F reedom of A ssociation - PowerPoint Presentation

1. Freedom of AssociationStandards and Principles

2. ILO Convention 87Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (145 ratifications)

3. Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87)Deals with constitutive elements of freedom of associationObjective: Freedom of association without interference from public authoritiesScope: employers and workers without distinction except armed forces and police (narrowly defined)

4. Freedom of speech, of assembly and other civil liberties and the right to organize 1970 Resolution on trade union rights and civil liberties

5. The right to freedom and security of person and freedom from arbitrary arrest and detentionDue process must be respected: access to legal representation must be ensuredTrade unionist must not be detained for the exercise of legitimate trade union activitiesWhen charged with ordinary crimes, the same must not be a pretext for the suppression of the associationPresumption of innocenceRight to public trial

6. Freedom of opinion and expressionThe right to express opinions without prior authorization through the press or otherwise is an essential aspect of trade union rights.

7. Freedom of assemblyPermission to hold public meetings and demonstrations, which is an important trade union right, should not be arbitrarily refused.

8. Protection of trade union premises and propertyThe inviolability of trade union premises is a civil liberty which is essential to the exercise of trade union rights.

9. Highlights of ILO C. 87 Right to set up & join organizations (Article 2)Rights of employers and workers’ organization (Article 3)Right to form federations and confederations (Articles 5, 6)Right to affiliate with international organizations of employers and workers (Article 5)No dissolution or suspension by administrative measures (Article 4)

10. Right of employers and workers to form or join organizations (Article 2)ILO C87: 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. PLC:Art. 243 – All persons employed in commercial, industrial and agricultural enterprises, religious, charitable, medical, or educational institutionsArt.244 – Right of employees in the public serviceArt. 235- Ineligibility of managerial employees / Right of Supervisory Employees to join

11. Right of employers and workers to form or join organizations (Article 2)Without distinction whatsoever (public servants, rural workers, home workers, EPZ workers, seafarers, young workers, teachers, managers, foreigners)To establish organizations of their own choosingWithout previous authorization (registration, minimum membership)

12. WHO MAY ORGANIZE?

13. Freedom to establish and join organizations of their own choosing without previous authorizationThe state may set limits on formalities for establishing employers/workers’ organizations.Except when such formalities: Restrictive Gives discretionary refusal powerOr provides requirements that is impossible to comply with. PLC: Article 234 – registration of Independent OrganizationArticle 234-A- registration of Local Chapter

14. Without distinctionAll workers, without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing. (Case No. 2113)To establish a limited list of occupation with a view to recognizing the right to associate would be contrary to the principle that workers, without distinction whatsoever, should have the right to establish and join organizations of their own choosing. (1996 Digest, Paragraph 278)Question:Do temporary workers, or those on probation or self-employed workers have the right to form or join organizations?

15. Organizations of their own choosingThe existence of an organization in a specific occupation should not constitute an obstacle to the establishment of another organization, if the workers to wish. (Case No. 1884 and 1935)While it is generally to the advantage of workers and employers to avoid the proliferation of competing organizations, a monopoly situation imposed by law is at variance with the principle of free choice of workers’ and employer’s organizations. (Case No. 2348)Question:Is it contrary to the principles of freedom of association for the government to encourage labor unions to join together voluntarily to form strong and united organizations?

16. Without previous authorizationA law providing that the right of association is subject to authorization granted by a government department purely in its discretion is incompatible with the principles of freedom of association. (Case No. 2225)Questions:Is the requirement of registration of labor union a form of prior authorization?Is the setting of minimum membership prior to registration contrary to the principle that the right to organization must be without prior authorization?

