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Part I. Freedom of association and protection of the right to organize
Chapter VII. Right of organizations to establish federations and confederations and to affiliate with international organizations
Introduction
189. Article 5 of Convention No. 87 provides that "Workers' and employers' organizations shall have the right to establish and join federations and confederations and any such organization, federation or confederation shall have the right to affiliate with international organizations of workers and employers". Article 6 completes this right by stipulating that "The provisions of Articles 2, 3 and 4 (of the Convention) apply to federations and confederations". Convention No. 87 therefore does not merely recognize the right of organizations to establish bodies operating at higher level; it extends to the latter the same rights as are accorded to the first-level organizations.
Right of federation and confederation
190. In order to coordinate their activities and strengthen the efficacy of their action, workers' organizations generally group together in federations, either with a vertical structure covering organizations which represent the same or similar categories of workers, or with a horizontal structure representing workers of the same region in different occupations or branches of activity. Federations in turn often establish confederations at the national or inter-occupational level. Although the problems and methods of action of employers' organizations are different, the same concerns for coordination and efficiency lead them to group together in occupational or inter-occupational associations at local, regional or national level. While workers' and employers' organizations are able to exercise these rights in full freedom in many countries, (Endnote 1) in others legislation subjects them to serious restrictions which may even go as far as de facto prohibition.
Restrictions on the right of federation and confederation
191. The applicable restrictions are very varied, with several restrictions being cumulated in the legislation of some countries: requirement of an excessively large minimum number of member organizations; (Endnote 2) prohibition on setting up more than one federation or confederation per occupation, (Endnote 3) branch of activity (Endnote 4) or region; (Endnote 5) enumeration in the law of which federations and confederations may be legally established; (Endnote 6) need to obtain prior authorization for the establishment of higher-level organizations; (Endnote 7) and any other excessive conditions concerning their establishment. (Endnote 8) Provisions of this kind are contrary to the clear provisions of the Convention.
192. As in the case of the establishment of first-level organizations, the most serious problems arise in countries in which the law establishes, directly or indirectly, a single trade union system (or allows only one national confederation of employers), a situation which has already been examined and analysed in Chapter III in connection with the various aspects of trade union monopoly. (Endnote 9)
193. In some countries legislation establishes prohibitions which apply specifically to particular categories of workers, in particular agricultural workers (Endnote 10) or public servants; (Endnote 11) in the case of the latter, the prohibition may result implicitly from provisions which prevent them from joining organizations which may have recourse to strike action. As pointed out earlier, (Endnote 12) although first-level organizations of public servants may be restricted to this category of workers, such organizations should, however, be free to join federations and confederations of their choosing, including those which also group together organizations from the private sector. As regards organizations of agricultural workers, there is no justification, in the view of the Committee, for prohibiting their affiliation to higher-level bodies which group together trade unions from other sectors.
194. Workers' and employers' choice of a higher-level organization is motivated by the same reasons as those which prompt them to group together naturally because of their common interests and problems. In addition, in view of the more general nature of the problems discussed and negotiated at this level, they may wish to form groups with a broader occupational, inter-occupational or geographical coverage. The guarantees afforded to workers' and employers' organizations therefore imply that they may group together in full freedom into federations and confederations without intervention from the public authorities. This freedom of choice must be possible even where workers' and employers' organizations have chosen a single central organization in the past, a situation which should not be institutionalized by legislation.
Restrictions on the activities of federations and confederations
195. Article 6 of the Convention stipulates that the guarantees provided to first-level organizations also apply to higher-level organizations. Therefore most of the remarks made by the Committee concerning the rights of first-level organizations, in particular as regards their internal functioning and activities, also apply, with the appropriate adjustments, to federations and confederations. Although legislation in several countries expressly or implicitly affords them these same rights, restrictions are sometimes imposed, in particular as regards their activities, (Endnote 13) strike action (Endnote 14) or collective bargaining. (Endnote 15) Provisions of this kind are such as to seriously hinder the development of industrial relations, in particular for small trade unions which are not always able to defend the interests of their members effectively because they are unable to recruit from their small membership a sufficient number of well trained officers. The social partners should in particular be able to choose themselves, without any interference by the authorities, the level at which to bargain collectively (central, branch or enterprise level). (Endnote 16)
International affiliation
196. Article 5 of the Convention stipulates that first-level organizations, as well as federations and confederations, have the right to affiliate with international organizations of workers and employers. As was already pointed out during the preparatory work on the Convention, (Endnote 17) Article 5 thus recognizes the solidarity which unites workers or employers and which is not limited to one enterprise or a specific industry or even the national economy but extends to the whole international economy. The United Nations and the International Labour Organization have formally recognized certain international organizations of workers and employers by granting them consultative status.
197. In some countries, legislation restricts the right of international affiliation by limiting it to certain organizations, (Endnote 18) by requiring prior authorization by the public authorities, (Endnote 19) or by permitting it only in certain conditions established by the law. As regards measures of assistance resulting from international affiliation, legislation in some countries prohibits trade unions from receiving financial aid or subsidies from foreign organizations. (Endnote 20) The Committee on Freedom of Association has received several complaints concerning cases in which the authorities restricted contacts between organizations which are members of the same international organization (Endnote 21) and in which organizations or their representatives had been prevented from participating in congresses and activities of international organizations. (Endnote 22) Legislative measures of this kind or acts by the authorities which have the same result pose serious difficulties with regard to the Convention.
