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Freedom of Association and Collective Bargaining
The three most central are freedom of association, the right to organize, and the effective recognition of the right to bargain collectively (hereafter 'right to collective bargaining').1 As discussed below, they may also include the right to strike (Swepston, 1998). In the human rights tradition of analysis, these are considered 'negative rights' in that, for the rights to be respected, the state initially need not do anything except allow workers to exercise them, without harassment or arrest (or worse). Here the issue for assessing compliance is to evaluate whether the state is permitting workers to execute these rights.
At the same time, however, protection of each of these components is also important. Thus, they have a positive dimension, requiring governments to take affirmative action to ensure that the right can be exercised.2 A government that affords negative rights to workers cannot be considered in compliance if private actors are allowed to violate workers' rights with impunity. The state must protect the rights by creating a system for complaints about violations, adjudication, remedies, and punishment. For example, a government must not only refrain from punishing workers for trying to organize unions but also effectively protect and enforce mechanisms that deter employers from acting against workers who try to organize unions.
An assessment structure must begin by examining the content of laws and the associated legal structure to protect freedom of association, move to the government's effort and effectiveness in implementing the laws, and then finish with the overall outcomes in permitting freedom of association. Finally, there is the broader question of whether the government takes positive steps to educate workers as to what their rights are and what remedies are available, permits others to do the same, and more generally encourages the spread of best practices.
Like freedom of association, collective bargaining can first be viewed as a negative right that workers can exercise on their own as long as the government does not interfere. But workers may have to take political action to achieve a legal framework that allows them to bargain collectively without excessive exceptions and restrictions and that punishes employers who do not obey the laws. In addition, bargaining takes two parties: employers cannot be allowed to refuse to bargain. In this way collective bargaining is a positive right that needs to be backed by government enforcement procedures.
The ILO Convention No. 98 (C. 98) calls for governments to 'promote . . . machinery for voluntary negotiation . . .'. The assessment of compliance must include whether a government permits collective bargaining in general and also whether a government channels collective bargaining into narrowly defined arenas. The assessment thus moves from an area in which there is widespread agreement into an area that is much more problematic. Relatively few countries prohibit collective bargaining altogether, but the degree to which there are restrictions on exercise of the right varies greatly. For example, Compa notes (2002, p. 5):
U.S. law is even stronger than the ILO norm, because its 'machinery,' the National Labor Relations Act (NLRA), mandates involuntary bargaining by an unwilling employer when a majority of the workers vote for union representation. At the same time, U.S. law is weaker than the ILO standard in that it fails to promote bargaining for workers who desire it, but who are not a majority in their workplace.
With regard to right to strike, neither ILO Convention No. 87 nor No. 98 mentions the right to strike, but a long tradition of ILO jurisprudence has established the right to strike as an essential component of collective bargaining (Swepston, 1998). As with collective bargaining, however, governments everywhere establish conditions that limit or constrain the right to strike. In concept, it is a negative right -- workers can freely exercise the right to strike if the state did not restrict their behavior. So an assessment of compliance must begin by examining whether a government bans strikes outright or uses military or police force to break strikes. The assessment of compliance must then move into consideration of how the state conditions the exercise of the right and deal with less settled questions about whether the treatment of actions such as 'protest strikes,' 'sympathy strikes,' or 'go slow' strikes are consistent with compliance.
There are other complexities in defining what constitutes freedom of association and right of collective bargaining. One such complexity is how to handle a 'closed shop' -- laws that allow collective agreements that make it compulsory for employers to recruit only workers who are members of trade unions and who must remain union members and pay union dues in order to keep their job (International Labour Organization, 1994). In conventional economic analysis of labor markets, the closed shop is considered an infringement of the freedom of workers who are not union members to be employed wherever they choose. Another difficult issue is how to deal with 'right-to-work' laws, in which the state guarantees the right of workers who do not pay union dues to obtain jobs receiving the benefits of the union's collective bargaining. Such laws that support 'free riding' arguably constitute a powerful indirect constraint on the ability of trade unions to organize workers effectively.