17. Without previous authorizationRegistrationIf the conditions for the granting of registration are tantamount to obtaining previous authorization from public authorities for the establishment and functioning of a trade union, this would undeniably constitute an infringement of Convention No. 87. This, however, would not seem to be the case when the registration of trade unions consists solely of a formality where the conditions are not such as to impair the guarantees laid down by the Convention. (Case No. 1918 and 2100)Question:Is the requirement of registration prior to seeking recognition as exclusive bargaining agent contrary to C87?“xxx an organization may be required to fulfill certain formalities which do not amount to previous authorization ...” (1996 Digest, para. 269)

18. Without previous authorizationMinimum MembershipWhile a minimum membership requirement is not in itself incompatible with Convention No. 87, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered. What constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed. (Case No. 2332)

19. Freedom of Association and the negative rightNegative Freedom of Association implies that no one can be compelled to form or join associations. Convention 87 is neutral. Union security clauses should be a product of collective bargaining.Retaining of membership as a condition affecting employment. Problems related to union security clauses should be resolved at the national level, in conformity with national practice and the industrial relations system in each country. In other words, both situations where union security clauses are authorized and those where they are prohibited can be considered to be in conformity with ILO principles and standars on FOA. (Case No. 2136 and 2187)

20. Freedom of Association and the negative rightPhilippine Setting:Union Shop-all new regular workers should join the organizationMaintenance of Membership Shop-employees who are members of the organization must maintain membership as a condition of employment until they are promoted or transferred out of the bargaining unit. Closed Shop – an enterprise, in which, by agreement between the employer and his employees or their representatives, no person may be employed in any or certain agreed departments of the enterprise unless he or she is, becomes, and, for the duration of the agreement, remains a member in good standing of a unionWhen does union security arrangement becomes problematic?“xxx if unreasonable conditions were to be imposed upon persons seeking such membership.”

21. Rights of employers’ and workers’ organizations (Article 3)Draw up their constitutions and rules (only formal requirements, no prior approval)Elect their representatives (results not subject to approval, eligibility requirements not excessively restrictive)Organize their administration (autonomy, financial independence, protection of assets and property)Organize their activities and formulate their programmes (hold meetings, access to the workplace, political activities, the right to strike)

22. Organizations’ right to draw up constitutions and rulesThe state should not interfere in the crafting of the organizations’ constitution.The requirements for the content should:Lay down formal requirementsThat would assist the organization function democraticallyDo not subject the constitution or rules to prior approval. Question:A government agency provides for a Pro-forma Constitution that can be downloaded at their website, is this violative of FOA?

23. Organizations’ right to elect representatives in full freedomThe State should not interfere or restrict the right to elect representativesIt is the prerogative of the workers’ and employers’ organization to determine the conditions for electing their leadersNumber of leadersTerm of Office / regularity of electionProcess of selecting, including the required votes to be electedEligibility of membership or union office

24. Organizations’ right to elect representatives in full freedomILO C87:Article 3 3. (1)         Workers' and employers' organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 3. (2)         The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. PLC:Article 241 (c) – provides that the members shall directly elect their officers (NU/FED) by secret ballot at intervals of 5 years. Candidacy: Membership in good standing(f) no person convicted of a crime involving moral turpitude shall be eligible for election as union officer or for appointment to any position in the union.

25. Organizations’ right to elect representatives in full freedomOn Criminal RecordA law which generally prohibits access to trade union office because of any conviction is incompatible with the principles of freedom of association, when the activity condemned is not prejudicial to the aptitude and integrity required to exercise trade union office. (1996 Digest)Conviction on account of offenses the nature of which is not such to as to call into question the integrity of the person concerned and is not such as to be prejudicial to the exercise of trade union functions should not constitute grounds for disqualification from holding trade union office, and any legislation providing for disqualification on the basis of any offense is incompatible with the principles of freedom of association. (1996 Digest)

26. Organizations’ right to organize administration and activities, and formulate programsAutonomyFinancial independenceProtection of assets and propertyHold meetingsAccess to workplacePolitical activitiesRight to strikeQuestion:Is the requirement to submit periodic reports contrary to the principles of FOA? What about conduct of union funds audit?“xxx Measures of supervision over the administration of trade unions may be useful if they are employed only to prevent abuses and to protect the members of the trade uion themselves against mismanagement of their funds”

27. The right to strike (Arts. 3, 10)Essential means available to workers for the protection and promotion of their interestsNot an absolute right. Restrictions in case of:acute national crisis members of the armed forces and the police public servants exercising authority in the name of the State workers in essential services in the strict sense of the termQuestions:Is the imposition of certain conditions/prerequisites prior to the conduct of a strike contrary to the principles of FOA?Notice of strikeCooling-off periodStrike-vote/secret ballotingAbsolute majority