198. In order to defend the interests of their members more effectively, workers' and employers' organizations should have the right to form federations and confederations of their own choosing, which should themselves enjoy the various rights accorded to first-level organizations, in particular as regards their freedom of operation, activities and programmes. International solidarity of workers and employers also requires that their national federations and confederations be able to group together and act freely at the international level.
For example: Belarus, Côte d'Ivoire, France, Morocco, Panama, Poland, Romania, Russian Federation.
For example: Brazil, five or more first-level organizations, provided they represent the majority of workers in a branch of activity or identical, similar or related occupations (ss. 534 and 535 of the Consolidated Labour Laws). El Salvador: at least ten workers' organizations and three employers' organizations required for the establishment of a federation; at least three workers' and employers' federations for the establishment of a confederation (s. 257 of the Labour Code). Philippines: ten first-level organizations for the establishment of a federation (s. 237(a) of the Labour Code).
For example: Nigeria, s. 28 of 1973 Decree on Trade Unions.
For example: Kuwait, trade unions are required to federate by identical activities or industries producing similar goods or supplying similar services (s. 79 of the Labour Code of 1964).
For example: Philippines, prohibition of federations or confederations covering more than one industry in a region (s. 238 of the Labour Code).
For example: Brazil, s. 535 of the Consolidated Labour Laws.
For example: Yemen, arts. 154 and 158 of the Labour Code (RCE, 1994 observation on C.87).
For example: Dominican Republic, vote of two-thirds of the members of federations required for the establishment of confederations (s. 383(2) of the Labour Code of 1992). See also CFA, 279th Report, Case No. 1581 (Thailand), para. 474.
For example, in some countries, a central organization (Cuba) or a national trade union (Kenya, Uganda) has been set up and specifically named by legislation. See also Ghana (RCE, 1994 observation on C.87).
For example: Liberia: agricultural workers may not join organizations of industrial workers (s. 4601-A of the Labour Act).
For example: Malaysia: trade unions of workers employed by statutory authorities may only affiliate to trade unions whose membership is confined to workers employed by such authorities (s. 27 of the Trade Unions Act).
See Ch. III, para. 86.
For example: Swaziland: federations are not allowed to exercise political activities and must limit their activities to providing advice and services (s. 33 of the Industrial Relations Act of 1980); the Committee has recalled that federations, like first-level organizations, must be able to express their opinion publicly on the Government's social and economic policy (RCE 1990, pp. 208-209).
For example: federations and confederations cannot declare a strike in Colombia (RCE 1993, p. 182) and Honduras (RCE 1993, p. 203).
For example: El Salvador: federations and confederations enjoy the same rights as first-level organizations, except the right to bargain collectively (ss. 228 and 260 of the Labour Code). As regards Uruguay, the Committee noted with satisfaction the repeal of the provisions which denied the right of collective bargaining to organizations other than those of the first level (RCE 1987, p. 301).
See also Ch. X, para. 249.
ILC, 30th Session, 1947, Report VII, Freedom of association and industrial relations, p. 111.
For example: Iraq, s. 27(8) of the Trade Unions Act of 1987. By contrast, as regards Ethiopia, the Committee noted with satisfaction the repeal of the provisions which gave the single central organization the exclusive right to sign agreements with international organizations (RCE 1993, p. 195); as regards Nigeria, the Committee noted with satisfaction the repeal of provisions which prohibited the international affiliation of trade unions (RCE 1992, p. 225).
For example: Cameroon, occupational associations or unions of public servants may not join a foreign occupational organization if they have not obtained prior authorization from the minister responsible for the supervision of public freedoms (s. 19 of Decree No. 69/DF/7 of 1969).
For example: Philippines, prior authorization of the minister (s. 270 of the Labour Code). See also CFA, 285th Report, Case No. 1594 (Côte d'Ivoire), para. 58: national associations, including trade unions, must obtain prior approval from the authorities for the financing of any project submitted through the diplomatic missions; according to the Committee, steps should be taken to ensure that these provisions do not prevent the trade unions from receiving funds from outside the country, in particular from international workers' organizations, for normal and lawful trade union purposes.
For example: CFA, 243rd Report, Case No. 1269 (El Salvador), para. 401; 283rd Report, Case No. 1599 (Gabon), para. 188. Digest: para. 531.
As regards the confiscation by the authorities of passports of trade union officials, which prevents them from participating in ILO meetings, the Committee on Freedom of Association has emphasized that while workers and their organizations should respect the legislation of their country, it is important that no delegate to a body or meeting of the ILO be prevented from carrying out his or her functions or exercising his or her mandate. Participation as a trade unionist in a meeting organized by the ILO is a fundamental trade union right; it is therefore incumbent on the government of any member State of the ILO to refrain from any measure which would prevent a representative of an employers' or workers' organization from exercising his or her mandate in full freedom and independence; in particular, a government must not withhold the documents necessary for this purpose: 254th Report, Case No. 1406 (Zambia), para. 470 and 262nd Report, para. 31. See also CFA, 278th Report, Case No. 1525 (Pakistan), para. 56.