as negotiating and representing organisation legitimacy; Organising tool at local level; Access to the MNC headquarter;
Spreading trade union culture; Establishing transnational trade union strategies. The international trade union movement - GUFs Public Service International (PSI , public sectors): 20 millions / 669 trade unions / 154 countries International Transport Workers Federation (ITF): 4.5 millions / 724 trade unions / 150 countries
Building and Wood Workers International (BWI): 12 millions / 326 trade unions / 130 countries UNI Global Union (service sector): 20 millions / 150 countries International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers Association (IUF): 126
millions / 326 trade unions / 126 countries Education International (EI): 30 millions / 170 countries IndustriALL (metallurgic, chemical, and textile sectors): 140 millions / 140 countries Freedom of association and right to organise Reference to relevant ILO Conventions (C87 and C98); Neutrality clause MNC commitment not to hamper the establishment of a union;
Right to form and join a union; Access to the worksites for national unions; Recognition of national unions as counterpart; No discrimination for exercise of trade union rights; In accordance with national law binding MNCs?; Collective bargaining / social dialogue / good industrial relations. Latest developments on the right to strike in Sweden Trade union conflict in the Gothenburg harbour on personnel policy; Minority union affiliated with LO (Transport) but signatory of the collective agreement; Strikes and claims of the majority union (Svenska
Hamnarbetarfrbundet) to sign a new collective agreement; Governments proposal (2018) to: No strike for claims other than working and employment conditions (social peace obligation); No strike if the employer is already bound by a collective agreement. Yellow unions? Compatible with International Human Rights Law/International Labour Law? Strike back campaign Defend the right to strike! Thank you for your attention! QUESTIONS? COMMENTS?
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