28. Essential services in the strict senseStrike may endanger life, personal safety, health:hospitals electricity services water supply services telephone serviceair traffic control Compensatory guarantees (arbitration)

29. Non-essential servicesRadio and televisionthe petroleum sector and ports banking computer services for the collection of excise duties and taxesdepartment stores and pleasure parks the metal and mining sectorstransport generally refrigeration enterprises hotel servicesconstructionautomobile manufacturingaircraft repair agricultural activitiesthe supply and distribution of foodstuffs the Mint the government printing servicethe state alcohol, salt and tobacco monopoliesthe education sector postal services

30. Minimum operational serviceServices the interruption of which would endanger the life personal safety or health of the whole or part of the population (essential services in the strict sense)Services which are not essential in the strict sense of the term but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the populationPublic services of fundamental importance.

31. Other provisionsRight to form federations and confederations (Articles 5, 6)Right to affiliate with international organizations of employers and workers (Article 5)No dissolution or suspension by administrative measures (Article 4)

32. Organization’s right to establish and join federations, confederations and international organizationsArticle 5, C87 explicitly recognizes the right of organizations to join together in federations, confederations or international organizationsUnion CBL

33. ILO C87Article 5 Workers' and employers' organisations shall have the right to establish and join federations and confederations and any such organisation, federation or confederation shall have the right to affiliate with international organisations of workers and employers. PLC: Article 237. Additional requirements for federations or national unions.Organization’s right to establish and join federations, confederations and international organizations

34. Organization’s not liable to dissolution or suspension by administrative authorityProhibits administrative cancellationJudicial dissolution with due process of lawVoluntary Dissolution ILO C87Article 4 Workers' and employers' organisations shall not be liable to be dissolved or suspended by administrative authority. PLC as amended by RA 9481:ART. 239. Grounds for Cancellation of Union Registration

35. Contract Workers and FOANo group of workers should be excluded. Neutral Factors / DiscriminationPLC: Article 277 (c) - (c) Any employee, whether employed for a definite period or not, shall, beginning on his first day of service, be considered as an employee for purposes of membership in any labor union. (As amended by Section 33, Republic Act No. 6715).Article 106-109, DO 18-A

36. FOA and Industrial Peace and Industrial Relations Based on Human InteractionsFull respect for FOA and CB improve the possibility for long term industrial peace and industrial relations.Question:Is the application of FOA and CB standards and principles guarantee industrial peace?

37. Application of ILO C87Subordination of national law to international standardsILO C87, Article 81. In exercising the rights provided for in this Convention, workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.1987 Philippine ConstitutionSection 2, Article 2- The Philippines renounces war as an instrument of national policy and adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations

38. Collective BargainingConvention 98

39. Right to Organise and Collective Bargaining Convention, 1949 (No. 98) Completes C87, deals with relations between workers and employers Objectives: safeguards against anti-union discrimination and interference, promotion of collective bargaining Scope: all workers except armed forces, police and public servants engaged in the administration of the state

40. Convention No. 98, Article 1 [Protection against Anti-Union Discrimination]In taking up employment, the course of employment and its termination All acts (refusal to hire, dismissal, transfer, demotion, refusal to train, blacklisting)For membership and participation in trade union activitiesLegislative provisions combined with enforcement mechanism (effective, expeditious, inexpensive and impartial)

41. Convention No. 98, Article 1 [Protection against Anti-Union Discrimination]Local Application Labor Code of the Philippines (LCP)Art. 248. Unfair Labor Practices of Employers“Interference”;“Yellow Dog Condition”;“Contracting Out”;………“Discrimination”;“Discrimination because of testimony”;………..

