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Part I. Freedom of association and protection of the right to organize
Chapter II. Trade union rights and civil liberties
Introduction
23. The examination of the numerous allegations of violations of trade union rights presented to the Committee on Freedom of Association since its creation in November 1951 shows that the restriction of civil and political liberties is a major factor in violations of freedom of association. (Endnote 1) Aware of this problem, and aiming to promote social justice in accordance with its fundamental mission, the International Labour Organization has striven to safeguard the rights and liberties which individuals should enjoy at work. As the Director-General of the ILO recalled recently: "The ILO takes a keen interest in civil and political rights, for, without them, there can be no normal exercise of trade union rights and no protection of the workers". (Endnote 2) Without these liberties, trade union rights are limited or non-existent, but "... respect of civil liberties has a more general dimension in so far as such liberties affect the existence, activities and development of an entire community". (Endnote 3)
24. The Declaration of Philadelphia, adopted in 1944 by the International Labour Conference and incorporated in 1946 in the ILO Constitution, officially acknowledged the relationship between civil liberties and trade union rights by proclaiming in article I(b) that freedom of expression and of association are essential to sustained progress and referring in article II(a) to the fundamental rights which are an inseparable part of human dignity. Since then, this relationship has been repeatedly affirmed and highlighted, both by the ILO's supervisory bodies and in the Conventions, Recommendations and resolutions adopted by the International Labour Conference.
25. In the preparatory work on Convention No. 87, the preamble of which includes the principles set out in the Declaration of Philadelphia, it was stressed that "freedom of industrial association is but one aspect of freedom of association in general, which must itself form part of the whole range of fundamental liberties of man, all interdependent and complementary one to another". (Endnote 4) In 1970, the International Labour Conference solemnly reaffirmed this essential link by adopting a resolution concerning trade union rights and their relation to civil liberties. Considering, inter alia, "that there exist firmly established, universally recognized principles defining the basic guarantees of civil liberties which should constitute a common standard of achievement for all peoples and all nations", it recognizes that "the rights conferred upon workers' and employers' organizations must be based on respect for those civil liberties which have been enunciated in particular in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights and that the absence of these civil liberties removes all meaning from the concept of trade union rights". The Conference explicitly listed the fundamental rights essential for the exercise of freedom of association, in particular: (a) the right to freedom and security of person and freedom from arbitrary arrest and detention; (b) freedom of opinion and expression and in particular freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers; (c) freedom of assembly; (d) the right to a fair trial by an independent and impartial tribunal; and (e) the right to protection of the property of trade union organizations.
26. The Committee of Experts itself, (Endnote 5) the Conference Committee on the Application of Standards (Endnote 6) and the Committee on Freedom of Association, (Endnote 7) have on many occasions stressed the interdependence between civil liberties and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate of respect for fundamental human rights. The exercise of civil liberties in relation to trade union rights "should be examined on the basis of the provisions contained in Article 3 of Convention No. 87. It is in connection with this standard that the respect of certain basic human rights acquires its full importance for trade union life". (Endnote 8)
27. The information available, in particular on the nature of the complaints submitted to the Committee on Freedom of Association, shows that the main difficulties encountered by trade union organizations and their leaders and members relate to basic rights, in particular to the right to security of the person, freedom of assembly, freedom of opinion and expression, as well as the right to protection of trade union property and premises. The Committee stresses that trade union rights violations may also result by reason of legislation, sometimes taken for genuine economic motives, which favour individual rights to the detriment of collective rights, thereby weakening trade unions through a series of legislative measures which, taken individually, may otherwise be compatible with the principles of freedom of association. (Endnote 9) Serious problems also frequently arise with regard to the exercise of trade union rights where the public authorities have declared states of emergency.