The ILO interpretation of Convention No. 87 does not foreclose either state right-to-work laws or closed shop agreements reached between employers and unions. In ILO jurisprudence, right-to-work laws are considered legal; so, too, are union security clauses that make union membership, payment of union dues, or recruitment of workers through trade union organizations compulsory. The Committee of Experts (International Labour Organization) has stated that the convention:
. . . leaves it to the practice and regulations of each state to decide whether it is appropriate to guarantee the right of workers not to join an occupational organization, or on the other hand, to authorize and, where necessary, to regulate use of union security clauses in practice.
What is prohibited within ILO interpretations is the imposition by statute of a system of trade union monopoly at the company level or by occupation -- for example, legislation making it compulsory to join a particular union or designating a specific trade union as the recipient of union dues (Tajgman and Curtis, 2000).
Similarly, there are challenges in reconciling the ability of firms to hire permanent replacement workers for strikers with the right to engage in collective bargaining backed by the threat of striking. The ILO Committee on Freedom of Association and the ILO Committee of Experts have concluded that the possibility of hiring permanent strike replacements poses a risk to freedom of association but is not necessarily a violation of Convention No. 87 and No. 98 unless it occurs on an 'extensive' basis.3
There is a question of what organizations can authentically represent workers. Some countries laws provide for elected 'workers' councils' or labor-management councils, distinct from unions. The German system of workers' councils puts worker representatives on company boards of directors in the largest firms and on the day-to-day management board of the coal, iron, and steel industries. While these workers' councils exchange information and hold consultations, they do not engage in collective bargaining. In the Philippines, the government has since 1994 promoted the spread of labor-management councils to overcome the severe conflict that had come to characterize labor-management relations over the previous decade (International Labour Organization, 1998). In Central America and some other regions, many factories have 'solidarity' associations of workers and managers that are set up as 'mutual benefit societies' with a financial contribution from the employer to make loans for housing, education, and other purposes, and to promote 'unity and cooperation' between workers and employers (International Labour Organization, 1994).
Workers' councils and labor-management councils can be consistent with freedom of association if workers are also free to join trade unions and to engage in collective bargaining. In some countries, they do provide an effective voice for workers, either through trade union representation elected to workers' council positions, or through workers acting on their own. Labor-management councils can be a potent tool -- as the ILO has found in the Philippines -- in improving worker treatment and promoting the spread of best practices in labor-management relations (International Labour Organization, 1998). There is then a question about how to evaluate the situation when workers choose to participate in worker-management arrangements other than trade unions. In the judgment of the ILO, employers often encourage -- and provide funding to -- these worker-management organizations to promote 'harmonious relations and obviat(e) the need for workers to form trade unions' (International Labour Organization, 1998). In order to attenuate the anti-union aspect of the solidarity associations, Costa Rica, with ILO assistance, passed laws prohibiting them from exercising the functions of a trade union, such as collective bargaining (International Confederation of Free Trade Unions, 2002; International Labour Organization, 2001).
Finally, there is the issue of the capture of unions by criminal elements. In some countries government officials or gangsters may organize unions as a protection racket, with employers recognizing the unions so that their store windows will not be smashed or other damage done to their businesses (Compa, 2002). In ILO jurisprudence interpreting Convention No. 87 and No. 98, there is no anticorruption standard of conduct for union leadership.
1. This chapter draws heavily from Compa (2002) and also draws on Polaski (2002a,2002b). The committee has also benefited from comments by Anthony Giles, research director, Commission for Labor Cooperation, North American Agreement on Labor Cooperation, and Ben Davis, American Center for International Labor Solidarity.
2. The distinction between 'positive' and 'negative' rights is standard in human rights discourse (see, e.g., Steiner and Alston, 1996; Donnelly, 1995).
3. The International Confederation of Free Trade Unions has observed (International Labour Organization, 1991) that in the United States, workers hired by employers as permanent replacements for strikers can vote in a decertification election to eliminate union recognition. In its global report on freedom of association, the ILO (2000a) draws attention to laws allowing employers to hire striker replacements in Burkina Faso, Cape Verde, Central African Republic, Djibouti, Madagascar, Niger, and the United States.
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