42. Local Application Sec.5, Rule XXII, Book V of the Implementing Rules of the Labor Code of the Philippines (LCP)Grounds for strike or lockout – a strike or lockout may be declared in cases of bargaining deadlock and unfair labor practices. Convention No. 98, Article 1 [Protection against Anti-Union Discrimination]

43. Convention No. 98, Article 2[Protection against Interference]Workers' and employers' organizations have the right not to be interfered with and not be subject to methods to be influenced/controlled by other partiesFreedom from interference with organizations applies to their:EstablishmentFunctioningAdministration

44. Local ApplicationLabor Code of the Philippines (LCP)Art. 248. Unfair Labor Practices of Employers………………….. ………(d) “Company Domination of Union”; ……….. Convention No. 98, Article 2[Protection against Interference]

45. Local ApplicationArt. 258-A, PLC. Employer as Bystander“ In all cases, whether the petition for certification election is filed by an employer or a legitimate labor organization, the employer shall not be considered a party thereto with a concomitant right to oppose a petition for certification election.” [RA 9481] Convention No. 98, Article 2[Protection against Interference]

46. Protective machineries need to be adequateEffectiveRapidWith sufficiently dissuasive sanctionsAdequacy of protective machineries is a wide spread challengeChallenges can have a unique national characterDifficulty in enforcement due to distance, etc. Convention No. 98, Article 3 [Protective Machineries Appropriate to National Conditions]

47. Mechanisms in Philippine processes for voluntary recognition and certification for CB that help promote respect for this aspect of FoA and CB rightsDO 40-03, Rule VII (voluntary recognition, amending IRR, Book V, PLC)Convention No. 98, Article 3 [Protective Machineries Appropriate to National Conditions]

48. DO 40-03 Book VII, Voluntary RecognitionVoluntary Recognition requires three (3) concurrent conditions:Possible only in unorganized establishment.2. Only one union is asking for recognition; if there are two or more unions asking to be recognized the employer cannot recognize any of them; the rivalry must be resolved through an election;3. The union voluntarily recognized should be the majority union as indicated by the fact that members of the bargaining unit did not object to the projected recognitionConvention No. 98, Article 3 [Protective Machineries Appropriate to National Conditions]

49. Local ApplicationSingle Entry Approach (DOLE DO 107-10, Series of 2010)Provide speedy, impartial, inexpensive and accessible settlement services for unresolved issues/complaints arising from employer-employee relationsTo encourage the use of conciliation-mediation in the settlement of labor casesStrengthen cooperation and coordination between and among DOLE agencies involved in dispute settlement Convention No. 98, Article 3 [Protective Machineries Appropriate to National Conditions]

50. Nature: Collective bargaining leading to collective agreements Precedence over individual contractsScope: Terms and conditions of work and employment Subjects: Workers’ and employers’ organizations Convention No. 98, Article 4 [Collective Bargaining]

51. Collective Bargaining is Voluntary No duty to use compulsory meansNo overly detailed regulation The level of negotiation should not be imposedConvention No. 98, Article 4 [Collective Bargaining]

52. It is the responsibility of the State to promote Voluntary Collective BargainingState can provide facilitation services to promote voluntary collective bargaining Convention No. 98, Article 4 [Collective Bargaining]

53. The State has the obligation to adopt measures to facilitate voluntary collective bargaining:Negotiation in good faithConciliation, mediationArbitrationRules of procedureInformationRecognition of representative organizations for exclusive bargaining rights Convention No. 98, Article 4 [Collective Bargaining]

54. Interventions by the Authorities Contrary to the Voluntary Nature of Collective BargainingRestricting the scope of collective bargainingRefusal to approve collective agreements at the discretion of the authoritiesAnnulling or modifying the content of collective agreementsSuspension of collective agreements by decree Convention No. 98, Article 4 [Collective Bargaining]

55. Local Application1987 ConstitutionIndividual and collective rights of workersState guarantees the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with lawState shall promote preferential use of voluntary modes of settling disputes, including conciliationConvention No. 98, Article 4 [Collective Bargaining]

56. Local ApplicationLabor Code of the PhilippinesBook V [Labor Relations] RA 9481 [Strengthening Right to Self Organization]DOLE IssuancesDO 40-03, Rule VII [Voluntary Recognition]DO 107-10 [Single Entry Approach]DO 40-g-03 [Assumption of Jurisdiction]Convention No. 98, Article 4 [Collective Bargaining]