The right to freedom and security of person
28. The resolution concerning trade union rights and their relation to civil liberties rightly lists as first among the liberties essential for the normal exercise of trade union rights the right "to freedom and security of person" since this fundamental right is crucial to the effective exercise of all other liberties, in particular freedom of association. The violations noted by the Committee on Freedom of Association are as serious as they are varied: serious physical assault and even murder, arbitrary arrest and detention, restrictions on freedom of movement, exile and disappearances.
Physical assaults against persons, disappearance
29. In its examination of such complaints, the Committee on Freedom of Association has stated that a climate of violence in which the murder and disappearance of trade union leaders go unpunished constitutes a serious obstacle to the exercise of trade union rights and that such acts require that severe measures be taken by the authorities. (Endnote 10) It has also stressed that, when disorders have occurred involving loss of human life or serious injury, the setting up of an independent judicial inquiry is a particularly appropriate method of fully ascertaining the facts, determining responsibilities, punishing those responsible and preventing the repetition of such actions. (Endnote 11) Judicial inquiries of this kind should be conducted as promptly and speedily as possible, since otherwise there is a risk of de facto impunity which reinforces the climate of violence and insecurity and which is therefore highly detrimental to the exercise of trade union activities. (Endnote 12)
30. As regards more specifically torture, cruelty and ill-treatment, trade unionists, like all other individuals, should enjoy the safeguards provided by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. (Endnote 13) Governments should give the necessary instructions to ensure that no detainee suffers such treatment, and should apply effective and exemplary sanctions where evidence is available. (Endnote 14) Complaints of this type should be investigated so that appropriate measures, including compensation for damages suffered, may be taken. (Endnote 15)
Arbitrary arrest and detention
31. The arrest and detention, even for short periods, of trade union leaders and members engaged in their legitimate trade union activities, without any charges being brought and without a warrant, constitute a grave violation of the principle of freedom of association. (Endnote 16) While being engaged in trade union activities does not confer immunity from sanctions under ordinary criminal law, the authorities should not use legitimate trade union activities as a pretext for arbitrary arrest or detention; the Committee recalls in this respect that the imposition of heavy criminal sanctions for violations of industrial relations legislation is inappropriate and not conducive to sound industrial relations. (Endnote 17) In view of the importance which it attaches to the protection of the right of arrested or detained persons to a fair trial, the Committee has called on governments to bring detainees before the courts in all cases, irrespective of the reasons put forward for prolonging their detention. (Endnote 18) Preventive detention may also involve serious interference in trade union activity and must be accompanied by all adequate judicial safeguards applied within a reasonable period. (Endnote 19) The Committee also takes the view that so-called "education through labour" systems amount to administrative detention and forced labour which, when applied to people involved in trade union activities, constitute a blatant violation of the principles of freedom of association. (Endnote 20)
32. The authorities must therefore ensure observance of the right of all detained or accused persons, including trade unionists, to be tried promptly through normal judicial procedures, (Endnote 21) which includes in particular: the right to be informed of the charges brought against them, the right to have adequate time for the preparation of their defence and to communicate freely with counsel of their own choosing, and the right to a prompt trial by an impartial and independent judicial authority (Endnote 22) in all cases, including cases in which trade unionists are charged with criminal offences, whether of a political nature or not, which in the government's view have no relation to their trade union functions. (Endnote 23) The Committee, while refraining from expressing an opinion on the political aspects of a state of emergency, has always emphasized that the same safeguards must be applied when trade unionists are detained during a state of emergency. (Endnote 24) Respect for the legal safeguards would not appear to be ensured if, under national law, the effect of a state of emergency is that a court cannot examine, and does not in fact examine, the merits of the case. (Endnote 25)
Forced exile
33. Forced exile has particularly serious implications when imposed on trade unionists, since it weakens trade union organizations by depriving them of their leaders and key activists. (Endnote 26) The practice of freeing trade unionists on condition that they leave the country is also incompatible with the free exercise of trade union rights. (Endnote 27) Related sanctions, such as house arrest or banishment on the grounds of trade union activity, also violate freedom of association; the Committee has also stressed that such sanctions should not be imposed by administrative action. (Endnote 28)
Freedom of movement
34. The leaders of workers' and employers' organizations should be able freely to travel within the country, enter and leave it when their activities on behalf of their members so require; the authorities should guarantee these rights. (Endnote 29) Participation by trade unionists in international trade union meetings is also a fundamental trade union right; governments should refrain from any measure, such as withholding travel documents, which prevent representatives of occupational organizations from exercising their mandate in full freedom and independence. (Endnote 30)
