rights, they require that the state and its agents not interfere with workers who choose to exercise them. In other words, state authorities shouldn’t do anything that prohibits or even dissuades workers from forming or joining independent organizations of their choosing, from seeking to negotiate their terms and conditions of employment with their employers through those organizations, or from withdrawing their labor as a means of putting pressure on employers.
But, Giles said, even if a state refrains from intervening, this will not ensure that workers will genuinely enjoy these rights because employers and business associations may try to prevent workers from organizing, bargaining, or striking. In a free market society, he said, “It’s usually the case that employers will seek to do precisely this.” Therefore, the rights have to be positive, that is, the state must protect workers who wish to exercise their right to organize, bargain, and strike.
Giles said that this definition of freedom of association suggests two criteria for evaluating the quality of data and indicators used to assess compliance:
The four key components must be covered—the right to associate, to organize unions, to engage in collective bargaining, and to strike.
Both the negative and the positive faces of these rights must be addressed. This entails measuring whether the state is refraining from interfering with the exercise of those rights and providing positive protections to workers who choose to exercise those rights.
Giles warned that assessing freedom of association rights is “enormously complex” because it is difficult or impossible to design absolute measures of any one of the four components. As Compa stressed in his paper, “Ultimately a judgment call has to be made.” For example, although many governments allow workers to strike, most of them also limit that right by such measures as prohibiting certain groups of workers from striking and limiting strikes to certain time periods. Consequently, measuring compliance requires that a judgment be made about which kinds of limits are reasonable and which constitute an effective denial of the right to strike. Moreover, Giles asked, how do we compare or weigh these different limits? Because subjectivity is unavoidable, Giles said, “it is crucial to ensure that judgment is exercised in a consistent and transparent way.”
Giles identified a second reason for the complexity of assessment: Legal texts, regulations, and official statements are not always implemented,