57. Local ApplicationDO 40-g-03 [Assumption of Jurisdiction] - both parties have requested the Secretary of Labor to assume jurisdiction over the dispute - after a conference called by the office of the Secretary of Labor on the propriety of its issuance, motu proprio, or upon the request or petition by either parties of the labor disputeIndustries Indispensable to National InterestBanking [General Banking Law]Based on Supreme Court DecisionsConvention No. 98, Article 4 [Collective Bargaining]

58. Four Situations where Compulsory Arbitration is AcceptableEssential services in the strict sense of the termIn disputes involving public servants engaged in the administration of the StateWhen, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authoritiesIn the event of acute crisisConvention No. 98, Article 4 [Collective Bargaining]

59. COVERAGE OF RIGHT TO COLLECTIVE BARGAININGALL PRIVATE AND PUBLIC WORKERS, EXCLUDING:Armed forces, Police Public servants engaged in the administration of the state Convention No. 98, Articles 5, 6Collective Bargaining & Public Servants

60. Convention No. 98, Articles 5, 6Collective Bargaining & Public Servants Local ApplicationExecutive Order No. 180 [01 June 1987] – Providing Guidelines for the Exercise of the Right to Organize of Government Employees, Creating a Public Sector labor-Management Council, and for Other Purposes Civil Service Commission Amended Rules and Regulations Governing the Exercise of the Right of Government Employees to Organize

61. Convention No. 98, Articles 5, 6Collective Bargaining & Public Servants Local ApplicationExecutive Order No. 180 Section 3. High-level employees whose functions are normally considered policy-making or managerial or whose duties are of a highly confidential nature shall not be eligible to join the organization of the rank-and-file government employees.Section 4. The Executive Order shall not apply to the members of the Armed Forces of the Philippines, including police officers, policemen, firemen, and jail guards

62. Convention No. 98, Articles 5, 6Collective Bargaining & Public Servants Local ApplicationCSC Amended Rules, Rule II, Section 2…. The following shall not be eligible to form, join or assist any employees’ organization for purposes of collective negotiations:1. high level, highly confidential and coterminous employees;2. members of the Armed Forces Philippines;3. members of the Philippine National Police;4. firemen;5. jailguards;6. Other personnel who, by nature of their functions, are authorized to carry firearms, except when there is express written approval from management.

63. RIGHT TO STRIKERecognition of the Principles of Freedom of Association and Collective Bargaining in cases of public servants does not necessarily imply the right to strikeRight to strike may be restricted or prohibited only for public servants exercising authority in the name of the state e.g., officials working in the administration of justice, the judiciary, customs officials, -- CFA and CEACR Convention No. 98, Articles 5, 6Collective Bargaining & Public Servants

64. RIGHT TO STRIKECompensatory guarantees should be provided to resolve industrial disputes in the case of employees in the public service who are legitimately deprived of the right to strike. Convention No. 98, Articles 5, 6Collective Bargaining & Public Servants

65. Convention No. 98, Articles 5, 6Collective Bargaining & Public Servants R.A. 2260, AN ACT TO AMEND AND REVISE THE LAWS RELATIVE TO PHILIPPINE CIVIL SERVICESection 28(c) Limitation on the Right to Strike. …….it is declared to be the policy of the Government that the employees therein shall not strike for the purpose of securing changes in their terms and conditions of employment. Such employees, however, may belong to any labor organization which does not impose the obligation to strike or to join strikes: Provided, That, this section shall apply only to employees employed in governmental functions and not to those employed in proprietary functions of the Government including, but not limited to, governmental corporations.

66. Right to Organise and Collective Bargaining Convention, 1949 (No. 98) SUMMARY Convention 98 complements Convention 87Under ILS, all workers have the right to collectively bargain, with exceptionsThe proper operation of workers’ and employers’ organization depends on their functioning independently from each other

67. Right to Organise and Collective Bargaining Convention, 1949 (No. 98) SUMMARY Protective machineries should be effective and rapid, with sufficiently dissuasive sanctions.The State is to promote voluntary collective bargaining taking into account the rights of parties to organize for the purpose of collective bargaining.ILO standards promote collective bargaining and help to ensure that good labor relations beneft to everyone.

68. END OF PRESENTATION