Freedom of assembly and demonstration
35. Freedom of assembly constitutes a fundamental aspect of trade union rights. (Endnote 31) The authorities should refrain from any interference which would restrict this right or impede the lawful exercise thereof, provided that the exercise of these rights does not cause a serious and imminent threat to public order. (Endnote 32) In addition, where trade unionists are arrested or charged for breaching public order in such circumstances, they should be entitled to refer the matter promptly to judicial authorities, with all guarantees of due process, so that the court may assess whether these measures were justified and, where necessary, issue appropriate remedial orders. Trade unions should therefore be able to hold meetings freely in their own premises for the discussion of trade union matters, without the need for previous authorization and without interference by the public authorities, (Endnote 33) to draw up their agendas freely, (Endnote 34) and to hold meetings without members of the police (Endnote 35) or any representative of the authorities (Endnote 36) being present. Employers' organizations should also be able to hold such meetings freely, without any interference or supervision by the authorities.
36. The freedom of assembly extends to international meetings. Any measure preventing an official of a workers' or employers' organization to attend to or participate in such reunions is a serious restriction on the guarantees set out in Article 3 of Convention No. 87. (Endnote 37)
37. The right to organize public meetings, including May Day processions or demonstrations in support of social and economic demands, constitutes an important aspect of trade union rights. (Endnote 38) Nevertheless, organizations must observe the general provisions relating to public meetings, which are applicable to everyone. (Endnote 39) The prohibition of demonstrations or processions on public streets, in particular in the busiest parts of a city, when it is feared that disturbances might occur, does not necessarily constitute an infringement of trade union rights, (Endnote 40) but the authorities should strive to reach agreement with organizers of the meeting to enable it to be held in some other place where there would be no fear of disturbances. (Endnote 41) While reasonable restrictions are acceptable, they should not result in breaches of fundamental civil liberties.
Freedom of opinion and expression
38. Another essential aspect of trade union rights is the right to express opinions through the press or otherwise. (Endnote 42) The full exercise of trade union rights calls for a free flow of information, opinions and ideas, and workers, employers and their organizations should enjoy freedom of opinion and expression at their meetings, in their publications, and in the course of their other activities. (Endnote 43) In cases in which the issue of a trade union publication is subject to the granting of a licence, mandatory licensing should not be subject to the mere discretion of licensing authorities, nor should it be used as a means of imposing prior restraint on the subject-matter of publications; in addition any application for such a licence should be dealt with promptly. (Endnote 44) If trade unions are required to provide a substantial bond before being able to publish a newspaper, this constitutes, especially in the case of smaller unions, a condition which is hardly compatible with the right of trade unions to express opinions through the press. (Endnote 45) Measures of administrative control - for example, the withdrawal of a licence granted to a trade union newspaper, the control of printing plants and equipment, or the control of paper supply - should be subject to prompt and independent judicial review. (Endnote 46)
39. An important aspect of freedom of expression is the freedom of speech of delegates of workers' and employers' organizations meetings, conferences and reunions, and in particular to the International Labour Conference. The functioning of the latter would risk being considerably hampered and the freedom of speech of the workers' and employers' delegates paralysed, if they were to be threatened with prosecution based, directly or indirectly, on the contents of their speeches at the Conference. Article 40 of the ILO Constitution provides that delegates to the Conference shall enjoy "such immunities as are necessary for the independent exercise of their functions in connection with the Organization". The right of delegates to the Conference to express freely their point of view on questions within the competence of the Organization implies that delegates of employers' and workers' organizations have the right to inform their members in their respective countries of what they have said. The arrest and sentencing of a delegate as a result of his speech to the Conference, or by reason of information given on the debates thereof, jeopardize freedom of speech for delegates as well as the immunities that they should enjoy in this regard. (Endnote 47)
Protection of trade union premises and property
40. While trade unions cannot claim any special immunity, such as immunity from searches of trade union offices, such searches should only be made when a warrant has been issued by the regular judicial authority, when that authority has good reason to believe that evidence for criminal proceedings under the ordinary law will be found on the premises, and on condition that the search is restricted to the purpose for which the warrant was issued. (Endnote 48) Judicial review is also required for any similar measures taken by the authorities (for instance, searches of the private homes of trade unionists; occupation, closure or sealing of trade union premises; seizure of material needed by the union in its work) in view of the significant risk that such measures may paralyse trade union activities.
