Question

"In a very real sense, freedom of association is the foundation of the collective bargaining process. There must also be legal protection of the freedom of person to join a collective bargaining entity - this is what freedom of association is all about" Do you agree with the above quotation? Motivate your answer with reference to the protection of freedom of association of employees.

Answer 1

"In a very real sense, freedom of association is the foundation of the collective bargaining process. There must also be legal protection of the freedom of person to join a collective bargaining entity - this is what freedom of association is all about" - I completely agree with the above quotation.

Freedom of association is the right of workers and employers to freely form and join Workers Organisations such as trade unions, worker associations and worker councils or committees for the promotion and defence of occupational interests.

Collective bargaining is a process through which employers (or their organisations) and workers’ associations (or in their absence, freely designated workers’ representatives) negotiate terms and conditions of work. Both are fundamental rights and they are linked. Collective bargaining cannot work without freedom of association because workers’ views cannot be properly represented. Workers must be free to choose whether and how they are to be represented and employers must not interfere in this process.

Benefits of freedom of association

Freedom of association is good for people, good for society, good for business and good for morale.

1. Good for people: Workers who combine their interests by approaching their employer together as a group can help to balance the power inherent in any employment relationship. This encourages people to speak their minds without fear of reprisal. The relative security of numbers allows individuals to express themselves more openly and adds to the value of information that is exchanged.

2. Good for society: Rights to freedom of association and collective bargaining are called ‘enabling rights’, because they enable citizens to organise in order to realise other human rights and they underpin the democratic process. Not only do these rights directly assist with the improvement of living and working conditions, they contribute more broadly to economic and social development. In developing countries, freedom of association and collective bargaining can help establish a stable foundation for growth.

3. Good for business: Extensive research stretching back to the 1930s has demonstrated that, at the individual company level, employee engagement and the feeling of being valued contribute to increased quality, productivity and performance. Good industrial relations are generally characterised by:

• Trust
• Mutual confidence between employees and their managers, and managers and their employees
• Good interpersonal relations
• Realistic working agreements and arrangements
• A willingness to work together

4. Good for morale: A dialogue-based workplace empowers and engages its workers, enhancing morale and leading to improvements in performance. By contrast, a subdued and disempowered workforce will tend towards low engagement and underperformance.

KEY REGULATORS

International standards

Freedom of association is enshrined in Article 20 of the Universal Declaration of Human Rights (1948), which states that everyone has the right to freedom of peaceful assembly and negotiation, and that no one may be compelled to belong to an association. Article 23.4 specifically provides for the right to join a trade union.

These rights have been most defined and elaborated in international labour law. The International Labour Organisation (ILO), a tripartite United Nations agency, has adopted two major conventions on freedom of association and collective bargaining:

• Convention 87 on Freedom of Association and Protection of the Right to Organise (1948)
• Convention 98 on the Right to Organisation and Collective Bargaining (1949)
• Conventions 87 and 98 are included in a small group of ‘core conventions’ by the ILO, under the 1998 Declaration of Fundamental Principles and Rights at Work. All ILO member countries are bound to promote and respect the core conventions, regardless of whether they have ratified them.

National law

Most national labour and employment laws have very specific provisions on freedom of association, collective bargaining and the structures which support these. It is essential to be aware of all relevant legislation in the jurisdictions of operation.

PROTECTION OF FREEDOM OF ASSOCIATION OF EMPLOYEES

Respect right of Employee to associate freely:

Members shall respect the right of Employees to associate freely in trade unions or workers organisations of their choice, without interference or negative consequences to them from the Member.

• Confirm that awareness of and responsibility for compliance with freedom of association and access to collective bargaining requirements is part of a senior management function, such as human resources.
• Procedures for hiring, termination and performance review must not discriminate against union members, or those seeking to form a union in accordance with Applicable Law (see also guidance on Non-Discrimination). Grievance mechanisms should be established which allow workers to raise any concerns.
• Employees have the freedom to form or join a union or worker association of their own choosing without interference from employers.
• The business should not promote any particular union or workers’ association, nor should it coerce workers to join or leave one. Election of union representatives should be without obstruction or intervention from the employer.

Respect right of Employee to collective bargaining:

Members shall respect the right of Employees to collective bargaining, and shall adhere to collective bargaining agreements, where such agreements exist. Members shall, subject to Applicable Law, participate in any collective bargaining processes in good faith.

• Where a workers organisation exists, the business or its representative should enter into negotiation for the purposes of reaching a collective bargaining agreement. Once a collective bargaining agreement is reached – whether at a company, sector or national level – it should be implemented within the business.
• Consider how the business can negotiate and bargain in good faith, which involves a willingness to discuss, compromise and reach a mutually agreed solution.
• Applicable Law varies significantly across different jurisdictions - make sure the business understands its legal obligations.

The right of workers and employers to form and join organisations of their own choosing, without prior authorisation: Workers have the right to form or join any workplace organisation they choose. Neither the employer nor the government should interfere in this right in any way. Placing any requirement in a written or verbal contract that restricts this right is contrary to the principle of freedom of association.

The free functioning of trade unions: Neither management nor government should interfere in the internal affairs of a trade union. ILO Convention 98 makes it clear that such interference includes employers’ financial contributions to a union. This is not the same as providing agreed facilities, such as an office or telephone. It is also unacceptable for a management representative to be present during a union meeting, or for the management to approve the minutes of a union meeting before they are released to members.

Non-interference in election or duties of union representatives: ILO Convention 135 deals with workers’ representatives. Management should not try to place restrictions on whom the union members elect as their officers in terms of length of workplace service or educational level. This is nothing to do with the employer. Union members should be free to choose their representatives, who should then be free to carry out their duties without interference. This does not mean that representatives can do whatever they want or give up working. They should function in accordance with national law and/or under a collective agreement on such matters as the facilities they can use and the amount of time they can take off work for union duties (as is provided for in UK law, for example).

Non-interference by non-union bodies: There are examples of legally-based non-union worker representation, such as works committees in India and solidarismo organisations in Central America (Box 3.4). Where these bodies exist alongside independent unions, the ILO is clear that they should not undermine the position of the unions or their representatives. Instead, companies should encourage cooperation between the non-union body and the trade union.