State of emergency
41. The freedom of association Conventions contain no provisions allowing the invocation of a state of emergency to justify exemption from the obligations arising under the Conventions or any suspension of their application. This motive is frequently invoked and the exercise of trade union rights is seriously endangered thereby. Such a pretext cannot be used to justify restrictions on the civil liberties that are essential to the proper exercise of trade union rights, except in circumstances of extreme gravity (acts of God, serious disruption of civil order, etc.), and on condition that any measures affecting the application of the Conventions are limited in scope and duration to what is strictly necessary to deal with the situation in question. (Endnote 49) While it is conceivable that the exercise of some civil liberties, such as the right to public assembly or the right to hold street demonstrations, might be limited, suspended and even prohibited it is not permissible that, in the field of trade union activities, the guarantees relating to the security of the person should be limited, suspended or abolished. (Endnote 50)
42. The ILO supervisory bodies assess measures taken against workers' or employers' organizations during a political or civil crisis in the light of the exceptional circumstances prevailing at the time to determine independently whether the circumstances invoked by a State justify a temporary exemption from the principles of freedom of association; the States concerned are not allowed to be sole judge of the issue. (Endnote 51)
43. The Committee considers that the guarantees set out in the international labour Conventions, in particular those relating to freedom of association, can only be effective if the civil and political rights enshrined in the Universal Declaration of Human Rights and other international instruments, notably the International Covenant on Civil and Political Rights, are genuinely recognized and protected. These intangible and universal principles, the importance of which the Committee wishes to emphasize particularly on the occasion of the 75th anniversary of the creation of the ILO and the 50th anniversary of the Declaration of Philadelphia, should constitute the common ideal to which all peoples and all nations aspire.
Nearly half the complaints presented to the Committee concern, in whole or in part, human rights violations.
International Labour Conference, 79th Session, 1992, Democratization and the ILO, Report of the Director-General, p. 24.
ILO, Report of the Commission of Inquiry appointed to examine the complaint concerning the observation by Nicaragua of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), and the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), Official Bulletin, Supplement 2, Series B, Vol. LXXIV, 1991, para. 539 (hereinafter "Report of the Commission of Inquiry Nicaragua").
International Labour Conference, 30th Session, 1947, Report VII, Freedom of Association and Industrial Relations, p. 11.
See, for example: RCE 1988, para. 12; RCE 1990, para. 37; RCE 1991, paras. 43 and 45. See also General Survey, 1983, para. 52.
For example, International Labour Conference, Provisional Records, 1988 (General Report, paras. 5-10); 1990 (General Report, para. 48); 1991 (General Report, para. 97).
Digest, Ch. II.
Report of the Commission of Inquiry Nicaragua, op. cit., note 3, para. 435.
See on this point paras. 236, 335 and 336.
Digest, para. 76. CFA, 281st Report, Case No. 1273 (El Salvador), para. 279; 283rd Report, Case No. 1538 (Honduras), para. 254.
Digest, paras. 78, 79 and 85. CFA, 279th Report, Case No. 1444 (Philippines), para. 560; 283rd Report, Case No. 1590 (Lesotho), para. 347.
CFA, 278th Report, Case No. 1426 (Philippines), para. 139; 284th Report, Case No. 1538 (Honduras), para. 743.
Digest, paras. 82 and 86. CFA, 279th Report, Case No. 1577 (Turkey), para. 438.
Digest, para. 84. CFA, 277th Report, Case No. 1524 (El Salvador), para. 377; 278th Report, Case No. 1508 (Sudan), para. 357.
See also Digest, para. 85. CFA, 279th Report, Case No. 1520 (Haiti), para. 214.
Digest, paras. 87-89. CFA, 279th Report, Case No. 1556 (Iraq), para. 61; 281st Report, Case No. 1593 (Central African Republic), para. 262.
See Ch. V, paras. 176-178.
Digest, para. 95. CFA, 265th Report, Case No. 1168 (El Salvador), para. 257; 270th Report, Case No. 1508 (Sudan), para. 404.
Digest, para. 100.
CFA, 281st Report, Case No. 1500 (China), para. 81.
Digest, para. 108.
Digest, para. 110. CFA, 279th Report, Case No. 1556 (Iraq), para. 61.
Digest, para. 113. CFA, 259th Report, Case No. 1426 (Philippines), para. 585; 270th Report, Case No. 1508 (Sudan), para. 404.
Digest, para. 128. See also para. 41 below.
Digest, para. 130.
Digest, para. 134. CFA, 256th Report, Case No. 1309 (Chile), para. 276.
Digest, para. 136.
Digest, para. 138. CFA, 272nd Report, Case No. 1516 (Bolivia), para. 153.
Report of the Commission of Inquiry Nicaragua, op. cit., note 3, para. 113. See also CFA, 254th Report, Case No. 1406 (Zambia), para. 470.
283rd Report, Case No. 1590 (Lesotho), para. 346.
Digest, para. 140.
CFA, 278th Report, Case No. 1479 (India), para. 278; 281st Report, Case No. 1564 (Sierra Leone), para. 186.
Digest, para. 142. CFA, 283rd Report, Case No. 1479 (India), para. 98.
Digest, para. 145.
Digest, para. 148. CFA, 278th Report, Case No. 1337 (Nepal), para. 125.
Digest, para. 149.
CFA, 287th Report, para. 3: member of the Freedom of Association Committee prevented from participating in a session of the Committee. See also, Digest, para. 271.
Digest, paras. 154-156. CFA, 283rd Report, Case No. 1590 (Lesotho), para. 349.
Digest, para. 158. CFA, 279th Report, Case No. 1572 (Philippines), para. 583.
Digest, para. 163.
Digest, para. 164. CFA, 280th Report, Cases Nos. 997, 999 and 1029 (Turkey), para. 34.
Digest, para. 172. CFA, 286th Report, Case No. 1640 (Morocco), para. 638.
Digest, para. 175. See also the Report of the Commission of Inquiry Nicaragua, op. cit., note 3, para. 541.
Digest, para. 177.
Digest, para. 178.
Digest, paras. 180 and 181.
Digest, para. 189.
Digest, para. 205. CFA, 284th Report, Case No. 1597 (Mauritania), para. 283.
Report of the Commission instituted under article 26 of the Constitution of the International Labour Organization to examine the complaint on the observance by Poland of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87), and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98): Official Bulletin, Special Supplement, Series B, Vol. LXVII, 1984, para. 479 (hereinafter "Report of the Commission of Inquiry (Poland)").
General Survey, 1983, paras. 71 and 72. Digest, paras. 192, 194-196.
General Survey, 1983, para. 73. Digest, para. 193. Report of the Commission set up to examine the complaints concerning the observance by Greece of Conventions Nos. 87 and 98, ILO, Official Bulletin, Special Supplement, Vol. LIV, 1971, para. 111.